a final case for this morning is he states against samuel bradbury the district court air blow when it instructed the jury that acting maliciously is the same as acting intentionally for purposes of section eight forty four this erroneous jury instruction strips mr bradbury of his sol defense at trial his lack of a subjective malicious intent the district court's instruction essentially lifted copy and pasted from this court's decision and a case but the district court did not adequately evaluate the supreme court's decision in a line it's and it's ok i don't get anything out of maliciously isn't the problem that he's threatening he's threatening list means your honor i agree that the statute is somewhat unique and this case is somewhat unique in that mr bradbury was charged with one count with two separate theories of liability first that he will fully made a threat which  intentionally but you could intentionally conduct an act of kindness if you wanted to you know you help some poor homeless person on the street get a meal or you could intentionally do something that's terrible like suggesting that people go out and kill some police officers and judges but they're not the same thing correct throughout our pages our position is that malicious to divine umbrella are militias that other parts are not correct so during the trial counsel objected to the district court's definition specifically requested that this report adopt a definition of maliciously that would  order in essence says i think we're meaning essentially the same thing i understand how you can parse the language so as to sever from intentionally any reference to damage or injury that will result the way this was written but nobody argued the case that way and at least that i could tell i didn't see any suggestion that the government was trying to convict on your on the theory that you  fearing the jury would have followed that the any intentional act would be enough and in the act the argument all along in this regard is i want you make these kinds of threats there's going to be a reaction it's going to disrupt injure damage people scare the daylights out of out of the named targets of such threats and that's what the that's the theory of the conviction your honor but to the first point regarding how the case was argued as we stressed in our reply brief that the prosecution hammered on the term intentional repeatedly and arguing mr bradbury's guilt to the jury it didn't say malicious leave repeatedly it it said you know he is guilty because he acted intentionally  don't they mean he acted intentionally to scare these people to to put out their fists plans to oppose it planned we've gathered enough thermite and explosives that we intend to not only kill those two pigs and any others they get in our way but centers that are on the building i mean he knows he's saying very inflammatory things i think important to keep in mind that he posted these messages on his facebook page which was not publicly except i understand do we know how many friends he had there are people out there who have like ten thousand friends on facebook so it's not a necessarily an intimate group i do in this case the only reason this post got to law enforcement attention is because it's one of the friends took some screen shots right now such a friend that what she's not such a friend she's a queen that's from exploration and she doesn't mediately reported to law enforcement she waits around twenty four hours and she talks to coworkers who she gives this the post to who ultimately is the and so it's a rather circuitous way that this good comes to the attention which just goes to show that maybe your best argument it's not that he kept it within some small intimate circle now i think your argument about intentionally not meaning the say defense is i recall at one point just said to the judge don't even define it just tell them that the statute says maliciously the jury probably has some reasonable understanding of that words not some serves to frustrate the purpose of jury instructions so i think in this case it would have been totally appropriate for the district court to allow the jurors to rely on their ordinary understanding of the word maliciously this is a latin term in german jurors are familiar with the concept to get back to the point of where the prejudice in the harmer eyes is i think it's important to stress that given the legal errors we already particulate in our briefs it's the government's burden to prove beyond a reasonable doubt to this court that it can find that any reasonable juror would have convicted on this so specific in this post that's another thing i think it's i mean if if he's intentionally being malicious and i don't know say that he's telling that no less than six police cars the court house judge bless me and say  life gets terrified about all of this now justice rush and maybe she was still a judge when he wrote this are you just you know no chief justice health she said fewer not less i mean it's almost to the point that how could you believe that there's really fifty people and in suburban or rural indiana willing to die he named his friend in the post as a suicide you know something like this to go to the guy and say look you cute do this stuff you can post this maybe a joke in your mind probably is a joke in your mind ant is nothing more than a full boil what we do in the plan is to use perpetrations of the of this i think that's why i think the the officers testified they went they didn't know how to interpret it they went into his bedroom and they found four pounds of thermite which they never found before and he threatened to blow up a police car with thermite making a very specific threat against a very specific police officer who had previously arrested his girlfriend and they took in syria then didn't know that that kind of threat i understand what that's what this threat was rahner and was it that's not on the face he's he's angered he's going to jail his girlfriend has broken up with him because he believes officer the officer has turned this person against him and then go this spills out on the spirals out into something bigger but it's a big threat it's a big malicious conveyance of false information what would have been the harm to of charge the jury if it had to be malicious i am very disturbed by the government's theory that the word intentional i synonym for the word malicious because it just seems to me that's wrong now whether that not charging malicious particularly with respect to speech i can easily imagine torching somebody whose house is such a drastic thing to do that maybe malicious is just inherent in it but speech is something we need to be careful of i agree with that your honor and i think we've explained why we believe that the the defendant's claim that bad intent or evil intent should be involved is improper and it's the same as the kelly example it's the question of if the defendant says in my heart of hearts i believe i'm in the entire abortion protester and i believe that it's going to be good to disrupt abortion clinics and so i'm go period different planned parenthood clinic and say i'm bombing your clinic today and that disrupts everything and that stops all the abortions from occurring but that's a good i don't have evil in my heart i intended to do it i intend to make that statement but i don't have evil intent i'm not acting with an unjust purpose and that i might be a judge at least saying in the abortion context i intend to create this disruption you know and then that's that's i mean and i think the government's reasonable point when you say these hoaxes that turn schools inside out the turn clinics inside out that in this instance you know impose such fear on the judges in that police officers those are bad things  just plain old intent that you intended to say it well seems insufficient i ok so i have two basic points iran or in the first one is it very much depends on what the meaning of the words convey false information mean that's what it means if convey false information to defend his right to convey false information just means speak that he's right need to include some some evidence about intent here but the government's position is what conveyed false information means and more importantly leading in my second point what the jury would have understood from the way this case was tried convey false information means is cause you cause the reader or cause the speaker the cause the listener to believe that this may be true convey false information so if i tell you a joke i jokingly tell you that you know judge easterbrook is boarding the next flight with a bomb in his carry on and you will laugh or don't laugh or whatever you do but you don't believe me i haven't intentionally conveyed false information to you his position is i have i spoke i convey false information there's no you don't believe that you don't get a jury instruction if not the instruction on maliciousness what jury instruction c definition of convey false information as a community or if you're if you're leaning on that to supply what i feel is the missing ingredient then i say it's there well my two points would be i think the more natural reading of convey false information is the one awkward instruction to give to a jury and very wrong all i can say at the end of the day your honor is the jury was told from day one the very beginning of the government's opening statement this isn't a joke this isn't a satire this isn't literature that's the end of their closing statement the one statement that my colleague puts out he tries to say this was intentional is of misreading of what was said there was an ellipsis in the middle of his quote on page one of his reply brief and what's in the ellipsis what we said is after we said there's no question these acts are intentional he wanted to cause damage he wanted to cause injury he's talking to brandon timberlake one of his buddies you heard from mr hougan mr timberlake is a member of the anarchistic he has a tattoo and he says my boy anthony has been getting shit from cops for posting about kill cops so after talking to him i'm taking it to the next lovel so that's what we meant by intentional that's what the jury would have thought it meant to intentionally convey false information was to intend that the cops are going to believe where's the falsity the false information is the jury found he didn't intend to do it he didn't intend to kill the next person he saw he said i don't tarry talent and right now i think there's some falsity in that he's trying to make them think he's prepared to take this thermite he has and blow up the next police car whereas he has no such intention he realizes that you know socially acceptable people don't do that seem to be too good on that front but yeah i can see the falsity issue our position your honor is that to convey false information is to cause another to believe that false information is true our position is that's how the jury would have read it the jury his view that the defendant's views are is a harmless error argument me and because i'm also looking ahead this statute talks about whoever blah blah blah just lee conveys false information it doesn't say intentionally conveys false information so there's got to be some difference congress chooses the word maliciously right well you can convey false information knowing i mean our position is if you convey false information knowing it to be false if i tell you a joke the judge easterbrook has a bomb in his luggage and is getting on the next plane and i intend  laugh and you believe it and you call o'hare and you call judge easterbrook and you created here rocket's our view is you have unintentionally unintentionally conveyed false information it's not true i didn't intend you to take it as true but i did convey false information to you i did cause you to believe it and so you do need the word maliciously there well you're saying you could use the word intentionally well i think you could say what what we said which is intentionally or with deliberate disregard i mean i don't want to leave out there's this whole other prong here in the  could have convicted based on that we may be you know fighting over here about something that though that wasn't even really an issue we talk about that in a footnote to our brief there is the whole deliberate disregard that even if he didn't intend it if he said it under such circumstances and knew and deliberately disregarded that this was going to cause those kinds of reactions he could be convicted as well as have to go back and run it as i'm struggling with the false information so he says pursued you know we intend to incinerate and destroy  fewer than six please so so so presumably this is false but but it's not the falsity that's disturbing about it and it's the it's the fear that is right i mean i don't know why does it matter whether it's  bomb a courthouse i would think we would want that information disseminated so the falseness says we're going i mean this court spoke about it in jobs but the falls on admission seminarian well you want law enforcement to know so that you can divert it i think is what you're writing and in this instance you know he's saying these wildly bad things hoping that everybody will be very disrupted but not actually tending to do the thing which which we think is exactly what the purpose of the statute is we think the jury caught that we don't think that the jury had any belief that they could convict him based on a joke or a satire we think the instructions were correct and to the extent that there could have been a clarification the clarification he asked for would not have been the what would what would you think if we said in essence the district judge you would have been better to instruct the way the defense is proposed after at least after the trial with this intentionally  intended the results the damage and harm but that it didn't cause any prejudice or harm in this case at least on the intentional portion i don't know that i have any objection to it but i do know that there is but i'm a little uncomfortable if i really parse the language as a lawyer about whether i can stop after intentionally draw a line and then say or with deliberate disregard  you explain to it you if you're going to say that they made that this business about killing and so on is false information and explain that to a jury and you say to threat yeah what did they think it was a joke my view was a race book is that the idea and i think that we think that we think that there are two possibilities one is that he the judge instructed that on the threat it had wakeman just a few final points in response the harm here is in that whatever however the case was argued to the jurors that when the jurors get back to the deliberation room they see the instruction defining maliciously as intentionally and they're allowed to disregard essentially all of mr bradbury's defense about his lack of a subject of malicious intent and when they look at the instruction they see all we need to find is that he spoke intentionally and that's where we believe the harm comes in and given that error on appeal we don't think that's the appropriate role for this court to weigh into the conflicting evidence that the jurors could consider on a highly traditional jury