So, you might have heard I had to do a little prison time because the FBI allowed a bunch of criminals to torment me for months while I repeatedly reported their crimes to law enforcement.
The FBI was enjoying the show, and probably involved in it, so they didn’t do anything about my repeated reports.
Then, when that lawlessness took its predictable course, I was held liable for the outcome, and sent to prison.
This is America’s preferred method of persecuting dissidents these days. They deny you the protection of the laws, then they hold you liable when things go south. It’s the same thing they did in Charlottesville, and you can hardly be surprised that they repeat successful strategies.
But denying me the protection of the laws didn’t stop there. My trial was near as lawless, and this lawlessness was the subject of my appeal.
Interestingly, the Court agreed that the government broke the rules at trial, and they upheld my conviction anyway.
Hearsay as Evidence
The FBI had a recording of a phone call between me and somebody else. The government had the right to use my statements on that call as evidence, but if they wanted to use the other person’s statements, they had to call that person as a witness.
They did not call that witness, because it would not have helped their case.
They used that person’s statements anyway, and that was the primary thrust of my appeal.
Surprisingly, The First Circuit Court of Appeals agreed with my argument, and upheld my conviction anyway.
“Hence, the prosecutor’s use of REDACTED’s statement beyond its admitted purpose was obviously improper. ”
“Cantwell’s claim nevertheless fails because he cannot demonstrate that the prosecutor’s improper comment “likely affected” the outcome of the trial.”
I’ll paste a greater portion of the decision below, and at the end of this message you can find the entire PDF. But you can catch the issue in those two sentences.
The government breaks the law, and I go to prison. That’s the way this works.
Provocation not a Defense?
The other main argument was that the Court improperly instructed the jury that “Provocation is not a defense” to the charges I was facing.
The big joke in this case is that my “victim” had confessed to all the elements of at least one of the crimes I was charged with, “Cyberstalking”.
Him and his group of punks threatened and harassed and defamed me for months while DDOSing my website and spamming my comments sections and at one point even managing to deface the website with porn and terrorist propaganda.
Part of my defense was that this conduct created in me a state of mind that was not the state of mind required to convict me of the crime of extortion, for telling him to leave me alone using harsh words. Extortion is a specific intent crime, and a guy who loses his temper with his stalker is not committing extortion.
The Court told the jury that “provocation is not a defense” which confused the jury, by implying that this evidence of his conduct was irrelevant. It totally undermined my completely legitimate defense, by implying that I was confessing to the elements, and saying that the provocation negated my guilt anyway.
Unsurprisingly, the appellate court just dismissed that out of hand because, who cares if I’m allowed to raise a legitimate defense? I’m a thought criminal.
Below is a more lengthy quote from the decision, and below that you can find the link to the full document.
1. Standard of Review
When a defendant does not contemporaneously object to a statement made during closing argument, we review for plain error. See United States v. Pérez-Vásquez, 6 F.4th 180, 201 (1st Cir. 2021). Under our traditional plain error analysis, an appellant must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Pérez-Rodríguez, 13 F.4th 1, 16 (1st Cir. 2021) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). As applied to closing arguments of prosecutors, our plain error analysis requires us first to ask “whether the challenged comment (is] obviously improper” and, if so, “whether the comment ‘so poisoned the well that the trial’s outcome was likely affected.'”12 Pérez-Vásquez, 6 F.4th at 201 (quoting United States v. Walker-Couvertier, 860 F.3d 1, 10 (1st Cir. 2017)). This is a high bar, requiring us to weigh the impact of the contested prosecutorial comment against the strength of the evidence against the defendant. See id. at 201-2 (finding no plain error in the government’s use of two contested statements during its closing argument primarily because the statements “(did] not cast doubt on the conviction” and “(were] unimportant to the outcome”); Walker-Couvertier, 860 F.3d at 10 (finding no plain error primarily because “the possibility that the . . . (improper] statement affected the outcome of the trial is miniscule” given the “overwhelming proof of defendants’ guilt”). We have previously explained that where a defendant alleges improper argument in the government’s closing, “unpreserved claims have to approach a miscarriage of justice before they warrant reversal.” United States v. Potter, 463 F.3d 9, 25 (1st Cir. 2006).
2. The Improper Comment
The parties do not contest the hearsay nature of REDACTED’s statement referred to in the government’s rebuttal. REDACTED was an out-of-court declarant, and the parties agree that the government’s comment — “And you’ve heard Ms. REDACTED’s reaction to (Cantwell’s messages)” — invited the jury to consider her statement for its truth, namely, that she understood Cantwell’s message as a threat. See Fed. R. Evid. 801(c) (defining hearsay); United States v. Pena, 24 F.4th 46, 61 (1st Cir. 2022) (“For an outof-court statement to constitute hearsay . . . the statement must be offered to prove the truth of the matter it asserts.”). Hearsay is generally not admissible unless subject to a defined exception. See Fed. R. Evid. 802. The parties agree that whether the government’s comment was “obviously improper” therefore turns on the circumstances under which REDACTED’s statement was admitted. The government argues that the comment was not improper because REDACTED’s statement was admitted without limitation. The government was therefore free to use the statement as it wished, including for its truth. Cantwell, on the other hand, argues that the government’s use of REDACTED’s statement in its rebuttal was obviously improper because the government was precluded from using the statement for its truth. Cantwell contends that his portion of the telephone call with REDACTED was admitted as the statement of a party-opponent under Federal Rule of Evidence 801(d)(2)(A) and that REDACTED’s words were admitted to contextualize his portion of the call only. Under this theory, the
government impermissibly appealed to the jury to consider the truth of REDACTED’s statement, which harmed Cantwell in two ways. First, the truth of REDACTED’s statement supports the government’s contention that Cantwell intended to threaten Lambert. The government’s rebuttal proposed that Cantwell was so close to REDACTED that he told her what he meant by his messages and therefore REDACTED’s understanding that Cantwell threatened Lambert reflected Cantwell’s intent. Second, the truth of REDACTED’s statement bolsters the government’s argument that Cantwell’s messages contained a threat — that is, REDACTED’s belief supports the assertion that Lambert would reasonably perceive Cantwell’s messages as a threat, particularly since the government referred to REDACTED as part of its argument that right-wing community members, including Lambert and Paul Nehlen, perceived Cantwell’s messages as threatening. Instead, Cantwell argues that the government was restricted to referring to REDACTED’s statement solely to contextualize Cantwell’s own words, given the limited purpose for which it was admitted. Cantwell is correct that REDACTED’s statement was admitted for a limited purpose. The government introduced Cantwell’s portion of the call with REDACTED as statements of a party-opponent under Federal Rule of Evidence 801(d)(2) (A). Rule 801(d)(2)(A) classifies a statement of a party-opponent that is offered against the party-opponent as nonhearsay. Fed. R. Evid. 801(d)(2)(A). Statements of a party-opponent can thus be offered for their truth.
See United States v. Ruiz, 999 F.3d 742, 748-49 (1st Cir. 2021). Statements by declarants other than the party-opponent can still be admitted in the context of 801(d)(2) evidence, where such statements are offered for a limited purpose — such as providing an explanation for the party-opponent’s portion of the conversation — but are not admitted for their truth. See
Pérez-Vásquez, 6 F.4th at 197 (holding that statements by a nontestifying witness may be admitted under Rule 801 “only to provide context for statements made (by the party-opponents] in the conversation and make them intelligible to the jury, not for their truth”).
The government understood that Cantwell’s portion of the call came in under Rule 801(d)(2)(A) and that REDACTED’s corresponding statements were admitted for the limited
purpose of contextualization. The government twice stated that it was introducing the phone call under “Rule 801” and referred to Cantwell’s statements as “party statements,” indicating that the government introduced the call under Rule 801(d)(2)(A). The government well understood the boundaries and scope of 801(d)(2)(A) evidence — the prosecutor explained that she knew that some of the statements in the call were hearsay and stated that the government did not intend to use those portions against Cantwell.13 Since there were only two participants in the call and Cantwell’s statements were nonhearsay, the government clearly understood that REDACTED’s statement was hearsay if used for
its truth and therefore that it was admitted for contextualization only.14 Hence, the prosecutor’s use of REDACTED’s statement beyond its admitted purpose was obviously improper.
3. Effect of the Comment on the Trial’s Outcome
Cantwell’s claim nevertheless fails because he cannot demonstrate that the prosecutor’s improper comment “likely affected” the outcome of the trial. See Pérez-Vásquez, 6 F.4th at 201 (quoting Walker-Couvertier, 860 F.3d at 10). As noted, the truth of REDACTED’s statement strengthened the government’s argument on two fronts: first, regarding Cantwell’s intent to threaten and, second, regarding Lambert’s reasonable perception of Cantwell’s messages as a threat to harm his wife, on Count 1, and as threats to his reputation, on Count 3.
Even without REDACTED’s statement, the government presented ample evidence on each of these elements from which a jury could properly conclude that the government had met its burden. The exchange between Cantwell and Lambert, which the jury had in full, gave the jury strong evidence from which to conclude that Cantwell intended to threaten harm to Lambert’s wife. The entire exchange included multiple, persistent references to harming Lambert’s wife. Cantwell wrote, “your wife is gonna have trouble sleeping at night,” “I bet one of my incel listeners would love to give her another baby,” and he sent photos of her to Lambert, showing that he knew her identity. Cantwell’s own testimony also provided evidence of his intent to threaten Lambert. Cantwell testified that he had previously threatened Lambert with exposing his identity, stating that in March 2019 he “warned (Lambert] that if he came back around that I was going to dox him.” Cantwell admitted on the stand that he did, in fact, dox Lambert by posting Lambert’s address online, circulating photos of his family, and reporting Lambert to Missouri’s Department of Social Services. Further, the jury had before it Cantwell’s email to the FBI reporting the Bowl Patrol’s harassment, in which he said: “I threatened to expose (Lambert’s] identity.” In the face of such robust evidence on Cantwell’s intent, we cannot conclude that the government’s single improper comment “so poisoned the well that the trial’s outcome was likely affected.” Pérez-Vásquez, 6 F.4th at 201 (quoting WalkerCouvertier, 860 F.3d at 10).
Nor can Cantwell demonstrate that the government’s improper comment affected his trial’s outcome regarding the threatening nature of his messages. The government presented
extensive evidence that Lambert could reasonably view Cantwell’s messages as threats. Two government witnesses testified about the messages and their impact. Critically, Lambert himself testified that he viewed Cantwell’s words about “fuck(ing] (his] wife in front of (his] kids” as a threat, describing that they made him “angry,” “scared,” and he “felt as though a line had been crossed.” Another member of the Bowl Patrol, Paul Nehlen, testified that Cantwell’s references to Lambert’s wife and children “crossed a line,” even within the context of their extremist community. The jury had ample evidence from which to conclude that Lambert could reasonably perceive Cantwell’s message as a threat without the addition of REDACTED’s belief that it was so. Again, the strength of the government’s evidence on Cantwell’s threats belies any argument that its use of REDACTED’s statement during closing
argument likely affected the outcome of the case.
B. The District Court’s Provocation Instruction
Cantwell contends that the district court erred by instructing the jury that provocation is not a defense to his charges under 18 U.S.C. §§ 875(b) and (d). Throughout the trial, Cantwell presented evidence of the Bowl Patrol’s harassment of him, including Lambert’s and others’ prank calls to his live show, their defacement of his website, and Lambert’s implied threat to REDACTED — “(g)uess that means you d(o)n’t care what happens to her.”. Cantwell argues that such evidence was important to undermining two elements of the offenses with which he was charged — a strategy that Cantwell terms his “elements-based defense.” At trial, Cantwell contended that the government could not prove that he intended to threaten Lambert because his communications were merely an expression of his frustration at the Bowl Patrol. Cantwell also argued that the government could not prove that Lambert reasonably perceived his messages as a threat, given the routinely vitriolic and antagonistic context of online interactions in this community.
The district court, however, saw Cantwell’s strategy differently. While acknowledging that evidence about the Bowl Patrol’s harassment provided important context for Cantwell’s messages, and thus was relevant to the jury’s interpretation of Cantwell’s intent and his communications, the court determined such evidence also impermissibly invited the jury to consider an affirmative provocation defense. The court therefore gave a jury instruction on the permissible use of “provocation” evidence, stating in relevant part:
You have heard evidence that (Lambert) and others have engaged in behavior that disrupted the defendant’s live call-in radio show. You have also heard evidence that Vic Mackey or others may have engaged in behavior that disrupted the defendant’s website. You may consider such evidence for the purpose of understanding all of the circumstances surrounding the making of the communications at issue in this case, including, for example, the language, specificity and frequency of the communications, the context surrounding the communications, the relationship between the defendant and (Lambert], (Lambert’s] response, any previous communications between the defendant and (Lambert] and whether you believe the person making the communication was serious, as distinguished from mere idle and careless talk, exaggeration or something said in a joking manner. You may not consider this evidence for any other purpose. . . . (E]vidence of provocation, justification or self defense does not negate the defendant’s criminal culpability with respect to that charge.
Cantwell objected to the instruction, arguing that it tended to confuse and mislead the jury by raising the topic of an affirmative provocation defense and negating his elements-based defense.
1. Standard of Review
We review preserved claims of instructional error under a split standard: we consider de novo whether the instruction correctly stated the law, while we review for abuse of discretion whether the instruction tended to “confuse or mislead the jury on the controlling issues.” See United States v. Cotto-Flores, 970 F.3d 17, 37 (1st Cir. 2020) (quoting United States v. Symonevich, 688 F.3d 12, 24 (1st Cir. 2012)). The instructions here correctly stated the law and Cantwell does not appear to contend otherwise. As such, our review of the instruction is for abuse of discretion.
2. The Jury Instruction
Jury instructions are intended to provide jurors with the proper legal standards to apply in deciding a case. See Teixeira v. Town of Coventry, 882 F.3d 13, 16 (1st Cir. 2018) (noting that “(j]ury instructions are intended to furnish a set of directions composing, in the aggregate, the proper legal standards to be applied by lay jurors in determining the issues that they must resolve in a particular case” (quoting United States v. DeStefano, 59 F.3d 1, 2 (1st Cir. 1995))). This purpose necessarily includes advising the jury on applicable legal defenses. See United States v. Florentino-Rosario, 19 F.4th 530, 537 (1st Cir. 2021); cf. United States v. Fera, 616 F.2d 590, 596- 97 (1st Cir. 1980) (upholding a jury instruction that corrected the defense’s misrepresentation of evidence because the instruction was “properly given to dispel any doubt which the jury may have had as a result of the defendant’s (evidence]”).
Far from raising the concept of provocation in a confusing or misleading manner, the district court’s jury instruction demonstrated a reasonable and considered response to Cantwell’s presentation of evidence at trial. The court acknowledged in the charge conference that Cantwell’s defense sought to undermine his intent, but also noted that Cantwell impliedly argued that he had been baited into making the statements at issue, thereby drawing heavily on the concept of provocation. Cantwell’s defense elicited testimony from Lambert and Cantwell about how the Bowl Patrol sought to deliberately antagonize Cantwell. The defense asked Lambert whether the purpose of “trolling,” a term used in the trial to describe the Bowl Patrol’s harassment of Cantwell, is to “provoke a response from the other person that you’re trolling” and asked if the Bowl Patrol members “were trying to make Chris angry(.]” Moreover, Cantwell testified that Lambert’s reference to REDACTED in the June 15-16, 2019 messages — “So I am assuming peach took the picture. Guess that means you d(o]n’t care what happens to her” — was “trying to get a rise out of (Cantwell].” The court reasonably concluded that the defense presented such evidence to “invit(e] the jury to find the defendant not guilty because he was provoked by Mr. Lambert,” thereby effectively mounting an affirmative provocation defense. As already noted, this affirmative defense was not available to Cantwell because provocation cannot constitute a legal defense to threat crimes. See Bailey, 444 U.S. at 410; Sovie, 122 F.3d at 125-26. The court’s jury instruction on the permissible use of Cantwell’s provocation evidence was therefore appropriate.
The court’s desire to instruct the jury on the permissible use of provocation evidence regarding Cantwell’s intent was not surprising to Cantwell. Indeed, the court first voiced its concerns about Cantwell’s strategy on the first day of the trial, after hearing Cantwell’s opening statement. That statement began by arguing that he had been “pushed, taunted, and harassed . . . to provoke a bigger and bolder response,” leading the court to tell defense counsel that it may give a clarifying jury instruction on provocation if it felt this would be necessary. The court then raised this issue with Cantwell two more times. While Cantwell rightly notes that “provocation” has a lay meaning, independent of the criminal defense context, the court’s wellaired concerns that Cantwell’s evidence carried the potential for improperly inviting the jury to consider an affirmative provocation defense were entirely reasonable. Moreover, the court accommodated Cantwell’s concerns about the instruction impeding his ability to effectively present his elements-based defense, particularly regarding the reasonableness of characterizing Cantwell’s communications as threats. Cantwell’s defense extensively documented the tone and content of his communications with Bowl Patrol members, eliciting testimony about the misogynistic and racist rhetoric that was commonplace in their extremist community and arguing that violent words were simply part of how this community spoke with each other. The court explicitly clarified that the jury could consider such evidence in assessing whether Lambert would reasonably perceive Cantwell’s messages as threats as opposed to other forms of communication, instructing the jurors:
You may consider such evidence for the purpose of understanding all of the circumstances surrounding the making of the communications at issue in this case, including, for example the language, specificity and frequency of the communications, the context surrounding the communications, the relationship between the defendant and (Lambert] . . . (and whether they were] mere idle and careless talk, exaggeration or something said in a joking manner.
Contrary to misleading or confusing the jury, the court’s instruction provided jurors with clear parameters on the proper use of the provocation evidence. The court did not abuse its discretion in giving that instruction.
There’s more. but that’s the thrust of it. You an read the entire thing here, if you want.
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