good morning your honour's may please the court carolyn wigan from the federal defender's office in sacramento ca i think was our yesterday i did i did so it's good to be back here again and today i'm here for m sanders and i will again try to reserve two minutes for rebuttal if i can your honor so i wanted to start today by discussing the statutory interpretation issue now if we look at the subsection at issue it was passed it became law back in one nine hundred sixty eight along with a number of other subsections they've all survived at least the two flanking the subsection at issue they've moved within the statute but they've all three hung to gether that whole time and when congress passed the statute it issued a report talking about different types of tele communications abuse it was concerned with it talked about abuse of conversations over the phone but it also talked about the practice of people bringing another person's telephone over and over and over again only to hang up when the person there's a counterpart to when the phone is left to ring and that's when the phone is answered and there's a conversation so the conversation would be covered by subsection such as he which could have been charged here but wasn't but the repeated ringing it is covered by d and well regardless of the conversation if there are many many many conversations it means there are many many many rings yes and i i i think a case such as this one it was charged under d there was a lot of ringing there were many many calls over the period in question yes the defense asked for an instruction telling the jury you have to in this case he's charged with ringing there's a different law about people who are harassed through conversation he wasn't charge you can certainly consider a range of evidence but jury you have to decide that he intended to harass through the ringing that was a defense instruction mr sanders timely requested from the judge and the judge denied that request so had that it's i mean we've given you agreed with you what you want us to do well i think the conviction should be reversed because he was deprived of defense theory instructions and i actually go further to say there was an insufficient and sent back for retrial under an appropriate instruction well my full argument is that there was insufficient evidence if the court agrees with that of course it can't be retried the other position would be that he was entitled to the defense theory instructions if it's reversed and the government chooses to prosecute him again that would certainly be what better fit for sandy's conduct while we agree with the court that it would fit some of the conduct the government here chose to charge subsection d the state of the evidence as it sits physically made be a better fit because if we were to focus on subsection the calls that could be charged than would be the ones in which communication actually occurred as it happens there were three thousand calls roughly in the charge time period but this goes all the way back to two thousand and nine i would point the court to the sheer number of calls that were not answered the sheer number of calls that were just repeated one after the other out that doesn't really satisfy the problem does it i mean if we were to take a narrow view of what de is doing by looking at the surrounding statue and saying look he is really about the ring and i thought about intent to harass by by constantly ringing a phone even if it's not going to be answered and if we thought that he really did want to talk to somebody and the only way to get their attention was by ringing them then you probably don't have a case under de at least you haven't made it out in this proceeding well your honor we disagree the the sheer volume of the calls that that he engaged in and the pattern of the ringing one after another after he actually got a pattern you have any evidence that if the call is picked up that he then didn't speak do you have any of the calls in which the phone rings the government official of the other end picks it up and he then hangs up without speaking your honor i don't believe that there's evidence in the regulars and i think what he's doing is trying to talk to people that's what the evidence shows  then i can see why you're a little reluctant to use easy because we're talking to a government official and he's got a complaint i understand that it's a politely fringe sort of complaint but you've got a first amendment problem as soon as that doesn't fact fit the pattern here but i would also refer the court to two cases one the judge nelson brought up earlier which is the tobin one which is that even if he has and other intents besides the intent to harass he is still guilty  as long as he has the intent to harass and the language the vile the venom that but he didn't intend to harass by ringing and that's the instruction was not well because that is not how your honor how the statute reads causing the telephone of another repeatedly or continuously to ring which he did do i would point the court to exhibit to see of the government's trial exhibits in which you see the calling pattern where it rings and rings and rings and rings if you know that the person on the other end of that line if you answer it is going to abuse you then the ringing of that call is menacing if it happens over and over again that is harassing you know this was the exact harm that the statute was trying to put that you could have allowed even if you don't like the  defendant proposed jury instruction the government could have proposed to modification but you've you've got taken this under a different theory from what the from what the the defense proposed of the district court which seems to be of a closer fit to the actual language of the statute particularly considering the other the other provisions again your honor i don't agree and it's because respectfully because what the defense was proposing was an instruction that would have implied to the jury that if he had the intent to harass in any other way other than the ringing then he simply was not guilty and we're saying he was guilty under d and he may have also been guilty under each and possibly other provisions there were other statutes that this case could have been tried under but we made the prosecutorial decision not to but the fact is that their instructions unnecessarily bent to the jury towards would have been the jury unnecessarily towards the idea that if he had some other means of harassing besides the ringing he would that would immunize him from guilt under d and that is simply not not legally accurate and you point to any cases where the court has applied subsection d to conduct outside of hang calls yeah well the yes your honor the tobin cases do in fact do that they looked to the communications of the parties between each other to determine what their intent was in addition in the us in our case which in that which this court held that the expressive conduct that was in the the venomous texts and e mails that the defendant sent that was no longer protected by first amendment speech because it was speech integral to conduct what we have here is a six year pattern of harassment and as as as you know from the briefs the government holds that you know the political ever political thought was laced in amongst the abuse and in the months and in amongst the invective was  pretext but that's all beside the point because the conduct was the constant ringing of the phone again three thousand phone calls to the f c c in calendar year two thousand and fifteen three hundred twenty five i believe phone calls to joseph get finra in  the time period charge there but but that's just you know this much time period i'm very sympathetic with the government on this one not necessarily to have a theory under which you made you prosecute this case what i'm very sympathetic to the government to receive all these phone calls or a short break time is just very very difficult isn't there another way i mean isn't it technologically possible for the government to block phone calls coming from the numbers from which he is calling i mean why is the government so defenseless here that it is only choices during a criminal prosecution are a couple of reasons for that your honor we did ask the witnesses on the stand up to and including laurie schock who is a direct report to the chair of the f c c the f c c cannot and will not block phone calls because it is therefore a disguised his phone number he blocked his phone number he found ways around those systems the o g s and the social you didn't try to block them they tried to at least identify them so people could see them on their caller id and know whether or not they should answer but he came up as a block to call now with the f c c which deals with law enforcement agencies most law enforcement agencies numbers are blocked so this interfered with the as he sees ability to do its job bruce mclean testified about that very clearly and in addition to that  so they would that they couldn't address blocking simply the number but in addition to that they actually had to set up an entirely new i t system the threatening harassing abusive and intimidating color system and they had to design that for mr sanders because his volume of calls was so enormous that it was tying up their system and he would leave lengthy voice mails and so they sort of did everything they could without violating their duty to be a public service body and they fielded his calls and they tried to talk him down and they tried to help him bruce mclean tried to help him the defense plays on that a bit in their briefs but the reality is once bruce maclean decided that in fact  he first of all he couldn't really determine what the claim was but then when he said i'm sorry we but we can't help you then the venom started on bruce mclean and he accused him of sex acts with the s e c chair in graphic detail and told him he was wanted for public hanging and that he should be shot but all of that merely shows the intent it was his conduct of ringing the phone constantly calling the statute says with the intent to harass but it does not include it does not say soley by the ringing and as your honor is no soley his word included in the the next statue down in so congress could have included it but it's the act of ringing the phone repeatedly in continuously which the phone records alone establish and establish for the jury but the intent to harass can be shown from just those phone records alone but in addition the government to make the case clear showed what he said how he spoke the fact that he abused people who could not help him i know that the defense doesn't in its briefs address the fact that he harassed robert khuzami who was the former head of enforcement at the f c c and had gone into private practice  and he says he leaves and voice mails of the same exactly the same trick but it is that it is the constant ringing the constant phone calls that are established simply by by the phone records and the fact that after people hung up he would call back and this was precisely the harm that congress was seeking to address ok thank you very much thank you respon requested instruction that would have been one way to actually prosecute him properly for this event or so actually was the request of introduction what precisely was actually was the requested instruction i if you'd like me to quote it direct do that would be useful you're on it was wrong this is page fifteen of my brief the opening brief the defendant is charged with making or causing a telephone to ring with intent to harass a person of the called numbers to find the defendant guilty of these charges you must find beyond a reasonable doubt that he intended to harass a person by causing his or her telephone to ring repeatedly a different law governs calling calls during which conversation or communication ensues defendant is not charged with violating that law if you have a reasonable doubt that the defendant intended to harass a person specifically by ringing the telephone then you must find him not guilty ok and i would just say i believe that's the correct reading of the status how is that different from instruction that was given at the instruction that was given says you have to find intent to harass but it doesn't inform the jury it has to be harassment through ringing and of course  us i'm looking i'm looking at the instruction right now first the defendant made or cause the telephone's of the united states securities and exchange commission to ring to repeatedly redeem secondly the defendant did so with the intent to harass any person of the called number there is talking only about repeatedly ringing well the actus they talk about is repeatedly ringing and then the for the purpose of harassment isn't tied back to the ringing so i think it leaves the possibility of the defendant did so meaning made or cause the telephone's of the nice a securities exchange commission to repeatedly ray did so with the intent to harass any person of the called number well i think that the way the case was presented and argued the government relied heavily on the cover to we were really really focused on the nitty gritty of the of the instructions what's wrong with that instruction i think it doesn't tell the jury that when the defendant has a defense theory that he wants to be sure he's only being convicted because of the ringing he's entitled to his defense theory instruction reminding the jury it's about the ringing i mean i don't there isn't  conversation well i think if you look at the way the case was prosecuted and you look at the government's argument that was the heart of their case and i would just say that if conversation can be enough that he should have gotten his first amendment instruction under freeman this speech it was of noxious but it was about public policy and i believe that friedman makes clear that when you have this type of speech you're entitled to a jury instruction so the jury can decide if it's protected first amendment speech