Third is First of Circuits to Address Constitutionality of AEPA: Denies First Amendment Challenges

In a case of first impression nationally, the Third Circuit in United States v. Fullmer, et al., No. 06-4211, upheld the Animal Enterprise Protection Act ("AEPA") against First Amendment challenges. The defendants also challenged the sufficiency of the evidence and the jury instructions in this case, which involved charges of violating the act, interstate stalking, using telecommunications devices to abuse/threaten/harass, and conspiracy to do all of the same. The Court affirmed the convictions of the organization, Stop Huntingdon Animal Cruelty ("SHAC"), and six individuals charged: the President of SHAC, the Campaign Coordinator for SHAC, the web creator/manager for SHAC, the Seattle branch manager for SHAC, a SAC activist who coordinated protests, and a SHAC Huntingdon campaign organizer in NJ.

A complete recitation of the facts from the Court’s 60-page opinion is not possible here. In brief: Huntingdon Life Sciences is a research corporation that performs testing for companies bringing products to market. Its labs use animals as test subjects. After animal abuse inside a Huntingdon lab in England was documented in the late 1990s, animal rights organizations began targeting the company. One of those organizations was Stop Huntingdon Animal Cruelty - UK ("SHAC-UK").

In the wake of an a brutal assault on its Managing Director by a member of SHAC-UK, Huntingdon relocated its financial base to the United States, where laws better protected the confidentiality of its shareholders, whom SHAC-UK had begun to target in the England. When a Huntingdon branch opened in New Jersey, SHAC formed a branch there, as well.

SHAC targeted Huntingdon, companies that were involved with Huntingdon, and people who worked for both Huntingdon and the affiliated companies. Its primary tool was its website, through which members coordinated protests. It posted the names, home addresses and home phone numbers of employees on the website. The web-page also included pages describing: (1) upcoming "direct action" – protests such as the activities at issue in this case; (2) previous "accomplishments" – for example, acts of vandalism committed by protesters; (3) "top 10 terror tactics," like smashing windows and firebombing cars; (4) how to evade investigators through techniques like encryption; and (5) "electronic civil disobedience" – such as inundating websites with email to crash servers or using "black faxes" to exhaust toner. The government’s evidence showed the cyberattacks cost Huntingdon $400,000 in lost business, $50,000 in staffing costs for repairs, and $15,000 in computer replacement costs.

Constitutionality of the AEPA: Void for Vagueness: The AEPA prohibits travel in interstate commerce or use of the mail or other facility in or interstate commerce for the purpose of causing physical disruption to the functioning of an animal enterprise that intentionally damages or causes the loss of property used by the animal enterprise (or conspiracy to do so). Defendants argued that the terms "economic damage" and "physical disruption" were not clearly defined," and included activities protected by the first amendment. The Court rejected these arguments because (1) "physical disruption has a well-understood common definition; (2) legal protest, such as letter-writing, which might cause an ancillary physical disruption is exempted from the statute; (3) defendants’ behavior – including encryption, evasion techniques, and even concessions on the website that some activities were illegal – suggests they knew their activities were illegal; and (4) the "intent" requirement means that the government must establish that the actor meant to disrupt the functioning of the enterprise, which alleviates vagueness concerns (citing Gonzales v. Carhart, 550 U.S. 124, 149 (2007)).

As-Applied Constitutional Challenge to AEPA: All parties agreed that, to the extent they advocated humane treatment of animals, the postings on the website fit within the rubric of the First Amendment. The question was whether they were directed to inciting or producing imminent lawless acting and likely to produce such action. Put differently, did they constitute a "true threat." Much of the speech did not. But the Court found the postings encouraging electronic civil disobedience and the dissemination of the personal information of Huntingdon employees was "more problematic."

Regarding the electronic civil disobedience, the Court held that the postings "encouraged and compelled an imminent unlawful act that was not only likely to occur, but provided the schedule by which the unlawful act was to occur. This type of communication is not protected speech." It found "ample evidence" to demonstrate that the individual defendants coordinated and controlled and participated in such activities.

Regarding dissemination of names and protests against target employees, the Court held that the defendants used past incidents to instil fear in future targets. For example, using photos of assault victims at protests. Viewed in context, the implied threats against target employees were not conditional and rightly instilled fear in the listeners, converting them to "true threats." The Court gave examples of particular instances in this category involving each defendant.

Definition of "Animal Enterprises": Defendants argued that the protest activity against companies associated with Huntingdon was not directed at "animal enterprises." The Court disagreed, finding that the "ultimate object" of the conspiracy was Huntingdon.

Actual v. Intended Loss: Defendants argued that the district court erred in instructing the jury that it could convict them for intended loss. The Court did not decide this issue, instead finding that any error would have been harmless because the government proved an actual loss in excess of the statutory threshold.

Sufficiency of Evidence/Conspiracy: Defendants challenged the sufficiency of the evidence to prove that they acted for the purpose of causing physical disruption to Huntingdon and to intentionally damage or cause the loss of Huntingdon’s property. The Court conceded that there was no direct evidence to prove a conspiracy between the defendants, but found "ample circumstantial evidence from which the jury could have inferred their agreement," to accomplish these unlawful goals. Judge Fisher dissented on this point, noting "I fail to see any evidence of an agreement to cause physical disruption to Huntingdon – as opposed to other non-animal enterprise companies affiliated with Huntingdon – or to cause damage or loss to property used by Huntingdon.

Stalking: The defendants also challenged their stalking convictions. One argued that he only intended to harass and embarrass the victims and make their lives miserable. He contrasted this type of infliction of emotional distress with the statute’s requirement that he intend to put his victims "in reasonable fear of death or bodily injury." The Court found that the invocation of the the website’s references to extreme acts of violence, coupled with protesters' use of ultimatums, went beyond harassment and embarrassment. Another defendant argued that the victims’ fears were unreasonable. The Court dismissed this argument for the same reason, adding that this particular defendant had personally threatened to burn one victim’s house down. The web administrator argued that the evidence was insufficient to convict him of any stalking-related counts. The Court found that the jury could reasonably have concluded that he aided and abetted the stalking because the website was a primary tool in it.

The Court also summarily rejected a variety of other challenges in this complicated and hard-fought case.

Defendant properly prosecuted and sentenced under federal chemical weapons statute after strategically employing toxic chemicals with intent to harm

Defendant Carol Anne Bond, a trained microbiologist, attempted, on at least 24 different occasions, to poison a former friend with toxic chemicals stolen from her employer after Bond learned that her friend had gotten pregnant and that Bond's husband was the baby's father. Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), and two counts of mail theft, in violation of 18 U.S.C. § 1708. Bond moved to suppress certain evidence and to dismiss the two chemical weapons charges under the Tenth Amendment on federalism and fair notice grounds. Following the district court's denial of her motions, Bond pled guilty to all the charges, reserving her right to appeal.

(1) Federalism Challenge

Section 229 was enacted in response to the multi-national Chemical Weapons Convention of 1993. It prohibits individuals from, among other things, acquiring, owning, possessing or using any chemical weapon. Section 229 neither has a requisite federal interest element, nor states any basis for its enactment beyond the Chemical Weapons Convention. On appeal, Bond asserted that 18 U.S.C. § 229 violated constitutional principles of federalism because it was not based on a valid exercise of congressional authority, it did not require proof of a federal interest, it was vague and overbroad, and it failed to provide fair notice of the conduct covered by its terms.

The Third Circuit, in United States v. Bond, No. 08-2677, declined to reach the merits of Bond's federalism challenge to Section 229 because it concluded that private parties lack standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties. The Court also rejected Bond's vagueness claim, finding that, while the terms of Section 229 were certainly broad, a person of reasonable intelligence would know that Bond's conduct violated the statute and that the statute cast a wide net for obvious safety reasons and did not criminalize protected activities outside the permissible bounds of Congressional regulation.

(2) Appropriateness of "Special Skill" Sentence Enhancement

Bond also challenged a two-level sentence enhancement for use of a special skill. The Third Circuit affirmed the district court's application of the enhancement, finding that Bond's advanced degree in microbiology, her training in the development and application of biocides, and her position at a chemical manufacturing company, where she could research and steal chemicals unavailable to the public, all supported the enhancement. Bond's background and training facilitated her handling and deployment of the chemicals in a fashion thought to be most lethal and influenced her decision to use toxic chemicals as her weapon of revenge. Accordingly, the Third Circuit affirmed application of the special skill enhancement.

Entry of dual convictions for bank robbery and armed bank robbery violated Double Jeopardy Clause

Defendant Donald Cesare pled guilty to a two-count information charging him with bank robbery (18 U.S.C. § 2113(a)) and armed bank robbery (18 U.S.C. § 2113(d)). He was sentenced, over defense counsel's objection, to two concurrent terms of 53 months imprisonment and ordered to pay a special assessment of $200 - $100 for each count. On appeal, the Government conceded that Cesare improperly received concurrent sentences in violation of double jeopardy because bank robbery is a lesser included offense of armed bank robbery, but argued that the two separate $100 special assessments be left intact because special assessments are not punishment.

The Third Circuit, in United States v. Cesare, No. 08-2749, disagreed with the Government's position regarding the special assessments, holding that the entry of separate convictions, including separate special assessments, threatened the defendant with "potential adverse collateral consequences." As such, the two separate special assessments constituted impermissible double punishments offending double jeopardy. Accordingly, the Third Circuit remanded this matter to the district court with instructions to vacate the defendant's armed robbery conviction.

Plain error when district court, after granting downward departure, imposes sentence higher than bottom of pre-departure Guidelines range.

Representing criminal defendants in sentencing, "you can't always get what you want, but if you try sometimes [and sometimes even if you don’t try in the district court], you might find you get what you need". In United States v. Vazquez-Lebron, No. 08-3222 (filed October 2, 2009), the Third Circuit held that a defendant was entitled to re-sentencing when the District Court imposed a sentence that failed to provide defendant the benefit of a 5K1.1 departure that it had already granted him.

Following his indictment for drug trafficking, defendant – who ultimately pleaded guilty pursuant to a written plea agreement – provided DEA agents with information concerning a fellow drug trafficker, and later testified before a grand jury. Based on this substantial assistance, the Government, before sentencing, moved for a one-level downward departure pursuant to U.S.S.G. § 5K1.1.

At the sentencing hearing, the District Court – in the first step of the Gunter sentencing process – properly calculated defendant’s offense level as 23 and criminal history category as I, yielding a Guidelines sentencing range of 46 to 57 months' imprisonment. Then, in Gunter step two, the District Court granted the Government’s 5K1.1 one-level downward departure motion: that reduction yielded a Guidelines range of 41 to 51 months' imprisonment. The District Court imposed a sentence of 48 months: at the upper end of the custody range that included the one-level departure, but also within the original, pre-departure custody range. Defendant did not object to the sentence.

On appeal, defendant argued that he was entitled to re-sentencing because the District Court committed plain error by imposing a sentence that was two months higher than the bottom of the original pre-departure Guidelines range, without any indication that it was applying an upward variance under 18 U.S.C. § 3553(a). Defendant argued that the District Court erroneously failed to give effect to the one-level departure that it granted when it imposed a sentence above the bottom of the pre-departure Guideline range.

The Third Circuit agreed. First, at Gunter step two, the District Court was required to calculate a sentence below the bottom of the otherwise applicable Guidelines range by U.S.S.G. § 1B1.1, cmt. n.1.E (defining downward departure as a "departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence."). Quoting its earlier decision in United States v. Floyd, 499 F.3d 308, 312-13, the Court ruled that when a district court grants a downward departure, the sentence it imposes "must be less than the bottom of the otherwise applicable Guidelines range." Here, where the post-departure 41 to 51 months Guidelines range overlapped with the original pre-departure 46 to 57 months Guidelines range, the District Court’s Gunter-step two calculation required a sentence less than 46 months. The District Court could have imposed a 48-month sentence only if the District Court explicitly supported an upward variance in reliance on the § 3553(a) sentencing factors– but the District Court did not do so here.

The Court further held that this sentence was plain error, because the Guidelines definition of "downward departure" was unequivocal, and clearly explicated in Floyd. The Court further held that this error was prejudicial because it was unclear whether the District court intended to vary the sentence upwards, or whether it failed to realize that it did not give defendant the benefit of the departure that it had granted. Significantly, the Court emphasized that "very few procedural errors by a District Court will fail to be prejudicial, even when the Court might reasonably have imposed the same sentence under the correct procedure. . . . [and] an error of procedure is seldom harmless."