Government Opposition to Cert Petition in SHAC 7 Case

8/7/2019 Government Opposition to Cert Petition in SHAC 7 Case

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No. 10-7187

_________________________________________________________________

_________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

KEVIN KJONAAS, LAUREN GAZZOLA, JACOB CONROY,

JOSHUA HARPER, ANDREW STEPANIAN, AND

DARIUS FULLMER, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney General

ROBERT A. PARKER

Attorney

Department of Justice

Washington, D.C. 20530-0001

[email protected]

(202) 514-2217

_________________________________________________________________

_________________________________________________________________


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QUESTIONS PRESENTED

1. Whether statements urging an audience to commit unlawful

actions at a specific time and in a specific manner, and

threatening specific individuals with violence and bodily harm,

constitute protected speech under the First Amendment.

2. Whether, applying the strictissimi juris standard,

sufficient evidence supported a jury verdict that petitioners

conspired to violate the Animal Enterprise Protection Act (AEPA),

18 U.S.C. 43, conspired to commit (and did commit) interstate

stalking, and conspired to use a telecommunications device to

abuse, threaten, and harass.

3. Whether, before its amendment in 2006, the AEPA, 18

U.S.C. 43, permitted acts against third parties to provide

circumstantial evidence of a conspiracy to cause damage and loss to

an animal enterprise.

4. Whether the district courts jury instructions permitted

the jury to convict petitioners based solely on protected speech.

5. Whether the district courts order finding petitioners

jointly and severally liable for $1,000,001 in restitution is

supported by sufficient evidence and is consistent with Dolan v.

United States, 130 S. Ct. 2533 (2010).

(I)


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IN THE SUPREME COURT OF THE UNITED STATES

No. 10-7187

KEVIN KJONAAS, LAUREN GAZZOLA, JACOB CONROY,

JOSHUA HARPER, ANDREW STEPANIAN, AND

DARIUS FULLMER, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A 1-30) is

reported at 584 F.3d 132.

JURISDICTION

The judgment of the court of appeals was entered on October

14, 2009. A petition for rehearing was denied on June 3, 2010

(Pet. App. B). On August 23, 2010, Justice Alito extended the time

within which to file a petition for a writ of certiorari to and

including October 1, 2010. The petition was filed on October 1,


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2010. The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court for

the District of New Jersey, petitioners were convicted of one count

of conspiracy to violate the Animal Enterprise Protection Act

(AEPA), in violation of 18 U.S.C. 43. Petitioners Kjonaas,

Gazzola, and Conroy were also convicted of one count of conspiracy

to commit interstate stalking, in violation of 18 U.S.C. 2261A(2)

and 371, and three counts of interstate stalking, in violation of

18 U.S.C. 2261A(2). Petitioners Kjonaas, Gazzola, Conroy, and

Harper were further convicted of conspiracy to use a

telecommunications device to abuse, threaten, and harass, in

violation of 47 U.S.C. 223(a)(1)(C) and 18 U.S.C. 371.

The district court sentenced Kjonaas to 72 months of

imprisonment, to be followed by three years of supervised release;

Gazzola to 52 months of imprisonment, to be followed by three years

of supervised release; Conroy to 48 months of imprisonment, to be

followed by three years of supervised release; Harper to 36 months

of imprisonment, to be followed by three years of supervised

release; Stepanian to 36 months of imprisonment, to be followed by

one year of supervised release; and Fullmer to 12 months of

imprisonment, to be followed by one year of supervised release.

Pet. App. A 14. Each defendant was also deemed jointly and


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severally liable for restitution totaling $1,000,001. Id. at 27.

The court of appeals affirmed, but remanded to the district court

with instructions to create a payment schedule for the restitution.

Id. at 1-30.

1. Petitioners were leaders and organizers of Stop

Huntingdon Animal Cruelty (SHAC), an organization dedicated to

direct action against companies and individuals involved with

scientific testing using animals. Pet. App. A at 2-3. SHACs

principal target was Huntingdon Life Sciences (Huntingdon or HLS),

a company headquartered in the United Kingdom that performed

laboratory tests on animals, as required by U.S. and European laws

meant to ensure the safety of pharmaceuticals, agricultural and

veterinary products, and medical implants. Id. at 2.

In 1999, SHAC published the names and home addresses of

Huntingdons directors and officers in the U.K., resulting in an

ongoing campaign of harassment and vandalism that culminated in

the brutal assault of Huntingdons Chief Operating Officer, Brian

Cass. Pet. App. A at 2-3. In an effort to protect its

shareholders from similar harassment, Huntingdon relocated its

financial operations to the United States and opened a laboratory

in New Jersey. Id. at 3. Shortly thereafter, petitioners

organized a SHAC branch in the United States. Kjonaas served as

SHACs president, Gazzola was its campaign coordinator, and

Conroy administered SHACs website; together, they ran SHAC out of


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a home they shared in Somerset, New Jersey, with assistance from

Fullmer. Id. at 10-14. Harper and Stepanian organized SHAC

activities in Seattle and New York, respectively. Id. at 13-14.

2. SHACs website contained disclaimers stating that SHAC

operate[d] within the boundaries of the law and that any illegal

acts were committed by anonymous activists who have no relation

with SHAC, Pet. App. A at 4, but this was untrue. Although

petitioners engaged in some lawful activity, they also repeatedly

threatened, incited, and committed crimes against Huntingdon and

people and companies associated with Huntingdon. See, e.g., id. at

3-10.

a. SHAC openly support[ed] those who choose to operate

outside the confines of the legal system. Pet. App. A at 4. It

called upon SHAC activists to apply[] direct and traumatizing

blows to those who work at HLS or are part of companies that

support their brutality, including by breaking down the doors of

these evil labs and taking their abused animals out. C.A. App.

814, 816-817. It also urged its supporters to take [the fight] to

the doorsteps of those responsible without regard for threats of

lawsuits or consideration for some scumbags property value, id.

at 814-815, and repeatedly exhorted them to SMASH HLS, see, e.g.,

id. at 769, 783-785, 1711.

In furtherance of these goals, SHAC provided detailed

information to its supporters designed to incite and facilitate


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crimes and threaten its targets. For example, SHAC used its

website to organize and schedule numerous acts of what it called

electronic civil disobedience. Pet. App. A at 5. These denial-

of-service attacks involved inundating a companys computer

servers and telephones with calls and messages in an effort to

overload the system and repeatedly sending black faxes (i.e.,

black pieces of paper that SHAC provided via its website) to a

companys fax machines in order to exhaust the ink supply and

render the machines inoperable. Ibid. SHAC acknowledged that

these actions were illegal, C.A. App. 835, and it therefore urged

its followers to use pay phones, public computers, and other

untraceable media to carry out the attacks. Pet. App. A at 5.

SHAC also frequently posted information concerning illegal

actions its followers had already taken, while encouraging them to

continue and providing materials to assist them. For example, SHAC

created and disseminated a large poster of Brian Cass highlighting

his injuries in order to intimidate other targets. Pet. App. A at

18; C.A. App. 2485, 2728. It provided detailed instructions on how

individuals involved in crimes could avoid detection by law

enforcement. Pet. App. A at 5. Under a note stating dont go

getting any funny ideas!, SHAC disseminated a list of Top 20

Terror Tactics (many of which its followers actually used during

the course of SHACs campaign) that included vandalizing or

destroying property; threatening to kill or injure targeted


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individuals and their families; calling in bomb threats; invading

offices and destroying or stealing documents; attacking companies

Internet sites, e-mail servers, and fax machines; and trapping

individuals in their homes or work places. Id. at 4-5; C.A. App.

780-782.

SHAC touted other crimes on its website in a running list of

accomplishments and bulletins of its followers criminal

activities, including smashing windows and overturning a Huntingdon

employees car; using paint or stickers to vandalize the homes and

offices of individuals who worked for or did business with

Huntingdon; detonating bombs in buildings in Arkansas, Texas, and

Washington that housed offices of companies that did business with

Huntingdon; and burglarizing Huntingdons laboratory. Pet. App. A

at 4; C.A. App. 818-822. SHAC stated that it was proud and

excited by such actions and urged its supporters to [k]eep up

the good work! Pet. App. A at 4; C.A. App. 818.

b. A crucial component of SHACs campaign was the harassment

and intimidation of individuals who worked for Huntingdon or for

companies that did business with Huntingdon. SHAC posted on its

website lists of targets that often included the individuals

home addresses, telephone numbers, photographs, names of their

family members, and other identifying information. See, e.g., C.A.

App. 854-856, 860-879, 882-896, 1242-1246, 1250-1252, 1289-1291,

1397-1399, 1706; Pet. App. A at 6 & n.5. An editorial written by


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petitioner Harper and posted on SHACs website stated that such

individuals are not safe from us and that militancy in support

of SHACs campaign was absolutely necessary. C.A. App. 1696.

SHACs target lists repeatedly urged SHACs followers to GO GET

EM (id. at 1232), Let em have it! (id. at 1706), and make

[their] lives a living hell! (id. at 1397).

Many of these individuals testified to similar experiences

after being targeted by SHAC. After being targeted by SHAC, Andrew

Baker, the chairman of Huntingdons holding company, started

receiving vulgar and abusive mail and telephone calls, and his home

was vandalized on three occasions. Pet. App. A at 6-7. Vandals

also plastered the door of Bakers daughters apartment with

pictures depicting his death. Id. at 7. Protesters attacked the

home of Henning Jonassen, a pathologist at Huntingdon, smashing all

of his windows with rocks and overturning his car. C.A. App. 2796-

2797. Carol Auletta, Huntingdons director of program management,

received threatening telephone calls and letters, and her

neighborhood was plastered with posters warning that she was

deranged. Id. at 2486, 2787-2789. SHACs website advertised an

online auction of undergarments allegedly worn by Theresa Kushner,

a Huntingdon veterinarian, and promised that any pervert[s] who

submitted bids will also receive [Kushners] address and

telephone number and an invitation to come over. Id. at 2816-

2817.


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SHAC similarly targeted Marsh, Inc., a company that provided

insurance brokerage services to Huntingdon. SHACs website warned

all Marsh employees, we know where you work, we know where you

eat, we know where you sleep, and we will treat Marsh no

differently than we would treat Brian Cass unless the company cut

all ties to Huntingdon. C.A. App. 1309. SHAC published the

personal information of several Marsh employees and invited its

supporters to GO GET EM!, resulting in numerous acts of

intimidation, harassment, and vandalism. Id. at 1232. For

example, SHAC published the names and home address of Sally

Dillenback (a Marsh executive in Texas), her husband, and their

young children, as well as the address of the childrens school;

the make, model, and license plate number of the familys personal

vehicle; and the name of their church. Pet. App. A at 7.

Dillenback received threatening telephone calls, pictures of

mutilated animals plastered to her home and sidewalk, and an e-mail

asking her how she would feel if they cut open her youngest son and

fill[ed] him with poison, as Huntingdon did to animals. Id. at

8. Marion Harlos and Robert Harper (who worked for Marsh in Texas

and Massachusetts, respectively) were likewise targeted and quickly

fell victim to similar attacks. Id. at 8-10. Protesters also set

off smoke bombs in two high-rise office buildings in Seattle that

housed Marsh offices, resulting in absolute panic. Id. at 12;

C.A. App. 3007-3008. SHAC praised this action as akin to


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smok[ing] terrorists out of their holes. Pet. App. A at 12.

Stephens, Inc., a Huntingdon investor, was subjected to a

similar campaign. SHAC targeted Stephens with repeated black fax

and denial-of-service attacks, which effectively shut down the

companys ability to conduct business. C.A. App. 1080, 1098, 2862-

2864. SHAC also organized protests against Stephens that resulted

in violent clashes with police, trapped company employees in their

offices, and led to acts of vandalism against employees homes.

Id. at 2867-2871. Other protesters set off a bomb in a Stephens

office building in Texas and vandalized the home of Stephens

president. Id. at 1119-1123, 2865-2866.

3. Petitioners were directly involved in SHACs criminal

acts. Pet. App. A at 10. Kjonaas was SHACs president and oversaw

SHACs operations and website from a home he shared with Gazzola

and Conroy. Ibid. He publicly praised the use of violence to

accomplish SHACs aims and was involved in an intense effort to

obtain the names, addresses, and personal information of

individuals to target. Id. at 10-11. Kjonaas personally demanded

that Stephens sever its ties with Huntingdon and controlled a SHAC

website that threatened Stephens with illegal denial-of-service

attacks if it failed to comply -- attacks that took place, on

schedule, when Stephens refused to accede to Kjonaass demands.

Ibid. Kjonaas also discussed with Stepanian the possibility of

creating front organizations to circumvent injunctions and carry


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out illegal actions. Id. at 11. When protesters detonated pipe

bombs at the California offices of Chiron, Inc., a Huntingdon

client and SHAC target, Kjonaas announced that the attack was part

of a drastic escalation in the campaign against Huntingdon and

that Huntingdon should be very worried. Id. at 11-12. Although

Kjonaas attributed the bombing to anonymous Revolutionary Cells,

telephone records showed that he called one of the men charged with

the bombings twelve hours after they occurred. Id. at 12.

Gazzola was SHACs campaign coordinator and was directly

responsible for protests against Huntingdon and others. Pet. App.

A at 12. The day after the bombings of Marsh offices in Seattle,

Gazzola appeared on a radio show using the pseudonym Angela

Jackson and defended the use of violence (including the bombings

and the beating of Brian Cass) in furtherance of SHACs aims.

Ibid. She praised such crimes as necessary to SHACs successful

campaign, and repeatedly claimed involvement in them. Id. at 12-

13 ([W]ere tired of standing around holding signs and yelling at

buildings and writing letters and not getting anywhere. Were

gonna do what we have to do in order to be effective and in order

to save lives.); id. at 12 (stating that Marsh cut ties with

Huntingdon because we fucked them up).

Gazzola also personally threatened individuals on SHACs

target list. For example, during a SHAC protest outside Robert

Harpers home, Gazzola screamed through a bullhorn that she would


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burn down his house and warned Harper that neither the police nor

a court injunction could protect him or his family. Pet. App. 12;

see Govt C.A. Br. 65-66 (quoting videotape). Gazzola further

provided SHAC followers with instructions on how to circumvent

protections against denial-of-service attacks erected by the Bank

of New York, which did business with Huntingdon. C.A. App. 1183.

Conroy resided with Kjonaas and Gazzola at SHAC headquarters

and designed and maintained all of SHACs websites. Pet. App. A at

13. He was responsible for publishing information to those sites

and for assisting others in doing so. Ibid.; see also C.A. App.

1958-1962, 2621, 2628.

Harper was the leader of SHACs Seattle branch and coordinated

SHACs campaign against Stephens, which included denial-of-service

attacks and other illegal actions. Pet. App. A at 13. He openly

advocated the use of violence and intimidation tactics against

SHACs targets in postings on SHACs website and in public

speeches, and specifically instructed one audience on how to send

black faxes. Ibid.

Stepanian coordinated SHAC activities in New York. Pet. App.

A at 13. In February 2003, he led an office invasion of Deloitte

& Touche, Huntingdons auditor, during which protesters plastered

the interior of the building with stickers and threw papers from a

third-floor balcony. Ibid. At Stepanians request, Gazzola

subsequently posted a bulletin about this action on SHACs website,


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attributed to anonymous NY Activists. Ibid. Stepanian also

discussed with Kjonaas the need to set up sham organizations to

provide cover for their activities. Id. at 13-14.

Fullmer was a SHAC organizer in New Jersey who coordinated

numerous denial-of-service attacks and black fax campaigns against

SHAC targets. Pet. App. A at 14. He also researched targets,

collected their personal information, and helped Gazzola post this

information on the SHAC website. Ibid.

Petitioners went to great lengths to conceal their

communications. Under headings such as Illegal Activity, SHACs

website provided its followers with detailed instructions on how to

avoid detection by law enforcement. Pet. App. A at 5; see, e.g.,

C.A. App. 1513 (SHAC website advises followers to NEVER discuss

illegal activity indoors, over the phone, or email. * * * Keep

the discussion of illegal activity on a need to know basis only).

Eight of the nine computers seized from SHAC headquarters contained

an e-mail encryption and data deletion software program called PGP,

which Kjonaas and others routinely used. Pet. App. A at 5.

4. On September 16, 2004, a federal grand jury in the

District of New Jersey returned a superseding indictment charging

petitioners with offenses related to their actions against

Huntingdon and others. Count One charged all petitioners with

conspiracy to violate the AEPA by using a facility in interstate

commerce to cause physical disruption to the functioning of an


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animal enterprise (i.e., Huntingdon) and conspiring to

intentionally damage[] or cause[] the loss of any property

* * * used by [Huntingdon], resulting in more than $10,000 in

economic damage. 18 U.S.C. 43(a) and (b)(2) (Supp. II 2002).

Counts Two through Five charged Kjonaas, Gazzola, and Conroy with

four counts of interstate stalking and conspiracy to commit

interstate stalking, in violation of 18 U.S.C. 2261A(2) and 371,

stemming from the crimes committed against Sally Dillenback, Marion

Harlos, and Robert Harper. Count Six charged Kjonaas, Gazzola,

Conroy, and Harper with conspiring to use a telecommunications

device to abuse, threaten, and harass, in violation of 47 U.S.C.

223(a)(1)(C) and 18 U.S.C. 371. Following a jury trial,

petitioners were convicted on all counts. Pet. App. A at 14. The

district court sentenced each of the petitioners to varying terms

of imprisonment and ordered that they be held jointly and severally

liable for $1,000,001 in restitution, pursuant to 18 U.S.C. 43(c).

Pet. App. A at 27.

5. The court of appeals affirmed. Pet. App. A at 1-30.

a. The court held that the AEPA was constitutional, both

facially and as applied. Pet. App. A at 14-21. While the court

acknowledged that some of the speech on SHACs website was

constitutionally protected, it held that petitioners frequently

veered into criminal conduct by inciting imminent lawless action

and leveling true threats against Huntingdon, its employees, and


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others. Id. at 17-18. The court of appeals found ample evidence

in the record that illegal actions were part and parcel of SHACs

campaign and that petitioners personally participated in illegal

protests, in addition to orchestrating the illegal acts of others.

Id. at 18.

The court noted, for example, that SHAC frequently organized

illegal denial-of-service attacks and black fax campaigns in a

manner that encouraged and compelled an imminent, unlawful act

that was not only likely to occur, but provided the schedule by

which [it] was to occur. Pet. App. A at 18. Petitioners also

repeatedly used past incidents to instill fear in future targets,

including by prominently displaying photographs highlighting the

injuries suffered by Brian Cass and threatening targets with the

same campaign of intimidation and violence that befell Huntingdon

and affiliated companies. Id. at 17-18.

With respect to the individual defendants, the court concluded

that [t]he record contains more instances of Kjonaass involvement

in and coordination of illegal activity than we could possibly

recount here, including evidence that he controlled the illegal

campaign against Stephens and was linked to the Chiron bombers.

Pet. App. A at 19. Gazzola was instrumental in the planning and

execution of SHACs illegal activities, including threatening to

burn down Robert Harpers home and to harm him and his family. Id.

at 19-20. Conroy and Fullmer were responsible for numerous denial-


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of-service attacks. Id. at 20. Stepanian was directly involved in

illegal protests in New York and provided strong circumstantial

evidence of his planning and execution of illegal protest activity

in a telephone conversation with Kjonaas in which Stepanian and

Kjonaas agreed to use encrypted e-mails to discuss the possibility

of violating an injunction. Ibid.; C.A. App. 2028-2030. And

although Harpers speeches praising violence and instructing

individuals how to send black faxes were not themselves illegal,

they provided strong circumstantial evidence of his participation

in the conspiracy, particularly given his close relationships with

the other conspirators and his leadership role in SHAC. Pet. App.

20-21.

b. The court of appeals also held that the evidence was

sufficient to sustain petitioners convictions. Pet. App. A at 22-

26. The court agreed with petitioners that, in order to convict

them of conspiracy, the government was required to prove that SHAC

possessed unlawful goals and that [petitioners] held a specific

intent to further those illegal aims and that the sufficiency of

the evidence should be judged according to the strictest law, or

the strictissimi juris doctrine. Id. at 23 (quotations omitted).

Even applying this strict standard, however, the court of appeals

found ample evidence from which the jury could convict the

defendants of conspiracy. Ibid.

Concerning Count One, the court found that petitioners were


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indisputably leaders of, and heavily involved in, SHACs illegal

activities. Pet. App. A at 23-24. The court also found

overwhelming evidence that Kjonaas and Gazzola were constant[ly]

attempt[ing] to evade law enforcement and cover their tracks

(which is circumstantial evidence of [an] agreement to participate

in illegal activity); that Conroy designed and maintained the

primary tools of the campaign against Huntingdon, provided SHACs

followers with detailed information regarding when and how [to]

participate in illegal campaign activities, and posted threats of

violence against SHACs targets; that Harper was a member of

SHACs leadership and actively sought to recruit followers to carry

out illegal acts on SHACs behalf; that Fullmer personally

orchestrated several illegal electronic attacks on Huntingdon and

related companies; and that Stepanian helped set up sham

organizations to provide cover for SHACs illegal activities and

actively sought to evade law enforcement. Ibid.

With respect to Counts Two through Five, the court of appeals

found sufficient evidence to support the convictions of Kjonaas,

Gazzola, and Conroy for interstate stalking and conspiracy to

commit interstate stalking. Pet. App. A at 25-26. The court noted

that SHACs website (which Kjonaas, Gazzola, and Conroy controlled)

disseminated the detailed personal information of out-of-state

individuals and credible threats against them that were intended to

(and did) cause those individuals to fear for their safety and the


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1 Only Harper and SHAC (which is not a petitioner) challenged

the sufficiency of the evidence supporting the convictions on Count

Six. Pet. App. A at 26. The court of appeals held that SHACs

arguments were frivolous and that the same evidence supporting

Harpers conviction on Count One supported his conviction for

conspiracy to use a telecommunications device to abuse, threaten,

and harass. Ibid.

safety of their families. Ibid. Kjonaas used the Chiron bombings

to similar advantage, and Gazzola personally stood outside Robert

Harpers house and threatened to burn it down, and warned that the

police would not protect him. Ibid.1

c. The court of appeals also held that, contrary to

petitioners claim, the jury was not instructed that it could

convict petitioners of an AEPA conspiracy against individuals and

companies other than Huntingdon. Pet. App. A at 21. Rather, the

jury was required to find that the ultimate object of the

conspiracy was to cause physical disruption -- * * * defined as

interference with the normal course of business or activity -- at

Huntingdon resulting in damage to Huntingdon. Ibid. The court

acknowledged that action against indirectly affiliated companies

was not itself proscribed by the 2002 version of the AEPA, id. at

24 n.15, but concluded that such crimes, committed with the express

purpose of harming Huntingdon, were circumstantial evidence of the

conspiracy against Huntingdon. Id. at 21.

d. Judge Fisher joined the courts opinion in most respects,

but disagreed concerning whether the evidence was sufficient to

convict petitioners on Count One. See Pet. App. A at 27-30. In


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Judge Fishers view, the evidence established that petitioners

specifically intended to cause physical disruption and damage to

companies affiliated with Huntingdon and to Huntingdon employees,

but not to Huntingdon itself. Id. at 28-29.

ARGUMENT

Petitioners contend that their statements and conduct were

protected by the First Amendment (Pet. 12-15); that the evidence

was insufficient to convict them of conspiracy or interstate

stalking (Pet. 20-24); that they were convicted based on conduct

that was not criminal under the 2002 version of the AEPA (Pet. 15-

20); that the district courts jury instructions were improper

(Pet. 25-28); and that the restitution order in this case was not

supported by sufficient evidence of cognizable losses (Pet. 28-31).

The court of appeals correctly rejected these arguments, and the

decision below does not conflict with any decision of this Court or

another court of appeals. Further review is unwarranted.

1. Petitioners undeniably had a right to protest against

Huntingdon, to attempt to close it down through the power of

persuasion, and to use vehement, caustic, and sometimes

unpleasantly sharp attacks to achieve that goal. New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964). They did not, however,

have the right to organize and execute a campaign of violence and

intimidation designed to force others to accept their views.


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It has long been established that incitement and threats are

not constitutionally protected. See Brandenburg v. Ohio, 395 U.S.

444, 447 (1969) (per curiam) (advocacy of the use of force or of

law violation may be proscribed when it is directed to inciting

or producing imminent lawless action and is likely to incite or

produce such action); Virginia v. Black, 538 U.S. 343, 359-360

(2003) (states may proscribe true threats that communicate a

serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals, even

if the speaker does not actually intend to carry out the threat);

R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (true threat

doctrine protect[s] individuals from the fear of violence, from

the disruption that fear engenders, and from the possibility that

the threatened violence will occur).

As the court of appeals held, the record contains extensive

evidence that petitioners orchestrated an extended campaign of

illegal denial-of-service attacks against Huntingdon and others,

including by providing materials, instructions, and specific

timetables for launching the attacks. See, e.g., Pet. App. A at 5-

6, 18. This evidence clearly satisfies Brandenburgs requirement

of inciting imminent lawless action in a manner likely to produce

such action; indeed, the attacks were successful precisely because

SHAC was able to repeatedly rally its supporters to commit such

actions in concert. See id. at 18. The record is also rife with


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instances in which petitioners directly threatened Huntingdon and

others, including by repeatedly and graphically invoking the

beating of Brian Cass, ibid.; C.A. App. 2485, 2728; publishing home

addresses and other detailed personal information of targeted

individuals, along with stark warnings about the vandalism and

violence that befell others and exhortations to GET EM! and

make [their] lives a living hell!, Pet. App. A 6-10, 19; C.A.

App. 1232, 1397; using the Chiron bombings to make Huntingdon very

worried, Pet. App. A at 11-12, 19; and (in Gazzolas case)

standing outside a private home and threatening to burn it down,

id. at 19-20.

Contrary to the assertions of petitioners and their amici,

this Courts decision in NAACP v. Claiborne Hardware Co., 458 U.S.

886 (1982), does not hold (or even suggest) that petitioners

conduct was protected. Claiborne Hardware concerned a lawsuit in

which white merchants complained that the NAACP and its Mississippi

field secretary, Charles Evers, had maliciously interfered with

their businesses during a boycott. Id. at 898-899. Specifically,

the plaintiffs complained that shortly before the boycott began,

Evers stated in a public meeting that any African Americans who

violated the boycott would have their necks broken by their own

people. Id. at 900 n.28.

In finding that Everss remarks were protected speech, this

Court observed that his statements were not addressed to anyone in


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particular, but were instead directed to all 8,000-plus black

residents of Claiborne County. Claiborne Hardware, 458 U.S. at

900 n.28. The principal means of disciplining those who did not

participate was social ostracization, not violence, id. at 904, and

almost all of the actions associated with the boycott were

uniformly peaceful and orderly, id. at 903. Although some acts

of violence occurred during the boycott, they were isolated and,

more importantly, there was no evidence that the NAACP or Evers had

any knowledge of or involvement in them. Id. at 904-906, 930-931;

see also id. at 924 (finding no evidence that any illegal conduct

was authorized, ratified, or even discussed at any of the [NAACP]

meetings); id. at 928 (Everss reference to breaking necks was an

isolated statement in lengthy addresses [that] generally contained

an impassioned plea for black citizens to unify, to support and

respect each other). The Court explained that if Everss

statement had been followed by acts of violence, a substantial

question would be presented whether Evers could be held liable for

the consequences of that unlawful conduct. Id. at 928. The Court

found no indication, however, that Evers authorized, ratified, or

directly threatened acts of violence. Id. at 929.

Petitioners statements -- which repeatedly and intentionally

threatened specific individuals with vandalism and violence, placed

those individuals in actual fear for their physical safety, and

incited followers to commit imminent lawless acts -- bear no


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2 Amici Center for Constitutional Rights, et al., contend

(Br. 6) that the decision below is in conflict with the SecondCircuits decision in New York v. Operation Rescue National, 273

F.3d 184 (2001). Operation Rescue, however, merely held that the

statement killing babies is no different than killing doctors was

an expression of political opinion that did not convey a direct or

even veiled threat. Id. at 196-197. The court of appeals noted

that the defendant had, on a different occasion, told a doctor,

Youre next, I hope youre next, youre next, but it did not

address whether that statement was a threat. Id. at 196 n.5.

resemblance to the speech at issue in Claiborne Hardware. Numerous

courts have so held, both in cases concerning petitioners, see

Huntingdon Life Scis., Inc. v. SHAC, 29 Cal. Rptr. 3d 521, 544

(Cal. Ct. App. 2005), and those using similar tactics. See, e.g.,

Planned Parenthood of the Columbia/Willamette, Inc. v. American

Coal. of Life Activists, 290 F.3d 1058, 1062-1065, 1078-1086 (9th

Cir. 2002) (en banc) (use of Internet and posters to publish names

of specific abortion providers, some of whom had been murdered, and

accusing them of crimes against humanity, was true threat), cert.

denied, 539 U.S. 958 (2003); United States v. Dinwiddie, 76 F.3d

913, 925-926 (8th Cir.) (same for speech suggesting that abortion

providers would suffer same fate as murdered doctor), cert. denied,

519 U.S. 1043 (1996); United States v. Malik, 16 F.3d 45, 48 (2d

Cir.) (same for defendants statement that he would deal with

[specific individuals] physically), cert. denied, 513 U.S. 968

(1994).2 The court of appeals consistent determination in this

case does not merit further review.

Nor is there merit to petitioners assertion (Pet. 12-14) that


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3 Amicus National Lawyers Guild asserts (Br. 5-13, 22) that

this case presents a useful context in which to address the First

Amendment protections applicable to Internet-based journalism.

This case would be a poor vehicle in which to address that issue.

Petitioners were not journalists. Rather, they were engaged in a

concerted campaign to incite, threaten, and commit crimes in order

to force individuals to accede to their demands.

4 The purpose of the strictissimi juris standard is to assure

that one in sympathy with the legitimate aims of * * * an

organization, but not specifically intending to accomplish them by

resort to violence, [is not] punished for his adherence to lawful

and constitutionally protected purposes, because of other and

unprotected purposes which he does not necessarily share.

Claiborne Hardware, 458 U.S. at 919 (quoting Noto v. United States,

367 U.S. 290, 299-300 (1961)).

this Courts precedents concerning incitement and true threats

should be circumscribed in cases involving the Internet. This

Court has consistently applied ordinary First Amendment principles

to Internet speech, see, e.g., United States v. Williams, 553 U.S.

285, 291, 297-300 (2008), and petitioners assertion (Pet. 12-14)

that their statements could not have threatened or incited others

because those who speak over the Internet cannot know who they are

addressing or when, if ever, th[e] audience will be reached, is

belied by the fact that petitioners supporters engaged in the

criminal actions that petitioners advocated, on the timetable

petitioners wanted.3

2. Petitioners contend (Pet. 20-24) that the court of

appeals failed to apply the doctrine of strictissimi juris to this

case.4 The court of appeals expressly recognized, however, that

strictissimi juris was the proper standard by which to review the


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5 Petitioners argue that Harpers conviction is particularly

troubling because his actions in furtherance of the conspiracy

were not by themselves illegal. Pet. 23. This argument is

incorrect. The conspiracy statute proscribes criminal agreements,

not criminal acts, and an individual need not commit a separate

crime to be a member of a conspiracy. See Iannelli v. United

States, 420 U.S. 770, 777-778 (1975); Pet. App. A at 23. It is,

moreover, well established that legal acts clearly undertaken for

the specific purpose of rendering effective the later illegal

activity which is advocated may form the basis for a conspiracy

prosecution. Scales v. United States, 367 U.S. 203, 234 (1961);

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497-498 (1949).The court of appeals did not err in concluding that Harpers

conduct -- including his role in SHACs leadership, advocacy of

violence in furtherance of SHACs aims, coordination of the

campaign against Stephens, Inc. (which included widespread denial-

of-service attacks), and efforts to instruct others on sending

black faxes -- established circumstantially that he was aware of,

and intentionally participated in, the conspiracy. Pet. App. A at

13, 20-21.

evidence, and it concluded that, [e]ven applying this strict

standard, there was ample evidence on which the jury could convict

petitioners. Pet. App. A at 23. Nowhere did the district court

instruct (or did the court of appeals suggest) that the jury was

permitted to convict petitioners solely because they were SHAC[]

member[s], or because they act[ed] in accord with its agenda to

end animal testing at HLS. Pet. 21. To the contrary, the court

of appeals explained in detail how each petitioner specifically

sought to further a criminal aspect of SHACs campaign, including

by coordinating and helping to carry out illegal denial-of-service

attacks and threatening other people with serious bodily harm. See

Pet. App. A at 5-14, 19-21, 25-26.5 That fact-bound decision does

not merit this Courts review. See, e.g., United States v.


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6 Amici Center for Constitutional Rights, et al., contend

(Br. 12-20) that this Court should grant certiorari to clarify that

a true threat must be uttered with the subjective intent tothreaten and may not be the product of mere objective negligence.

Petitioners themselves do not make this contention, and the court

of appeals did not address it. Cf. Pet. App. 18-19 (holding that

some of petitioners conduct constituted true threats without

articulating the legal standard). That alone is sufficient reason

for this Court to decline review of the issue. See United States

v. Williams, 504 U.S. 36, 41 (1992). In any event, the issue is

not cleanly presented here. The district court instructed the jury

Johnston, 268 U.S. 220, 227 (1925) (We do not grant * * *

certiorari to review evidence and discuss specific facts.).

Nor does this fact-bound determination conflict with decisions

from other circuits. See Pet. 24. In United States v. Spock, 416

F.2d 165 (1st Cir. 1969), the court held that the strictissimi

juris standard is satisfied by evidence showing that a defendant

made unambiguous statements adhering to the conspiracys illegal

aims, committed the very illegal act contemplated by the

agreement, or committed a subsequent legal act if that act is

clearly undertaken for the specific purpose of rendering effective

the later illegal activity which is advocated. Id. at 173

(quoting Scales v. United States, 367 U.S. 203, 234 (1961)). Each

petitioner satisfied one or more of these conditions in this case.

In United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), the

court of appeals held that the government could not prosecute

organizers of a peaceful protest simply because the protest

devolved into a riot. Id. at 393. Petitioners illegal conduct

was far more extensive.6


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that, to find a true threat, it had to find that the speaker or

actor intended to communicate a serious expression of an intent to

commit bodily harm to another person. C.A. App. 3379. That

instruction mirrors the formulation of a true threat in Virginia

v. Black, 538 U.S. 343, 359 (2003): statements where the speaker

means to communicate a serious expression of an intent to commit

acts of unlawful violence to a particular individual or group ofindividuals. While amici view (Br. 15) this language as less

clear than other statements in Virginia v. Black, they rely only

on a statement that describes intimidation as a type of true

threat. 533 U.S. at 360. That statement did not narrow or modify

the earlier definition. In any event, petitioners did not object

to the instruction given, thus relegating the issue to plain-error

review, see Fed. R. Evid. 30(d), and making this case an unsuitable

vehicle in which to address the issue.

3. Petitioners further contend (Pet. 15-20) that the court

of appeals misconstrued the 2002 version of the AEPA to permit

conviction for a conspiracy directed at parties other than

Huntingdon. That argument is incorrect.

At the time petitioners committed their crimes, the AEPA

prohibited traveling in or using a facility in interstate commerce

for the purpose of causing physical disruption to the functioning

of an animal enterprise, and defined one substantive offense in

connection with that purpose: intentionally damag[ing] or

caus[ing] the loss of any property (including animals or records)

used by the animal enterprise, or conspir[ing] to do so.

18 U.S.C. 43(a) (Supp. II 2002). Thus, in order to convict an

individual of conspiracy under the 2002 version of the AEPA, the

government was required to prove (1) that petitioners intended to

physically disrupt Huntingdon (which the district court defined as

an action using interference with the normal course of business or


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7 The AEPA in its current form prohibits traveling in or

using a facility in interstate commerce for the purpose of

damaging or interfering with the operations of an animal

enterprise, and committing (or conspiring to commit) one of three

substantive offenses in connection with that purpose:

(1) intentionally damaging or causing the loss of property of the

animal enterprise; (2) intentionally damaging or causing the loss

of property of persons or entities having a connection to,relationship with, or transactions with the animal enterprise; or

(3) intentionally placing a person in reasonable fear of death or

serious bodily injury by a course of conduct involving threats,

acts of vandalism, property damage, criminal trespass, harassment,

or intimidation. 18 U.S.C. 43(a). Thus, under current law,

petitioners could have been charged with numerous substantive AEPA

offenses, each carrying their own punishment, for each of the

businesses and individuals SHAC targeted.

activity at an animal enterprise); and (2) that the object of the

conspiracy was damage or loss to the animal enterprise itself, not

related third parties. C.A. App. 3375-3376.7

Neither the district court nor the court of appeals

misunderstood this distinction. The district court instructed the

jury that, to convict petitioners under Count One, it needed to

find beyond a reasonable doubt that petitioners intended to cause

physical disruption to the functioning of Huntingdon Life

Sciences, which I shall refer to as HLS, an animal enterprise, with

the intention to damage and/or cause the loss of property used by

HLS in an amount exceeding $10,000. C.A. App. 3353-3354 (emphasis

added); see also, e.g., id. at 3373-3376 (the Government must

prove * * * [that] the purpose of the agreement was to cause

physical disruption to the functioning of an animal enterprise and

that the agreement was intended to cause damage or loss of any


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property, including animal records used by the animal enterprise,

in an amount exceeding $10,000. * * * Huntingdon Life Sciences

is an animal enterprise under the statute.). Likewise, the court

of appeals concluded that petitioners were convicted of intending

to physically disrupt Huntingdon and causing damage or losses to

Huntingdon. Pet. App. A at 21. It further acknowledged that

companies that did business with Huntingdon were not themselves

animal enterprise[s] and that petitioners campaign against

indirectly affiliated companies is not, by itself, enough to

substantiate a conspiracy to violate the AEPA. Id. at 24 n.15.

Petitioners contention that the government and lower courts

attempted to turn the 2002 version of the AEPA into the exact

equivalent of the 2006 revision, Pet. 16, is therefore incorrect.

Actions against third parties were admitted as circumstantial

evidence of the conspiracy against Huntingdon. See Pet. App. A at

21; Glasser v. United States, 315 U.S. 60, 80 (1942) (conspiracy

may be established by direct or circumstantial evidence). The jury

could infer, for example, that petitioners intent in conspiring

against Huntingdon and causing damages and losses to that company

(including by organizing denial-of-service attacks against the

company and threatening Huntingdons employees) was the same as

their intent in committing similar acts against third parties. But

this did not somehow amend the indictment to charge a conspiracy

against those entities.


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8 The AEPA did not define physical disruption, except to

state that it did not include any lawful disruption that results

from lawful public, governmental, or animal enterprise employee

reaction to the disclosure of information about an animal

enterprise. 18 U.S.C. 43(d)(2) (2000 & Supp. II 2002).

Petitioners actions against third parties were also relevant

to demonstrating their intention to cause physical disruption to

Huntingdon. This, too, did not require the jury to find any

substantive AEPA offense against a third party, but merely reflects

the reality that by attempting to deny Huntingdons laboratory the

use of telephone, Internet, security, and insurance services

necessary for its continued operation, SHAC sought to physically

disrupt the experiments and other business that the employees of

Huntingdons laboratory were attempting to conduct. Nothing in the

2002 AEPA suggests that such evidence must be excluded simply

because the defendant accomplishes his intended disruption and

damage to an animal enterprise by an action ostensibly directed at

a third party.8

In any event, the proper interpretation of the AEPA before its

amendment is not an issue that merits this Courts review. The

question will not recur under the law as it is presently drafted,

and the issue is therefore of diminishing importance.

4. Petitioners argue (Pet. 25-28) that the district courts

instructions permitted the jury to convict them on the interstate

stalking and telecommunications harassment charges based solely on

protected speech. With respect to the interstate stalking counts,


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petitioners did not object to the instructions on this ground in

the district court, nor did they raise this claim in their briefs

on appeal. This Court generally does not consider questions not

pressed or passed upon below, see United States v. Williams, 504

U.S. 36, 41 (1992); Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005), and there is no reason to depart from that general rule

here.

Even if the Court were to consider petitioners claim, review

would be for plain error. See United States v. Marcus, 130 S. Ct.

2159, 2166 (2010); Jones v. United States, 527 U.S. 373, 388

(1999). There was no error, much less a plain error that affected

petitioners substantial rights. The district court instructed the

jury that, to convict Kjonaas, Gazzola, and Conroy on Counts Two

through Five (interstate stalking), it was required to find that

they inten[ded] to place a person in another state * * * in

reasonable fear of death or serious bodily injury * * * [and]

actually placed that person in reasonable fear of death * * *

or serious bodily injury. C.A. App. 3383. These elements are

functionally identical to the definition of a true threat. See

id. at 3378-3380 (true threat is a serious expression of an intent

to commit bodily harm to another person or to plac[e] that person

or persons in fear of bodily harm or death). Thus, in convicting

petitioners of interstate stalking, the jury necessarily found that

their speech was not protected.


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Petitioners did object to the district courts decision not to

instruct the jury that the speech underlying Count Six

(telecommunications harassment) could be protected. See C.A. App.

3743-3744. Petitioners did not renew that argument on appeal,

however, and so it is waived. And even if the argument were not

waived, it is meritless. The overt acts alleged in Count Six all

related to the conspiracy to commit denial-of-service attacks using

black faxes, which was organized by petitioners and launched

according to a schedule posted on SHACs website. C.A. App. 236-

237. The court of appeals concluded that petitioners statements

concerning these attacks were clearly intended to incite imminent

lawless action, and thus were not protected. Pet. App. A at 18.

Those statements were also an integral part of the conspiracy.

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497-498 (1949)

(lawful speech may be enjoined if it is in furtherance of a

conspiracy to commit a crime); Williams, 553 U.S. at 298-299

(there remains an important distinction between a proposal to

engage in illegal activity and the abstract advocacy of

illegality). Under these circumstances, there is no likelihood

that the jury convicted petitioners based on constitutionally

protected speech.

5. Finally, there is no merit to petitioners contention

(Pet. 28-31) that the restitution order in this case was not

supported by sufficient evidence of cognizable losses. Under the


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Mandatory Victims Restitution Act, 18 U.S.C. 3663A and 3664, a

district court must order restitution for specified crimes in the

full amount of each victims losses and must do so without

consideration of the economic circumstances of the defendant.

18 U.S.C. 3663A(a)(1), 3664(f)(1)(A). Where more than one

defendant contributed to the victims loss, the court may make

each defendant liable for payment of the full amount of

restitution. 18 U.S.C. 3664(h). The AEPA permits restitution for

any * * * economic damage resulting from the offense,

including the replacement costs of lost or damaged property or

records, the costs of repeating an interrupted or invalidated

experiment, or the loss of profits. 18 U.S.C. 43(c) and (d)(3)

(2000 & Supp. II 2002).

At trial, the government submitted evidence that Huntingdon

suffered well over $1,000,000 in qualifying losses as a result of

petitioners conspiracy. Richard Michaelson, the Chief Financial

Officer of Huntingdons parent company, testified that SHACs

illegal denial-of-service attacks against Huntingdon shut down

Huntingdons computer network for almost two months, resulting in

approximately $15,000 in equipment replacement costs, $50,000 in

repair costs, and almost $400,000 in business losses. C.A. App.

2853. Huntingdon incurred additional expenses providing increased

security for its physical plant and its employees, as well as legal

costs to obtain injunctions against petitioners illegal attacks.


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Ibid. Michaelson further testified that the time spent by

Huntingdon management alone in responding to SHACs campaign cost

the company in excess of a million dollars. Ibid.

At sentencing, the district court noted that this evidence was

unchallenged and uncontested at trial, but stated that it

intended to hold a further evidentiary hearing to determine the

precise, itemized losses that Huntingdon suffered as a result of

the conspiracy. C.A. App. 60-61. Petitioners objected to a

hearing, id. at 60, 62, 66, and the district court thereafter

deemed them jointly and severally liable for $1,000,001. Id. at

67. Having declined the district courts request to hold an

evidentiary hearing on the issue of damages, petitioners are in a

poor position to press such a challenge now.

Petitioners claims are incorrect in any event. The losses

Huntingdon suffered as a result of SHACs conspiracy are clearly

cognizable as damage and lost profits, including costs to repair

and replace equipment, lost revenue, and other expenses that were

incurred as a direct result of petitioners unlawful conduct. See

Hughey v. United States, 495 U.S. 411, 413 (1990) (restitution may

include loss[es] caused by the specific conduct that is the basis

of the offense of conviction). Petitioners contend (Pet. 29-30)

that the Third Circuit has concluded that lost business

opportunities and staffing or management costs are not proper bases

for restitution in other cases, but those decisions are


36/37


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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

LANNY A. BREUER

Assistant Attorney General

ROBERT A. PARKER

Attorney

FEBRUARY 2011

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Government Opposition to Cert Petition in SHAC 7 Case

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