Wednesday, September 25, 2019
By a MetNews Staff Writer
Hearing oral argument on Sept 11 in the appeal by a man convicted of threatening in 2016 to kill presidential candidates Donald Trump, now president, and Hillary Clinton, are, from left, Circuit Judges Sandra S. Ikuta, Johnnie B. Rawlinson, and Mark J. Bennett. The court affirmed the conviction.
The Ninth U.S. Circuit Court of Appeals has affirmed the conviction of a man for threatening in 2016 to kill presidential candidates Donald Trump and Hillary Clinton, rejecting the contention that his phone call to the FBI was for the salutary purpose of his getting help to avoid committing those deeds.
Circuit Judges Sandra S. Ikuta and Mark J. Bennett signed Monday’s memorandum opinion which rejects defendant Michael Wallenstein’s bid for a reversal of his conviction under 18 U.S. Code §879. That statute provides:
“Whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon…a major candidate for the office of President…shall be fined under this title or imprisoned not more than 5 years, or both.”
Circuit Judge Johnnie B. Rawlinson concurred in the result, only, with no indication of where she parted company with the majority.
‘Not a Joke’
Ikuta and Bennett wrote:
“Wallenstein called a law enforcement tip line and stated that he wanted to ‘confess” that he was ‘going to attempt an assassination on Donald Trump or Hillary Clinton.’ He stated that it was ‘not a joke’ and he was ‘very serious.’ Wallenstein also stated that his feelings had been building over ‘the past year,’ that it ‘will be attempted,’ and that he was willing to die.”
The opinion continues:
“He didn’t say anything to suggest that he was not serious. And to the extent his statements could be interpreted as a plea for help, such an interpretation does not undercut the threatening nature of his statements. The jurors could evaluate Wallenstein’s tone and statements because they twice heard the entire recording of the call. We conclude that the evidence was sufficient for any reasonable factfinder to conclude beyond a reasonable doubt that Wallenstein violated § 879.’ ”
The judges said the evidence showed that the defendant uttered a “true threat” which he intended “to be taken seriously.”
At oral argument on Sept. 12 in Pasadena, Deputy Federal Public Defender Alexandra W. Yates maintained that “Mr. Wallerstein called the FBI to self-report his own disturbing thoughts and asked for help.”
Bennett rejected yesterday Yates’s characterization of the purpose, quoting Wallerstein as saying:
“I am concerned that I am going to attempt an assassination of Donald Trump and Hillary Clinton. I’m very serious. This will be attempted.”
The judge asked why the jury’s finding that this was a “true threat” should not be credited.
Yates responded that the words Bennett quoted must be taken in context. She noted that Wallerstein next said:
“And I cannot see that happen. I cannot. So, I am trying to reach out and hopefully there will be someone I may be able to talk to in this matter.”
The lawyer quoted her client as saying later in the conversation:
“I don’t want to see this happening. I’m trying to stop it happening. That’s why I’m calling.”
Yates contended that it might be that jurors did believe Wallerstein was calling for help but did not realize that such was a defense to the charged offense because the District Court judge—Beverly Reid O’Connell of the Central District of California, since deceased—did not instruct that an element was a “bad intent.”
She pointed out that the statute contains the words “knowingly and willfully.”
The opinion, in addressing the scienter element, says:
“Here, the record supports that the instructions, as a whole, sufficiently told the jury to consider context in deciding on the intent element. Notably, the instruction defining threat told the jury to ‘consider the circumstances under which the alleged threat was made, including its context.’ The district court did not err.”
The opinion also says, with respect to arguments it enumerates, that they are “unavailing because Wallenstein either fails to show that the district court erred or fails to show a reasonable probability that, but for the claimed errors, the verdict would have been different.”
First Amendment Argument
One argument Yates put forth at oral argument that was not specifically addressed in the opinion was that applying §879 to Wallerstein is violative of the First Amendment. She asserted that the statute, if applied to his conduct, impermissibly criminalizes “pure speech.”
Yates expressed the view that Wallerstein’s phone call served the worthy purpose of blocking him from committing an assassination, and said:
“The First Amendment protects speech that has value.”
Assistant U.S. Attorney Bram Alden, arguing for the government, said the jury rejected the cry-for-help defense and accused the defense of calling for an “appellate retrial.”
He noted that the seriousness of the threat by Wallerstein was such that O’Connell “didn’t want this defendant released until after the Inauguration.”
Although Rawlinson did not explain why she declined to join in the majority’s opinion, she did express concern at oral argument that each juror was not questioned as to whether he or she would give extra weight to testimony by law enforcement officers. The opinion says:
“Although the law enforcement bias question proposed by the government is a standard question, and it may have been better practice for the district court to have asked it, the district court did not plainly error because, as a whole and given the broad discretion afforded to the court in conducting voir dire, the questions were reasonably sufficient to test the jury for potential law enforcement bias.”
Rawlinson commented at oral argument: “This is a very close case.”
She also remarked that jury findings must be accorded deference.
Presiding at the session, Rawlinson began on a light note, saying to Yates:
“Good morning, counsel. For the record, I like your shoes.”
The lawyer replied:
“Good morning, your honor. For the record, thank you very much.”
The case is U.S. v. Wallenstein, 17-50003.
Copyright 2019, Metropolitan News Company