[00:00:00] Speaker 00:
Chippenoff.

[00:00:01] Speaker 00:
Chippenoff.

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

[00:00:02] Speaker 02:
Chippenoff.

[00:00:03] Speaker 00:
Chippenoff.

[00:00:04] Speaker 00:
Chippenoff.

[00:00:05] Speaker 00:
OK.

[00:00:05] Speaker 00:
Chippenoff.

[00:00:07] Speaker 02:
Good morning.

[00:00:08] Speaker 02:
I'm Jessie Agostin from the Federal Defenders of San Diego on behalf of Mr. Chippenoff.

[00:00:13] Speaker 02:
I'll aim to reserve two minutes, and I'll watch the clock.

[00:00:16] Speaker 02:
All right.

[00:00:17] Speaker 02:
So this court should reverse for two reasons.

[00:00:20] Speaker 02:
First, the indictment and the jury instructions did not include the subjective intent element required by the First Amendment under counterman.

[00:00:28] Speaker 02:
And second, there was not enough evidence

[00:00:30] Speaker 02:
that the Suburban Superior Court building here was actively used for commercial purposes.

[00:00:36] Speaker 01:
Let me clarify, counsel.

[00:00:38] Speaker 01:
You're not challenging the constitutionality of the statute, right?

[00:00:42] Speaker 01:
Just that the indictment and the jury instructions have to include a subjective element.

[00:00:49] Speaker 02:
That's correct.

[00:00:49] Speaker 02:
It's as to the charge, not as to the statute as a whole.

[00:00:53] Speaker 02:
So as to that particular charge, counterman controls because the charge here, which is conveying false or misleading information of malicious damage or destruction of a building by fire or explosives, that's conveying a real possibility that violence will follow.

[00:01:10] Speaker 02:
And so counterman says we use the true threat doctrine.

[00:01:13] Speaker 02:
But whether analyzed under the true threat doctrine or as the government wants under the military security grave and imminent threat doctrine, the government would still need to show a subjective intent.

[00:01:26] Speaker 02:
And that's because the military security doctrine is supposed to be even harder to prove.

[00:01:31] Speaker 01:
Well, I struggle to understand your argument there because the statute itself encompasses more than just a true threat, right?

[00:01:39] Speaker 01:
That's why I asked whether you're really challenging

[00:01:41] Speaker 01:
the constitutionality of the statute itself, whether on over-breadth grounds or in some other way.

[00:01:48] Speaker 01:
So here, the way that they charge, it just mirrors exactly the language of the statute itself, setting aside the question of whether the statute encompasses only true threats.

[00:02:03] Speaker 01:
So I struggle to understand how it could be, how without a challenge of statute itself,

[00:02:11] Speaker 01:
an indictment that mirrors the exact language of the statute is deficient.

[00:02:16] Speaker 02:
So, countermen explained that it had an added element.

[00:02:19] Speaker 02:
That's at page 74.

[00:02:20] Speaker 02:
For true threats.

[00:02:21] Speaker 02:
For true threats.

[00:02:23] Speaker 02:
And any speech, any criminal conduct based solely on speech needs to have some sort of First Amendment category of lack of protection to be charged, right?

[00:02:35] Speaker 02:
And so in counterment itself, our challenge here is mirroring the challenge in counterment.

[00:02:41] Speaker 02:
There, the defendant moved to dismiss the charge, saying this charge, as it stands, violates the First Amendment.

[00:02:47] Speaker 01:
So you're contesting the proposition that this statute covers more than just true threats.

[00:02:54] Speaker 01:
So counterment applies to true threats, and you're saying counterment applies here.

[00:02:59] Speaker 01:
Yes.

[00:02:59] Speaker 01:
So that means you're saying he's only charged with true threats.

[00:03:02] Speaker 01:
That's correct.

[00:03:03] Speaker 01:
So that means the statute itself can't encompass the second component that Castanaga is talking about.

[00:03:12] Speaker 02:
Right.

[00:03:12] Speaker 02:
So Castanaga didn't deal with the First Amendment, right?

[00:03:15] Speaker 02:
The defendant there did not raise a First Amendment challenge.

[00:03:19] Speaker 02:
So here we are raising the exact kind of First Amendment challenge that counterman says is appropriate, which is if

[00:03:26] Speaker 02:
A speech charge does not include a subjective intent to threaten.

[00:03:32] Speaker 02:
It violates the First Amendment.

[00:03:34] Speaker 02:
That's what the Fourth Circuit agreed in the case we submitted a 28-J on.

[00:03:38] Speaker 02:
That's in Rendleman.

[00:03:40] Speaker 02:
This is unusual, because it's not the usual over-breadth challenge that I think Your Honor is referring to.

[00:03:45] Speaker 02:
But this is the kind of challenge that countermen says.

[00:03:48] Speaker 02:
we should bring, and we did.

[00:03:51] Speaker 02:
And I'll note that, Your Honor, noted the indictment itself mirrors the language of the statute.

[00:03:58] Speaker 02:
But as this Court has said in Dubois, implied necessary elements not present in the statutory language must be included.

[00:04:05] Speaker 02:
And counterman repeatedly refers, you know, this is an added element.

[00:04:10] Speaker 02:
It's a subjective element.

[00:04:11] Speaker 02:
It's a mens rea requirement.

[00:04:13] Speaker 02:
This is an implied necessary element.

[00:04:18] Speaker 02:
So if the court doesn't have other questions on the First Amendment issue, I can move on to the sufficiency of the evidence issue.

[00:04:24] Speaker 01:
As to the interstate commerce.

[00:04:28] Speaker 02:
Yes, that's correct.

[00:04:29] Speaker 02:
So the government put in insufficient evidence that the Superior Court building was actively employed for commercial purposes.

[00:04:37] Speaker 02:
So this is a higher bar than the usual Commerce Clause floor.

[00:04:41] Speaker 02:
as the Supreme Court said on Jones.

[00:04:43] Speaker 02:
And no case has allowed so little evidence in a building that's not inherently commercial.

[00:04:50] Speaker 02:
So, without information about whether the, like a cafeteria or snack shop or something like that, whether it was open to the public, whether it was operated at cost or for profit or anything else, there's just too little evidence.

[00:05:04] Speaker 04:
Council, wasn't there testimony that there was a snack shop there?

[00:05:09] Speaker 04:
And wouldn't that suffice the requirement?

[00:05:13] Speaker 02:
So not in a building that's not inherently commercial.

[00:05:16] Speaker 02:
So the exact testimony was whether there was, quote, like a cafeteria or snack shop or something like that.

[00:05:23] Speaker 02:
And I'll contrast that with this court's case, Sarong, which was pre-Jones, so it was using a lower bar.

[00:05:30] Speaker 02:
But even still, there, that was a privately owned restaurant, open to the public, that received a half million dollar insurance payout for the fire.

[00:05:39] Speaker 02:
And most importantly, I think, had received substantial cash from an out-of-state investor.

[00:05:44] Speaker 04:
Actually, thinking of the US versus Rentaria, I thought that was a synagogue that operated a gift shop.

[00:05:53] Speaker 04:
I think there was a preschool daycare.

[00:05:57] Speaker 02:
Yeah, and what was important to this court and rent-a-rea was that each child paid $5,000 a year for that daycare.

[00:06:03] Speaker 02:
It was open both to synagogue members and non-synagogue members.

[00:06:07] Speaker 00:
Why does paying $5,000 make a difference?

[00:06:12] Speaker 02:
Well, I think if it was free or at cost, that would change whether it was actively used for commercial purposes.

[00:06:18] Speaker 02:
For example, if it went more to it was a daycare operated.

[00:06:22] Speaker 00:
That has nothing to do with interstate conference.

[00:06:24] Speaker 00:
I mean, all the students could be local students.

[00:06:26] Speaker 02:
Well, so it does have to do with whether it's active use for commercial purpose, which is a higher bar than the Commerce Clause floor.

[00:06:35] Speaker 02:
This court said this is a case-by-case analysis.

[00:06:37] Speaker 02:
We look to everything the government submits in the record.

[00:06:41] Speaker 02:
And there it mattered both that this court mentioned that the parents of the children paid $5,000 a year.

[00:06:50] Speaker 00:
Active use requirement doesn't have to be the primary activity in the building, right?

[00:06:57] Speaker 02:
doesn't have to be the primary activity.

[00:06:59] Speaker 02:
But if it's not the primary activity, this court has looked more closely.

[00:07:03] Speaker 02:
This court explained that difference in mayhem, where it said we're not transforming every municipal building into something that can meet this definition.

[00:07:13] Speaker 02:
We're always looking case by case, seeing what kind of evidence.

[00:07:16] Speaker 04:
Council, why is it insufficient that this was a snack shop?

[00:07:23] Speaker 04:
Does it have to be, does there have to be more testimony?

[00:07:26] Speaker 04:
I mean, is that the problem here that there wasn't enough testimony about that?

[00:07:30] Speaker 04:
A description of how much the snack shop was used, the operation of it.

[00:07:35] Speaker 04:
I mean, is that the problem?

[00:07:36] Speaker 04:
The fact that it was, that's there may suffice, but it wasn't sufficient.

[00:07:42] Speaker 04:
Is that your argument?

[00:07:43] Speaker 02:
Yes, particularly in a building that's not inherently commercial in a municipal building.

[00:07:48] Speaker 02:
So we're not saying the government couldn't prove a superior court was used in

[00:07:53] Speaker 02:
actively used for a commercial purpose.

[00:07:56] Speaker 02:
I'm sure it totally could, many superior court buildings.

[00:07:59] Speaker 02:
The point is just that the government didn't take the extra step to ask one extra question, two extra questions.

[00:08:05] Speaker 02:
Do you rent this out to an independent contractor?

[00:08:07] Speaker 02:
Is it open to the public?

[00:08:09] Speaker 00:
What about the testimony?

[00:08:10] Speaker 00:
I think there was testimony to this effect, general testimony, that the parties in the cases that were adjudicated in the court often came from other states.

[00:08:23] Speaker 02:
Yeah, I think there's a difference between being a private law firm representing those parties, that's a commercial purpose, and being the court that resolves disputes between those parties.

[00:08:34] Speaker 02:
There's no published case that says courthouses are inherently actively used for commercial purposes.

[00:08:41] Speaker 02:
That doesn't seem to fit quite right.

[00:08:44] Speaker 02:
But I recognize I'm low on time.

[00:08:46] Speaker 01:
No, that's okay.

[00:08:48] Speaker 01:
I do have one question for you and then I'll give you your two minutes back.

[00:08:51] Speaker 01:
I'm trying to figure out under your argument, and back to the first issue now, what we do with Casanaga, because Casanaga flat out said that this statute is not ambiguous as the sign to a requirement, that it really looked at the statute in two parts.

[00:09:07] Speaker 01:
And that's the second part.

[00:09:11] Speaker 01:
Congress intended an objective standard.

[00:09:14] Speaker 01:
So to accept your argument, is it under a Miller v. Gammie type analysis?

[00:09:19] Speaker 01:
We'd have to reject that reading of the statute.

[00:09:23] Speaker 02:
So we're not saying that the statute includes a subjective intent element itself.

[00:09:28] Speaker 02:
The statute and counterment did not.

[00:09:30] Speaker 02:
What we're saying is charging under the statute without including a subjective intent element violates the First Amendment.

[00:09:36] Speaker 02:
So we're saying the indictment as it stands

[00:09:38] Speaker 02:
violates the First Amendment, and so do the jury instructions.

[00:09:41] Speaker 01:
That doesn't answer my question, because Casanaga says it's an objective standard, so no subjective intent element required.

[00:09:48] Speaker 01:
To get around that, is that a Miller v. Gammie analysis?

[00:09:52] Speaker 01:
That the counterman is clearly irreconcilable?

[00:09:54] Speaker 01:
Now our case law is clearly irreconcilable with countermen.

[00:09:58] Speaker 02:
This court could take that approach.

[00:10:01] Speaker 02:
I'll notice Cassinaga didn't address the First Amendment issue at all, very explicitly.

[00:10:06] Speaker 02:
So I think it left open what to do with First Amendment challenges to this, but this court could take that approach.

[00:10:24] Speaker 03:
The indictment and the jury instructions did not improperly omit a subjective intent to threaten element because the law does not contain that element.

[00:10:36] Speaker 03:
The Castanaga case has already been cited by the court.

[00:10:39] Speaker 03:
That case held that the law clearly and unambiguously does not include a subjective intent to threaten element.

[00:10:48] Speaker 03:
That case is dispositive here.

[00:10:50] Speaker 03:
If there is no subjective intent to threaten element in the law, then the jury instructions and the indictment don't have to allege a subjective intent to threaten element.

[00:11:00] Speaker 03:
Now, I think my friend on the other side has said that she is not raising a First Amendment challenge to the law.

[00:11:07] Speaker 03:
And so the citation to First Amendment cases I think is neither here nor there.

[00:11:11] Speaker 03:
There were citations to First Amendment cases in Castanaga.

[00:11:15] Speaker 01:
I understand counsel's argument.

[00:11:16] Speaker 01:
She's saying that the government prosecuted Mr. Chimanoff for a true threats violation.

[00:11:24] Speaker 01:
So that's how she brings it squarely within the subjective element requirement of countermen.

[00:11:31] Speaker 03:
Sure.

[00:11:31] Speaker 03:
So I think it would have to, if we're invoking countermen, it would have to go to a constitutional challenge to the law itself.

[00:11:39] Speaker 03:
Because the only way that you insert a First Amendment true threats countermen type of argument into a consideration of the indictment or the jury instructions is if the law actually requires that.

[00:11:53] Speaker 03:
And so maybe this is some sort of constitutional avoidance argument for why the law should contain that element when it's a true threat.

[00:12:01] Speaker 03:
But constitutional avoidance only comes up if the law is ambiguous.

[00:12:04] Speaker 03:
And again, Kastanaga said that the law clearly and unambiguously does not require the subjective intent to threaten element.

[00:12:12] Speaker 03:
But then even if we were going to get into the realms of the First Amendment, this court has already addressed this very statute in the Kaiser case, and it said that it was a constitutional law

[00:12:24] Speaker 03:
not under the true threats doctrine, but instead under the grave and imminent threat that the government has the power to prevent doctrine.

[00:12:32] Speaker 03:
And we know that those are separate doctrines because the Kaiser case specifically upheld a federal threats law under the true threats doctrine because it had a subjective intent to threaten.

[00:12:43] Speaker 03:
But then when it hopped over to the hoax law, it did not invoke the true threats doctrine.

[00:12:48] Speaker 03:
It instead invoked

[00:12:49] Speaker 03:
this grave and imminent threats exception.

[00:12:52] Speaker 03:
So whether you're talking about the statutory interpretation question or the constitutional question, you have binding authority on point here.

[00:12:59] Speaker 03:
And because countermen are solely dealing with true threats, a doctrine that was never invoked, it simply doesn't have much to say about this issue.

[00:13:08] Speaker 03:
So I'm happy to answer more questions on that issue.

[00:13:11] Speaker 03:
Otherwise, I can move over to the interstate commerce element.

[00:13:16] Speaker 03:
there was sufficient evidence on the interstate commerce element.

[00:13:19] Speaker 03:
But I will say, it certainly would have been nice to have a more fulsome record.

[00:13:23] Speaker 03:
I'm not arguing otherwise.

[00:13:25] Speaker 04:
But the testimony- Council, that's the biggest understatement in this case.

[00:13:30] Speaker 04:
Tell me specifically, what was it that, I mean, one reference to a snack shop and that this is a courthouse that has parties that

[00:13:45] Speaker 04:
that presumably are from out of state.

[00:13:49] Speaker 04:
I mean, are we – here's the other thing.

[00:13:52] Speaker 04:
Okay.

[00:13:53] Speaker 04:
So several of us on this bench were district court judges.

[00:13:56] Speaker 04:
We know how state courthouses work.

[00:14:01] Speaker 04:
You often get prisoners from out of state.

[00:14:05] Speaker 04:
You often get parties from out of state.

[00:14:08] Speaker 04:
Should we be using our common sense and experience?

[00:14:11] Speaker 04:
I mean, or should we just look strictly at this record and say, oh, they mentioned

[00:14:15] Speaker 04:
the snack shop once, and then that parties might be from out of state.

[00:14:21] Speaker 04:
I mean, that's all that there is in this record.

[00:14:25] Speaker 03:
So let me try and unpack all that.

[00:14:27] Speaker 03:
I do think the jurors are entitled to use their common sense to draw reasonable inferences from the evidence.

[00:14:32] Speaker 03:
But here, even just looking at the four corners of what directly was said, again, I'll agree it was sparse, but I do think it sufficed here.

[00:14:40] Speaker 03:
Let me give you the exact quote, and I'll break it down.

[00:14:42] Speaker 03:
There were two categories relating to interstate commerce.

[00:14:45] Speaker 03:
One is the case as the court heard.

[00:14:47] Speaker 03:
The other is the snack shop or cafeteria.

[00:14:51] Speaker 03:
The quote on the snack shop or cafeteria was that,

[00:14:55] Speaker 03:
There are various other businesses in the courthouse, too, like a cafeteria or snack shop or something like that.

[00:15:02] Speaker 03:
So it's undisputed that you have some sort of eatery-related business, and it was referred to as a business, so not a charity or anything like that.

[00:15:09] Speaker 03:
They're not giving the food away.

[00:15:10] Speaker 03:
This is a business that hands out food.

[00:15:14] Speaker 03:
And as this court held in the Sarang case, a restaurant is a property that falls within the ambit of 844I jurisdiction.

[00:15:24] Speaker 03:
In fact, the court said in that case that, quote, all business property has a per se substantial effect on interstate commerce and is subject to regulation by Congress in 844i.

[00:15:33] Speaker 03:
And in that case, there was no discussion of the revenue of the restaurant or anything like that.

[00:15:39] Speaker 03:
So I think the only question really left for the court is,

[00:15:42] Speaker 03:
What do you do with the fact that this is an ancillary function as opposed to the core business of the court?

[00:15:49] Speaker 03:
But this court has already addressed that issue as well.

[00:15:52] Speaker 03:
Rentaria, which Judge Mendoza, you cited, is a good example of that.

[00:15:55] Speaker 03:
It said that when you have an ancillary function, so long as that ancillary function falls under 844i, the building itself falls under 844i.

[00:16:06] Speaker 03:
There it was, that synagogue that had a gift shop and a daycare.

[00:16:09] Speaker 03:
Here, by the same token, it should be enough that you have a court that is running an eatery-related business to bring it within jurisdiction.

[00:16:18] Speaker 04:
And then, as to the cases themselves, again... One, I imagine... I hear your friend on the other side arguing that when there is this ancillary

[00:16:33] Speaker 04:
Use of the building that there needs to be more a more fulsome description in the testimony such that They can make the proper inferences here.

[00:16:45] Speaker 04:
There was a passing comment

[00:16:47] Speaker 04:
We've never held in ancillary use cases that this level of information is sufficient.

[00:16:56] Speaker 04:
Is this going to be the first or do you have another example of what's your best case saying that this is sufficient?

[00:17:05] Speaker 03:
You know, I don't know that I can point you to a case that says you need one level of detail versus another level of detail when it's ancillary or non-ancillary.

[00:17:14] Speaker 03:
I don't think there's any cases on that on either side of the ledger.

[00:17:18] Speaker 03:
But I don't think it could be reasonably said that Sarang would have come out a different way if the restaurant were in fact inside of a larger building.

[00:17:27] Speaker 03:
because, you know, the fact that you've got a restaurant that is used in an activity affecting interstate commerce is by the plain terms of the statute 844i enough to bring it within the jurisdiction of the court.

[00:17:42] Speaker 03:
So whether the, you know, function that meets the definition of 844i is within a larger building or not should be neither here nor there.

[00:17:50] Speaker 03:
I think that is the general proposition that Brentoria

[00:17:52] Speaker 03:
stands for and when it was discussing the $5,000 it never said that that wasn't necessary to bring it within the jurisdiction of 844 I to my knowledge it certainly mentions those details but there are many cases that don't mention those details one I mention is sarang but we also cite a number of real estate cases on page 26 of our brief none of those to my knowledge mentioned you know intricate details about profits or losses or anything like that so I think at the point when it

[00:18:22] Speaker 03:
is undisputed that there was this eatery-related business within the courthouse.

[00:18:28] Speaker 03:
That should be enough to bring it within the jurisdiction of the court.

[00:18:31] Speaker 03:
And then I'll briefly mention, again, this was sparse testimony, but there was testimony establishing that this court heard civil cases, criminal cases, restraining order cases, family law cases,

[00:18:43] Speaker 03:
It heard cases between out-of-state parties.

[00:18:45] Speaker 03:
It heard cases between foreign parties.

[00:18:48] Speaker 03:
I think we would be asking the jurors to really stick their head in the sand to assume that when you have a full-service court, none of those cases involve a business, none of them involve a shoplifting charge or a traffic ticket with an out-of-state party, or any of dozens of other sorts of cases that you would expect a full-service court to hear that affect interstate commerce.

[00:19:11] Speaker 03:
So again, I agree that the testimony is sparse, but I think drawing all inferences in favor of the government and the verdict and viewing the evidence in the light most favorable to that verdict, this was enough here to invoke the court's jurisdiction.

[00:19:25] Speaker 03:
So I see I have about one minute left.

[00:19:27] Speaker 03:
I'm happy to answer other questions.

[00:19:29] Speaker 03:
Otherwise, I'd ask the court to affirm and I'll yield the remainder of my time.

[00:19:33] Speaker 01:
Thank you, counsel.

[00:19:34] Speaker 03:
Thank you.

[00:19:36] Speaker 01:
Two minutes.

[00:19:37] Speaker 01:
Thank you.

[00:19:43] Speaker 02:
So we'll start with the strangeness that is the First Amendment analysis of countermen, which did not do an over-breadth challenge, did not analyze the Colorado statute there as a whole.

[00:19:55] Speaker 02:
What happened in countermen is the defendant said, moved to dismiss the specific charge under the First Amendment and said, if you're going to prosecute me under the statute,

[00:20:05] Speaker 02:
you have to also prove a subjective intent element.

[00:20:08] Speaker 02:
And the Supreme Court said yes, and then reversed.

[00:20:11] Speaker 02:
And so that's how we framed our argument here.

[00:20:14] Speaker 02:
Below, we moved to dismiss the charge under the First Amendment, explaining it needed a subjective intent element to comply with the First Amendment.

[00:20:22] Speaker 02:
And that's how we're here.

[00:20:23] Speaker 02:
So I'll acknowledge the strangeness of that.

[00:20:27] Speaker 02:
That's not often how we analyze First Amendment issues.

[00:20:30] Speaker 02:
In countermen, it called this sort of subjective intent element a strategic protection that features across all major categories of unprotected speech, defamation, obscenity, incitement.

[00:20:42] Speaker 02:
And so whether this court analyzes the statement under true threats, whether it analyzes under military security, the subjective intent element is a core constitutionally required proof.

[00:20:56] Speaker 02:
On the sufficiency of the evidence issue, I'll note that Sarang was before Jones, before the Supreme Court in Jones established this new test, which is not just affecting interstate commerce in any way, but whether the building itself is actively used for commercial purposes.

[00:21:14] Speaker 02:
And under that test, the really flimsy evidence here just does not meet that bar.

[00:21:21] Speaker 02:
I'll point this court to the bank, some federal bank crime convictions in which evidence that a bank is federally insured at the time of trial is insufficient evidence to prove that it was insured at the time of the offense.

[00:21:36] Speaker 02:
And jurors can use reasonable inferences to assume that a bank once insured is probably always going to stay insured.

[00:21:44] Speaker 02:
But that's just not enough.

[00:21:50] Speaker 01:
Any additional questions?

[00:21:52] Speaker 01:
Thank you very much.

[00:21:52] Speaker 01:
Thank you very much.

[00:21:53] Speaker 01:
The matter is submitted.