SHAC 7 Petition for Cert

8/7/2019 SHAC 7 Petition for Cert

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No. 10-

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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,

Respondent.

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Petition for Writ of Certiorari

To the United States Court of Appeals for the Third Circuit

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JOINT PETITION FOR WRIT OF CERTIORARI

PETER GOLDBERGER Counsel of RecordPAMELA A. WILK50 Rittenhouse PlaceArdmore, PA 19003-2276

(610) 649-8200(Additional counsel listedon reverse side) Attorneys for Petitioner Harper

October 2010


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Additional Counsel for Petitioners:

Hal K. Haveson, Esq.Haveson & Otis194 Nassau St.Princeton, NJ 08542

Attorney for Jacob Conroy

Paul J. Hetznecker, Esq.1420 Walnut St., Suite 911Philadelphia, PA 19102

Attorney for Andrew Stepanian

Robert A. Obler, Esq.Bldg. 3D, suite 200

3131 Princeton PikeLawrenceville, NJ 08684

Attorney for Darius Fullmer

H. Louis Sirkin, Esq.Scott Nazzarine, Esq.Sirkin, Kinsley, & Nazzarine810 Sycamore St., Second Fl.Cincinnati, OH 45202

Attorneys for Lauren Gazzola

Robert G. Stahl, Esq.Laura K. Gasiorowski, Esq.Law Offices of Robert G. Stahl, LLC220 St. Paul StreetWestfield, NJ 07090

Attorneys for Kevin Kjonaas

Of Counsel:Andrew F. Erba, Esq.Williams, Cuker & BerezofskyWoodland Falls Corporate Center210 Lake Drive East, Suite 101Cherry Hill, NJ 08002-1163


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QUESTIONS PRESENTED

1. (a) Does the First Amendment, as applied by this Court in Brandenburg, Hess,

Virginia v. Black, Claiborne Hardware and other cases, bar criminal conspiracy and

related substantive convictions for core political speech via the Internet that espouses

and revels in past and future illegal activity?

(b) The First Amendment doctrine ofstrictissimi juris, as articulated by this

Court, requires the strictest review of evidentiary sufficiency in conspiracy cases, to

prevent convictions for agreeing in the intellectual sense to an organizations goals

and tactics. Without a demonstrated agreement to achieve the specified unlawful

objective, does the totality of the evidence test used to judge petitioners conspiracy

convictions conflict with the strictissimi juris rule?

(c) Should the Court, if possible, avoid these constitutional questions by

construing the statutes of conviction strictly, according to their plain language?

2. Even if some of petitioners conduct that the government labeled criminal was

outside the realm of protected speech and concerted activity, did this Courts controlling

precedent require reversal of the convictions where the trial courts instructions

permitted the jury to convict on a legally impermissible basis?

3. Did the imposition of joint and several liability for more than $1 million in

restitution violate governing statutes, as recently construed by this Court in Dolan v.

United States, 560 U.S. --, 130 S.Ct. 2533 (June 14, 2010)?

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LIST OF ALL PARTIES

The caption of the case in this Court contains the names of all parties (petitioners

Kjonaas, Gazzola, Conroy, Harper, Stepanian and Fullmer, and respondent United

States). Stop Huntingdon Animal Cruelty USA, Inc. ("SHAC"), a Delaware corpo-

ration, was a co-defendant at trial and a co-appellant in the Third Circuit. Now defunct

and without assets, governing structure, or leadership, SHAC is not a petitioner in this

Court. Accordingly, Rule 29.6 (corporate disclosure statements) does not apply.

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TABLE OF CONTENTS

QUESTION PRESENTED .............................................................................................. i

LIST OF ALL PARTIES ................................................................................................ ii

INDEX TO APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION ............................................................................................................. 1

TEXT OF CONSTITUTIONAL and STATUTORY PROVISIONS INVOLVED ....... 2

STATEMENT OF THE CASE

a. Procedural History ............................................................................................... 5

b. Statement of Facts ............................................................................................... 7

c. Statement of Lower Court Jurisdiction ............................................................. 11

REASON FOR GRANTING THE WRIT

1. This case presents critically important issues concerning theapplication of this Courts firmly established First Amendmentdoctrine governing "incitement" and "true threats" to politicalspeech on the Internet .......................................................................................... 12

a. On at least some of the counts, the difficult constitutionalquestions presented can be avoided by correcting the erroneousstatutory construction applied at trial and affirmed on appeal, whichfails to give a strict and narrow reading to the plain language of the

Animal Enterprise Protection Act .................................................................. 15

b. As to the three conspiracy counts, the decision of the Court belowconflicts with this Courts precedent and decisions in other circuitsconcerning the "strictissimi juris" doctrine .................................................. 20

2. The decision of the court below conflicts with this Courts precedentgoverning the proper disposition of an appeal where the juryinstructions invite conviction on alternate grounds, some valid andothers legally impermissible ................................................................................ 25

3. The decision below regarding restitution should be vacated andremanded for further consideration under this Courts recent decision

inDolan v. United States, 560 U.S. --, 130 S.Ct. 2533 (2010) ............................. 28

CONCLUSION ............................................................................................................. 32

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INDEX TO APPENDICES

A. Opinion of the United States Court of Appeals for the Third Circuit,published sub nom. United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009)

B. Order denying rehearing (3d Cir., June 3, 2010)

TABLE OF AUTHORITIES

CASES

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) ............................................. 13

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) ............................... 17

Black v. United States, 561 U.S. --, 130 S.Ct. 2963 (2010) ......................................... 25

Brandenburg v. Ohio, 395 U.S. 444 (1969) .................................................................... 6

Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) ....................................... 12, 13

Chiarella v. United States, 445 U.S. 222 (1980) .......................................................... 26

Dolan v. United States, 560 U.S. --, 130 S.Ct. 2533 (2010) ................................... 29, 31

Griffin v. United States, 502 U.S. 46 (1991) ................................................................ 26

Hedgpeth v. Pulido, 555 U.S. --, 129 S.Ct. 530 (2008) (per curiam) ........................... 26

Hess v. Indiana, 404 U.S. 105 (1973) (per curiam) ................................................ 12, 13

Hughey v. United States, 495 U.S. 411 (1990) ............................................................ 30

Jones v. United States, 526 U.S. 227 (1999) ................................................................ 17



Moskal v. United States, 498 U.S. 103 (1990) ............................................................. 16

NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) .............................. 14, 18, 21, 22

Noto v. United States, 367 U.S. 290 (1961) ................................................................. 22

Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalitionof Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc) ................................. 14

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Ratzlaf v. United States, 510 U.S. 135 (1994) .............................................................. 16

Salinas v. United States, 522 U.S. 52 (1997) ................................................................ 16

Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) ................ 17

Stewart v. McCoy, 537 U.S. 992 (2002) ..................................................................... 13

Street v. New York, 394 U.S. 576 (1969) .................................................................... 26

Stromberg v. California, 283 U.S. 359 (1931) ............................................................. 26

Thomas v. Collins, 323 U.S. 516 (1945) ...................................................................... 26

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) ............................................. 22

United States v. Fallon, 470 F.3d 542 (3d Cir. 2006) ................................................... 29

United States v. Lopez, 514 U.S. 549 (1995) ............................................................... 17

United States v. Pollak, 844 F.2d 145 (3d Cir. 1988) ................................................... 30

United States v. Spock, 416 F.2d 165 (1st Cir. 1969) ............................................ 22, 24

United States v. Stevens, 559 U.S. --, 130 S.Ct. 1577 (2010) ...................................... 13

United States v. Williams, 553 U.S. 285 (2008) .......................................................... 15

Virginia v. Black, 538 U.S. 343 (2003) ........................................................................ 13

Watts v. United States, 394 U.S. 705 (1969) (per curiam) ........................................... 13

Yates v. United States, 354 U.S. 298 (1957) .......................................................... 26, 27

CONSTITUTION, STATUTES AND RULES

U.S. Const., amend. I (freedom of speech) ............................................................ passim

18 U.S.C. 43 ........................................................................................................ passim18 U.S.C. 43(c) .................................................................................................... 28, 2918 U.S.C. 43(d) .................................................................................................... 28, 3018 U.S.C. 2261A .................................................................................................. 3, 5, 618 U.S.C. 3231 ........................................................................................................... 11

18 U.S.C. 3613 ........................................................................................................... 3118 U.S.C. 3663A .................................................................................................. 28, 3018 U.S.C. 3664 ..................................................................................................... 29, 3118 U.S.C. 3771(a) ...................................................................................................... 30

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28 U.S.C. 1254(1) ........................................................................................................ 128 U.S.C. 1291 ........................................................................................................... 11

47 U.S.C. 223 ...................................................................................................... 4-6, 15

Fed.R.Crim.P. 30 .......................................................................................................... 25

S.Ct. R. 13.1, 13.3, 13.5 .................................................................................................. 1S.Ct. R. 14.1(g)(ii) ........................................................................................................ 11S.Ct. R. 29.2 .................................................................................................................... 1S.Ct. R. 30.1 .................................................................................................................... 1

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PETITION FOR WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

KEVIN KJONAAS, LAUREN GAZZOLA, JACOB CONROY, JOSHUA

HARPER, ANDREW STEPANIAN and DARIUS FULLMER respectfully petition this

Court jointly for a writ of certiorari to review the judgment and opinion of the United

States Court of Appeals for the Third Circuit affirming their convictions and sentences.

OPINIONS BELOW

The Third Circuits precedential opinion (per Fuentes, J., joined by Senior

District Judge William Ditter (E.D.Pa.); Fisher, J., dissenting) was filed on October 14,

2009. A copy is attached as Appendix A. See United States v. Fullmer, 584 F.3d 132.

The United States District Court for the District of New Jersey (Thompson, J.) wrote no

opinion.

JURISDICTION

The judgment of the United States Court of Appeals for the Third Circuit

affirming the applicants convictions and sentences (other than a limited remand to set a

schedule for payment of restitution) was filed and entered on October 14, 2009. Appx.

A. A timely joint petition for rehearing en banc was filed, but the petition was denied

on June 3, 2010. Appx. B. On August 23, 2010, under No. 10A204, Justice Alito

extended until October 1, 2010, the date for filing this petition. The petition is being

filed by postmark on or before that date. Rules 13.1, 13.3, 13.5, 29.2, 30.1. Petitioner

invokes this Courts jurisdiction under 28 U.S.C. 1254(1).

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CONSTITUTIONAL and STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides, in pertinent

part:

Congress shall make no law ... abridging the freedom of speech, or ofthe press, or the right of the people peaceably to assemble, and topetition the Government for a redress of grievances.

The version of the Animal Enterprise Protection Act ("AEPA") in effect at the

time the Count One offense was alleged to have occurred (2001-2004) provided, in

pertinent part:

(a) Offense. -- Whoever --

(1) travels in interstate or foreign commerce, or uses or causes to beused the mail or any facility in interstate or foreign commercefor the purpose of causing physical disruption to the functioningof an animal enterprise; and

(2) intentionally damages or causes the loss of any property(including animals or records) used by the animal enterprise, orconspires to do so,

shall be punished as provided for in subsection (b).

(b)Penalties.--

(1)Economic damage.-- Any person who, in the course of a viola-

tion of subsection (a), causes economic damage not exceeding$10,000 to an animal enterprise shall be fined under this title orimprisoned not more than 6 months, or both.

(2) Major economic damage.-- Any person who, in the course of aviolation of subsection (a), causes economic damage exceeding$10,000 to an animal enterprise shall be fined under this title orimprisoned not more than 3 years, or both.

* * * *

18 U.S.C. 43.1

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1 Significant amendments to 43 were enacted in 2006, which are not directly pertinenthere.

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As of the time in question, the federal anti-stalking law (part of the Violence

Against Women Act) provided, in pertinent part:

Whoever --

(1) travels in interstate or foreign commerce or within the specialmaritime and territorial jurisdiction of the United States, orenters or leaves Indian country, with the intent to kill, injure,harass, or intimidate another person, and in the course of, or as aresult of, such travel places that person in reasonable fear of thedeath of, or serious bodily injury to, that person, a member ofthe immediate family (as defined in section 115) of that person,or the spouse or intimate partner of that person; ...

* * * *

shall be punished as provided in section 2261(b).

18 U.S.C. 2261A.2

The Federal Communications Act contains a provision which at the times at issue

here, read:

223. Obscene or harassing telephone calls in the District ofColumbia or in interstate or foreign communications

(a) Prohibited acts generally

Whoever --

(1) in interstate or foreign communications --

(A) by means of a telecommunications device knowingly --(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request,suggestion, proposal, image, or other communicationwhich is obscene or child pornography, with intent toannoy, abuse, threaten, or harass another person;

(B) by means of a telecommunications device knowingly --(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request,suggestion, proposal, image, or other communicationwhich is obscene or child pornography, knowing that

the recipient of the communication is under 18 years ofage, regardless of whether the maker of suchcommunication placed the call or initiated thecommunication;

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2 The purported quotation of 2261A in the Third Circuits decision, see Appx. A, 584F.3d at 138, contains three phrases that did not appear in the statute at the times at issuehere. It cannot be used as a reference point.

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(C) makes a telephone call or utilizes a telecommunicationsdevice, whether or not conversation or communicationensues, without disclosing his identity and with intent toannoy, abuse, threaten, or harass any person at the callednumber or who receives the communications;

(D) makes or causes the telephone of another repeatedly orcontinuously to ring, with intent to harass any person at thecalled number; or

(E) makes repeated telephone calls or repeatedly initiatescommunication with a telecommunications device, duringwhich conversation or communication ensues, solely toharass any person at the called number or who receives thecommunication; or

(2) knowingly permits any telecommunications facility under hiscontrol to be used for any activity prohibited by paragraph (1)

with the intent that it be used for such activity,shall be fined under title 18 or imprisoned not more than two years,or both.

47 U.S.C. 223.3

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3 This law has undergone amendments since February 2004 which are not directly pertinenthere.

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STATEMENT OF THE CASE

At issue throughout this case has been the tension between the First Amendment

and the application of criminal statutes to the speech, conduct and association of animal

rights activists. Above all, this Court must revisit questions of law familiar to it from

years of addressing cases arising out of political protest and radical organizing over

wars, labor unions, and racial injustice: how to reconcile the principles of conspiracy

law with the stricter requisites of individual intent necessary to protect the constitutional

rights of those who act under a banner -- in short, when and how to draw the line

between criminal behavior and protected First Amendment activity.

This petition arises out of petitioners convictions after trial on a six-count indict-

ment which charged, inter alia, conspiracies to violate the Animal Enterprise Protection

Act, 18 U.S.C. 43 (AEPA); the anti-stalking statute, 18 U.S.C. 2261A; and a

federal statute barring telephonic harassment, 47 U.S.C. 223(a)(1)(C). Petitioners

were sentenced to terms ranging from probation (SHAC, Inc.) up to six years imprison-

ment, as well as joint and several liability for more than $1 million in restitution. The

Third Circuit -- over Judge Fishers dissent as to Count One -- affirmed petitioners

conspiracy convictions, as well as the substantive stalking convictions.

a. Procedural History

Huntingdon Life Sciences, Inc. ("HLS"), is a British-owned product testing

company, with a major facility located near Princeton, New Jersey. Petitioners were

associated in various ways and to varying degrees with Stop Huntingdon Animal

Cruelty USA, Inc. ("SHAC" or "SHAC-USA"), an activist animal rights group which

operated a widely-consulted website. Based in New Jersey, SHAC-USA took an active

part in a multifaceted international campaign to pressure HLS into ceasing its laboratory

use of animals, which petitioners and many others around the world considered

inhumane.

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A six-count superseding indictment charged the six petitioners, as well as SHAC

itself,4 with participating between October 2001 and February 2004 in conspiracies to

violate the Animal Enterprise Protection Act, 18 U.S.C. 43 (pre-2006 vers.); the anti-

stalking statute, 18 U.S.C. 2261A, and a law barring telephonic harassment, 47 U.S.C.

223(a)(1)(C). Some of the petitioners were also charged with substantive violations of

the anti-stalking statute. After a joint, month-long trial, a jury in the District of New

Jersey convicted the petitioners and SHAC itself on all counts. They were sentenced in

September 2006 to terms ranging from probation (SHAC, Inc.) up to six years impris-

onment (Kjonaas),5 as well as to pay, jointly and severally, more than $1 million in

restitution.

On appeal, a Third Circuit panel -- over Judge Fishers dissent as to the over-

arching Count One conspiracy -- affirmed the petitioners various conspiracy convic-

tions, as well as the substantive stalking convictions and (in all but one detail) their

sentences. The court of appeals accepted the governments challenged construction of

the AEPA, and concluded that certain of the petitioners had also violated the anti-

stalking law and/or violated the telephone harassment statute by conspiring to send

"black faxes." The court recognized that nearly all of the petitioners conduct was

constitutionally protected, yet the majority affirmed on a "totality of the circumstances"

test, finding at least one instance of making "true threats." Appx. A, 584 F.3d at 157. It

also found that another isolated incident (a "denial of service" attack on HLSs

computers) was unprotected by Brandenburg v. Ohio, 395 U.S. 444 (1969). Id. at 155.

On this basis, all the convictions were affirmed. On petition for rehearing en banc, the

petitioners renewed three First Amendment objections to the panel majoritys analysis.

_____________________

4 SHAC, a corporation, is now defunct; it has neither assets nor any governingstructure. Accordingly, although a convicted co-defendant and co-appellant, SHAC isnot a co-petitioner.

5 All but Kjonaas have completed service of their terms of incarceration.

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outside their homes and offices, rather than only corporate headquarters. With the loss

of clients and services providers, HLS would find it harder to run its business, animal

testing would become less profitable, and the economic wound would eventually end

what years of moral outcry had failed to accomplish. HLS would end animal testing if

it were to become unprofitable, SHAC believed. If it did not, then the company risked

economic failure.

To assist in delivering the content of its platform, and to publicize protest activity

both before and after the fact, SHAC USA developed a website. In addition to

providing abundant general information on animal testing, on HLS, about animal

activism, and concerning SHACs own beliefs and agenda, the website provided

specific information on protest activities in order to generate a grassroots movement

across its Internet community. The website would identify employees or customers of

HLS, or those of businesses providing services to HLS (CA3 App., vol. 3, at 798),

providing their names and addresses and other personal information, so that animal

rights activists across the United States could pinpoint protest activity against those

individuals and entities in their communities. Id. 801-04, 943-44, 952-56.

This name and shame operation was an integral part of the direct action

campaign because it made the prospect of working for or with HLS unappealing. No

one wants to wake up to animal rights activists with bullhorns in front of their home, or

to confront angry neighbors over puppy killer posters plastered around the neighbor-

hood.6 Understandably, many individuals would be dismayed, if not disconcerted, to

find personal information about themselves displayed on a website that any number of

strangers could access, despite the fact that this information was culled from public

sources and exists already in the public domain.

_____________________

6 HLS brought civil lawsuits around the country seeking injunctions and damages as aresult of the secondary campaign by anonymous vigilantes. Most of the demonstrationscomplied with those injunctions.

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An example of the targeting of individuals and companies on the SHAC USA

website was the target of the week posting. Such postings would identify a client,

such as the chemical company CBC, and list actions to take: call, fax; visit,

demonstrate, and infiltrate. id. at 804. The website provided the phone and fax

numbers of the weekly targets CEO and other executives so that web readers could

direct their messages about animal testing and HLS in a concerted and more effective

manner. Id. 801-13.

In other target of the week postings, the website was even more specific,

identifying particular employees of HLS or a company with whom they did business,

and listing not only these employees home addresses and phone numbers, but other

more personal information, such as the names and ages of their children, and the schools

and churches and social organizations the employees and their families attended or

belonged to.

Although SHAC never directed any illegal conduct on the website, it did

publicize news accounts of anonymous acts of harassment, vandalism and property

damage that sometimes followed postings of the identity and personal information of

target individuals. Id. 893-94, 927-28, 962, 977-78. For instance, the website

recounted the organized protest activity at Stephens, Inc., an investment company

besieged by three days of protests, constant media coverage and police who turned the

area into militarized zone, making seven arrests; the damaging of an HLS executives

car by unknown activists; and the vandalism of Bank of New York windows and ATM

machines by the "Animal Liberation Front" and the "Earth Liberation Front," two

radical activist groups associated -- unlike SHAC -- with secretive methods more akin

to sabotage. Id. 818-822.

Inevitably, there were rogue acts of vandalism and other criminal conduct

perpetrated by anonymous individuals which overshadowed the legal protest activities

such as letter writing, home and office demonstrations, and pamphleteering. The record

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below is replete with testimony by individuals identified on the website that their

homes, their families, and their peace of mind were besieged by animal rights activists

after publication of their personal information. In some cases, anonymous third parties

targeted individuals and their homes, spray-painting property, throwing rocks through

windows, calling late at night with veiled threats, and posting neighborhoods with

puppy killer signs. Anonymous activists attacked target of the week companies at

their workplaces with smoke bombs, voluminous emails, or glue and paint. The website

posted news accounts of such events, disowning responsibility, but continued to post

information on targets in the wake of these incidents.

Three categories of witnesses were represented at trial: HLS executives and

employees; employees of the secondary targets of the campaign (the non-"animal-

enterprise" businesses contracting with HLS); and law enforcement witnesses, who

testified as to electronic or personal surveillance of the petitioners activities. The

evidence can also be summarized in categories. First, there was the testimony of

witnesses recounting their experiences as targets or subjects of home demonstrations,

office protests, or the like. Second, there were exhibits of evidence such as video of

demonstrations, notebooks and mail taken from the home-office where Kjonaas resided

with Gazzola and Conroy, and numerous printouts of pages from the SHAC website

made at various known and unknown times. Witnesses recounted the web postings,

ostensibly offered as evidence of the conspiracy but utilized in truth to provide a

supposed account of SHAC-supported actions for which there were no first hand

witnesses in many cases. The key evidence is recounted in detail in the Third Circuits

opinion. Appx. A, 584 F.3d at 138-51.

There was no evidence that any of the petitioners participated or directed others

to participate in criminal activity. Nor was there evidence that the website or any

petitioner directly threatened the targets or incited imminent lawless action against

these individuals, entities and their homes and businesses. Rather, the Governments

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case hinged primarily on its theory that SHAC USA, through its website, encouraged

and intended anonymous co-conspirators to act upon the personal information and

news accounts published on the website to conduct criminal activity such as property

vandalism, harassment, and trespass -- and that the individual petitioners, through their

active participation in SHAC, were responsible for all of the content of the website as

well as for any actions taken by unknown others who might read the website, or whose

actions were recounted and celebrated there. The evidence at trial propped up this

theory: that SHAC had the "illegal" motive of driving HLS out of business, and thus

any action, conduct, or protest activity in support of that goal was itself illegal and not

protected by the First Amendment. While the court below did not accept the govern-

ments theory in its full sweep, it nevertheless upheld petitioners convictions on the

basis of a "totality of the evidence," and notwithstanding the absence of any jury

instruction to ensure that only unprotected acts supported the verdicts.

c. Statement of Lower Court Jurisdiction Under Rule 14.1(g)(ii). The United

States District Court had subject matter jurisdiction of this case under 18 U.S.C. 3231;

the indictment alleged federal offenses committed in the district. The court of appealshad jurisdiction under 28 U.S.C. 1291.

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REASONS FOR GRANTING THE WRIT

1. This case presents critically important issues concerning the application of thisCourts firmly established First Amendment doctrine governing "incitement" and"true threats" to political speech on the Internet.

Petitioners convictions on three conspiracy charges and (as to most of them)

substantive charges of stalking were predicated on their association with a political

action organization and its website. The decision of the court below acknowledges that

much of the petitioners charged conduct -- namely the posting of news summaries of

past protest activity, website coordination of future demonstrations at homes and

offices, and the ironic, mocking re-publication of the Top Twenty Terror Tactics flier

(created by one of SHACs adversaries) -- was protected speech. Yet over a dissent, thecourt of appeals affirmed the convictions. Petitioners engaged in public speech, on an

Internet website, on a topic of legitimate public interest; their protest was, in First

Amendment terms, core political speech. Such speech may be restricted if directed at

inciting imminent lawless action, but it cannot be the equivalent of a face-to-face (or

otherwise individually delivered) threat. This Court should grant certiorari to examine

some of the important issues that arise in the context of political speech on the Internet.

Petitioners conduct, even viewed in the worst possible light, could not be

condemned as incitement under this Courts existing precedent, because it did not

satisfy the imminence requirement of Brandenburg v. Ohio, 395 U.S. 444 (1969) (per

curiam), and Hess v. Indiana, 404 U.S. 105 (1973) (per curiam). Appx. A, 584 F.3d at

154-55. Speech posted on the Internet may reach millions, or it may reach no one, and

there is no telling when it will reach anyone. It can be read (or viewed and heard, in the

case of video postings) immediately, or long in the future. Most important, the speaker

cannot know who, if anyone, s/he is reaching or when, if ever, that audience will be

reached. The "speaker" cannot modulate the message to engage and galvanize the

audience, so as to steel it to action. Upon examination of the context, this Court may

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find it prudent to hold the line just where it was drawn 35-40 years ago in Hess and

Brandenburg, or it may find that the new mass electronic, potentially instant

communications environment calls for some new approach. There can be no denying,

however, the importance of the issue.

The court below ruled that SHACs explicit coordination of a particular

electronic civil disobedience (denial of service, or "DOS") episode was unprotected,

because it constituted Internet "incitement" to criminal activity planned to occur at a

definite time in the near (but not immediate) future. Id. 155. Yet that kind of "speech"

-- to a faceless audience comprising an unknown number of individuals, most of whom

do not and cannot know of one another, and who may read the posting (or not) at an

unknown time, is far different from the Klansmans platform speech in Brandenburg, or

the street protesters profane exhortation in Hess. The court below tried to shoehorn the

websites encouragement of the DOS attack into the "incitement" box, but for lack of

imminence the court in reality was creating a new First Amendment exception by

extending an old one and through a balancing of costs and benefits. This Court has

been highly reluctant to allow such extensions of existing rules allowing punishment of

speech. "The First Amendment reflects a judgment by the American people that the

benefits of its restrictions on the Government outweigh the costs." See United States v.

Stevens, 559 U.S. --, 130 S.Ct. 1577, 1585 (2010). "The mere tendency of speech to

encourage unlawful acts is not a sufficient reason for banning it." Ashcroft v. Free

Speech Coalition, 535 U.S. 234, 253 (2002). See also Stewart v. McCoy, 537 U.S. 992

(2002) (Stevens, J., respecting denial of certiorari, addressing "imminence" aspect of

incitement doctrine).

The court of appeals majority concluded that the evidence was sufficient to

support a conclusion that in some respects the conduct of the petitioners charged with

stalking constituted unprotected true threats under Watts v. United States, 394 U.S.

705 (1969) (per curiam), and Virginia v. Black, 538 U.S. 343 (2003) (plurality). Appx.

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A, 584 F.3d at 156. This conclusion, too, imported concepts from the rather different

context of personal threats to the "cooler," more removed setting of a website. That

targets may have felt apprehension when reading about themselves on SHACs website

does not mean that any of the petitioners did, or conspired to, threaten these individuals

personally. Indeed, when noting that the threatening conduct (publishing of individual

names and personal information) facilitated others direct action against the targets, the

majority opinion at points appears to discuss threats as if they were interchangeable

with incitement. Perhaps the Internet setting tends to dissolve that distinction. See

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

Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc) (6-5 split). If so, that would be a

significant change in settled First Amendment doctrine, warranting this Courts close

attention.

Under existing law, the petitioners political speech cannot be stripped of its

constitutional standing by stretching the "threats" category to reach it. See NAACP v.

Claiborne Hardware, 458 U.S. 886, 928-29 (1982).7 That the panel was at times equi-

vocal about the extent of the First Amendment exception it was making (or expanding)

only makes matters worse. The court said that the Internet postings which

disseminate[d] the personal information of individuals employed by Huntingdon and

affiliated companies were problematic. Appx. A, 584 F.3d at 155. First Amendment

rights are destroyed by an environment of uncertainty. "To be sure, there remains an

_____________________

7 The most compelling detail in the majoritys recitation of the threat evidence,however, is based on a misapprehension of the record. Without attributing this conductto any defendant, or identifying any occasion when this supposedly occurred, themajority asserts that SHAC displayed placards with photos of Brian Cass [a HLSexecutive in the U.K.] after his beating, with his injuries highlighted in red, at protests.Appx. A, 584 F.3d at 156. To the knowledge of petitioners counsel, the recordcontains no such evidence. There is no evidence that any of the petitioners everdisplayed or otherwise used any poster or placard of Cass at all, or caused others to doso, much less in the manner described in the opinion. (Nor did the governments courtof appeals brief, anywhere in its dramatic, 71-page statement of facts, assert otherwise.)

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important distinction between a proposal to engage in illegal activity and the abstract

advocacy of illegality." United States v. Williams, 553 U.S. 285, 298-99 (2008).

Despite the failure at trial to differentiate clearly between protected and

unprotected conduct, the majority opinion upholds the convictions for conspiracies to

violate the AEPA, 18 U.S.C. 43, to harass by telecommunications, 47 U.S.C. 223(a),

and to commit stalking, as well as all of the substantive stalking counts under 18 U.S.C.

2261A.8 Appx. A, 584 F.3d at 162-64. The Court should grant certiorari and reject

the dangerous decision of the Third Circuit in this case. After exploring the contours of

the incitement and "true threats" doctrines, and their relationship to one another, all as

applied to political speech on the Internet, the Court should reverse these petitioners

convictions.

a. On at least some of the counts, the difficult constitutional questionspresented can be avoided by correcting the erroneous statutory constructionapplied at trial and affirmed on appeal, which fails to give a strict andnarrow reading to the plain language of the Animal Enterprise ProtectionAct.

Count One of petitioners indictment charged a conspiracy to violate the Animal

Enterprise Protection Act, as it stood prior to its 2006 amendment. The 2002 version of18 U.S.C. 43 prohibited interstate travel (or other use of a facility in interstate

commerce) with the intent to cause physical disruption to the functioning of an animal

enterprise, and the intentional damage to or loss of any property used by that enter-

prise, along with conspiracies directed at these particular objectives. 18 U.S.C.

43(a)(1),(2) (2002) (emphasis added).9 As recognized by the dissent, the opinion of

the majority below impermissibly broadens the meaning of physical disruption as

used in the statute to encompass mere interference with HLSs business operations.

_____________________

8 Petitioners Kjonaas, Gazzola, Conroy, and SHAC itself were charged with andconvicted for these alleged offenses.

9 See Statutes Involved, ante.

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prise, in that a moribund company produces no profits, a form of property. The

required strict construction of criminal statutes could not support that enervating inter-

pretation. See Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 408

(2003) ("this being a criminal statute, it must be strictly construed").

The panel majority misapprehends the plain meaning of the Animal Enterprise

Protection Act (18 U.S.C. 43, former version) and deviates from this Courts prece-

dent when it upholds convictions for conspiracy to cause physical disruption and to

damage or cause the loss of any property of an animal enterprise on the basis of

speech and conduct protected by the First Amendment and/or directed at non-animal

enterprise entities and persons. The majority below acknowledged that the amended

version of the AEPA, which permits prosecution for conduct directed at businesses and

individuals which are merely associated with an animal enterprise, and substitutes

simple "interference" with an animal enterprise for physical disruption, is not

applicable to the present case. Appx. A, 584 F.3d at 159. Nonetheless, the majority

analyzes the evidence and the law as if the revised version of the statute were at issue.

See id. at 167 (Fisher, J., dissenting). The language of 18 U.S.C. 43 does not support

the majoritys interpretation. The result is an impermissible expansion of the statutory

meaning and conviction without the requisite proof of all statutory elements, making

half the statutes 2006 amendment meaningless.

This Court should reject the Third Circuits endorsement of the governments

overreaching construction of the 2002 statute not only because a plain meaning inter-

pretation would avoid the incitement/threats problem (as to this Count at least), but also

because it raises unnecessarily a difficult constitutional question in its own right. See

United States v. Lopez, 514 U.S. 549, 562 (1995) (avoidance of unnecessary constitu-

tional issues); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936)

(Brandeis, J., concurring); see also Jones v. United States, 526 U.S. 227, 239-40 (1999)

(related doctrine of constitutional doubt). The aggressive use of secondary economic

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The panel majority identifies only one instance of SHACs campaign against

HLS that was directed against the animal enterprise itself and which was even

allegedly damaging to property in the way that the 2002 version of the statute prohibited

-- that is, the electronic civil disobedience (a denial of service attack) against HLSs

computers in October 2003. Appx. A, 584 F.3d at 141-42, 150, 161. Even if the Count

One conviction were to be assessed on the narrow basis of this single tactic, when the

trial focused on so much more that was outside the statutes bounds, the convictions

would fail on the issue of "loss" or "damage." The stated measure of loss attributed to

the cyber-attack, according to the court of appeals, was: $400,000 in lost business,

$50,000 in staffing costs to repair the computer systems and bring them back online,

and $15,000 in costs to replace computer equipment. Id. 142. In fact, the record does

not disclose any evidence at all of physical harm to any equipment that would call for

repair (as indicated by the reliance on staffing costs rather an any real repair in

the physical sense)12; what the record shows is that the replace[ment] cost represents

HLSs choice to improve its cyber-security, not the replacement of anything physically

harmed. If a homeowner experiences a burglary through an unlocked window, and

afterwards chooses to install a home security system, the cost of installation is not a

measure of the loss of or damage to property of the homeowner committed by the

burglar. Only by an unacceptably broad construction of the terms damage to and

_____________________

12 See CA3 App., vol. 6, at 2802 (the website actually crashed; in response, wepurchased new hardware, new fire walls and some additional software), 2853 (Thereis about $400,000 in lost business or business that we normally would get during a time

period like that, but obviously didnt because the computer system wasnt operating.There was about $50,000 of costs of staffing in order to address getting the computersbackup [sic] and about $15,000 of costs in replacing certain computer equipment toaddress it.). In short, nothing in the record would support a jury in finding, beyond areasonable doubt, that HLS had suffered a loss of or damage to physical property inthe sense implied by the majoritys use of the term repair. Neither that term noranything equivalent was employed by any witness. All that the evidence shows is thatthe capacity of the HLS computers was exceeded by a malicious attack, and as a resultthe system shut down. HLS addressed the issue by upgrading its hardware andsoftware. No loss of or damage to property was proven, if those statutory terms arestrictly construed, as required.

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physical disruption to the functioning of an animal enterprise. 18 U.S.C. 43(a)(1)

(2002 rev.). Moreover, each defendant must have specifically (and separately) intended

that the impact of the conspiracy would be to damage ... any property ... used by the

animal enterprise or to cause the loss of such property. Id.(a)(2).

As Judge Fishers dissent correctly emphasizes, a criminal conspiracy conviction

cannot be upheld (despite the majoritys ruling) simply because some of the defendants

conduct or intentions was illegal in some way, and not constitutionally protected. The

government had to show at trial, beyond a reasonable doubt, that each defendant

agreed, not to the commission of illegal acts generally, but specifically that the

illegal acts described in 18 U.S.C. 43 be committed, under the circumstances

described there, and with the effect proscribed there. And at the same time, this Court

has a special responsibility under the First Amendment to ensure that no defendant was,

or even may have been, convicted because he or she agreed in the intellectual sense

(as opposed to the way that word is used in the law of criminal conspiracy) with the

general aims (or even all of the tactics) of SHAC as a political and moral campaign.

The opinion below claims to recognize this, in principle. See Appx. A, 584 F.3d at 160-

61 (explaining and acknowledging doctrine of strictissimi juris). Yet in examining

the sufficiency of the evidence of the three charged conspiracies, and particularly as to

Count One, the majority fails to enforce the rules of law that it endorses in the abstract.

This Courts review is required to establish that acknowledgment of principles will not

suffice, if those principles are not applied in practice.

As the government perceived the matter, the direct action to end HLSs animal

testing was illegal, simply because it was designed to drive HLS out of business (if HLS

did not change its practices). Thus, any SHAC-USA member, or person acting in

accord with its agenda to end animal testing at HLS -- a lawful end under Claiborne

Hardware -- engaged in criminal conduct and a criminal conspiracy. It is therefore all

the more important that this Court, on review of the stalking counts as well as on Count

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One, should apply the First Amendment strictissimi juris standard, as established in

Noto v. United States, 367 U.S. 290, 299-300 (1961), and elaborated in NAACP v. Clai-

borne Hardware, 458 U.S. 886, 918-19 (1982). Those cases hold that the First Amend-

ment requires the strictest examination of evidentiary sufficiency, not the normal jury-

deferential test, to ensure that no defendant is convicted of conspiracy for agreeing

with co-conspirators on anything but the objective of committing crimes.

As the Seventh Circuit explained in a leading case:

When the group activity out of which the alleged offense develops canbe described as a bifarious undertaking, involving both legal and illegalpurposes and conduct, and is within the shadow of the first amendment,the factual issue as to the alleged criminal intent must be judged strictis-

simi juris. This is necessary to avoid punishing one who participates insuch an undertaking and is in sympathy with its legitimate aims, but doesnot intend to accomplish them by unlawful means. Specially meticulousinquiry into the sufficiency of proof is justified and required because ofthe real possibility in considering group activity, characteristic of poli-tical or social movements, of an unfair imputation of the intent or acts ofsome participants to all others.

United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972) (emphasis added). In

Dellinger, the Chicago 7 Anti-Riot Act appeal, the court observed that the doctrine of

strictissimi juris would preclude finding that any defendant had an unlawful intent if thefinding were based solely on the fact that he participated in planning and organizing the

activity out of which riots arose, or on the mere imputation to him of the plan of any

associate that illegal activity occur. Id. In such cases the typical approach to criminal

liability, particularly where conspiracy is charged, is simply inapplicable. As observed

in United States v. Spock, 416 F.2d 165, 173 (1st Cir. 1969), The metastatic rules of

ordinary conspiracy are at direct variance with the principle of strictissmi juris.

Such evidence is, of course, a large part of the case against these petitioners,

particularly Kjonaas and Gazzola, as the prosecutors painted them as the propelling

forces and orchestrators of the direct action campaign and the authors of the content of

the website. As the prosecutors put their case to the jury, it did not matter if a defendant

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was directly involved in the harassment and vandalism that sometimes followed the

website postings. The acts of these third parties, and any threats communicated to the

victims, were part of the direct action campaign and the intended result of the charged

defendants criminal objective, the prosecutors reasoned. CA3 App., vol. 6, at 2704.

The failure to apply strictissimi juris underlies the convictions of all the

petitioners. The case of petitioner Joshua Harper, for example, is particularly troubling.

Harper engaged exclusively in conduct which the Third Circuit correctly determined to

be protected by the First Amendment. Appx. A, 584 F.3d at 150, 155, 158. Yet the

majority concludes from the same constellation of evidence -- plus additional

evidence showing Harpers friendship with petitioner Kjonaas and his longstanding

political and personal support for the cause of animal rights -- that his convictions for

two criminal conspiracies can be upheld. Id. 161-62. This Courts strictissimi juris

doctrine, as ostensibly recognized in the majoritys opinion (Appx. A, 584 F.3d at 160),

does not tolerate that result. A conclusion of criminal conspiracy cannot constitution-

ally be inferred from protected speech and conduct or from expressions of sympathy (no

matter how enthusiastic[], id. 162) with a groups legal and illegal goals.13 Similarly,

the majoritys analysis of the evidence against petitioner Stepanian (admittedly, says the

panel majority, not as overwhelming, id.) fails to differentiate between the legal and

illegal aspects, or between the actions addressed and those not addressed by the words

of the 2002 AEPA under which he was convicted.

The majority opinion glosses over the key requirement that the government

provide specific evidence of each defendants embrace of the illegal goal of each

_____________________

13 Just as the evidence was insufficient to prove petitioner Harpers membership in theCount One conspiracy, so it was insufficient to prove his alleged membership in theconspiracy to use telecommunications equipment to harass, as charged in Count Six.That he mentioned and described, or even praised, the "black fax" tactic in an on-campus talk he gave in Seattle, not sponsored or otherwise connected with the NewJersey-based SHAC campaign, could hardly make him a conspirator with SHAC-USA,Inc., Kjonaas, Gazzola and Conroy, simply because he shared their commitment to thecause and advocated the same tactics.

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conspiracy, as well as the illegal means. This problem with the opinion exists not only

as to the conspiracy counts, as the dissent observes in its analysis of Count One, but also

the substantive stalking counts. It is telling that the opinion of the court below finding

sufficient evidence of the conspiracy and stalking counts consists of rather general

references to illegal actions. Those referenced actions were rarely if ever committed

by any of the petitioners. Most were engaged in by unknown third parties who alleg-

edly acted under the influence of the website and its proprietors to commit the harass-

ment and vandalism that plagued the targets of the direct action campaign and supplied

the factual context for the finding that the activities and website speech constituted true

threats.

Herein lies a central flaw of the majority opinion: Because of the pervasive

intertwining of constitutionally protected activity with a small dose of legally prohibited

conduct, the court below was required under the strictissimi juris doctrine to conduct a

much more precise analysis and a much more demanding and particularized summary of

the evidence as to each petitioner. Under that approach, the statements and conduct of

others cannot be proof of a defendants illegal intent. Spock, 416 F.2d at 173-74. A

defendants support or sympathy for those who embrace illegal action is not advocacy,

nor is it illegal, and neither is a defendants knowledge of any illegal aspects of the HLS

campaign or the activities of its supporters. See id. 178-79. Much more is demanded,

and those demands were not met by the governments evidence or the analysis by the

court below.

This Court has not discussed and explicated the application ofstrictissimi juris in

a criminal case in nearly 50 years. Its important expansion of that doctrine into civil

rights cases occurred almost 30 years ago. The decision below conflicts with those of

other circuits applying this doctrine. To resolve the circuit split thus created and to

emphasize this important but lesser-known aspect of the constitutional limits of

conspiracy law, as applied to concerted political action, certiorari should be granted.

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those which were legally valid, the court below should have reversed petitioners

convictions even though the court found some of SHACs activities to be outside of

constitutional protections.

Even if there were sufficient evidence of some or all of the defendants specific

intent to violate the 2002 statute, this Courts precedent still requires reversal whenever,

as here, a legally inadequate ground -- such an invitation to convict based on conduct

which did not come within the statutory definition of the crime -- is submitted to a jury.

Griffin v. United States, 502 U.S. 46, 55-56 (1991); see also Hedgpeth v. Pulido, 555

U.S. --, 129 S.Ct. 530, 531-32 (2008) (per curiam); Chiarella v. United States, 445 U.S.

222, 237 n.21 (1980); Yates v. United States, 354 U.S. 298, 312 (1957). A jury is

presumed capable of choosing the well-supported theory, where several are offered and

one or more is factually insufficient. But the jury has no such ability to disregard a

legally mistaken theory. Here, the jury was permitted under its instructions to convict

on Count One on an improper, overbroad legal basis, consistent perhaps with the 2006

revision of the statute, but not with the 2002 version under which the petitioners were

prosecuted. See CA3 App., vol. 7, at 3375 (defining physical disruption element as

an action using interference with the normal course of business or activity at an animal

enterprise), 3376 (including loss of profits within explanation of economic

damage, and conflating that separate element with the required damage to or loss

of property).

Under Stromberg v. California, 283 U.S. 359 (1931), and a long line of

subsequent precedent, if one possible ground for conviction is premised on First

Amendment-protected activity, and a general verdict is rendered, the conviction must be

overturned, whenever under the instructions the jury may have rested its decision on a

legally impermissible ground. Accord Street v. New York, 394 U.S. 576 (1969)

(reversal required if constitutionally protected words used by defendant could have been

cause of conviction); Thomas v. Collins, 323 U.S. 516, 528-29 (1945) (conviction for

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contempt cannot be sustained on premise of a valid, constitutional ground where penalty

was also based on constitutionally protected speech). In such cases it is impossible to

tell whether the jury relied on the erroneous alternative, Yates, 354 U.S. at 312, and

reversal is required.

According to the governments theory of the case, the "stalking" was

accomplished through two avenues. First, SHAC-USA members would report the

names, addresses, and personal information about individuals and exhort others to

engage in direct action. Second, the website would post the results of direct action

demonstrations on the homes and offices of targeted businesses and individuals, with

the purpose of encouraging additional acts of vandalism, harassment and the like, and to

advise other potential targets of what types of activity they could expect should they

continue to have ties with HLS and animal testing. The prosecutors also relied on

evidence that some of the defendants, particularly petitioners Gazzola and Kjonaas,

coordinated protests at homes and offices which were often followed, outside the

parameters of injunctions which limited and regulated such actions, by late night

vandalism and harassment by unknown third parties. Indeed, as the government

conceded and the majority opinion acknowledges, the direct action campaign at the

heart of this indictment intertwined legal and illegal acts, and constitutionally protected

and unprotected speech and activities.

The governments case at trial relied heavily on what the majority has properly

defined as constitutionally protected First Amendment speech and activity. The jury

instructions then failed to prevent the jury from convicting on this impermissible basis.

See CA3 App., vol. 7, at 3377-80.16 Because constitutionally protected conduct --

_____________________

16 This is particularly true of petitioner Conroy, whose convictions for stalking thecourt below upheld purely on the basis, characterized as an aiding and abettingtheory, cf. 18 U.S.C. 2(a), that he administered the website that made the stalkingpossible. Appx. A, 584 F.3d at 164. Nothing in the instructions limited the jurysconsideration of Conroys guilt to a narrow theory that would thread the constitutionalneedle.

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however rude or abrasive -- was intertwined with the behavior upon which the court

below sustained the stalking convictions, and neither the instructions nor the general

verdict insure that the jury properly distinguished between the constitutional and uncon-

stitutional grounds for conviction, the stalking counts, at least, cannot be sustained.

Since reversal, not affirmance, of the convictions is the legally mandated outcome of the

panels constitutional holdings, certiorari should be granted. Petitioners respectfully

suggest that this particular point is so clear that a summary reversal could be in order on

this point.

3. The decision below regarding restitution should be vacated and remanded forfurther consideration under this Courts recent decision inDolan v. United States,560 U.S. --, 130 S.Ct. 2533 (2010).

As part of their sentences, each of the petitioners was ordered to pay over $1

million in restitution to HLS. The court below remanded for the district court to set a

schedule for each defendants payments toward the $1,000,001 joint and several restitu-

tion. Appx. A, 584 F.3d at 165. The court of appeals, however, failed to address the

substantive issues with respect to the restitution penalty, which were advanced at

sentencing and on appeal, but not addressed by the court below, apparently having been

overlooked.17

The AEPA directs the sentencing court to grant restitution under the Mandatory

Victim Restitution Act (MVRA, 18 U.S.C. 3663A) and also authorizes restitution

for any ... economic damage resulting from the offense. 18 U.S.C. 43(c)(3) (2002

ed.). The phrase economic damage, in turn, is defined in 43(d)(3) to mean the

replacement costs of lost or damaged property or records, the costs of repeating an inter-

rupted or invalidated experiment, or the loss of profits .... The sentencing court relied

on the testimony at trial of Richard Michaelson (as recounted in the opinion, Appx. A,

_____________________

17 The Third Circuit did affirm summarily on all issues going to the reasonableness oftheir sentences. Id. Conceivably, one could say that the restitution issues weresubsumed in that ruling.

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584 F.3d at 142) with respect to the electronic civil disobedience, to reach the million

dollar figure. The court below failed to address petitioners substantial arguments that

this determination was both legally and factually invalid.

First of all, the government offered no evidence at all with regard to HLSs lost

profits. Rather, Michaelson offered a very general, estimated figure for lost

business, apparently meaning gross income, but did not relate that figure to any profit

margin much less offer any accounting to justify it, despite a timely defense objection.

Nor did evidence of interrupted experiments exist in this case. Since replacement costs

of lost or damaged property would be allowable under the MVRA in any event,

nothing in 43(c) actually adds to the restitution analysis in this case.

In Dolan v. United States, 560 U.S. --, 130 S.Ct. 2533 (June 14, 2010), this Court

held, by a 5-4 vote, that the district courts violation of a deadline established in the

restitution statute, 18 U.S.C. 3664, did not require invalidation of the restitution order.

The court there had failed to finalize a restitution decision within 90 days after the prin-

cipal sentencing proceeding, after announcing at sentencing that it intended to fix and

impose a restitution amount. The defendant did not object until long after the statutory

deadline had expired. Here, the deviations from the governing restitution statute were

far more substantive, and the defense did object. The court below did not have the

benefit of this Courts Dolan ruling when it decided petitioners case.

In petitioners case, the government made no effort at all, despite timely and

repeated objections, to tie the Michaelson testimony directly to criminal conduct of

these defendants. Lost business opportunities and losses due to intervening and

noncriminal causes are not countable under the statute. See United States v. Fallon, 470

F.3d 542, 548 (3d Cir. 2006). Yet the Michaelson testimony expressly lumped together

all costs, direct and indirect, from the entire anti-HLS campaign, CA3 App., vol. 6, at

2853, even though much of the widespread public effort to stop Huntingdons use of

animals for product testing was not merely legal but actually consisted of constitution-

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ally protected expressive activity. Only losses directly tied to the criminal offense of

conviction can be counted. Hughey v. United States, 495 U.S. 411 (1990). The district

courts total disregard of this critical limitation must not be countenanced.

Moreover, a victims legal and other costs of repossessing property are indirect

and therefore not recoverable through restitution. Thus, the legal costs and value of

diverted management time and staffing that Michaelson emphasized were all non-

cognizable. See United States v. Pollak, 844 F.2d 145, 152-54 (3d Cir. 1988). The only

item he mentioned that could conceivably refer to something legally countable toward a

restitution figure was about $15,000 of costs in replacing certain computer equipment

to address it. CA3 App., vol. 6, at 2853.18 But even this item seems more likely to

refer to a decision by HLS to replace equipment that had proven vulnerable to a denial-

of-service attack with a newer and more sophisticated server. Since there was no

evidence that the old computer equipment had been lost or damaged, 18 U.S.C.

43(d)(3), the government failed to establish that even this item was appropriate as a

measure of restitution. Cf. 18 U.S.C. 3663A(b)(1)(A) (damage to or loss or destruc-

tion of property of the victim of the offense). Yet under Hughey, 495 U.S. at 422, a

criminal restitution statute must be narrowly and strictly construed. Similarly, the

Crime Victims Rights Act provides that victims are entitled to receive restitution only

"as provided in law," and not otherwise. 18 U.S.C. 3771(a)(6).

A computer, after all, ordinarily does not crash like a car, causing it to need

physical repairs and replacement parts; in this case, the crash resulted from an

overload of data, with unexplained and therefore unknown physical consequences (if

any). The government offered no evidence or explanation to show what sort of

response was required, and thus failed to prove that there was either damage to or

_____________________

18 In its appellate brief below, the government admitted this $15,000 was the only"direct damage to HLS property" (Govt Br. 38) that was proven at trial and attributableto the petitioners.

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loss or destruction of any property. Whatever HLS did to remedy the computer

problem did not come within any applicable statutory language of either pertinent

restitution law, so far as this record shows. The restitution amount was not established

by the evidence at trial; it was a sentencing issue. The prosecutors were placed by the

defendants on fair notice of their objections to the restitution claim, and yet the govern-

ment failed and refused at sentencing to prove any legitimately cognizable basis for

restitution. The government never requested any extension of time, nor did it seek a

post-sentence proceeding on restitution under 18 U.S.C. 3664(d)(5). See Dolan, ante.

It may be that the Third Circuit may find these violations excusable, as did the five-

Justice majority in Dolan with respect to the missed deadline. But at least equally

likely, the Court would find that the kinds of circumstances mentioned in Dolan do not

justify the violations here. In any event, the issues raised by petitioners on appeal in this

regard should be addressed, not ignored.

The enormous judgments of restitution imposed in this case -- which will follow

and crush these young defendants economically for the next 20 years or more,19

completely preventing them from establishing normal economic lives -- are utterly

unlawful. At the very least, the judgments of sentence in this case should be vacated

and remanded for reconsideration of the $1 million+ restitution orders in light of this

Courts recent decision in Dolan.

_____________________

19 See 18 U.S.C. 3613(b) (civil liability for criminal restitution for 20 years afterrelease from imprisonment), id.(c) (restitution is lien in favor of U.S. on all property orrights to property of convicted defendant),

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CONCLUSION

For the foregoing reasons, petitioners pray that this Court grant their petition for

a writ of certiorari, and reverse the judgment of the United States Court of Appeals for

the Third Circuit affirming the judgments of conviction. At the least, the judgments for

payment of restitution should be vacated and remanded.

Respectfully submitted,

H. LOUIS SIRKIN PETER GOLDBERGERSCOTT NAZZARINE Counsel of RecordSirkin, Kinsley, & Nazzarine PAMELA A. WILK810 Sycamore St., Second Fl. 50 Rittenhouse PlaceCincinnati, OH 45202 Ardmore, PA 19003

(610) 649-8200Attorneys for Lauren Gazzola [email protected]

HAL K. HAVESON Attorneys for Petitioner HarperHaveson & Otis194 Nassau St. ROBERT G. STAHLPrinceton, NJ 08542 LAURA K. GASIOROWSKI

Law Off. of Robert G. Stahl, LLCAttorney for Jacob Conroy 220 St. Paul Street

Westfield, NJ 07090PAUL J. HETZNECKER

1420 Walnut St., Suite 911 Attorneys for Kevin Kjonaas

Philadelphia, PA 19102

ROBERT A. OBLER

Attorney for Andrew Stepanian Bldg. 3D, suite 200

3131 Princeton Pike

Of Counsel: Lawrenceville, NJ 08684

ANDREW F. ERBA

Williams, Cuker & Berezofsky Attorney for Darius Fullmer

Woodland Falls Corporate Center210 Lake Drive East, Suite 101

Cherry Hill, NJ 08002-1163

October 1, 2010.

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