[00:00:02] Speaker 04:
Good morning.

[00:00:03] Speaker 04:
Good morning, Your Honor.

[00:00:04] Speaker 04:
I'm Kathleen Che on behalf of the appellant, Christopher Crawford.

[00:00:08] Speaker 04:
If I could reserve five minutes for rebuttal.

[00:00:11] Speaker 04:
Thank you.

[00:00:11] Speaker 04:
Keep your eye on the clock as well.

[00:00:13] Speaker 00:
I'll try to help you out.

[00:00:14] Speaker 04:
I will.

[00:00:16] Speaker 04:
Fundamental questions about what was required under the First Amendment arose in Mr. Crawford's trial.

[00:00:23] Speaker 04:
And these questions were decided by the district court without the benefit of the Supreme Court's decision and countermen.

[00:00:29] Speaker 04:
leading to multiple errors and Mr. Crawford's conviction under a cyber-stalking statute that is facially invalid.

[00:00:35] Speaker 04:
I would like to begin by talking about how the jury instructions in this case violated the First Amendment.

[00:00:42] Speaker 04:
The two convict instructions in Mr. Crawford's case for both cyber-stalking and interstate threat have the same errors.

[00:00:50] Speaker 04:
Both jury instructions failed to comply with Black and failed to comply with countermen.

[00:00:56] Speaker 04:
in terms of how the jury should evaluate a true threat.

[00:01:01] Speaker 04:
The interstate threat charge, of course, actually uses the word threat.

[00:01:07] Speaker 04:
As to the cyber-stalking charge, the government alleged Crawford had committed cyber-stalking by harassment or intimidation.

[00:01:15] Speaker 04:
harassment was defined in part by threatening.

[00:01:20] Speaker 04:
So when defining threat for the jury, as to both instructions, the government was obligated first, under Black, to prove that the threat put Bose in fear of bodily harm or death, and second, under countermen, to prove that Crawford made that threat recklessly.

[00:01:39] Speaker 04:
That is, he consciously disregarded a substantial risk

[00:01:42] Speaker 04:
that his communications would be viewed as threatening violence.

[00:01:47] Speaker 04:
The jury instructions did not do this.

[00:01:50] Speaker 04:
They were both missing these critical constitutional elements.

[00:01:54] Speaker 04:
For this reason, the court should reverse.

[00:01:57] Speaker 04:
Now I know that this court has had the opportunity to look at instructions in another case.

[00:02:04] Speaker 04:
In the briefing, there is the case Emmer that is talked about post-counterman.

[00:02:12] Speaker 04:
And in that case, the court looked at the definitions of intimidation or threat.

[00:02:18] Speaker 04:
and determined that the definition of intimidation or threat provided to the jury in that case was acceptable because it included both the mental state and the objective reasonable person standard.

[00:02:35] Speaker 04:
And as I discussed in the briefing,

[00:02:38] Speaker 04:
This case is different than Emmer.

[00:02:41] Speaker 04:
In that case, it was very clear that the court was providing the definition to the jury, both as to intimidation or threat.

[00:02:51] Speaker 04:
It numbered each of the- May I interrupt you for just a second?

[00:02:53] Speaker 02:
I'm just going to read the instruction, the definition of a threatened.

[00:02:57] Speaker 02:
Threatened means to communicate a serious statement, expressing an intention to inflict injury immediately or in the future.

[00:03:06] Speaker 02:
I'm having trouble understanding what's wrong with that.

[00:03:09] Speaker 04:
Okay.

[00:03:09] Speaker 04:
Yes.

[00:03:10] Speaker 04:
So our argument is that what's wrong with that is twofold.

[00:03:14] Speaker 04:
One, the fact that it does not indicate to the jury under counterman that Mr. Crawford had to make the threat recklessly.

[00:03:23] Speaker 02:
And two- What's recklessly even mean?

[00:03:26] Speaker 02:
Recklessly, I mean, he's doing it intentionally.

[00:03:30] Speaker 02:
So what's recklessly add to that?

[00:03:34] Speaker 04:
Well, the difference in Mr. Crawford's case than, for example, in Emmer is that here, when they're defining the term threat, they're not including intent in the same way.

[00:03:48] Speaker 04:
So the definition just says, for purposes of these instructions, to threaten means to communicate a serious statement expressing an intention to inflict injury immediately or in the future.

[00:04:00] Speaker 04:
And then talks about, for a statement to be a threat, the statement must have been made under such circumstances that a reasonable observer would understand it as a serious expression of an intention to inflict injury.

[00:04:12] Speaker 02:
And so what he says is, if I end up homeless because of your BS,

[00:04:17] Speaker 04:
you will not survive my homelessness I swear it sounds like a threat to me well the jury had to make that determination and the jury had to make a determination about whether it was a threat pursuant to what is required for a true threat under black and countermen so for example

[00:04:37] Speaker 04:
In this statement, in this jury instruction, the jury was not instructed as to true threat because although you see that language for intimidate and

[00:04:51] Speaker 04:
For example, when it talks about intimidation at ER 10, the intent to intimidate means to act with the specific purpose, intent or purpose of placing the victim in fear of bodily harm or death.

[00:05:05] Speaker 04:
And then harassment gives sort of a circular definition that sends you back to the definition of intimidation, which again is bodily harm or death.

[00:05:15] Speaker 04:
But when you get to threat, that's no longer required.

[00:05:19] Speaker 04:
Now there's just merely a requirement that the jury find injury, not that the jury find inferior bodily harm or death.

[00:05:28] Speaker 04:
That is only under intimidation.

[00:05:30] Speaker 04:
Or if you take harassment to go back to intimidation, you can also get to harassment that way.

[00:05:36] Speaker 03:
Ms.

[00:05:37] Speaker 03:
Shea, on that point, essentially your argument is that the countermen, the Supreme Court's opinion in 2023, specifically noted that in terms of a threat, it must be established that the defendant had subjective intent to threaten, correct?

[00:05:53] Speaker 03:
Yes.

[00:05:53] Speaker 03:
And your challenge there, following your response to Judge Fletcher's question, is that you feel that the cyberstalking jury instruction did not include a subjective element of true threat.

[00:06:06] Speaker 03:
That's your argument, right?

[00:06:07] Speaker 03:
Yes, as to the definition.

[00:06:09] Speaker 03:
With the instruction that I understand was given, according to the record, in terms of the matter of intent to intimidate, it says, regarding the first element, intent to intimidate means to act with the intent or purpose of placing the victim in fear of bodily harm or death.

[00:06:29] Speaker 03:
Intent to harass means to act with the specific intent or purpose of distressing the victim.

[00:06:34] Speaker 03:
by threatening, intimidating, or the like.

[00:06:37] Speaker 03:
For the purposes of these instructions, to threaten means to communicate a serious statement expressing an intention to inflict injury immediately or in the future, as distinguished from idle or careless talk, exaggeration, or something said in a joking manner.

[00:06:52] Speaker 03:
And then for a statement to be a threat, the statement must have been made under such circumstances that a reasonable observer would understand it as a serious expression of an intention to inflict injury.

[00:07:02] Speaker 03:
That's the instruction that was given.

[00:07:05] Speaker 03:
And it seems to me that the district court did, in fact, even before Kellerman, in compliance with Kellerman, factor in subjective intent.

[00:07:15] Speaker 03:
So I don't understand where that's your instruction on the matter of intimidate following up on your earlier response, where that did not in any way consider the subjective element of true threat.

[00:07:30] Speaker 04:
Well, because in this case, unlike in Emmer, where they're very clear that here you're evaluating speech, and there are two parts to this.

[00:07:38] Speaker 04:
There is the mens rea and the objective reasonable person standard.

[00:07:43] Speaker 04:
That is not clear when you're reading through these instructions.

[00:07:46] Speaker 04:
And it does not provide the intent that is necessary under countermen because you're saying that essentially you're saying what's air to include an objective.

[00:07:58] Speaker 00:
component in it, so the instruction had to be limited to just the subjective component?

[00:08:03] Speaker 00:
Because the district court here did both, both an objective and a subjective component that was embedded in the jury instruction.

[00:08:12] Speaker 04:
But our position is that the actual definition of threat did not include that, and that by not including that, they have negated any intent that you could read into it from the rest of the instruction.

[00:08:24] Speaker 04:
And in addition to that, even if this court were to find that this instruction properly complies with the intent, it still does not properly instruct the jury on bodily harm or death.

[00:08:43] Speaker 04:
And that is the black violation.

[00:08:46] Speaker 04:
So this instruction still does not comply with black, because when you read this instruction, it instructs the jury they must find a fear of bodily harm or death as to intimidation, or potentially harassment, if you get back to intimidation, through harassment, but not once you get to threat.

[00:09:08] Speaker 04:
So it's not instructing the jury properly as to true threat.

[00:09:14] Speaker 00:
Let me ask you about your second amendment challenge because as I'm sure you know, there's quite a few second amendment challenges pending and I'm trying to figure out.

[00:09:23] Speaker 00:
I mean, this seems to be on the easier end of the spectrum of cases that we're dealing with and you may know we're holding a number of cases so that we can just sort of figure out.

[00:09:36] Speaker 00:
Which panel's got priority in the exact framework?

[00:09:39] Speaker 00:
I'm not sure we need to do that in this case because that restriction was imposed as part of his sentence.

[00:09:46] Speaker 00:
So do you have any thoughts on where this fits in among the spectrum of challenges that the circuit is dealing with right now?

[00:09:54] Speaker 04:
To that, I would say that Mr. Crawford is in a very different position than, for example, the defendant in Perez Garcia because of the fact that there was nothing in this case that suggested there was an issue with firearms.

[00:10:14] Speaker 00:
But this is part of his sentence, right?

[00:10:18] Speaker 00:
Supervised release is part of the sentence.

[00:10:20] Speaker 00:
Yes, it is.

[00:10:21] Speaker 00:
And that has not been decided, but yes.

[00:10:24] Speaker 02:
And with respect to the firearms, is that plain error review?

[00:10:29] Speaker 02:
That is to say no objection made below?

[00:10:32] Speaker 02:
Do you follow me?

[00:10:36] Speaker 04:
Yes, I do follow you.

[00:10:37] Speaker 04:
There was not an objection to this made below.

[00:10:39] Speaker 04:
That is correct.

[00:10:40] Speaker 04:
Thank you.

[00:10:41] Speaker 03:
Heller, you made reference in the Heller case, Heller basically involved a lifetime ban, did it not?

[00:10:47] Speaker 03:
Not a three-year period of supervised release.

[00:10:49] Speaker 03:
Heller is in a lifetime ban that was found deficient.

[00:10:52] Speaker 03:
Clearly distinguishable from the facts of this case.

[00:10:58] Speaker 00:
So the scope of your challenge isn't to felon in possession a lifetime ban.

[00:11:03] Speaker 00:
It's just to be conditioned as part of supervised release, right?

[00:11:08] Speaker 04:
Yes, correct.

[00:11:11] Speaker 04:
Uh, your honor, I guess I'd like to save the remaining time for rebuttal.

[00:11:15] Speaker 04:
All right.

[00:11:15] Speaker 04:
Thank you.

[00:11:24] Speaker 01:
Good morning.

[00:11:24] Speaker 01:
Your honors may please the court.

[00:11:25] Speaker 01:
Michael Morgan for the United States.

[00:11:27] Speaker 01:
Council made a brief assertion that the cyberstalking statute is facially unconstitutional.

[00:11:35] Speaker 01:
That argument is foreclosed by this Court's decision in Ossinger.

[00:11:38] Speaker 01:
Nothing in the counterman decision is clearly irreconcilable with this Court's decision in Ossinger.

[00:11:44] Speaker 01:
The statutes are just radically different.

[00:11:47] Speaker 01:
The language is different.

[00:11:49] Speaker 01:
The cyberstalking statute doesn't even use the word threat in it.

[00:11:53] Speaker 01:
So as just a pure over-breath matter,

[00:11:57] Speaker 01:
counterman has nothing to do with this case.

[00:12:01] Speaker 01:
With respect to the jury instruction, there's a debate about the standard review that applies.

[00:12:07] Speaker 01:
I think it's pretty clear that it's plain error because the defendant is challenging the refusal to give the instruction he tendered, which was not the instruction ultimately he says he's entitled to now.

[00:12:22] Speaker 01:
The instruction tendered wanted a specific intent

[00:12:26] Speaker 01:
to harass.

[00:12:28] Speaker 01:
The counterman says you don't even need that.

[00:12:30] Speaker 01:
And in fact, he got a specific intent.

[00:12:33] Speaker 01:
to harass.

[00:12:33] Speaker 01:
In these instructions, the defendant got more than he was entitled to.

[00:12:38] Speaker 01:
So that was, again, that's this court's decision in Emmer.

[00:12:42] Speaker 01:
So you don't err by instructing the jury with a greater subjective intent, specific intent, to harass than you would with a reckless intent to harass.

[00:12:54] Speaker 01:
So there's clearly no error, plain or otherwise, in the district court's instructions.

[00:12:59] Speaker 01:
And the court has teased out the appropriate

[00:13:03] Speaker 01:
language it's the instructions to threaten is a verb so it's the active voice means to communicate a serious statement expressing again the active voice and intention to inflict injury immediately or in the future so you have to in issuing the statement intend to communicate a threat that is a subjective intent requirement

[00:13:32] Speaker 01:
So if the court has no further questions on the instructions issue, I will turn briefly to the Second Amendment issue.

[00:13:38] Speaker 01:
That's the only other issue that the court has expressed any interest in, unless the court has questions about something else.

[00:13:42] Speaker 03:
Mr. Morgan, just let me ask you, did with respect to the testimony about the Navy's poor history of protecting female service members and testimony about the poor history in that regard, did the government really need that evidence in this case?

[00:14:00] Speaker 01:
Well, need is a relative term, but I would say yes, because the defense was attempting to discredit the victim's testimony.

[00:14:11] Speaker 01:
Essentially, the defense wanted the jury to believe that the defendant was not afraid of Mr. Crawford.

[00:14:18] Speaker 01:
And one of the ways they were trying to do that, they were pointing to this email that the response to the threatening email, which Judge Fletcher rightly perceived is clearly threatening,

[00:14:29] Speaker 01:
And she emailed it to the NCIS investigator saying, this is a threat.

[00:14:34] Speaker 01:
And the defense tried to spin that.

[00:14:35] Speaker 01:
NCIS doesn't always live up to the television programmer saying, right?

[00:14:40] Speaker 01:
Television justice and real justice don't always match up.

[00:14:43] Speaker 01:
That's definitely true.

[00:14:44] Speaker 03:
I think we all agree with that.

[00:14:46] Speaker 01:
But what they were trying to spin that was, was like, oh, she's not even taking this seriously.

[00:14:51] Speaker 01:
But the agent testified, no, she was exasperated because she had been constantly going to the Navy and being told

[00:14:59] Speaker 01:
There's nothing we can do, which maybe that was right, maybe that was wrong, but she was basically... There was loads of evidence in this case.

[00:15:06] Speaker 03:
I guess my question to you is whether you really think it was necessary.

[00:15:11] Speaker 01:
This was really the only defense they had.

[00:15:13] Speaker 03:
My point is there's a great deal of evidence in terms of this.

[00:15:22] Speaker 03:
caused a little bit of cause about whether or not you really needed this evidence, but I don't know that it influenced the jury.

[00:15:27] Speaker 01:
I don't think, as far as the evidence part of it, I think it was admissible.

[00:15:34] Speaker 01:
It was admissible to rebut that particular inference they were trying to draw.

[00:15:40] Speaker 03:
As far as the statement... As far as 401, I guess my question is in terms of 403 and prejudice.

[00:15:45] Speaker 01:
Well, that would be for plain error.

[00:15:48] Speaker 01:
They didn't object on 403 grounds.

[00:15:49] Speaker 01:
They only objected on 401 grounds.

[00:15:51] Speaker 01:
And even if you wanted to say that you could excise that one piece, it would be clearly harmless in this case, as you pointed out.

[00:16:00] Speaker 01:
The evidence of guilt is overwhelming.

[00:16:02] Speaker 01:
And the same with if you were to say that, like, the prosecutor shouldn't have referenced it in summation, notwithstanding that the defendant in his summation was clearly attacking the victim's credibility for this very reason.

[00:16:14] Speaker 02:
You know, you're going to have to make up your mind either you needed it or it was harmless.

[00:16:18] Speaker 02:
You started out saying you needed it, and now you're saying it's harmless.

[00:16:21] Speaker 01:
Well, I'm taking alternative positions.

[00:16:24] Speaker 02:
I understand that.

[00:16:26] Speaker 02:
You made me better pick.

[00:16:29] Speaker 01:
If you want me to pick, if pressed, I will say that it was harmless and not reversible plain error.

[00:16:34] Speaker 01:
That's probably a better field to go on, I think.

[00:16:36] Speaker 01:
Well, I'm certainly happy to play on that field if necessary.

[00:16:39] Speaker 03:
That's fine.

[00:16:40] Speaker 03:
Sometimes a prosecutor can get more than he or she needs.

[00:16:42] Speaker 03:
Sometimes you have to think about getting to the appellate level where do you really need this, I guess, is my point.

[00:16:48] Speaker 01:
Understood, Your Honor, understood.

[00:16:50] Speaker 01:
But again, on this record, there would be no reason to reverse on that one little error, if error there was.

[00:16:56] Speaker 01:
If the court has no further questions about any of the other issues, we'll rest on our briefs.

[00:17:01] Speaker 01:
Thank you, Your Honor.

[00:17:02] Speaker 01:
We'd ask the judge to be affirmed.

[00:17:03] Speaker 03:
Thank you very much.

[00:17:12] Speaker 04:
Thank you.

[00:17:12] Speaker 04:
One thing I wanted to address, Judge Fletcher, you had asked me about the standard of review.

[00:17:20] Speaker 04:
Upon reflection, I do want to correct a misstatement, which is that, yes, it is correct as to the firearm.

[00:17:26] Speaker 04:
And also, there is this question as to the jury instruction issue as well in terms of Mr. Crawford not having objected.

[00:17:35] Speaker 04:
And he did not.

[00:17:36] Speaker 04:
I'm correct in saying that.

[00:17:38] Speaker 04:
But I am not conceding that that should then be reviewed.

[00:17:42] Speaker 04:
under plain error.

[00:17:43] Speaker 04:
That should still be a de novo standard.

[00:17:46] Speaker 04:
In part, just to point out as to both those issues, under McAdory, there is this idea that even if the defendant does not object, when the issue is one of pure law, as the firearm is or as these jury instructions are,

[00:18:02] Speaker 04:
it's appropriate to review de novo and make a determination because as to the jury instructions, for example, there was this intervening issue of law and now the government has had a full opportunity to respond.

[00:18:16] Speaker 04:
As to the prosecutorial misconduct argument, first, the government overstates the evidence repeatedly and I think this is also an issue in this case about

[00:18:30] Speaker 04:
how they were trying this case and what evidence they were permitted to use to show an actual threat, which again goes back to this idea of what is a true threat and what should have been permitted at trial.

[00:18:43] Speaker 04:
But certainly, there was voluminous evidence that did not rise to the level of true threat in this case, and the government

[00:18:53] Speaker 04:
tried to, both at trial and on appeal, say, well, it all counts.

[00:18:58] Speaker 04:
And as discussed in our briefing, that's simply not true.

[00:19:03] Speaker 04:
It does not.

[00:19:04] Speaker 04:
They needed to prove true threat in this case.

[00:19:06] Speaker 02:
The sentence that I read to you, I guess it was two sentences, is that not a true threat?

[00:19:11] Speaker 04:
It is not a true threat because it does not indicate that inflict injury is not the same as requiring the jury to find fear of bodily harm or death.

[00:19:25] Speaker 02:
And that matters a lot in this case because there was... Now, he says, if I end up homeless because of your BS, you will not survive.

[00:19:35] Speaker 02:
That sounds like you might die.

[00:19:37] Speaker 04:
In the context though, the jury was given that information in the context of the fact that this was an ongoing divorce, custody dispute.

[00:19:46] Speaker 04:
There was much anger between these two individuals.

[00:19:49] Speaker 04:
The jury would have to make that determination, but they needed to be able to do it with the correct instructions.

[00:19:56] Speaker 02:
Putting aside the instruction, I'm just reading that language.

[00:19:59] Speaker 02:
Does that sound like a threat to kill?

[00:20:03] Speaker 04:
No.

[00:20:04] Speaker 02:
It says, you will not survive.

[00:20:06] Speaker 02:
That sounds like she's going to die.

[00:20:09] Speaker 04:
Except for, as defense counsel argued, pointed out below, that can mean many things.

[00:20:14] Speaker 04:
We don't always use the word survive in the English language to mean literally, you will not survive.

[00:20:20] Speaker 02:
Well, you will not survive means you won't live.

[00:20:23] Speaker 04:
Yes, but that is certainly one definition.

[00:20:27] Speaker 04:
I am not arguing with the court about that.

[00:20:29] Speaker 04:
But I do think that it is common for people to use that term, not meaning that anyone will actually die.

[00:20:39] Speaker 04:
And in the context here of a hotly contested custody dispute.

[00:20:44] Speaker 00:
But that, I think, becomes an argument that the defense can raise to the jury.

[00:20:48] Speaker 04:
Yes, they can.

[00:20:49] Speaker 04:
But they needed the right instructions to do it.

[00:20:52] Speaker 04:
They needed to be properly instructed on true threat.

[00:20:55] Speaker 04:
And when you get to threat in this instruction, that is not required.

[00:20:59] Speaker 04:
It was not required of the jury.

[00:21:01] Speaker 04:
So no matter what argument defense counsel was making, this instruction wrongly allowed them to decide.

[00:21:07] Speaker 04:
based on evidence that she was embarrassed or upset instead of the fact that she was actually worried truly for bodily harm or death.

[00:21:17] Speaker 04:
Thank you for allowing me to go over.

[00:21:19] Speaker 00:
All right.

[00:21:19] Speaker 00:
Thank you very much, counsel, both sides for your argument.

[00:21:22] Speaker 00:
The matter is submitted.