a lot of issues and not much time they place the court my name is paul beers i'm in private practice in roanoke and i want to thank the court for appointing me to represent william white and such an interesting and important case concerning eighteen u s c eight seventy five the main issue there are a number of issues judge of the some of the sensing issues would be moot if the court would grant the relief i'm looking for in this case and that is that his four convictions be cade under that eight seventy five b and eight seventy five c and there are two threshold issues that i think are important to highlight first of all this case which is of post alone this case a loss was handed down in  june two thousand and fifteen by the supreme court and it's right on point but in this case today does not come before the court on planar review as far as criminal liability goes this is did novo review because the issue below the instructional issue whether or not mr white needed to act with subjective intent whether the government needed to prove he subjectively intended to threaten his wife was preserved while there's no question was preserved because even though the four circuits position was that it's an objective test we asked for representing mr white and we objected and we asked for a ninth circuit type of instruction on the third page of the government's brief that's document sixty two they agree this issue was preserved below so unlike the smattering of other post illinois cases that are out there which are coming up on planar review this is the no vote the second issue that's now as to which count as to is the same error should be the same result you got a better argument on a seventy five c or count two your honor they have i think there is no argument with respect to count two there are only argument you have a better argument on count do than you got on the other three i think kno a transmission element and has an extortionate intent element and has a true threat element so the only difference is the government has to prove extortion under age seventy five b but still the same error that makes it necessary to vacate whites conviction under age seventy five c necessitates vacating his convictions under b it's the same error judge turk instructed the jurors that they need to fund by they can find the true threat as long as a reasonable listener a reasonable person would perceive that to be a true threat expressly told them they do not need to find that mr white subjectively intended to threaten his wife what the government seems to be arguing is we don't need to worry about that under age seventy five b because he instructed them properly under the extortion element but that's collapsing the elements there are three elements threat and transmission so that they're ad they're asking this court to just ignore the threat element under b and that doesn't make any sense because eight seventy five b is a far more serious offense it carries a twenty year maximum in prison whereas age seventy five carries a five year maximum it is a classic greater offense lesser included offense structured statute so even alone is on its face says we're not changing the rule the rule is that in a criminal statute each essential element of the mains re a associated with each essential element must be proven the jury must be instructed on each means rare element so it's the same problem there they've been very creative in their brief  trying to say it's different because we can don't worry about the threat element that means that that is the sound bite from their brief when it comes date seventy five b we have an extortion element here correctly instructed so that doesn't matter that they were missing structured on he wanted the majority to send this back aloneness to the third circuit for harmless error review it was remanded to the third circuit remanded to sort out the specific intent vs recklessness issue and they haven't even argued recklessness in philadelphia for a limited purposes but harmless error reviews not on the table so how can the government come before the actual make up of a lot of very different here when your man doesn't make any claim reflective of the fact that there could be a totally innocent way we're making in a lot as a claim that you do not have well the judge but i mean they're arguing the answer is clear because it's a communicated threat statute and mens rea are used to central it's to central to the issues of the is a man it's a communicate threat statute if you miss instruct the jury on mains r factors and you're saying the instruction on in this trial was incorrect as to all the counts it because at the because of the definition that was given of a truth that threat  exactly correct judge starker and specifically page ten seventy two it couldn't be any clearer and this true threat instruction applies not just to count two applies to all four counts it's wrong it was right at the time of the binding for circuit precedent but it was we now know it was wrong so it taints all the convictions not just count two and it can't be harmless error because the court would allow it to be harmless or they say well let's  harmless error i'm saying as a matter of law that would be erroneous under lowness even if they could apply harms there this isn't harmless how could it be how could mens rea of missing structure of this nature be harmless  that could be mine coal but the parties agree there are three elements this court has said there are three elements under be extortion ten element transmission element but also the threat element and so they're reading out the threat element in the greater income the greater fair offense through the word threat we now know from aloneness from she's chief justice roberts what threat means undersea and under the doctrine of interest that story consistency which this court consistently applies threat in c has to have the main say manes rare requirements as a threat in be as reasoned get to see in the other three counts they didn't get there it was a lesser included offense as you said but they found him i i don't know what want on the jury room but i know they came out they were instructed on the lesser included and they found him guilty they found him guilty of right of the charge right and they were missing struck two of the charge so they found him guilty of the charge you don't reach are then as jury instructions typically do the instructions go on to give the juror juries jury or jurors further guidance on what threat means and the definition of don't think he did he correctly instructed on transmission he correctly interstate commerce he correctly instructed on the extortion intent he mis instructed on threat right but he in the first instance when he thought that the three elements before the third circuit it's that clear as far as you know again i think we need to be consistent with how we interpret the element the essential element of what a threat is as recently as two thousand and fifteen this year  used in different parts of the same act are intended to have the same meaning the other for a principle i think is is helpful here is the one that i see my time's up  thank you are in a long list itself they emphasize the following that there's a strong presumption in terms of a santa requirement that should apply to each statutory elements there criminalize otherwise innocent conduct so for them to argue is along as the judge correctly instructed on the extortionate intent you don't med doesn't matter that you miss instructed on the threat is wrong it's just wrong because the reading out the threat  so maybe you better start with the argument that we've just heard yes your honor and good morning may please the court my name is laura rotten born on behalf of the united states and i would be happy to start there your honor the supreme court's decision and i want it is entirely an a the three eighty five b conviction and as mr spears us explained on behalf of the appellant it is also not a ground for reversal with respect to the seventy five c conviction because the government's position is that there was harmless error with respect to back conviction i want  convictions absolutely your honor it section eight seventy five b as a specific intent crime as appellant just explained to requires that the defendant have sent his threatening communication with the criminal intent to extort his victim as your honour's well aware title eighteen of the united states code has multiple threats statutes and some of those threats statute have a specific intent requirement like section eight seventy five be it seventy five b is not the only threat statute that has a specific intent requirement however there are other statutes within title eighteen that criminalize the making of interstate threats that are silent on the issue of mens rea at and the a lot of decision is narrow and limited to those statutes that are silent on the issue of mens rea it has absolutely no bearing on an interstate threat statute that has a specific intent requirement in fact as the supreme court specifically stated in the a lot of decision a court should be reserved to add a mental state requirement to a statute that already contains one and the quote that you owe us about that and you seem to have any answer his response was that if i understood it correctly that under excitement and lana's decision that the court should read a science or element into each element of the statute however that is misstated the scienter element should be read only to the extent that it is necessary to criminalize wrongdoing and not punish innocent conduct and it also must be only added to those crucial elements that would otherwise punish innocent or negligent conduct in a lot of the court spend a substantial time talking about this important distinction and it cites the carter case as well as other cases including more of that and so for example in the carter case which involves a forcible taking of money from a bank the court found that because there was a forceful requirement that satisfied the mens rea or the science or element had the statu been silent and not included a forceful element then the taking of money from i think may require an intent to steal but because there was a there was already a science or element in the statute the supreme court said they would not add additional financial elements to that statute and your submission is because you have this with intent to extort language in c that that's all the entry you need so yes they accept it with respect to stop paragraph b not see or otherwise that's exactly right and imagine that only goes to the extortion not the threat in a seventy five b so it's seventy five b requires that the defendant have sent his threat with the intent to extort so it qualifies or modifies the transmission of the true threats in other words a jury cannot convict unless it finds that the transmission was done with with criminal intent so it completely takes care of the concern of the supreme court and a lot of us which was that we were somehow criminalizing negligent or otherwise and i think conduct and that was not proper i'd also like to take a minute to address the appellant's argument that somehow the judge missed instructed the jury on the true threat element respectfully we strongly disagree with that position the a lot of decision in no way affected the definition of a true threat true threat is a different question than what level of scienter is required when making that true threat so the appellant does correctly identify that there are three elements there's the transmission element there's the true threat element and then there's the extortion element honest does not change anything about any of those three elements all along as does is it says that an eight seventy five c which only covers the first two elements there needs to be the additional element of a scienter requirement so it does not change any of the elements it but of important significance it in no way redefine what constituted a true threat and so when judge turk instructed the jury on pages ten seventy one and ten seventy two the judge that her just read from on the definition of true threat he gave both the law as it was controlling then and he gave the law as its controlling now in fact the supreme court specifically declined to address any first amendment questions that were raised and i want to see as to how true that should be defined and as a result this court's decision in two thousand and twelve in the first united states v white case sets the standard for the controlling fourth circuit law on how a true threat should be defined i think mr beers indicated that he thought that the government is arguing harmless error as to all all that counts as opposed to only the eight seventy five c count is that right or that is correct your honor our first position with respect to the eight hundred five b counts is that there was no order and then your second position is harmless because yes your hon sixty should be affirmed because the evidence in the record regarding the defendant's intent to send a true threat is overwhelming the jury heard multiple recorded phone conversations between the defendant and a cooperating witness defendant took the stand at this trial i was that one of the two trial attorneys but if we get if we agree with you on the a seventy five b position are you conceding error on the seventy on the count two we didn't we  disagree your honor the evidence on countless he did not it is contradict it he denied authoring the threats so this is unlike a lot of us are unlike the houston case for example that has come out post on this where the defendant did not  making the threats but rather said that they were protected by artistic license or some other first amendment concern so in which case then the defendant's mental state would be relevant because at that point intent is a central issue in the case but here the defendant denied making the threats altogether he said somebody else did it he specifically identified an alternative the perpetrator when he testified at trial so it's not that he said i made the threats but did it innocently or i made the threats but i meant them to be a joke course is whether or not the court can find beyond a reasonable doubt that the jury would have reached the thing verdict and respectfully we believe that standard is clearly met here because i'm talking about we have talked about those terms of overwhelming and i'm contradicted are you saying  forget about the uncontradicted part and to say whether it is overwhelming or not to see whether it's satisfies a sense that it's harmless beyond reasonable doubt no your honor i'm not suggesting that i believe that the standard is whether or not the same  verdict would have been reached and whether and in deciding whether or not that standard is satisfied the court can look at the overwhelming weight of the evidence and whether or not that evidence was in fact on contradicted and here what i the crux of the matter here is that the recorded phone conversations that took place between the defendant and a cooperating witness are in fact and contradicted and they provide the overwhelming evidence because although the defendant denied making the threats he admitted to making the phone calls and if i could just have a little leeway to explain what that means the phone calls were made to the person that he wanted to go hire the hitman to go actually threaten the wife in person or physically beat up the wife and i were going to you have to use her note that you wrote that she introduced you phone calls the defendant and made it it was his voice on the phone calls the jury heard the tone or the level of violence that the defendant can noted when he was making those phone calls and the urgency that the defendant wanted them for which the defendant wanted the money that he was the phone calls it was just a couple days after he had sent e mails jack is ex wife which i think she'd probably prefer to be called i believe you are right in your eyes and the phone calls are peppered among the threatening e mails the e mails were spent from a period of may twenty seventh until june seventh two thousand and twelve no phone calls are interspersed with those threatening e mails so they are contemporaneous evidence of the defendant's intent to actually make a true threat these were not empty threats this was not idle talk the defendant went so far as to tell the cooperating witness that he wanted her to go find somebody to carry out the threat she informed him that she had in fact found someone and the defendant provided an email address for which that now coconspirator would be able to reach the defendant after that they could arrange the terms of payment the defendant then added that he would like to split the proceeds with this hired hitman so to speak fifty fifty and that if the hitman did not deliver then the defense would have to go after him as well so this is not a case where there was a close call as to whether or not the defendant intended to actually get the money that he so desperately needed and wanted from his ex reversal under the plane air standard for mulatto in the first question is whether or not there was an error and i take it that's what you're asking you know the second question of course is whether or not that error was plain we believe the answer to both of those questions is no well if you look respect to subsection d three d one point two our position as we explained in our briefs is that with respect to plain error review the question before this court is not whether or not it was plainly erroneous to decide that the count should not be grouped under subsection d but rather it was whether it was plainly erroneous to not group the count at all under any of the subsection in other words the court's reasoning as to whether or not to group the counts is irrelevant this is generally a who considered being rejected so what you're saying to me i do not think you have to read into it i think whether or not the court did that is your relevance because the defendant did not object and there was no discussion of the point on the record the court was silent as to whether or not he believed grouping was appropriate under three d one point too period whether it was appropriate under any of the subsection and because this is a question that under fourth circuit law is generally reviewed  reason why is there any basis for anything if there wasn't there yes your honor what has that basis why wouldn't he make you group the d would preclude group that the would preclude grouping because that statute is exempted from was appropriate under subsection a or b a requires the same victim and the same act respectfully we think that clearly four different extortion and threats over twelve days is not the same act same victim in two or more  application notes to subsection b they explain that subsection b is attempting to group counts that resulted in one composite harm and that it is not intended to group counts when those charges or those crimes resulted in separate instances of fear the application notes explain for example that somebody who robs a victim even if it's the same victim but robs them multiple times created separate instances of fear and so those charges are specifically not group under subsection b now mr white did not actually rob his ex wife but in essence that's what he was trying to do he was taking money from her on multiple different six different occasions through extortion and just like if you'd actually stolen money from somebody on multiple occasions creates a separate instance of fear threatening to steal money from them by way of extortion create separate instances of fear in this case over just shy of a two week time period and so they would not be grouped under subsection be ok i think i understand deceive judge her comments when ultimately applied the obstruction of justice and handsome and admittedly were not particularly verbose but they do satisfy the standard and they should not be read in a vacuum they should be read in the context of the entire sentencing hearing transcript because know but the sentencing standard was discussed everybody understood what was required in order for the court to make that finding and then the of course the court had also heard mr white's testimony at trial where he said i didn't do it this other woman did it i didn't send the threats somebody else sent the threats and so when judge her then goes on the record at sentencing and says that he believes that mr white gave false testimony quote unquote to obstruct justice and quote to get the jury to think that someone else other than you said the threats he is saying that he gave false testimony and of course that on a material matter because the matter is who authored the actual threats and then judge herc added i can't imagine you did not know what you had done in other words showing that it was this was not the case where judge her believe that the defendant might have forgotten that he wasn't the author of the threats or might have had a moment of mental incompetence just charged with saying i cannot imagine you did not know what you had done that amounts to  testimony at trial where mr white repeatedly on multiple occasions falsely stated that he was not the author of the threats the jury denied that i'm sorry can you put the question please that don't don't we have to do it doesn't have to clearly establish these three elements yes your honor we believe that those sentences do meet that standard he says he judged found that mr white was trying to get the jury to think that somebody other than the defendant committed the crime and that he says he doesn't think that he cannot imagine that mr white did not know what he had done so by intentionally falsely implicating another he satisfies the three and this was by the way not just one passing comment on the witness stand by mr white and the joint appendix between pages six forty two and six seventy seven there are at least seven different times when the defendant identifies ms sabrina god knows as the person that he believes sent the threats to mr white ex wife so this was not a one time denial of his culpability this was his entire theme on the witness stand but that it wasn't him and that he was being framed and that somebody else did it the jury clearly rejected that self serving there please the court like to start just very briefly with the sensing issues that the court raised as far as the grouping is clearly playing there but one thing that the government has wrong in its brief and i have addressed this with them and i'm authorized to tell tell you that they agree with me is that they suggest that judge turk never express lee adopted the iranians p s r report that is that iran is application of three d one point two g and that's just wrong document two hundred is the statement of reasons under seal to district court and it says the court adopts the pre sentence investigation point without change signed by judge turk so he did adopt the p s r and that's enough to create plain error because that was the incorrect analysis the probation as the perjury i'm sorry i just want to be sure again here are you me it was clearly wrong because he didn't get to the right thing in three d is that what you're saying it's wrong because the probation officer said d makes this a person exclusion all threats cannot just can't be grouped he misread it i misread it just misread it to mean that you can never you can't qualify under a or b is it you know it wipes you out and that's just clearly wrong point to realize that on appeal i point out case law saying that they have no case law on the contrary you can if you qualify under a or b well what they do say is that it's not fair or not to go under b because when they look at the sentencing commission's explanation right they do but even before we got to that level of the analysis this judge misled by the probation officer just mis applied the guidelines so that's procedure to be sure procedurally and reasonable but if we get if yes if we need to get to any or b this is classic it's the same debt it's the same victim he's trying to collect the same alleged debt from the same victim they're all within the same method he's alleged to have sent e mails by the same method well but i but i kind of take her point that this was much worse for this woman that she got for all they were four separate independent perhaps and maybe if you didn't weren't scared first time you might have been scared by the end of the four yes sure that i but your honor it's the same course of conduct it's the same objective it's the same victim first well anyhow my main point though is that they're suggesting incorrectly they overlook the fact that the expressly adopted the pre sentence report the judge did and that's a misapplication the guidelines as far as the perjury it's not sufficiently clear they she accidentally misquoted anyway what judge drafted said what he said was i think that was to obstruct justice maybe get the jury to think that someone else then you said if i think she said something else but maybe get the jury to think that someone else other than use that he never comes out and finds false falsity willfulness intent to see that's not enough the other point is he finds him mentally ill bill white is mentally ill i agree with that the government agrees with that on the record the sensing here the man is very very ill and so that needs to be taken into context with respect to whether he will fully took that stand committed perjury as far as the other issues  they spent a lot of time talking about him sarah they didn't address my point and that is justice alito said that was his objection that the majority would not send this back to the third circuit with the heart with permission to do a harmless look at the position the court would put a trial judge in a district court judge you if that another words under age seventy five see under alone as the district judge called upon to apply alone and instruct under aloneness a threat has to be you know you have to prove the subjective intent of mr white but then under be the greater offense he doesn't apparently apparently all that they have to find is that there was an intent to extort and that the threat element goes away makes no sense that's the same statute in the same turn in in a number itself is a threat extension your honor can be many things it can be blackmail but here they need to show a threat to do bodily harm so if someone black explorer eighty seventy five yes you're on harm to the person not harm to my reputation not harm to my property a specific type of threat threat of kidnapping or personal injury and they are asking this court to read it out of the statute so a district court judges can be left in the position of saying i guess the old for certain instructions still apply under big a and we have to worry about subjective intent but under see they have to prove his subject of intent which is a difficult showing you're turning the statute on its head because b is the far more serious it's the greater offense so if there is just forgetting about the true threats in the first moment for a moment it's a it's turning the statute upside down why would the term threat to do bodily harm mean two different things and two different sections of the statute particularly when b is the more serious one they should have a higher burden of proof they're asking you to give them a lower burden to prove their as weak version of it's i disagree judgment they're being allowed out of the question is though you know they need to show these threats are by subject you know that he and subjectively intended to extort seek subjectively intended to threaten to do bodily harm to carry out the extortion and they're asking you to relieve them of that responsibility finally twenty minutes and asked questions and maybe civic they're out there hours and ask questions that when you show a close case by are going to about how long the jury deliberated yes because it was civics said as much with riley this was a singling it was a single issue the jury was out for hours and asked questions and this court said it's not up to us here in the courtroom as to what's a close case is what that jury thought and the fact that they were out for hours and ask questions is  industry hours the math questions and it was civic it was four hours and ask questions in our case it was three hours and twenty minutes and asked it's a close case for those jurors thank you very much and you were you appointed to represent count yes strong