[00:00:11] Speaker 01:
Good morning.

[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
May it please the court, counsel, I would like to reserve three minutes of my time for rebuttal.

[00:00:18] Speaker 01:
I'll try to remember when we get to that point.

[00:00:20] Speaker 01:
My name is Cassandra Stamm, and it's my pleasure to be here today arguing on behalf of Mr. Lindsay Kinney, who as we sit in this room sits in federal prison based on words that he posted on the internet.

[00:00:33] Speaker 01:
Of course, the First Amendment dictates that

[00:00:37] Speaker 01:
And a person can be imprisoned for their words only under very limited circumstances.

[00:00:42] Speaker 01:
And for more than 50 years at this point, we have had the true threats doctrine that applies to situations like Mr. Kinney, where the court has said very, very clearly that not every threat is worthy of punishment under the US Constitution.

[00:00:59] Speaker 02:
So I would agree with you.

[00:01:01] Speaker 02:
It would be better.

[00:01:03] Speaker 02:
It sounds like it would be better.

[00:01:07] Speaker 02:
My understanding is that he did not testify, but his defense somehow, I think, counsel argued that he was just joking.

[00:01:22] Speaker 02:
He didn't really mean it.

[00:01:23] Speaker 02:
He wasn't going to hurt anyone, is that

[00:01:26] Speaker 02:
Well, there are two different.

[00:01:28] Speaker 02:
You have all the videos that are played, so it's pretty hard, and I think we all watch the videos, and some of them are pretty bad.

[00:01:38] Speaker 02:
So the question is, I'm trying to figure out, the statute itself doesn't say, it says threat, right?

[00:01:49] Speaker 02:
And I know there has been, the model jury instruction was given, which goes to,

[00:01:56] Speaker 02:
what intent your client had to have and what intent had needed to be present for the alleged victims of the threat.

[00:02:06] Speaker 02:
So what's your best case that says, and I think the model instruction was used, so what's the best case to say you also have to give the definition of a true threat?

[00:02:19] Speaker 02:
Well, it's true that threat is not the word in the statute, right?

[00:02:23] Speaker 01:
True threat is not the word in the statute, but true threat defined as a serious expression conveying a possibility that the speaker means to commit an act of unlawful violence.

[00:02:34] Speaker 01:
That has been the law since Watts was.

[00:02:36] Speaker 04:
Well, so you're not arguing the evidence was insufficient to support the verdict.

[00:02:42] Speaker 01:
I'm arguing that the jury instructed.

[00:02:45] Speaker 04:
Right, right.

[00:02:46] Speaker 04:
So there is sufficient evidence in this record, so far as we can tell, and you're not contesting that, to support the jury's, to support the notion that there was a true threat.

[00:02:58] Speaker 04:
Your argument is that the judge didn't sufficiently instruct the jury on what a true threat is, right?

[00:03:04] Speaker 01:
Correct.

[00:03:04] Speaker 04:
So we're not talking here about whether somebody is being punished

[00:03:09] Speaker 04:
for doing things that the Constitution protects.

[00:03:13] Speaker 04:
We're talking here about whether the jury was given the appropriate instructions to find that, correct?

[00:03:18] Speaker 01:
Correct.

[00:03:18] Speaker 01:
Whether the jury was allowed to convict this man based on.

[00:03:22] Speaker 04:
Right.

[00:03:23] Speaker 04:
But so to put it differently, given your briefing and the absence of a sufficiency of the evidence argument, I have to assume that if the jury was properly instructed

[00:03:34] Speaker 04:
then there's no First Amendment problem.

[00:03:37] Speaker 04:
So the only issue is whether it was properly instructed, correct?

[00:03:41] Speaker 04:
Correct.

[00:03:41] Speaker 01:
I mean, there are other issues raised.

[00:03:43] Speaker 01:
You're right.

[00:03:43] Speaker 04:
I mean, on that.

[00:03:44] Speaker 04:
So again, let's just, the true threat seems to be defined by the case law as having two components, a subjective component and an objective component.

[00:03:57] Speaker 04:
And the judge gave what I think is the standard instruction about those two components.

[00:04:02] Speaker 04:
So what case do you have, other than the general notion that true threats are not protected, that says a more specific instruction about what a true threat is is required?

[00:04:14] Speaker 01:
Well, Alonus is a case like that.

[00:04:16] Speaker 01:
Alonus is a case where the defendant argued that his conviction could not stand because the court didn't give their instruction, which would have defined a threat as a serious expression of an intent to inflict bodily injury or to take someone's life.

[00:04:32] Speaker 04:
But in that case, the court didn't give the instruction given in this case, correct?

[00:04:36] Speaker 01:
The court didn't give any instruction.

[00:04:38] Speaker 01:
Right.

[00:04:39] Speaker 01:
Yes, at all.

[00:04:39] Speaker 04:
At all.

[00:04:40] Speaker 04:
So, so, so aloneness just stands for the proposition that you've got to give some instruction about subjective intent.

[00:04:50] Speaker 04:
What case stands for the proposition that the instruction about subjective intent has to be the instruction that you think you're arguing in this case should have been given?

[00:04:58] Speaker 01:
Well, I don't think there is a case that says that my instruction in particular must be given.

[00:05:03] Speaker 01:
I mean, you see the examples that we've cited in the Lease case and in the Kaiser case, which were slightly different formulations.

[00:05:11] Speaker 01:
The proposition that we're arguing is that there must be some instruction.

[00:05:15] Speaker 04:
I think I agree with you.

[00:05:18] Speaker 04:
My question is, why isn't the subjective instruction given in this case sufficient?

[00:05:25] Speaker 01:
because the subjective portion of the instruction, this is in the record at page 57, is simply stated, the defendant intended to communicate a threat.

[00:05:37] Speaker 01:
There is nothing in that instruction that tells the jury, look, not any threat qualifies.

[00:05:44] Speaker 01:
Some threats qualify, some threats don't.

[00:05:47] Speaker 04:
And over this long- But the only threats that qualify are ones that a reasonable person would objectively believe, the second part of the instruction, were meant to communicate a threat.

[00:06:00] Speaker 01:
A threat.

[00:06:00] Speaker 01:
not a true threat.

[00:06:02] Speaker 01:
So that's the distinction.

[00:06:03] Speaker 02:
That's the crux of the issue.

[00:06:13] Speaker 02:
and they look at what the alleged victim said and said, well, a reasonable person wouldn't have thought that he was serious about anything.

[00:06:27] Speaker 02:
I mean, because he does talk about cutting off heads and a bunch of, yeah, I mean, he does talk about that.

[00:06:35] Speaker 02:
But if in the context, if the jury thought that he was joking, why wouldn't that

[00:06:42] Speaker 02:
instruction and title him to an acquittal.

[00:06:46] Speaker 01:
Because the jury could have believed, look, when I look at this language that I see in this exhibit that the government has admitted, I see something that someone could view as being threatening.

[00:06:59] Speaker 01:
I also could see at the same time that it was just political hyperbole, that it was issued in a context where it didn't constitute a serious expression.

[00:07:09] Speaker 00:
Well, but that's for them to decide whether the reasonable observer would

[00:07:12] Speaker 00:
take it as a threat or not.

[00:07:14] Speaker 00:
I mean, I guess I'm still having trouble trying to figure out what we're supposed to rely upon for the notion that some other instruction was required, because Alonus doesn't require that.

[00:07:25] Speaker 00:
So is that it?

[00:07:27] Speaker 00:
Is there any other case?

[00:07:29] Speaker 01:
I think all of the First Amendment cases, if you look at them and you look at their facts and what they're arguing, support our position.

[00:07:36] Speaker 01:
Obviously, that's an overbroad statement, not all of the First Amendment cases.

[00:07:41] Speaker 01:
Some of them come out the wrong way.

[00:07:43] Speaker 01:
If we go to a very well-known example, Virginia v. Black.

[00:07:47] Speaker 01:
Virginia v. Black is a cross-burning case.

[00:07:50] Speaker 01:
Everyone recognizes at the time of the case that cross-burning is a historic tool of intimidation and threat of impending violence.

[00:07:59] Speaker 01:
That's in the opinion.

[00:08:00] Speaker 02:
There's no question about that.

[00:08:01] Speaker 02:
I teach the First Amendment, so I teach that case.

[00:08:03] Speaker 02:
So I guess, but the question would be, I could anticipate a situation, let's say the jury's asking a question out, if the defendant was joking about cutting off someone's head.

[00:08:20] Speaker 02:
Is he guilty?

[00:08:23] Speaker 02:
I mean, I tried a lot of cases, and I've gotten a lot of jury questions as when I was a judge, a trial judge as well, that then I might respond with Virginia versus black evidence.

[00:08:36] Speaker 02:
But I don't know that that makes it an element of the crime sometimes.

[00:08:41] Speaker 02:
Because essentially, if it's an element of the crime that your true threat has to be given,

[00:08:48] Speaker 02:
then I think you're on pretty solid ground that when you leave out an element of a crime, it's hard to say that that is harmless error.

[00:08:55] Speaker 02:
But I can't find anything that says saying those magic words is an element of the crime.

[00:09:02] Speaker 01:
Well, to allow conviction on any other basis would be inconsistent with the First Amendment.

[00:09:07] Speaker 01:
And it's not a situation where you have to establish, well, it was a joke.

[00:09:11] Speaker 01:
I don't think anyone would argue that the people who were acting in the Virginia versus Black case were joking in some way.

[00:09:17] Speaker 01:
The argument was that it was some kind of political hyperbole, some kind of political speech, and even though people, including the witnesses who testified in the portion of that case that was reversed, who said, yes, I took it as very threatening and very scary.

[00:09:33] Speaker 01:
I could see it from my house is what the witness said.

[00:09:35] Speaker 01:
in that case.

[00:09:37] Speaker 01:
The court said, no, that's still not enough.

[00:09:40] Speaker 00:
Why isn't that captured by the subjective element that the defendant intended to communicate a threat?

[00:09:45] Speaker 00:
I guess what additional work is your instruction doing?

[00:09:48] Speaker 01:
What additional work that my instruction would have done is to specify that when you say in this instruction, a threat, what you mean is a situation where the person transmitting the communication meant to communicate a serious expression

[00:10:05] Speaker 01:
of intent to commit an act of unlawful violence to a particular group or group of individuals.

[00:10:10] Speaker 01:
That distinguishes a threat, every threat that could be said from what's not punishable under the First Amendment, which is statements that, when taken in context, don't convey that possibility.

[00:10:25] Speaker 01:
It's the difference between a threat and a true threat, as the United States Supreme Court has repeatedly used that argument.

[00:10:32] Speaker 01:
The law has changed with respect to, you know, the level of subjective intent required.

[00:10:39] Speaker 01:
Is recklessness enough?

[00:10:40] Speaker 01:
Is negligence enough?

[00:10:42] Speaker 01:
But that underlying fundamental requirement that there be a true threat as distinguished from a threat has never changed.

[00:10:49] Speaker 01:
The court has been quite clear that it is an issue for the jury to decide.

[00:10:54] Speaker 01:
And in my mind, at least, that solves the argument of, you know, what is the case that says there has to be an instruction?

[00:11:01] Speaker 01:
There has to be an instruction, because if there isn't an instruction, the jury will never know, and the jury won't understand that when Mr. Kinney is arguing at trial, look, the context is important, first of all.

[00:11:14] Speaker 01:
This is a politically hyperbolic context.

[00:11:18] Speaker 01:
Mr. Kinney responding in his post—this is with respect to Count One—to another post of someone else saying that he's declaring war and he's going to engage with lethal force in combat to the death.

[00:11:32] Speaker 01:
That's the politically hyperbolic context that this is taking place in.

[00:11:36] Speaker 02:
And no one— I have to say, when I was listening to it in chambers, a lot of people kept listening.

[00:11:40] Speaker 02:
They kept walking by wondering what I was listening to.

[00:11:43] Speaker 02:
He's quite fluent in the F word.

[00:11:47] Speaker 02:
Let's just put it that way.

[00:11:48] Speaker 01:
He is.

[00:11:49] Speaker 01:
And as you know from teaching your class, the First Amendment protects that, protects it mightily and heartily.

[00:11:57] Speaker 01:
I'll save what's left of my time, three and a half minutes.

[00:12:00] Speaker 01:
Thank you.

[00:12:07] Speaker 03:
Good morning.

[00:12:08] Speaker 02:
Good morning.

[00:12:09] Speaker 03:
Craig Nolan for the United States.

[00:12:14] Speaker 03:
May please the court.

[00:12:16] Speaker 03:
Let me start where the discussion left off.

[00:12:20] Speaker 03:
and that is whether there needs to be an additional instruction here, an additional element.

[00:12:26] Speaker 03:
I want to point out that actually the court used an extra element here.

[00:12:32] Speaker 03:
So we pointed out to the court, that is, the government pointed out to the court that the 875C model instruction had been superseded and that the drafters of the model instruction for 876C mailing as opposed to

[00:12:48] Speaker 03:
a wire or some other sort of interstate transmission, that that instruction had been revised in light of case law that, from this court, that made it clear, at least at that time, that simply the subjective intent, that simply knowing that someone might view it as a threat was insufficient.

[00:13:11] Speaker 03:
That was based on case law, excuse me, of this court at the time.

[00:13:15] Speaker 03:
We added, we surveyed this court's case law, looked at some district courts as well, and we asked the court to include the objective element, and it did.

[00:13:27] Speaker 03:
And we asked to do that because that is what makes this a true threat.

[00:13:34] Speaker 03:
And the defense actually argued against it.

[00:13:37] Speaker 03:
and instead argued for the Virginia v. Black definition to be grafted on to the instructions.

[00:13:50] Speaker 04:
I'm trying to figure out, again, the judge gives the instruction the judge gives.

[00:13:56] Speaker 04:
So let's forget what instruction the judge might have given.

[00:14:00] Speaker 04:
The instruction the judge gives says,

[00:14:03] Speaker 04:
The defendant must intend to communicate a threat, and a reasonable observer would view the communication as a threat.

[00:14:10] Speaker 04:
Those are the two critical elements in front of us today.

[00:14:18] Speaker 04:
Is that enough to cover the true threat doctrine?

[00:14:22] Speaker 03:
That is enough.

[00:14:23] Speaker 04:
Of course, with the... No, it doesn't include the sort of language your friend has, which is

[00:14:30] Speaker 04:
means to communicate a serious expression of an intent to commit a threat.

[00:14:35] Speaker 04:
But that strikes me the only difference between the two, is it not?

[00:14:39] Speaker 04:
In other words, this one statement means to communicate a serious expression of an intent to commit an act of unlawful violence.

[00:14:47] Speaker 04:
So is the unlawful violence missing?

[00:14:50] Speaker 04:
What is the

[00:14:51] Speaker 03:
Well, unlawful violence, first of all, isn't in the statute.

[00:14:55] Speaker 03:
But threat to injure is in the statute.

[00:14:58] Speaker 03:
That was covered in the first element that the district court gave, knowing transmission of a threat to injure.

[00:15:03] Speaker 03:
Injure the victim.

[00:15:03] Speaker 03:
All the threats.

[00:15:04] Speaker 03:
First Amendment doesn't require violence.

[00:15:08] Speaker 04:
No.

[00:15:09] Speaker 04:
I can threaten you by, I guess, saying I'll push you off the sidewalk.

[00:15:15] Speaker 03:
Would that be a true threat?

[00:15:17] Speaker 03:
That would be a true threat under this statute.

[00:15:20] Speaker 03:
The statute here doesn't talk about the gravity of the injury, right?

[00:15:25] Speaker 03:
So as long as the objective, reasonable viewer would read this statement as a threat to injure me in some way.

[00:15:32] Speaker 04:
Well, this is not asking the question.

[00:15:33] Speaker 04:
I think our case law says that in order for there to be error for you to claim that an instruction that you've submitted wasn't given, that instruction has to be accurate.

[00:15:47] Speaker 04:
In other words, it's one thing to object to the instruction that is given and say that's not an accurate statement of the law.

[00:15:54] Speaker 04:
But if you submit an instruction that's not an accurate statement of the law, the judge is not required to give it.

[00:16:00] Speaker 04:
And so I'm trying to figure out where in the statute the requirement of serious violence comes from.

[00:16:07] Speaker 04:
And if there isn't one, then this was an inaccurate instruction.

[00:16:11] Speaker 03:
There's no requirement in the statute that the violence that's threatened be serious.

[00:16:18] Speaker 03:
And with regard to a proposed statement, a proposed instruction, under the law, it can be accurate.

[00:16:28] Speaker 04:
Does the statute require physical injury?

[00:16:31] Speaker 03:
It does.

[00:16:32] Speaker 03:
Injury to person or property.

[00:16:34] Speaker 04:
Yes, or property.

[00:16:36] Speaker 03:
Or property.

[00:16:36] Speaker 03:
But a tangible injury.

[00:16:38] Speaker 04:
If I say, if you don't do X, I'm going to steal your car.

[00:16:46] Speaker 04:
Does that qualify under the statute?

[00:16:49] Speaker 03:
Well, putting aside.

[00:16:50] Speaker 04:
Threatening to steal a car.

[00:16:51] Speaker 04:
Does that qualify under the statute?

[00:16:53] Speaker 04:
Assuming that it meets the objective and subjective standards.

[00:16:57] Speaker 03:
Well, that, of course, is not the case here.

[00:16:59] Speaker 04:
Of course not.

[00:17:00] Speaker 04:
This is a hypothetical.

[00:17:01] Speaker 03:
Right.

[00:17:01] Speaker 03:
And that's not really injuring the property.

[00:17:03] Speaker 03:
It's a theft of property.

[00:17:05] Speaker 04:
So I'll blow up your car.

[00:17:08] Speaker 03:
Yes.

[00:17:08] Speaker 04:
I intend to blow up your car when you're not in it.

[00:17:11] Speaker 04:
Yes.

[00:17:11] Speaker 04:
Does that violate the statute?

[00:17:12] Speaker 04:
Yes.

[00:17:14] Speaker 03:
But the focus here by the defense is the court's rejecting the definition.

[00:17:23] Speaker 03:
But a threat is by its nature.

[00:17:26] Speaker 03:
a serious expression of intent to commit something, to do something here, to injure.

[00:17:33] Speaker 03:
It's like a light switch.

[00:17:34] Speaker 03:
It's either a threat or it's not a threat.

[00:17:37] Speaker 03:
They're not gradations of it being a threat or not.

[00:17:42] Speaker 03:
They're gradations of whether there's an injury or whether the injury is gonna be very severe, I'll kill you, I'll punch your head in, I will hang you, those types of things, or minor, I'm going to

[00:17:56] Speaker 03:
I'm gonna come to your house and pinch your rear end.

[00:18:01] Speaker 03:
That's a minor injury.

[00:18:03] Speaker 03:
The statute in theory covers that.

[00:18:05] Speaker 03:
A reasonable observer might determine, well, that's not really injury, so we're not going to convict him of that.

[00:18:17] Speaker 03:
I think if you also look at the transcript and you go from the openings to the closings,

[00:18:24] Speaker 03:
Defense argued that the speech was a joke.

[00:18:28] Speaker 03:
We argued that it was serious.

[00:18:31] Speaker 03:
Witnesses testified that they took it seriously.

[00:18:35] Speaker 03:
But the whole argument from the defense was it was a joke.

[00:18:40] Speaker 03:
And the argument from the government was this was serious.

[00:18:44] Speaker 03:
And so it's not as if the jury here convicted because they thought it was a joke.

[00:18:52] Speaker 02:
Okay, the element that you would have to convict him of on that was that he intended to threaten them.

[00:18:59] Speaker 02:
That he had an intent to threat as opposed to an intent to joke, right?

[00:19:04] Speaker 03:
Right.

[00:19:05] Speaker 03:
We argued that it was a threat.

[00:19:10] Speaker 03:
And our view of a threat, the threat here is defined by the elements.

[00:19:16] Speaker 03:
The elements are the subjective intent by him,

[00:19:20] Speaker 03:
and the object of intent.

[00:19:21] Speaker 03:
That is what everyone in this room, assuming we're all reasonable, would observe this to be, would interpret this to be.

[00:19:30] Speaker 03:
They had to interpret it as a threat.

[00:19:33] Speaker 03:
Not whether it was a threat to cause a grave injury or minor injury, but whether it was a threat.

[00:19:41] Speaker 04:
They had to believe under this instruction that he intended it to be a threat.

[00:19:46] Speaker 03:
Yes.

[00:19:47] Speaker 03:
Right.

[00:19:48] Speaker 03:
They did.

[00:19:49] Speaker 03:
They did.

[00:19:51] Speaker 04:
Yes.

[00:19:51] Speaker 04:
And then it wouldn't be enough if, as an objective observer, I viewed it as a threat.

[00:19:59] Speaker 04:
And that would not violate the statute?

[00:20:01] Speaker 03:
Under the statute, as interpreted by the case law, which of course... Under these instructions?

[00:20:06] Speaker 03:
Under these instructions, yes.

[00:20:08] Speaker 04:
So... Your argument is that the case law only has an objective provision?

[00:20:13] Speaker 03:
No, no, no, no.

[00:20:14] Speaker 04:
No, the case law very much has a subjective... Yeah, so a jury has to find, no matter how scary the threat is to me as an objective observer, that he meant it as one.

[00:20:24] Speaker 03:
That's right.

[00:20:25] Speaker 03:
And you can see the evidence that supports the jury's conclusion.

[00:20:29] Speaker 03:
His tone, his directing it at the wife of someone who offended an associate of his.

[00:20:38] Speaker 02:
If you're an eggshell person and not a reasonable person, the jury would acquit as well, correct?

[00:20:47] Speaker 02:
If you're not, if you just

[00:20:51] Speaker 02:
someone looks at you sideways and go well I felt like really threatened or a jury would be in a position to say well no you know maybe you did but no reasonable person would take it that way.

[00:21:03] Speaker 03:
Agreed, Your Honor.

[00:21:05] Speaker 03:
It's not the eggshell plaintiff.

[00:21:09] Speaker 03:
Here, if the victim is an eggshell victim, that doesn't matter.

[00:21:15] Speaker 03:
And of course, the jury listened to all but one of the victims and listened to the two people charged with protecting the victims.

[00:21:22] Speaker 03:
But you're right.

[00:21:23] Speaker 03:
If it's an eggshell victim, then the jury can say, well, you know, those victims were overly sensitive.

[00:21:31] Speaker 03:
We're reasonable.

[00:21:32] Speaker 03:
We're a jury.

[00:21:34] Speaker 03:
We don't view this as a threat.

[00:21:36] Speaker 04:
In this case, had the defendant not mentioned specific names, because most of the rant in both of these is about groups of people, Zionists, Illuminati, priests, et cetera.

[00:21:51] Speaker 04:
Right.

[00:21:52] Speaker 04:
At some point in both of these statements, he does mention somebody specific.

[00:21:56] Speaker 04:
He mentions.

[00:21:57] Speaker 04:
Yes.

[00:21:58] Speaker 04:
Let's assume he hadn't.

[00:22:00] Speaker 04:
would this be protected speech?

[00:22:03] Speaker 03:
So with regard to the first threat, right, so if the, there's a court's hypothetical assume, there aren't the photos of the three individuals, or names, and there isn't, remember he shouted in the video.

[00:22:16] Speaker 04:
He just said the people managing this harbor are doing terrible things, I'm not naming them, I'm not showing pictures of them, and I'm

[00:22:25] Speaker 04:
I, you know, he says everything else that he said.

[00:22:28] Speaker 04:
Right.

[00:22:28] Speaker 04:
And the second one that he said, and our public officials are doing terrible things, and he'd said everything else that he said but never mentioned the specific officials, would this be a, would, would the Constitution protect what he did?

[00:22:43] Speaker 03:
So with regard to the first, there's only one person in the Y&I, the harbor master, right?

[00:22:49] Speaker 03:
You think he's easily identified.

[00:22:50] Speaker 03:
So he's easily identified.

[00:22:52] Speaker 04:
With regard to the second threat, if he didn't mention Green and- Yeah, because the second one rambles and rambles, and then these public officials come in at the very end.

[00:23:03] Speaker 04:
And as to one of them, Green,

[00:23:05] Speaker 04:
there's relatively specific threats.

[00:23:08] Speaker 04:
As to the other, the threats seem to be everything I already said or something like that.

[00:23:14] Speaker 03:
He certainly threatened then-Lieutenant Governor and his detail, which the testimony included Samoan.

[00:23:23] Speaker 04:
How much of the specificity, is there enough specificity with respect to the other defendant, other victim of the second threat?

[00:23:33] Speaker 03:
meeting the mayor yes yes well i mean his name is his name is mentioned it's uh... he talks about uh... uh... wanting to send them back to where they're from uh... neither is a native uh... in a resident but yeah but i see maybe it doesn't make a difference but when he talks about green he really does talk about acts of violence against green oh he does as to the mayor i'm trying to figure out whether or not there's a

[00:23:59] Speaker 04:
a threat communicated to the mayor or he's just at the end of my grievances and I want to say he's another one of those guys too.

[00:24:07] Speaker 04:
That's what it really seems like to me.

[00:24:09] Speaker 03:
Well, of course the jury only had to find that one victim was threatened, right?

[00:24:13] Speaker 04:
That was my next question.

[00:24:14] Speaker 03:
Yes, only one victim had to be threatened.

[00:24:17] Speaker 04:
So we don't have to find that it was that the allegations in this case

[00:24:24] Speaker 04:
constitute a true threat against the mayor in order for him to be convicted.

[00:24:29] Speaker 03:
That's correct.

[00:24:30] Speaker 03:
It could be Green.

[00:24:31] Speaker 03:
It could be the mayor.

[00:24:32] Speaker 03:
It could be some members.

[00:24:35] Speaker 03:
Well, there's two counts.

[00:24:36] Speaker 03:
Yeah, there's two counts, right.

[00:24:37] Speaker 03:
Right.

[00:24:37] Speaker 03:
Oh, there's some members of the... Some members of the... Of the detail.

[00:24:41] Speaker 04:
Of the detail, some of whom were of Samoan ancestry, which he specifically... Yeah, the reason I ask is that as to the mayor, the evidence of an actual threat against the mayor seems to be...

[00:24:53] Speaker 04:
a lot weaker than the evidence of an actual threat against Green.

[00:24:56] Speaker 03:
Oh, I would agree with you that.

[00:24:58] Speaker 03:
Yeah.

[00:24:58] Speaker 03:
I would agree that the defendant spoke much more about Green and his security detail.

[00:25:07] Speaker 03:
I do want to answer the question you asked a moment ago regarding whether they have to be identifiable.

[00:25:12] Speaker 03:
And I think that the case law does say it has to be an identifiable victim or group of victims.

[00:25:20] Speaker 03:
And hence,

[00:25:22] Speaker 03:
And the jury found, obviously, that the security detail was an identifiable group of victims.

[00:25:31] Speaker 03:
And we had a security detail leader come in and talk about that.

[00:25:35] Speaker 03:
You've seen the testimony and the record.

[00:25:37] Speaker 03:
So they're identifiable.

[00:25:38] Speaker 03:
And obviously, Mr. Kinney was watching because he talks about

[00:25:43] Speaker 03:
Green going to Samoa to get his bodyguards.

[00:25:46] Speaker 03:
And as the testimony came in, there were bodyguards of Samoan testimony, of Samoan ancestry.

[00:25:55] Speaker 04:
This is not brief, so that's why I'm asking it.

[00:25:58] Speaker 04:
Was there a competency question raised in this case?

[00:26:02] Speaker 03:
There was not a competency.

[00:26:05] Speaker 04:
And was there a question of whether or not, insanity is not a defense anymore, but by reason of,

[00:26:12] Speaker 03:
No, I don't think there's any credible suggestion here that Mr. Kinney was insane or not calm.

[00:26:22] Speaker 04:
Back the ability to form the requisite mens rea.

[00:26:24] Speaker 03:
That's right.

[00:26:25] Speaker 03:
That didn't come in.

[00:26:26] Speaker 03:
Had it come in, then that would have been litigated, but it didn't.

[00:26:37] Speaker 03:
Let me...

[00:26:39] Speaker 02:
Almost out of town.

[00:26:40] Speaker 03:
Time.

[00:26:41] Speaker 02:
I know.

[00:26:41] Speaker 02:
So let me really.

[00:26:42] Speaker 02:
Not out of town.

[00:26:43] Speaker 02:
Time.

[00:26:45] Speaker 03:
Let me just move real quickly to the firearm evidence.

[00:26:48] Speaker 03:
I just want you to look at this wall.

[00:26:50] Speaker 03:
And we have a bunch of light fixtures here.

[00:26:53] Speaker 03:
And if we look at the center one, and it's not a perfect analogy.

[00:26:56] Speaker 03:
So the center one is the first post, charged in the first count.

[00:27:01] Speaker 03:
And you're looking not at just that one, but you're looking at all of them.

[00:27:05] Speaker 03:
And that's the context.

[00:27:07] Speaker 03:
It's very important that we keep in mind this was not a private email thread, a letter, a telephone call.

[00:27:13] Speaker 03:
It is one video among others, and that's the only way.

[00:27:18] Speaker 03:
That's, as defense counsel said, starting in 2017, he intended to project a tough guy image.

[00:27:25] Speaker 03:
He may have had a good reason to do that, but that was his image, and that's

[00:27:30] Speaker 03:
It's one painting among a wall of paintings from the same painter.

[00:27:37] Speaker 03:
And you look at the entire wall to understand the one, as the victims did.

[00:27:42] Speaker 03:
I see my clock is going up.

[00:27:44] Speaker 03:
If there are no further questions.

[00:27:46] Speaker 02:
They don't have any additional questions.

[00:27:48] Speaker 02:
Thank you for your argument.

[00:27:49] Speaker 03:
Thank you.

[00:27:58] Speaker 01:
I just want to stick, if I can, with this First Amendment issue for a second.

[00:28:02] Speaker 01:
The government argues that their view of a threat is that if you have a threat to injure, that must be sufficient.

[00:28:10] Speaker 01:
If the defendant intended a threat, that's good enough.

[00:28:14] Speaker 01:
We don't need to look any further.

[00:28:16] Speaker 04:
They do say you need to look at whether a reasonable observer would view it as such.

[00:28:22] Speaker 01:
They said that as well, as a threat.

[00:28:25] Speaker 01:
But if you look at all of the Supreme Court's opinions on this issue, none of them make sense if the doctrine is just, well, that someone perceived a threat

[00:28:35] Speaker 01:
he perceived he intended a threat that's good enough means certainly if you look at a case like watts you can look at the statement that was made about getting lbj in the sights of my gun uh... as threatening and certainly i would presume the government who prosecuted mister watts viewed it that way sincerely

[00:28:54] Speaker 01:
uh... the court said yes we recognize the statement we understand what it is it's still not sufficient and the only way that a jury can know that in a case like this is to be instructed by the court and the jury wasn't instructed by the court so if the court had used the word the instead of a would you have an objection to this instruction if the court had said the the defendant intended to communicate the threat uh...

[00:29:22] Speaker 04:
I guess I'm not sure because A requires a threat.

[00:29:27] Speaker 04:
The first part of the instruction says a threat must be communicated through the mails.

[00:29:32] Speaker 04:
Right.

[00:29:32] Speaker 04:
Or through e-commerce.

[00:29:36] Speaker 04:
And then if he said, if the court had then said, and the defendant must have intended that the threat

[00:29:43] Speaker 04:
et cetera, exactly what the court said here.

[00:29:46] Speaker 04:
Would that have been sufficient in your view?

[00:29:47] Speaker 01:
I don't think so because let's assume.

[00:29:49] Speaker 04:
So then why are we worried about A or B?

[00:29:52] Speaker 04:
You clearly want more than that.

[00:29:53] Speaker 01:
Tell me what you want more than B. I want a definition of true threat that's consistent with all of the Supreme Court precedent.

[00:30:00] Speaker 04:
Do you agree that the instruction you submitted because it required violence is not an accurate statement of the law?

[00:30:13] Speaker 01:
I just wanna have the language of the instruction in front of me.

[00:30:16] Speaker 01:
No, I don't agree because the language that I proposed for these purposes, a threat means a statement where the person transmitting the communication means to communicate a serious expression of an intent to commit an act of unlawful violence.

[00:30:30] Speaker 04:
Of unlawful violence, yes.

[00:30:31] Speaker 01:
100% drawn from every single Supreme Court case talking about the doctrine of true threats.

[00:30:38] Speaker 01:
It's consistent with the

[00:30:41] Speaker 04:
So is injury in the statute require violence, or does it just require injury?

[00:30:47] Speaker 04:
Assuming we're always talking about physical injury now.

[00:30:49] Speaker 01:
The statute does not use the word violence, but the Supreme Court has over and over.

[00:30:55] Speaker 04:
So threats that threaten injury but not violence are constitutionally protected?

[00:31:03] Speaker 01:
Threats that are not in context a serious expression of an intent to commit an act of unlawful violence

[00:31:10] Speaker 01:
are protected by the First Amendment, absolutely.

[00:31:14] Speaker 01:
And that's very clear through all of the Supreme Court opinions.

[00:31:18] Speaker 01:
The only thing I want to add with my last 10 seconds is to ask the Court to please focus on the actual language of the threats.

[00:31:27] Speaker 01:
I know the Court has viewed the videos.

[00:31:30] Speaker 01:
The Court knows everything that we've laid out in our briefing regarding the second statement, how it's obviously kind of an impromptu thing.

[00:31:39] Speaker 01:
It's not thought out.

[00:31:40] Speaker 01:
It's something that even the FBI concluded did not communicate an actual possibility of imminent violence.

[00:31:48] Speaker 01:
And then the court has the language from count one as well, which has much more to do with the truth coming to light and people being subject to judgment in some form.

[00:31:59] Speaker 01:
than it does with direct language about, you know, I will do this to you.

[00:32:04] Speaker 01:
Those were the theories that were argued by Mr. Kinney at trial, that this was political hyperbole, that it was in that context, speaking specifically to Count 1.

[00:32:15] Speaker 01:
The argument's slightly different with Count 2.

[00:32:17] Speaker 01:
It's laid out in our briefing.

[00:32:18] Speaker 01:
But those are the reasons that the jury should have had these instructions, and the reason that the failure to give the instruction is not harmless under these circumstances.

[00:32:28] Speaker 02:
Alright, thank you both for your arguments in this matter.

[00:32:30] Speaker 02:
It will stand submitted.

[00:32:33] Speaker 02:
The court will be in recess until Wednesday at 9.

[00:32:36] Speaker 02:
Thank you.

[00:32:38] Speaker 02:
Thank you.