[00:00:03] Speaker 02:
Thank you.

[00:00:03] Speaker 02:
We'll now hear argument in Steven Arthur Mardis, the United States of America.

[00:00:07] Speaker 02:
Ms.

[00:00:07] Speaker 02:
Moretti, you may begin when you're ready.

[00:00:10] Speaker 01:
Good morning, and may it please the court, Michelle Moretti, for appellant Steven Mardis.

[00:00:15] Speaker 01:
With this court's assistance, I'd like to reserve two or three minutes for rebuttal.

[00:00:19] Speaker 01:
You will keep your own time, so just launch the clock, please.

[00:00:22] Speaker 01:
Thank you.

[00:00:23] Speaker 01:
Mr. Mardis will turn 80 this August.

[00:00:26] Speaker 01:
He has completed his custodial sentence, and his supervised release term will conclude in about 17 months.

[00:00:33] Speaker 01:
He temporarily resides at the US Vets Center in Prescott, Arizona, and participates in court-ordered rehabilitation programs.

[00:00:43] Speaker 01:
He's a disabled wheelchair-bound Vietnam vet who lost his wife to cancer in 2003 and has no children or family.

[00:00:52] Speaker 01:
For three and a half years before his arrest, and including during the pandemic, he lived alone in a single motel room at the Hilltop Motel in Flagstaff.

[00:01:02] Speaker 01:
He remained involved in society by being passionately involved in politics and current affairs.

[00:01:08] Speaker 01:
He participated in a democracy, American democracy, by closely following the issues and very frequently calling dozens of congressional representatives of all political parties.

[00:01:22] Speaker 01:
Of the hundreds of calls Mr. Martis made between 2017 and his arrest in 2021, only a few drew scrutiny.

[00:01:31] Speaker 01:
and those that did were prosecuted here.

[00:01:35] Speaker 01:
The particular calls that were ultimately prosecuted and not dismissed were made in the wake of former President Trump's controversial two impeachments.

[00:01:46] Speaker 01:
He left several angry messages on Speaker Pelosi and Congressman Schiff's answering machines well after midnight, mostly on weekends when nobody would be expected to answer the phone.

[00:01:59] Speaker 01:
Isn't it correct that

[00:02:02] Speaker 04:
after making some of these calls, the FBI approached your client and told him that it was a violation of law to do that, and he indicated he would no longer do that?

[00:02:17] Speaker 01:
Mr. Martis had made, as I said, hundreds of calls.

[00:02:21] Speaker 01:
The government charged.

[00:02:24] Speaker 04:
Can you start the answer to my question with a yes or no?

[00:02:27] Speaker 01:
Yes.

[00:02:27] Speaker 01:
They told him that

[00:02:31] Speaker 01:
It was not OK for his invective.

[00:02:35] Speaker 01:
He was breaking the law, period.

[00:02:37] Speaker 01:
They did not analyze the issue in terms of the First Amendment, whether his conduct or his speech rose to the level of constitutionally protected true threats.

[00:02:51] Speaker 03:
So let's look at the one count on which he was convicted.

[00:02:56] Speaker 03:
Yes.

[00:02:57] Speaker 01:
What did he say?

[00:03:00] Speaker 01:
I'm coming to kill you, CUNT.

[00:03:03] Speaker 01:
You're dead.

[00:03:04] Speaker 01:
And that was a matter after midnight on a Saturday.

[00:03:07] Speaker 01:
OK, no, I just wanted to know what he said.

[00:03:10] Speaker 01:
Yes, and hung up.

[00:03:11] Speaker 01:
And are you saying that the First Amendment protects that speech?

[00:03:15] Speaker 01:
The First Amendment requires this court to look at the entire context, not just the words themselves, to determine whether.

[00:03:24] Speaker 03:
But the court, this entire context was presented to the jury.

[00:03:29] Speaker 03:
who found that this met the elements of being a prohibited communication.

[00:03:35] Speaker 03:
And what you're saying to us is they couldn't have found that because it's protected by the First Amendment.

[00:03:41] Speaker 03:
And so I'm trying to figure out why threatening to kill someone, put aside the invective after that, is protected by the First Amendment.

[00:03:51] Speaker 01:
Your Honor, the jury also found or were hung on the other.

[00:03:55] Speaker 03:
So we don't know what.

[00:03:56] Speaker 03:
So in effect, they don't do anything for us.

[00:03:59] Speaker 01:
Which leads to the likely prejudice of the evidentiary and instructional errors.

[00:04:04] Speaker 03:
I sort of come out the other way in your likely prejudice argument.

[00:04:08] Speaker 03:
They got to see your very sympathetic client and said, gee, we'll convict them on one, but let's not convict them on three.

[00:04:13] Speaker 01:
But then let me bring you back to the very first argument

[00:04:19] Speaker 01:
There was a second argument regarding the rule 106 exclusion of any testimony regarding.

[00:04:24] Speaker 03:
Before you get to 106, I just want to know all other, let's assume we find no other error in this trial.

[00:04:30] Speaker 03:
No 106 problems, no.

[00:04:32] Speaker 01:
Yes.

[00:04:33] Speaker 03:
You really think we should hold that calling up a speaker and threatening to kill her is protected speech?

[00:04:43] Speaker 01:
under the circumstances viewed in context, which this court must do and must consider his history of calling everybody on legitimate matters and the very divisive climate that occurred when he made the calls, the fact of the late hour, the fact of his likely intoxication, the fact that he didn't remember the call.

[00:05:11] Speaker 04:
Let me ask you about the intoxication

[00:05:13] Speaker 04:
Yes.

[00:05:14] Speaker 04:
One of your claims of errors is that the FBI transcripts or type ups 302s of his interviews were not supplemented by his statements that he was very probably intoxicated at the time.

[00:05:30] Speaker 01:
Well, the claim is that the actual interview transcript appended to defense counsel's motion in Lemonay to include for rule 106 purposes.

[00:05:43] Speaker 01:
did not permit, the trial judge did not permit any statements not offered by the government from that interview.

[00:05:52] Speaker 04:
So your basic contention is that the jury was not allowed to know that your client very probably was intoxicated when some of these calls were made?

[00:06:02] Speaker 04:
Yes.

[00:06:02] Speaker 04:
That's your point?

[00:06:03] Speaker 04:
Yeah.

[00:06:03] Speaker 02:
Your client testified at trial though, right?

[00:06:06] Speaker 01:
He testified at trial, and he, as I've written in my reply brief, once the government was permitted to offer the statement through Agent Farrar that Mr. Martis was of sound mind.

[00:06:20] Speaker 03:
Well, he said it was hit Mr. Martis's statement that he was upset.

[00:06:24] Speaker 01:
There were two questions.

[00:06:26] Speaker 01:
They were not offered in context, and this is why this particular

[00:06:31] Speaker 01:
of other sections was very misleading.

[00:06:34] Speaker 01:
Most misleading because it went to intent.

[00:06:37] Speaker 01:
One question they said, you don't do any drugs.

[00:06:42] Speaker 01:
You weren't high or anything.

[00:06:43] Speaker 01:
He said, oh, no, nothing like that.

[00:06:45] Speaker 01:
And then in almost the next breath, he was asked again a minute later, now, you weren't drunk or high when you were making any of these questions.

[00:06:54] Speaker 01:
And he said, well, yeah, I might have been drunk.

[00:06:57] Speaker 01:
I drink a lot.

[00:06:58] Speaker 01:
I drink for pain management.

[00:07:01] Speaker 01:
Now, that directly contradicts.

[00:07:04] Speaker 03:
But let me ask you about this particular statement.

[00:07:08] Speaker 03:
Yes.

[00:07:08] Speaker 03:
There are four statements that you say there's a rule of 106 error on in your brief.

[00:07:14] Speaker 03:
But as close as I can tell, this statement was not part of your motion to eliminate below or objected to at trial.

[00:07:22] Speaker 01:
Council, well, it wasn't offered.

[00:07:28] Speaker 03:
Probably not.

[00:07:30] Speaker 01:
Divine interference.

[00:07:37] Speaker 01:
Council was clearly very concerned with these statements.

[00:07:48] Speaker 03:
As Josh Hawkins indicated, see if you can answer my question first and then explain why.

[00:07:53] Speaker 01:
He did not expressly address the intoxication statements.

[00:07:57] Speaker 01:
He addressed

[00:07:58] Speaker 01:
more specifically the other statements, which he thought were very consequential.

[00:08:03] Speaker 03:
Given that this wasn't in front of the district judge, as either in the motion and limiting or even at trial, nobody said, I object, Your Honor, that more should be read about this.

[00:08:14] Speaker 03:
Don't we review for clear error?

[00:08:16] Speaker 01:
Under this case, it was abusive discretion

[00:08:21] Speaker 01:
to disallow these statements on hearsay.

[00:08:25] Speaker 01:
And it brings me to the supplemental authority that I've submitted, rule 106, no longer prohibits the admission of statements on the basis of hearsay.

[00:08:35] Speaker 01:
If a complete and misleading

[00:08:39] Speaker 01:
inference in the record, and that just went into effect last December.

[00:08:43] Speaker 04:
Here's why I asked the question about your contention that there should have been some supplement to the FBI statements.

[00:08:52] Speaker 04:
Yes.

[00:08:52] Speaker 04:
Your client took the stand.

[00:08:56] Speaker 04:
Did you try the case?

[00:08:57] Speaker 04:
I did not.

[00:08:58] Speaker 04:
Okay.

[00:08:58] Speaker 04:
Trial defense lawyer had the full opportunity

[00:09:03] Speaker 04:
to ask him about intoxication and did not.

[00:09:07] Speaker 01:
I don't believe he did have the opportunity because the trial judge made the pre-trial ruling that everything was excluded.

[00:09:14] Speaker 03:
The judge only ruled that the statements were excluded.

[00:09:17] Speaker 03:
True.

[00:09:19] Speaker 03:
But it didn't rule that, and she thought they were hearsay.

[00:09:22] Speaker 03:
Maybe they were hearsay, maybe they weren't.

[00:09:25] Speaker 03:
It surely wouldn't have been hearsay had Mr.

[00:09:28] Speaker 03:
And your client said, here's what I said.

[00:09:31] Speaker 01:
Well, no, he was prohibited from offering any.

[00:09:34] Speaker 03:
No, I don't see anything in the judge's ruling that prohibited him from saying what he said to the agents.

[00:09:43] Speaker 03:
It prohibited the agents from quoting from portions of the report that they weren't offering, because under the judge's view, they would have been hearsay.

[00:09:53] Speaker 03:
But there's nothing in the judge's ruling that said, you can't take the stand and say,

[00:09:57] Speaker 03:
Gee, when I made that call, I was drunk, and I didn't have the requisite mens rea.

[00:10:02] Speaker 01:
No.

[00:10:03] Speaker 01:
And I would go back to the original point.

[00:10:05] Speaker 01:
The statement that he made at the time that was introduced that he was of sound mind became the Bible for this case.

[00:10:12] Speaker 01:
At that point, that was on record.

[00:10:15] Speaker 03:
But to go to Judge Hawkins's question, he could have said when he was on the stand.

[00:10:21] Speaker 01:
It would have destroyed his credibility at that point.

[00:10:24] Speaker 03:
So you're, but you're not arguing that he was prohibited from saying that.

[00:10:28] Speaker 01:
As a matter of strategy, once he was the sole witness in his defense and his credibility was crucial.

[00:10:37] Speaker 01:
So if he had, if we had heard the FBI statements, yes he was sound minded, he admitted it without the clarifying statements.

[00:10:44] Speaker 01:
When he took the stand and attempted to offer any independent

[00:10:48] Speaker 01:
intoxication evidence, he would have been seen as a liar and making it up post-hoc.

[00:10:56] Speaker 03:
I'm trying to understand the scope of the judge's ruling.

[00:11:00] Speaker 03:
Let's assume they put him on the stand and said, were you drunk at the time?

[00:11:04] Speaker 03:
And he said, yes.

[00:11:05] Speaker 03:
And you think that would have been bad strategy, but the judge's ruling didn't prohibit him from saying that.

[00:11:11] Speaker 03:
Did the judge's ruling prohibit him from then asking him

[00:11:14] Speaker 03:
And didn't you tell that to the FBI agents in the interview?

[00:11:17] Speaker 03:
Yes.

[00:11:18] Speaker 03:
Well, how did it do so?

[00:11:19] Speaker 03:
Your Honor.

[00:11:20] Speaker 03:
It just prohibited.

[00:11:21] Speaker 03:
It just said you couldn't introduce the transcript of the interview.

[00:11:25] Speaker 03:
It didn't say he couldn't testify as a firsthand witness that he had told that to the FBI.

[00:11:30] Speaker 01:
As I understand that, counsel was not permitted to elicit any statement that was not offered by the government.

[00:11:39] Speaker 01:
And that was a statement not offered by the government.

[00:11:41] Speaker 03:
Not elicit or not introduced.

[00:11:43] Speaker 01:
or introduce.

[00:11:44] Speaker 03:
Well, tell me, that all comes out of Judge Hamito's ruling on your motion and limit.

[00:11:50] Speaker 01:
Yes.

[00:11:51] Speaker 03:
There's no place else in the record where I would find that.

[00:11:55] Speaker 01:
No, I believe not.

[00:11:57] Speaker 02:
Can you move to the issue relating to the objective definition of a true threat?

[00:12:02] Speaker 02:
And the question I have for you on this is how this has not been waived.

[00:12:08] Speaker 02:
So as I understand it from reading the record, the district court

[00:12:13] Speaker 02:
over the government's objection asked to instruct the jury on the objective definition and the issue was not challenged or objected to by trial counsel, which I understand is not you.

[00:12:28] Speaker 02:
How is this issue not waived?

[00:12:30] Speaker 01:
It is not waived because the record shows that trial counsel made a common mistake in interpretation.

[00:12:39] Speaker 01:
He believed that after Elonis,

[00:12:44] Speaker 01:
sole inquiry was one of subjective intent, which is not what Ilanis has represented, Ilanis versus United States, the 2015 Supreme Court.

[00:12:58] Speaker 01:
Ilanis evaluated an 875C claim.

[00:13:03] Speaker 01:
It did not address any

[00:13:06] Speaker 01:
constitutional issues expressly.

[00:13:08] Speaker 01:
It avoided them.

[00:13:10] Speaker 01:
It addressed only the statutory issue of whether some mens rei must be shown.

[00:13:15] Speaker 02:
But the district court actually gave the jury instruction that your client requested.

[00:13:20] Speaker 01:
Yes, but that jury instruction was incomplete because it did not articulate the well-settled, time-tested

[00:13:30] Speaker 01:
instruction in the circuit and elsewhere that... It's not invited error?

[00:13:35] Speaker 01:
It is not.

[00:13:36] Speaker 01:
It is a matter of law and it's a plain error.

[00:13:40] Speaker 01:
It's not invited error because all parties agreed on this instruction and counsel believed that articulating the reasonable prong would

[00:13:57] Speaker 01:
had related to the defendant's intent rather than whether a reasonable person would, uh, view the statements as being threatening.

[00:14:09] Speaker 02:
Miss Maria, you have one minute left.

[00:14:10] Speaker 02:
Would you like to reserve that for rebuttal?

[00:14:13] Speaker 02:
I would.

[00:14:13] Speaker 02:
Thank you, your honors.

[00:14:20] Speaker 02:
Miss Lanham, whenever you're ready.

[00:14:21] Speaker 02:
Thank you.

[00:14:29] Speaker 00:
Good morning, and may it please the court.

[00:14:30] Speaker 00:
My name is Chris Atlanta.

[00:14:32] Speaker 00:
I'm an assistant United States attorney from the district of Arizona, and I represent the United States.

[00:14:38] Speaker 00:
Hi, Nancy.

[00:14:39] Speaker 00:
I'm coming to kill you.

[00:14:41] Speaker 00:
Your debt.

[00:14:43] Speaker 00:
Those were the words that Stephen murders left on former speaker Nancy Pelosi's voicemail on January 17 2021 at 2 26 a.m.

[00:14:54] Speaker 00:
This, the threat that the jury convicted on, followed nearly 18 months of similar calls saying, for example, you want to take our guns, we will take away your life.

[00:15:07] Speaker 00:
We're going to kill you, chop you up into little pieces.

[00:15:11] Speaker 00:
And to Representative Adam Schiff, we're going to put a bullet in your head.

[00:15:17] Speaker 04:
How many of those were from the dismissed counts?

[00:15:20] Speaker 00:
The first two that I mentioned, that you want to take away our guns, we will take away your life, and we're going to kill you, chop you into little pieces, I believe, are from the dismissed counts.

[00:15:32] Speaker 04:
Doesn't that underline the defendant's position?

[00:15:36] Speaker 04:
That admitting, let me finish, that the admission of these dismissed counts, the context of it, it's pretty powerful stuff.

[00:15:49] Speaker 00:
It certainly is powerful stuff.

[00:15:52] Speaker 00:
But the test for whether these calls were properly admitted, even though the counts had been dismissed, focuses on whether they are inextricably intertwined.

[00:16:01] Speaker 00:
And in this case, they were because they were necessary for the prosecution to tell a coherent story about what Mr. Martis had done, or alternatively, whether they were properly admitted under Rule 404B.

[00:16:15] Speaker 04:
Then why not?

[00:16:17] Speaker 04:
go to trial with all the counts.

[00:16:20] Speaker 00:
Your Honor, the record doesn't reflect why the prosecution dismissed those counts.

[00:16:25] Speaker 00:
The majority of them were from before the FBI actually warned Mr. Martis that he was making threatening statements, which I think gets to the use of them and the reason why they're inextricably intertwined.

[00:16:39] Speaker 02:
Let me ask you a question about that.

[00:16:41] Speaker 02:
And it dovetails on Judge Hawkins question, which is

[00:16:45] Speaker 02:
Why did the government need to introduce any of those partial excerpts of the transcript?

[00:16:51] Speaker 02:
Mr. Martis was available and testified at the trial, so if presumably the issue was that we needed to identify him as the individual who in fact made these calls, he was there.

[00:17:01] Speaker 02:
What was the government's purpose in introducing these portions?

[00:17:06] Speaker 02:
Because in fact, as your friend on the other side argued, it opened the door to this motion of alimony in which they're complaining that

[00:17:13] Speaker 02:
Look, some portions of these excerpts are leaving out things like where he talks about being intoxicated.

[00:17:19] Speaker 00:
So, Your Honor, I think there are two parts to your question.

[00:17:22] Speaker 00:
I'll take the first part first as to why these excerpts were relevant and necessary, even though they underlay dismissed counts.

[00:17:30] Speaker 00:
These were calls that were played by the FBI for Mr. Martis.

[00:17:35] Speaker 00:
When he heard those calls, he admitted that they were him.

[00:17:38] Speaker 00:
He admitted that he made the calls from the Hilltop Motel in Bullhead City, which underlies the interstate commerce element, the interstate nexus that the prosecution is still required to prove.

[00:17:50] Speaker 03:
I take it you part of the problem is

[00:17:52] Speaker 03:
You didn't know when you began the trial that you could identify him as the speaker through anything except his admissions to the FBI agency.

[00:18:00] Speaker 00:
Well, I think that there is other evidence that we probably anticipated being able to introduce.

[00:18:06] Speaker 00:
However, there are other portions of that that are so relevant for intent, which we knew was going to be the contested issue at trial.

[00:18:15] Speaker 00:
So the FBI

[00:18:16] Speaker 00:
played these calls for Mr. Martis and said, you are using threatening language.

[00:18:21] Speaker 00:
This is against the law.

[00:18:22] Speaker 00:
And then he continued to make the calls anyway.

[00:18:26] Speaker 00:
So I can't imagine a clearer case for subjective intent than being warned that what you're doing is threatening and breaking the law and then continuing on to make the calls.

[00:18:36] Speaker 03:
Can I ask you a question about the 404B issue?

[00:18:39] Speaker 03:
Sure.

[00:18:39] Speaker 03:
Was there a limiting instruction given?

[00:18:41] Speaker 00:
There was a limiting instruction given at the end of trial.

[00:18:45] Speaker 03:
I take it that limiting instruction wouldn't really apply if they were inextricably intertwined, would it?

[00:18:51] Speaker 00:
That is correct, Your Honor.

[00:18:53] Speaker 03:
I think the problem- So the judge, in effect, in presenting them to the jury, treated them as 404B states.

[00:19:00] Speaker 00:
It's difficult to say, Your Honor, because Mr. Martis didn't object to that portion of the government's 404B statement.

[00:19:08] Speaker 00:
So the government basically did a combined, we are dismissing these messages, but we're still going to play them for the jury as inextricably intertwined or as 404B evidence.

[00:19:19] Speaker 00:
Mr. Martis said, I don't have a problem with dismissing the counts, obviously, but didn't respond to that other portion of the government's statement.

[00:19:29] Speaker 00:
So the record isn't complete in terms of what the district court admitted them for, because there wasn't that objection.

[00:19:38] Speaker 03:
But the jury was at least instructed that it could only use these statements to show

[00:19:43] Speaker 03:
something in 404B.

[00:19:44] Speaker 00:
The jury was, and that was a stipulated instruction, which gets back to our point that Mr. Martis was aware and didn't object to this 404B evidence.

[00:19:55] Speaker 00:
He agreed to the 404B instruction coming in at the end of the case.

[00:19:59] Speaker 00:
That's at SER 20.

[00:20:01] Speaker 03:
Can I take you back to the 106 issue?

[00:20:03] Speaker 03:
Yes.

[00:20:03] Speaker 03:
And forget for a moment which of the four calls the defense preserved an objection to and didn't.

[00:20:12] Speaker 03:
I read the district court's ruling.

[00:20:14] Speaker 03:
She says this is the rest of the statements, the parts you would like to get in, Mr. Defending, Mr. Martis, are not.

[00:20:22] Speaker 03:
They can't be let in because they're inadmissible hearsay.

[00:20:26] Speaker 03:
She doesn't say they can't come in because they don't otherwise meet the description of Rule 106.

[00:20:33] Speaker 03:
Correct.

[00:20:35] Speaker 03:
If we think she was wrong on excluding those portions on hearsay grounds,

[00:20:42] Speaker 03:
What should we do?

[00:20:44] Speaker 00:
Well, Your Honor, we have a harmless error argument to the statements that were preserved here.

[00:20:49] Speaker 00:
But I want to get back to the court's questions to opposing counsel about the voluntary intoxication.

[00:20:55] Speaker 03:
This was not something that the- No, I understand your argument.

[00:20:59] Speaker 03:
I don't want to take you down the wrong road.

[00:21:02] Speaker 03:
I understand your argument that none of these excluded excerpts fall within 106.

[00:21:08] Speaker 03:
They weren't necessary to make whatever was

[00:21:11] Speaker 03:
introduced, not misleading.

[00:21:14] Speaker 03:
Let's assume that's true.

[00:21:16] Speaker 03:
My difficulty is that's not what the district court found.

[00:21:19] Speaker 03:
The district court simply said they can't come in because they're hearsay.

[00:21:23] Speaker 03:
She never made a finding that they didn't otherwise meet the description of rule 106.

[00:21:28] Speaker 03:
So I guess my question in a convoluted way is if we think she was wrong on the hearsay grounds, can we look and see whether the statements meet the requirements of rule 106 ourselves?

[00:21:41] Speaker 03:
Or is that something a district judge should be doing?

[00:21:43] Speaker 00:
Well, it's an abusive discretion standard, and this court can affirm for any reason that is evident in the record.

[00:21:51] Speaker 00:
That's black letter law.

[00:21:53] Speaker 00:
But I mean, I think the easiest thing for the court to do, if you were to think that there were a Rule 106 error for everything apart from the voluntary intoxication statements,

[00:22:04] Speaker 00:
is to then look at harmlessness because under Lopez, this is a clear harmless analysis because Mr. Martis testified to everything but the voluntary intoxication himself in his testimony, which is exactly the same thing that happened in Lopez where this court held that there was a Rule 106 violation.

[00:22:25] Speaker 00:
The district court abused its discretion in that case.

[00:22:28] Speaker 00:
But Mr. Lopez was able to testify to everything that he had, you know, wanted to get in.

[00:22:36] Speaker 00:
And so it was harmless in the Lopez case.

[00:22:39] Speaker 00:
But I do think it bears noting on the voluntary intoxication, which really seems to be the point that Mr. Martis is going, you know, full force on, on appeal.

[00:22:49] Speaker 00:
that this wasn't the theory of defense at trial.

[00:22:52] Speaker 00:
He did not propose putting in that portion and nothing prevented him from testifying about that on the stand.

[00:23:00] Speaker 00:
He could have said, I was drunk for every call.

[00:23:03] Speaker 00:
And my supposition would be that the reason that he didn't was because they were looking at intent in this case.

[00:23:12] Speaker 00:
They were not looking at voluntary intoxication.

[00:23:14] Speaker 00:
This is an argument that is for appeal.

[00:23:17] Speaker 04:
So if I understand,

[00:23:19] Speaker 04:
what the government did, going back to the dismissed counts, is that it exercised its discretion not to charge the calls that preceded the FBI visit where he was told, hey, this is bad stuff.

[00:23:36] Speaker 04:
Don't do this anymore.

[00:23:39] Speaker 04:
But they wanted to get in the volatility of the statements made then.

[00:23:47] Speaker 04:
Why?

[00:23:48] Speaker 00:
So I don't think that it was a question of volatility, Your Honor.

[00:23:53] Speaker 00:
I think that it was relevant, the language that Mr. Martis used, that the FBI played for him, and then that he said he understood was threatening before he continued to use that same language, was relevant to the question of his intent and his knowledge.

[00:24:12] Speaker 00:
So I don't think it's a question of volatility.

[00:24:15] Speaker 00:
One of the charged counts, the charged count that remained charged, that references the statement that I don't even want to say right here in polite company about George Soros and Obama.

[00:24:28] Speaker 04:
We've all read it.

[00:24:29] Speaker 00:
That was a charged count.

[00:24:31] Speaker 00:
It continued to be a charged count at trial.

[00:24:35] Speaker 00:
Isn't this one the jury hung on?

[00:24:36] Speaker 00:
It is a count that the jury hung on.

[00:24:40] Speaker 00:
And the other statements that were coming in as part of both these dismissed calls and even the count that the jury convicted on, these are milk toast compared to George Soros and Obama.

[00:24:54] Speaker 00:
And that unquestionably was coming in at trial.

[00:24:58] Speaker 00:
So the idea that these statements were more prejudicial than probative in the dismissed counts when you're looking at that charged call that had to be played, I just don't think the argument holds any water.

[00:25:14] Speaker 00:
I do want to talk a little bit about waiver because Judge Desai had that question.

[00:25:19] Speaker 00:
And on the objective jury instruction, this to me is a clear case of waiver.

[00:25:26] Speaker 00:
I will grant that the Ninth Circuit in jury instructions makes it a little bit difficult sometimes for the government to show waiver.

[00:25:34] Speaker 00:
But here you have the government proposing an objective instruction that gave it an extra element to prove, arguably.

[00:25:44] Speaker 00:
You have the government supporting that with the case law, and you have Mr. Martis coming back and saying, I don't want that instruction.

[00:25:52] Speaker 00:
That harms my defense.

[00:25:53] Speaker 00:
I think it's wrong.

[00:25:54] Speaker 00:
And so when you look at a case like Lorienti, that's almost exactly the same scenario as we have here, where the government is proposing an instruction that gives it an additional element to prove, cites Skelly, and Mr. Lorienti comes back with, no, I don't want that instruction, and this court held waiver.

[00:26:12] Speaker 00:
So I don't think that you have to reach the very interesting and rapidly evolving issues that are both the Supreme Court and this court's

[00:26:22] Speaker 00:
threats jurisprudence because this is a clearly waived issue.

[00:26:27] Speaker 03:
Can I ask you a question about intoxication?

[00:26:31] Speaker 00:
Yes.

[00:26:33] Speaker 03:
And let's assume that this claim was preserved and we review it for abuse of discretion.

[00:26:39] Speaker 03:
Would intoxication be a defense to the crime alleged?

[00:26:43] Speaker 00:
No.

[00:26:44] Speaker 00:
And that is, I believe, clear under both Alanis

[00:26:51] Speaker 00:
and even more clear now under countermen?

[00:26:54] Speaker 03:
Well, I guess it could be, couldn't it?

[00:26:58] Speaker 03:
I mean, if the defense was, I was so intoxicated that day, I had no control over my actions.

[00:27:09] Speaker 03:
And I have no idea what I did.

[00:27:11] Speaker 03:
We might well treat it as relevant to mens rea, wouldn't we?

[00:27:16] Speaker 00:
It potentially could be relevant to mens rea, but it's not the voluntary intoxication defense.

[00:27:24] Speaker 00:
So the voluntary intoxication defense requires a few things.

[00:27:28] Speaker 00:
First of all, the defendant has to be absolutely blackout drunk.

[00:27:31] Speaker 00:
Martinez, Martinez holds that.

[00:27:33] Speaker 00:
He can't remember having made any of these calls for a voluntary intoxication defense to apply.

[00:27:39] Speaker 00:
But as I mentioned in the 28-J letter that we filed last week, voluntary intoxication is not a defense to a knowing crime.

[00:27:49] Speaker 00:
And after Alanis, it is crystal clear that 875-C is a knowing crime.

[00:27:55] Speaker 00:
But then, you add countermen to that.

[00:27:58] Speaker 00:
And it's also clear, as the panel and AMER recognized in the footnote, that countermen then reduces that applicable mens rea for this crime to recklessness.

[00:28:09] Speaker 00:
And so voluntary intoxication is really just not at all relevant in this context.

[00:28:16] Speaker 00:
So both factually and legally, this was not a defense.

[00:28:26] Speaker 00:
If the panel has no additional questions, we would ask that you affirm.

[00:28:30] Speaker 02:
Thank you.

[00:28:32] Speaker 02:
That's ready.

[00:28:33] Speaker 02:
Give one minute.

[00:28:33] Speaker 02:
We'll put one minute on the clock.

[00:28:34] Speaker 01:
I will do my best.

[00:28:36] Speaker 01:
Um, intoxication has long been held a defense to a specific intent crime.

[00:28:42] Speaker 01:
And, uh, this circuit has held that eight 75 C for decades now has is a specific intent crime.

[00:28:50] Speaker 01:
Uh, this requirement was not changed by Ilanis.

[00:28:54] Speaker 01:
Elonis did not articulate the level of mens rea required.

[00:29:00] Speaker 01:
And nonetheless, it didn't apply to circuits like the ninth that has already imputed a mens rea requirement of specific intent here.

[00:29:10] Speaker 01:
Elonis addressed circuits that required only an objective standard without any regard to someone's intent.

[00:29:24] Speaker 01:
address any First Amendment issues as well.

[00:29:27] Speaker 01:
As I've said, Twine is a prime case that holds that specific intent and voluntary intoxication apply here.

[00:29:42] Speaker 01:
Bachmeyer confirms that Ulanus held as it did, and countermen did not change the

[00:29:51] Speaker 01:
law as regards to mens rea for a statutory violation as opposed to a constitutional to true threat overlay analysis.

[00:30:02] Speaker 02:
Thank you, Miss.

[00:30:03] Speaker 02:
In the Ninth Circuit, as I discussed in the brief.

[00:30:06] Speaker 02:
Thank you very much.

[00:30:07] Speaker 02:
Thank you, counsel.

[00:30:08] Speaker 02:
This case is now submitted and the Ninth Circuit is in recess.