KR Angle Brief

Docket
No.
0
IN THE UNITED FOR UNITED STATES OF AMERICA, Appellee,
V.
1794
STATES COURT OF APPEALS SECOND
X
THE
........
CIRCUIT
: Case
below: Crim. No. 02-CR-I193 M. Berman,
: S.D.N.Y. : (Honorable : U.S.D.J.) KRANGLE,
Richard
MARK
Appellant-Defendant.
ON
APPEAL CONVICTION
FROM AND
FINAL SENTENCE
JUDGMENT OF THE FOR YORK
OF
UNITED
STATES
DISTRICT DISTRICT OF
COURT NEW
THE
SOUTHERN
APPELLANT'
BRIEF
On Mark
the
Brief: Krangle, Appellant Pro Se
Lee
mailing Mark c/o 162 Lee
address: Krangle McGinty, Street NJ of 08520 stand-by counsel: (609) 443-0650 Esq. (stand-b}" i counsel)
Isabel Broad
Hightstown, phone number
Case No. 03-1794

UNITED STATES COURT OF APPEALS SECOND CIRCUIT Case No. 03-1794
Appeal
of Judgment
and Sentence
in a Criminal
Case
MARK
LEE
KRANGLE
Appellant NO. United States 03-1794 v. Mark Lee Krangle
Brief of Appellant
with (*see motion regarding or Clerk of Court *Appendix appendix dated 12/10/04 record ) to complete
for access
TABLE STATEMENT STATEMENT ARGUMENT POINT I THE COURT INVESTIGATE TO FOR THE TRIAL ERRED THE AND SUCH OF OF ISSUES THE CASE
OF
CONTENTS 3 4 9
................... ..................
.........................
IN FAILING ABUSES AND AND UNFAIR TO
TO DEPRIVATIONS CONDITIONS TO 9
DEFENDANT
FAILED CONDITIONS
ATTEMPT
CORRECT POINT II VENUE
............
WAS
INCORRECT OF NEW
IN
THE
SOUTHERN 15
DISTRICT
YORK ..............
POINT
III THE COURT ERRED IN EVIDENCE ILLEGALLY COMPOUNDED VALUE NATURE WAS AS THIS ADMITTING INTO SEIZED DOCUMENTS THEIR BY THEIR THE 25 AND
BECAUSE
PROBATIVE
FAR OUTWEIGHED PREJUDICIAL TO CHARACTER
DEFENDANT'S POINT IV THE DISTRICT
.............
COURT
ERRED
BR
PROHIBITING TO 30
ADEQUATE TIME DEFEND HIMSELF POINT V THE COURT ERRED JURY REGARDING DETERMINATION INSUFFICIENT WAS DEFINED WELL, THE ISSUANCE NEWSWEEK TIMES TRUE IN REGARDING THREAT THREATS,
FOR THE DEFENDANT ................
IN THE OF A
ITS CHARGE TO THE CRITERIA FOR THE THREAT AND THERE WAS IT
EVIDENCE OF "THREAT" AS BY THE JURY CHARGE; AS COURT ERRED IN DENYING THE TO TIME THE NEW TO MAGAZINE, YORK A
OF SUBPOENAS MAGAZINE AND ORDER THE WHILE AND FOR THE THE
THEM
TESTIFY BETWEEN OF HAD
DISTINCTION DEFENDANT
REPORTING
INEFFECTIVE FULFILL TESTIMONY ITS AND
COUNSEL AGREEMENT TO
IN
ITS TO
FAILURE
TO EXPERT .....
SOLICIT WITNESSES
SUBPOENA
38
POINT
VI THERE WAS INSUFFICIENT TO EXTORT EVIDENCE .............. OF AN 49
INTENTION POINT VII THE IS ALLEN
CHARGE
PRESENTED IN A
TO CASE
THE OF
JURY PURE 69
UNCONSTITUTIONAL
SPEECH POINT VIII THE
....................
DEFENDANT'S OF
E-MAILS THE FIRST
MERITED AMENDMENT ....... 72
PROTECTION
Ao
The
First
Amendment Laws Abridging the the Press
Prohibits Freedom or Laws of 73 of
Federal Speech Respecting Religion
and
Establishment
.................
The
Supreme
Court
Has
Ruled Amendment 74
Narrowly on Interventions Freedoms
Congressional Into First
.................
CERTIFICATION
OF
SERVICE
................
88
ii
TABLE
OF
AUTHORITIES
Ali
v.
United A.2d U.S.
States, 368 893 (D.C. (1991) 1990), cert. denied, 48
581 502
................
Hance
v. 258 sub
Kemp, Ga. nom. Zant, F.2d U.S. 940 1210 (II Cir.), cert. denied, 48 649 Hance (Ga. v. 1988), Zant, cert. 490 denied U.S. 1012 (1989)
48
Hance
v. 696 463
(1983)
................
Jelinek 247
v. F.
Costello, Supp. 2d 212 (E.D.N.Y. 2003) ....... 48
Rodriquez 763
v. S.W.2d
State, 893 (Tex. Ct. App. 1988) ........ 48
United 890
States
v.
Baker,
F. Supp. 1375 (E.D. Mich. 1995), aff'd sub nom. United States v. Alkhabaz, 104 F.3d 1492(6th Cir. 1997) ....... 19
United 871
States F.2d
v. 1181
Beech-Nut, (2d sub 493 Cir.), nom. U.S. Lavery 933 v. (1989) ....... 18, 21
cert. United
denied States,
United 472 412
States F.2d U.S.
v. 16 938
Bithany, (2d Cir.), (1973)
cert.
denied, 18
................
United
States 365 F.2d
v. 206
Bozza, (2d Cir. 1966) ............ 15
United 183
States F.3d
v.
Brennan, Cir. 1999) ............. 15
139(2d
United
States 798 F.2d
v. 581
Brennan, (2d Cir. 1986) ............ 30
United
States 523 F.2d
v. 8
Cooper,
(6th Cir. 1975) ........... 68, 79
iil
United
States 957 F.2d
v. 264
Cox, (6th Cir. 1992) ......... 68, 80
United 271
States F.
v. Supp.
Feudale, 115 (D. Conn. 1967) ......... 19
United
States 967 F.2d
v. 776
Gilan, (2d Cir. 1992) ............ 30
United
States 302 F. aff'd,
v.
Holder,
Supp. 296 (D. Mont. 1969), 427 F.2d 715 (9th Cir. 1970)
........
19
United 534 429
States F.2d U.S.
v.
Kelner, Cir.), (1976) cert. ....... denied, 40, 47, 49, 68, 80, 69, 84 18
i020(2d 1022
76-78, United States 246 F.3d v. 186 Kim, (2d Cir. 2001) ............
United
States 951 F.2d
v. 549
Kosma, (3d Cir. 1991) ............ 19
United
States 462 F.2d
v. 1368
Lincoln, (6th Cir. 1972) ........... 77
United
States 484 F.2d
v. 1356
Maisonet, (4th Cir. 1973) ........... 76
United 16
States F.3d U.S.
v. 45 968 v. 477
Malik, (2d Cir.), (1994) Reed, (2d Cir. 1985) ........... 21-23 cert. .... denied, 40-41, 49, 68, 69, 76, 80
513 United
States 773 F.2d
United
States 532 F.2d
v. 1150
Reynolds, (Tth Cir. 1976) ......... 46, 68
United
States 526 U.S.
v. 275
Rodriguez-Moreno, (1999) ................ 18
United 223
States F.3d
v. 85
Saavedra, (2d sub Cir. nom. 532 U.S. 2000), Rodriguez 976 v. (2001) ......... 18
Cert. United
denied States,
iv
United
States 902 cert. F.2d
v. 1469
Schroeder, (10th 498 Cir.), U.S. 867 (1990) ...... 19, 68, 80
denied,
Other
Sources
T.
Emerson,
The
System
of
Freedom
of
Expression
.....
84
Steven
G. Gey, the First Texas L.
The Nuremberg Files Amendment Value of Rev. Ass'n (1999)
and Threats, 75
.............
APPENDIX
TABLE VOLUME 1
OF
CONTENTS
Notice
of
Appeal, Docket
United No. Dec. 23,
States
v.
Mark
Krangle,
S.D.N.Y. file-stamped
02-CR-II93-RMB, 2003 ............... A-I
Criminal United Nov.
Docket States 5, 2004
for
Case v. Mark
No.
02-CR-II93-RMB, Krangle, as of A-2 to A-17
..................
Indictment, Criminal
United No.
States
v.
Mark
Krangle, ........... A-18 to A-19
02-CR-II93-RMB
Order,
United Criminal
States No.
v.
Mark
Krangle, July States 24, Court United 2003 of States A-20 to A-21
02-CR-II93-RMB, of the the United
Scheduling Appeals v. Mark
Order for
Second Appeal
Circuit, No. Motion and
Krangle, Appellant's to Dec. File I0,
03-1794, for Extension
granting of Time
Brief 2004
Appendix A-22
Until
..................
Transcript, S.D.N.Y. June
United Docket 2002
States No.
v.
Mark
Krangle, (RMB), A-23 to A-37
02-CR-I193
13,
.................
Transcript, S.D.N.Y. Sept.
United Docket 20, 2002
States No.
v.
Mark
02-CR-I193
.................
Transcript, S.D.N.Y. Oct. ii,
United Docket 2002
States No.
v.
Mark
02-CR-I193
.................
Transcript, S.D.N.Y. Nov.
United Docket 2002 15,
States No.
v.
Mark
02-CR-I193
.................
Transcript, S.D.N.Y. Jan. 15,
United Docket 2003
States No.
v.
Mark
02-CR-I193
.................
vi
Transcrlpt,
S.D.N.Y. Feb. 19,
United Docket 2003
States No.
v.
Mark
Krangle, (RMB) A-61 to A-93
02-CR-I193
.................
Transcrlpt, S.D.N.Y. Apr. I,
United Docket 2003
States No.
v.
Mark
02-CR-I193
..................
Transcrlpt, S.D.N.Y. May 16,
United Docket 2003
States No.
v.
Mark
02-CR-I193
.................
Transcrpt, S.D.N.Y. May 22,
United Docket 2003
States No.
v.
Mark
02-CR-I193
.................
Transcript, S.D.N.Y. June 24,
United Docket 2003
States No.
v.
Mark
02-CR-I193
................
Transcript, S.D.N.Y. July 14,
United Docket 2003
States No. (Jury
v.
Mark
Krangle, (RMB) ........ A-154 to A-248
02-CR-I193 Selection)
United Docket 2003
States No. (Trial)
v.
Mark
02-CR-I193 .............
VOLUME
Transcript, S.D.N.Y. July
United Docket 2003
States No. (Trial)
v.
Mark
02-CR-I193 .............
15,
Transcript, S.D.N.Y. July
United Docket 2003
States No. (Trial)
v.
Mark
Krangle, (RMB), _ .... A-487 to A-542
02-CR-I193 ........
16,
United Docket 2003
States No. (Trial)
v.
Mark
02-CR-I193 .............
United Docket 2003
States No. (Trial)
v.
Mark
02-CR-I193 .............
vii
Transcript,
S.D.N.Y. Oct. 22,
United Docket 2003
States No.
v.
Mark
02-CR-I193
................
Transcript, S.D.N.Y. Dec. 5,
United Docket 2003
States No.
v.
Mark
02-CR-I193
................
Transcript, S.D.N.Y. Dec. 22,
United Docket 2003
States No.
v.
Mark
02-CR-I193
................
Joint
Requests Mark
to
Charge, June 23,
United 2003
States .........
v. A-680 to A-711
Krangle,
E-mail,
May
20,
1999
(00012
to
-13
........
A-712
to
A-713
E-mail,
May
21,
1999
(00014
to
-15
........
A-714
to
A-715
viil
ORAL
ARGUMENT
The defense is prepared to present oral arguments in support of the First Amendment issues in this brief. As the instant case is one of pure language, First Amendment issues are embedded with almost every one of the issues in this brief. Eventually, it needs to be made clear that overbreadth in the federal statutes that prohibit the transmission of"any threat" can have a chilling and dangerous impact safety. Opinions, predictions, can all represent crucial forms while in the very same breath responses. Such reports must on First Amendment rights as well as public reports and statements of beliefs about threats of warning even something like prophecy, such language may create fear arousal not be prohibited under the rubric of "any
threat." The defense is also prepared to present oral arguments in support of any issues of this appeal that do not directly relate to the First Amendment if there are any questions left unanswered by this brief.
STATEMENT
OF ISSUES
I. The Court Erred in Failing to Investigate the Abuses and Deprivations to the Defendant and Unfair Conditions for Trial and Failed to Attempt to Correct Such Conditions ................................................. 9 II. Venue in the Southern District of New York Was Incorrect and the Court Erred in its Interpretation of the Law Regarding Venue, While the Jury, Which Was Charged With Considering Venue in its Verdict, Neither Received Adequate Information Regarding Venue Nor Could Have Received Adequate Information Regarding Venue Because the Court Was
Uncertain about the Issue and the Prosecution Was Uncertain Incorrect about the Issue ............................................................ and Ultimately 15
III. The Court Erred in Admitting Illegally Seized by the Government into Evidence and Compounded this Because Their Probative Value was far Outweighed by Their Nature as Prejudicial to Defendant's Character .............................................................................. 25 IV. The Court Erred in its Excessive Closing Statements and Defendant's Limitation Testimony of Defense's Opening ................................ and 30 for the of a
VI. The Court Erred in Its Charge to the Jury Regarding the Criteria Determination of a True Threat and There was Insufficient Evidence
Threat as Defined in the Jury Charge; as well, the Court Erred in Denying the Issuance of Subpoenas to Time Magazine, Newsweek Magazine and the New York Times while the Defendant had Ineffective Counsel in Its Failure to Fulfill Its Agreements to Solicit Expert Testimony and to Subpoena Such Witnesses in order to Testify Regarding the Distinction Between a True Threat and the Reporting of Possible Threats ................................... 38 VI. There Was Insufficient Evidence of An Intention to Extort ............... 49
VII. The Allen Charge Presented to the Jury was Unconstitutional of Pure Language .................................................................... VIII. Defendant's E-Mails Merit Protection of the First Amendment
in a Case 68 ........ 72
Statement ] wrote an experimental piece following
of the Case some of the principles of my
doctoral dissertation, in the form of an e-mail and addressed it to ABC.Online and Comments @ Paine Webber during the first weeks of May, 1999. On May 19th 1999, the first e-mail, which forms the basis of this case, was transmitted from one of the Intemet Cafrs in the town where I lived in Mexico. I regularly used the rental computers there because I have never owned one. The e-mail opened and closed with nay name, Mark Krangle, and noted, in the closing, the e-mail address for receivers to write back to me, next to the United States street address where I had, at the time, been receiving my Chase Master Cards and Chase Master Card statements for several years, although I had never resided there and, in fact, had been living in coerced exile in Latin America for most of the prior 14 years.
Doris V. Hernandez, the "webmaster person" of Mark Krefting, a Disney executive, received the e-mails addressed to ABC.Online at the Disney Corporation in Los Angeles. Ms. Hernandez forwarded the first e-mail to Mr. K.refting with her own note; the day and exact time are not in evidence. Krefting, approximately 26 hours after Hemandez received the first e-mail, made a transmission of the e-mail from Los Angeles to Gerard Whitmore of ABC Security department in New York, along with the note from Doris V. Hernandez and his own note. Krefting's note said: "Jerry, here's the e-mail we discussed, forwarded by my webmaster person." The other note said, "Hernandez, Doris V. wrote: This message struck me as somewhat demented and worrisome. Doris" Here is the text [and some facts] of the May 19th 1999 e-mail: From: MARK KRANGLE
Sent: Wednesday, May 19, 1999 2:18 PM To: ABC Online Webmaster ; comments @painewebber.com Subject: Network Revolutionary Mercy in Exchange and Paine Webber for Atonement by ABC
[First paragraph follows; it is a single 89-word sentence; the sentence/paragraph has the link phrase "accompanied by" near its center
that
places a non-exhaustive series of acts of God onto a plate with an indefinite series of "acts of furious judgment."]
HIV blood drenched
glass shards exploded
in all directions
in corporate
conference rooms, acid thrown in faces of clerks and receptionists, secretaries and boy Fridays pushed onto subway tracks, a new strain of smallpox released into exhibition arenas and more acts of furious judgment against totalitarian America will be carried out in the very near future, accompanied by still greater ferocious tornadoes, earthquakes larger than Northridge and hurricanes more damaging than Andrew, volcanic eruptions, fires floods, pestilence and every form of plague upon America's pharoahs [sic] and their first born. [Second paragraph contains second is 41 words.] two sentences, the first is 20 words and the
A new epoch of revolutionary justice, under God, is in store for mankind and America will be a special example. ABC and Paine Webber are real probable targets during the generation of rage which is about to unfold as they are under special consideration for attacks as described above, since I complained about them to communicative links with revolutionary terrorist elements.
j_ Ar V_
[Third paragraph
is one sentence
of 50 words.]
ABC and Paine Webber have caused real and substantial damage to me and my revolutionary work and without lawyers and without consideration of statutes of limitation, I have offered their personnel, involved in crimes against me and the salvational revolutionary movement, the opportunity to reach a monetary settlement with me. [Fourth paragraph is two sentences, 10-words and 42-words.]
Now, the ante has gone up to $250,000.00 per company. ABC lawyers and Paine Webber lawyers: Discuss my offer with me to compensate me for damages and pain and suffering and in order to carry out my revolutionary work, which will include self-publishing my book in progress--A NEW MILLENNIUM REVOLUTIONARY MANIFESTO. [Capitals in original] [Fifth paragraph is one 25-word sentence.]
Enter into negotiations existing ,.
with me and I will try to take your firms off of the attacks as describe[d] above.
list for future terrorist is one 70-word
[Sixth paragraph
sentence.]
If you do not discuss this situation with me, even in order to have just acted in a reasonable communicative form for the purpose of being able to show the courts in future negligence and wrongful death suits that there had been no possibility that the complaintant had information regarding terrorist designs against ABC and Paine Webber which may have been able to have been deterred, you will pay dearly. [Seventh paragraph is one 105-word sentence.] If you do not discuss my offer with me and your personnel and/or other members of your geographical community are murdered or mass murdered in the ways indicated, or in other ways which may be accompanied by information to the effect that the killings were meant to signal, in part, punishment for your corporations' damages to me and to my revolutionary work, then you will be vulnerable to enormous damage suits for negligence and wrongful death by the surviving family members of your communities, in addition to your moral responsibility for the very loss of life itself. [Eighth paragraph is one 28-word sentence.] If you do not respond within 30 days, I will not offer you the same amicable cooperation which I am willing to offer you today in this message. The following day, on May 20th1999, I found that I had received an automated response to my e-mail fiom Paine Webber on a computer at the same place in Mexico: It said, in part, "It is our policy to respond to your message in greater detail via e-mail within one week." (see Bates material numbered 00032-33). Later that same day I reviewed my original e-mail and made a few changes. First, I decided not to re-send the e-mail "To" Paine Webber since they had responded, albeit, automatically, so the second e-mail went only to ABC.Online in the "To" address section, but in the electronic "Cc" address section I added three print media receivers: letters @ nytimes.com, editors @ newsweek.com, letters @time.com. and I sent Paine Webber a "Bcc" copy, which ! believe was electronically returned to Mexico undeliverable to the U.S. citing--"too many hops." Second, I changed the word "probable" to the word "possible" in the phrase "real probable targets" of the second paragraph, thereby changing that phrase in the second e-mail to "real possible targets." Third, I changed a word in the seventh paragraph "complaintant" to the phrase "aggrieved party," just because I was not
certain if"complaintant" was the proper legal term for someone trying to establish himself as the victim of someone else's conduct. For the second e-mail, which was mailed on the second day of mailing, I had also changed the phrase of the final paragraph of the e-mail text to "If you do not respond in 30 days..." to "If you do not respond within 29 days.... " And, finally, I added an instruction to the added electronic carbon copyindicated print media, after the end of the body of the second e-mail, which said: "(instruction to print media): BACKGROUND-NOT FOR RELEASE until further notice; filing this material for reference and future use is suggested." (Capital letters in original) See the two E-Mails that form the
basis of the instant and 32. I continued case provided in the appendix at Government Exhibit 31
to send the e-mails
to ABC.Online
with Cc's to the other news
media, but not to Paine Webber, on Saturday, May 21, Sunday, May 22, Monday, May 23 and Tuesday, May 24, 1999. None of those transmissions were "returned undeliverable" to Mexico. After that, I believed was never going to answer me and that Paine Webber was never fulfill its automated promise of sending me a detailed reply, so I the e-mails altogether. The prosecution did not present the May documents to the defense in discovery or at trial. that ABC going to quit sending 21-May 24
Two years and eight months later, on January 18, 2002, the defendant was met at approximately 9:00 AM at the Mexican Immigration Office in Cuernavaca, Morelos, Mexico by FBI Agent Raul Salinas. The defendant was supposed to pick up his 3ra Mexican visa extension papers as an "assimilated immigrant," a process he had begun in 1997, which was some seven years after he had first arrived to Mexico, but he was instead told by Mexican authorities that Agent Raul Salinas would be "in charge" of the defendant and that the defendant would be returning to the United States with Agent Salinas. The Mexican authorities took the defendant to the airport, not under arrest, and gave Agent Salinas the defendant's wallet, passport, documents and computer discs that were in the defendant's possession, which they had asked the defendant to give to them in order for them to make an inventory of his possessions on the ride to the airport in a Mexican immigration van. There was no evidence at trial, in the Bates materials or in the 3500 materials that an actual legal expulsion process or extradition process had been carried out to legal completion by the Mexican authorities. Agent Salinas had refused to advise the defendant, in Salinas' role as the defendant's United States Embassy representative, as to the
defendant's legal rights in the face of the actions that had been taking place by the Mexican government. Agent Salinas refused to assume his role as U.S. citizen representative for the defendant when asked to by the defendant. Salinas only carried out another of his roles, that ofU.S. FBI liaison and Salinas refused to advise the defendant of his rights. Agent Salinas had booked and previously obtained tickets for a Continental Airways flight from Mexico City to Newark, New Jersey to take the defendant on that day. Agent Salinas and the defendant and another FBI agent boarded the plane from the tarmac where Mexican immigration officials had taken the defendant by van. Agent Salinas seated himself one seat away from the defendant in a three-seat, six-across tourist class row near the back of the Continental Airlines plane, with the defendant in the window seat. The other agent sat across the aisle from Salinas. Agent Salinas would not allow the defendant access to the defendant's documents or other possessions that were in the possession of Agent Salinas since their arrival to Mexico City. Agent Salinas would not allow the defendant to use a knife and fork to eat his in flight meal nor to go to the bathroom unaccompanied. Agent Salinas would, in a few hours, flash the defendant's passport to the U.S. customs authorities upon arrival to Newark Airport, which Agent Salinas possessed since Mexico City and while aboard the flight. The defendant was questioned on the flight by Salinas and was subsequently questioned by Newark branch FBI agents, then read his rights by the Newark FBI, then was arrested, was put into telephone contact with an attorney from the New York Public Defender's Office, was allowed to accept extradition to New York and was turned over to New York FBI Agent Curry and NYPD special FB! liaison Herminio Rodriguez, who had received all of the defendant's documents that Agent Salinas possessedsince earlier that day in Mexico City. The defendant had entered the United States and was officially arrested in Newark, New Jersey with no wallet, no passport, and no documents in his possession. The defendant appeared in New York before Magistrate Judge Theodore H. Katz the following day on January 19, 2002, after being taken by Curry and Rodriguez from Newark to be incarcerated at MDC in Brooklyn, New York, where he remained for 18 months, after being ordered to be detained Still yet to be indicted, the defendant filed a pro se motion to dismiss charges based on unfair prior threshold review of I stamendment issues applicable to the e-mails with Judge Denny Chin on July 17, 2002, which Judge Chin refused to consider. This same pro se motion was refiled with Judge Richard M. Berman who, according to docket entry of October 11,
2002 decided
that the motion be "held in abeyance." In the interim, the defendant was indicted under the 18 875(b) statute on one count of transmission of a threat with the intent to extort on September 10, 2002. On December 27, 2002, the defendant and his appointed attorney prepared and filed a motion to dismiss indictment as being legally insufficient, based on 1st amendment issues, which the Court ruled against. The defendant asked for an interlocutory review of the 1st amendment issues of the motion and the Court ruled against. The defendant advised he would appeal. The defendant went to trial pro se on July 14, 2003. A deadlocked jury was given a standard type Allen Charge on the morning of July 17, 2003 after nine hours of trial and seven hours of jury deliberation and returned a guilty verdict that afternoon. The defendant filed a motion on August 24, 2003, asking for a new trial based on eight issues, which the Court ruled against. The defendant advised he would appeal. On October 27, 2003, the defendant filed a motion to dismiss based on incorrect venue, which the Court heard and ruled against. The defendant advised he would appeal. sentenced on December 18, 2003 to time served. The defendant The defendant was was also
sentenced to three years supervised release with the special condition that he be incarcerated at the Bronx Community Correctional Center for the first year of supervised release to which the defendant objected in a letter received by the Court on February 24, 2004. See docket entry 3/5/04. The defendant objected to being incarcerated in a community correction center under B.O.P. control as a condition of supervised release following the sentence of"time served." A letter from the defendant dated April 11, 2004 motioned for a reduction in supervised release time based on the fact that he was reporting to a probation officer under an intensified supervised release regimen while he was additionally incarcerated in a community correction center and was subject to B.O.P. rules and regulations, which he proposed might be counted as two or three times a normal supervised release regimen. See docket entries for 4/16/04 and 4/22/04. Arguments
I.
The Court Erred
in Failing
to Investigate Conditions
the Abuses
and
Deprivations Failed
to the Defendant to Correct
and Unfair
for Trial and treatment of a
to Attempt
Such Conditions.
Abusive
10
prisoner
ought not to be ignored
in light of the U.S.
Constitution's
guarantee
of the right to due process, before and during provides verdict sustained occurred prisoner
especially
when such abuses
occur immediately Procedure
trial. Rule 33 of the Federal
Rules of Criminal
that the Court may vacate to avert a perceived as essentially
any judgment of justice.
and even set aside a jury Can the original trial be
miscarriage
fair when prisoner trial? Extensive,
abuse and important high profile
deprivations of
before and during abuse should
investigations
begin at home,
not abroad.
Prior to his arrest and prior to the e-mails instant case, the defendant has complained
that form the basis of the over a
that he has been harassed operations for leaking and
long period whistleblowing
of time by U.S. intelligence first hand knowledge
of the rigging
of presidential
elections,
which he documented (U.S. Copyright e-mails
in his A New Millennium
Revolutionary
Manifesto
1999, in evidence
at trial and publicized case).
at the center of the focused his
that form the basis of the instant of government conditions
The defendant
complaints
abuse in Court on the day scheduled he was put into for trial being unfair a physical assault
for his trial and abusive into
on the specific
and that he had suffered SHU confinement
on the way to his re-housing
for trial.
11 The defendant had attempted to obtain evidence of U.S. government long-term violations of the defendant's civil rights from the government, but the government never answered his Subpoena and Duces Tecum motion. See
pre-trial transcript of June 24, 2003 page 25 line 6 to page 27 line 4. For the complaints of the defendant of abuse and as to the
the Court to have considered deprivations whether matters
at trial as insignificant
to the Court's
own determination either investigating
or not to proceed or attempting
at once to trial, without fair conditions
to influence
for the pro se defendant, trial in fact and this brief should
was an error by the Court. in appearance.
This error helped cause an unfair throughout
All of the issues that are argued specific
recall Rule 33 and the following elicited reference
conditions
that have here first
in this brief to that rule.
The defendant, 11, 2003, at 9:30PM, normal routines
just on the weekend was removed
immediately
before
trial, on July
fiom his normal
prison
unit and his
in population
at MDC Brooklyn, normal routines
N.Y. of the prior year and access, telephone and was
a half. All of the defendant's service, social radio and television, interaction
of law library
special diet and constant were terminated.
legal consultation The defendant
with other inmates
taken alone to the SHU in MCC Manhattan, suffered an aggravated battery
just three days before through
trial, and
by two U.S. Marshals
the use of their
12 government vehicle in the process of being transferred. The defendant

next put into a poorly Monday morning lit SHU isolation cell from late Friday night until to leave the SHU for the first time to that weekend before trial and was was
when he was allowed
go to Court for the first day of trial. Through throughout confined
the four days of trial, except when in court, the defendant to the SHU. He was prohibited of detention, from making a prohibition any phone
calls for
the first time in his 18 months throughout library rulings), trial. Throughout
that remained had no law Court
the trial the pro se defendant by 2 "_ Circuit
access
(a legal right determined
and Supreme
no freedom
to leave his cell in order to shower, except to appear
no right to leave the The
SHU cell for any other reason defendant television, was allowed no special
in court for trial.
no shaving religious
or other cosmetic
items, no radio or group of contacts. on one of the four deprecatory regimen offenses
diet, none of his regular to shave and shower to a special
The defendant days of trial. that is applied
was only allowed The defendant by the Bureau during
was subjected of Prisons
to prisoners
who commit
while in population no offense; his e-mails, the normal
their incarceration.
The defendant
had committed
he was only going to finally realize after 18 months routine for regular of incarceration. prisoner's
his right to have a trial about SHU incarceration is not at all was
at trial, but the defendant
13 housed in the SHU during trial. The physically abusive treatment and the conditions of the defendant in the instant case created an objectively, especially unlevel playing field at trial. Although the Court did ask the
defendant whether or not he wanted to have the trial, the Court did not concur that the objective conditions that were reported to the Court were unfair and would eventuate in an unfair trial. And, the Court did not ask the defendant if he would be willing to delay trial until the Court could influence fair and legal conditions for trial. A defendant's assent to proceed to trial cannot negate a report of abusive and illegal conditions that objectively must impact the fairness of trial. The defendant was obviously psychologically and physically traumatized by the abruptly, especially
deprived conditions fight at trial that he reported and demonstrated to the Court. Nevertheless, the defendant proved helpless by his report of his conditions to the Court to get any changes made in those conditions.
It had been immediately upon his arrival to Court for trial that the defendant was to alert the Court to his deprived conditions and about the violent physical abuse during his transfer from Brooklyn to Manhattan. His tone of voice is obviously not available in the trial transcript
of Monday, to
July 14, 2003 at 11:00 AM on pages 2-4, where he stated his complaints the Court:
14 Mr. Krangle: Your Honor, I was expecting to go from the place I was for a year and a half from MDC...but they took me Friday while I was working on the case and brought me to the hold ["hole" transcribed incorrectly] in this prison. They changed my prisons. They took me out of population out of MDC, put me in the [hole] here.... I was assaulted on the way here by the Federal Marshals. Two federal marshals put me in the-made me sit in the backseat of an empty van and purposely sped over potholes while I was chained. And I hit my head hard and I got whiplash and they did it purposely and I know they did .... I'm shook from this..." Id
The defendant conditions he clearly "shook" was obviously assault. in an anguished state because of his
and the reported stated
This was observable
from his voice and to remain Id,
to the Court that he continued by U.S. Marshals
to that moment
from the assault
from a couple
of days earlier.
page 3. He advised believed
the Court that he had previously battery
reported
that which he along
had been an intentional
against him by the Marshals, a cerebral concussion
with his belief that he may have suffered Ramos during the defendant's incident, medical
to a Dr. shortly
intake at MCC in Manhattan, trial. (missing
after the transfer at juncture
just 60 hours before
from transcript
between
page 2 and 3) The defendant harassment by authorities
had never before reported to the Court over the
any such type of physical previous 18 months.
The defense trial and due process conditions
asserts
that the appearance
of a fair trial and indeed treatment,
a fair
were not possible
given the abusive
and deprivations
of the defendant.
The Court of Appeals
can
15 vacate judgment in this case due to the unfairness and abuses surrounding trial, which the District Court did not take into account in proceeding to trial, abuses facilitated and intensified by the imposition of incorrect venue in New York.
II.
defense
Venue
was Incorrect
in the Southern
District
of New York.
The to
argued
at trial that venue was incorrect
in New York and objected venue during jury
the Court's deliberations. Following motion
answers
to notes from the jury regarding
(See trial transcript trial, the District
page 321 line 4 to page 325 line 12). a defense letter
Court heard and then ruled against based on incorrect dated October
to vacate judgment (venue
venue. See defense 27, 2003.
memorandum
motion)
The 2"'t Circuit stating: criminal impartial committed,
has considered
other venue arguments provides
following
trial
"The Sixth Amendment prosecutions,
to the Constitution
that "[in] all by an
the accused
shall enjoy the right to...trial, wherein
jury of the State and district which district
the crime shall have been ascertained by law." In 365 F.
shall have been previously 144 (2 "d Cir. 1999); Alsosee
U.S. vBrennan 2d 206 (EDNY
183 F.3d 1966)
U.S. vBozza
16 Evidence at trial showed that the defendant's e-mails were only

transmitted prosecution "webmaster California, fi-om Mexico or the district person" received appear to California. court regarding There is no dispute from the the
this. Doris V. Hernandez, in
of Mark Krefting the ABC.Online
of the Disney Corporation messages in California.
The e-mails due to the fact
to
Paine Webber
to have been received
in New Jersey
that they were subsequently area code to Gerard prosecution Webber Whitmore
faxed from a Paine Webber
office with a (201) the
of ABC, Inc. in New York City, however
has asserted
that there was no evidence e-mails.
at trial as to where Paine Exhibits 31
had received E-mails.
the defendant's The evidence
See Government
and 32--the
that was presented
at trial demonstrates of
that the defendant any e-mail
committed
no act in New York, no act of transmission in Mexico to New York, only transmissions
from the computer to Los Angeles.
from Mexico
Government's testified mails]
witness
from ABC's
New York office,
Mr. Whitmore these [the eaffirmed
on cross examination from Mark Criflon
that "I [Mr. Whitmore]
received
[Krafting]."
And, then Mr. Whitmore Trial transcript answered page
that "...it
was sent from Califomia..." although, Mr. Whitmore
101 lines 10-16. question: of New
On redirect,
the government's outside
"And does ABC's
computers
use servers
that are located
17 York .... ," affirmatively,

defendant's Corporation ABC servers. provided, "served" e-mails the Walt Disney computer servers that fed the at the Disney
to Doris V. Hernandez
and Mark Krefting
in California The Disney
were only the Disney servers computer servers
and were not the service,
are an electronic Verizon,
say, in a contract Disney
with Verizon. e-mails
then, would have Even ifABC in New
the defendant's
from Mexico.
York also had its own contract located "outside of New York,"
with Verizon,
and even if Verizon would
was
the fact that Verizon from Mexico
have had a role
in serving
the defendant's
e-mails
to Disney
in California Mark Krefting at trial on was
would have had nothing not a "computer page wanted although 104-105 server"
to do with ABC in New York. of ABC in New York. redirect
The exchange
in government's
was evidence venue
that the government link to New York and knowledge
to provide
the jury with some electronic was not a computer and did not object
the defendant servers,"
expert with technical to the exchange
of "computer Whitmore computer servers
at the time, Mr. that Walt Disney's and ABC's computer
was also not an expert and the fact remained servers were Walt Disney's computer decision servers
were ABC's
and Mark Krefting's
to bring in Mr. Whitmore "computer servers."
in New York had nothing
to do with anybody's
18
The law bearing Circuit. proper "Pursuant
upon venue has been carefully
considered
in the 2 nd
to the Sixth Amendment
and Fed. R. Crim. P. 18, venue is See U.S. v Saavedra, comes in crime ....
in any district
where a crime was 'committed.'" The challenge,
223 F.3d 85,88 (2 "d Cir. 2000). determining The Supreme the offense what 'committed' Court directed and then determine
of course,
means for the purposes courts to first identify where that conduct
of a specific
the conduct occurred.
constituting See U.S. v
Rodriguez-Moreno, 3888(1999) concluded
526 U.S. 275,280,119
S.Ct. 1239,
143 L.Ed. 2d The 2 na Circuit actions that [the has
in U.S. vKim, that the Court's
246 F.3d 191 (2 'd Cir, 2001). duty is to decide
"when the defendant's conclude
have progressed offense
to the point where a court can confidently has been committed."
in question]
See U.S. v Bithany,
472 F.2d
16,23 (2 "d Cir.) cert.denied, (! 973)in U.S. v Beech-Nut
412 U.S. 938, 93 S.Ct 2771, 871 F2d 1181 (2d 1989)at
37 L.Ed. 2d 397 1190. of
In the instant 18 U.S.C.

Whoever, any money communication person
case, the alleged
crime was a violation
875 (b), which prohibits:

with intent to extort from any person, in interstate any person firm, association, or corporation, any the
or other
thing of value,
transmits
or foreign
commerce
containing
any threat 875
to kidnap Co)
or any threat
to injure
of another...
18 U.S.C.
19
In the instant point where question Disney because
case, "the defendant's confidently
actions conclude
[had] progressed that [the offense
to the in
a court [could]
had] been committed" in California, under where
(Beechnut,
Id.) as soon as the e-mail reached from Mexico. This is so, person [perceived
it was received
875b, "threat need not [even] have reached or be of such a nature as to have induced U.S. vHolder, D.C. Mont,
as] threatened that person." 427 F2d 715. identified
fear in the mind of 296, affirmed or group (10 t_
1969, 302 F.Supp,
"The threat need not be communicated See U.S. v Schroeder,
to the person
as its target."
902 F2d 1469, 1470-71
Cir) cert. Denied, (affirming made
498 U.S. 867, 111 S.Ct. 181, 112 L.Ed. 2d 145 (1990) for a threat against U.S. v Kosma, threats against people at a post office
an 875(c) conviction
to an Assistant
U.S. Attorney;
951 F.2d 549, 555 (3 ra were made to 1375 CE.D.
Cir. 1991) (listing third persons, Mich,
cases in which
President
under
18 USC 871" in U.S. vBaker In the instant "threat"
690 F.Supp.
1995) at 1380-81. a presumed the "crinle." of extortion,
case, 875b prohibits or foreign
that the accused commerce in order for
only transmit to complete the purpose
in interstate element telephone
The "essential an interstate by defendant D.C. Conn.
of the crime of making,
threat to injure person is that a threat..." (my
there be a communication emphasis) U.S. vFeudale,
containing
1967, 271 F Supp 115
20 In fact, the e-mails warned of an apocalyptic

They warned of"a new strain of smallpox against released totalitarian future for all of mankind. into exhibition America...still arenas greater
and more acts of furious judgment ferocious pharaohs tornadoes...pestilence
and every form of plague
upon America's justice, applied under
and their first born .... A new epoch of revolutionary The apocalyptic warnings
God, is in store for mankind..." to Los Angeles, whom the alleged violation
equally to of
where they were received, threats applied of the 875(b)
as to anywhere
else, although
is not an essential statute. anywhere
part of the completion is the receipt
an alleged
All that is necessary by the willful
of the alleged accused.
threats by anyone,
transmission
of the
Whatever Disney
research
or investigation
might have been attempted or cooperation in Mexico, in Los
by the of the or in
Corporation branch
on its own, or with the assistance of the FBI, in contacting at Disney
Los Angeles contacting Angeles, involved
the defendant
any departments Washington, subsequent
or at its ABC subsidiary, else, which
D.C., New York, or anywhere transmissions of the e-mails,
may have element of an of
the essential
the defendant's alleged threat,
alleged
crime under 875(b), upon the receipt
i.e., the transmission of the e-mails
was complete
in Los Angeles.
21
The transmissions Gerard carried described completed California. an effort Whitmore of ABC
by Mark security
Krefiing in New
of the Disney York were
Corporation
to
clearly
not conduct
out by the defendant, in the 875b once Mark to further statute.
nor was it conduct The defendant's the United
essential purported States
to the crime crime was already of in
the e-mail Krefling
reached
in the state
did not make crime
his own
interstate
transmissions
the purported
of the defendant.
In the instant completed [he was] 18USCA; venue [his]
case,
the defendant offense Const.
"had
not begun,
continued the district Cr Proc.,
or in which Rule 18,
substantive U.S. 3237, in New
under Amend
[875b]...in
prosecuted..." 18 USCA
6, Fed Rules at 1182."
3237A" York.
in Beech-Nut
For this reason,
was incorrect
Nevertheless, 477 (2 n_ Cir. case. 1985)
the prosecution provided Reed
has contended for venue with
that U.S. v Reed in New York
773 F.2d
justification was charged 1503,
in the 1623 and with with to
instant
However, of justice,
perjury,
18 U.S.C.
obstruction 18 U.S.C. intent
18 U.S.C.
while
the defendant in interstate analysis
was charged commerce, in order
875
(b), the transmission Each statute requires crimes
of a threat
to extort. where
independent were committed.
determine
the alleged
22
In the Reed case, the 2 nd Circuit nature perjury pending essential and the elements
ruled very specifically to venue.
about the It ruled that may be was an
of the crime as it applied federal judicial
"must be in an ongoing in a district element
proceeding...which Id. Perjury
other than where
the oath is taken."
of Reed's
crime and the nature affected the judicial
of perjury
as an intentional district or
lying about facts directly regardless of where
process
in another
the perjury
was articulated
and regardless
of whether
not the actors in the judicial while their judicial confounded obstruction integrity process,
process which
would have been aware of the perjury depended Perjury, on truth and was ipsofacto withholding of evidence the and
by a lie, was unfolding. of justice are language processes
and information of where
acts that impact they take place.
of judicial
regardless
By contrast, has been alleged some district
in the instant case, the language to be threatening,
act of the e-mails
which
only could have achieved where
some effect in
other than the one in Los Angeles transmitted
it had been received, e-mails reached to New its to 875 Mark
due to the fact that Mark Krefting York. essential The defendant's realization, alleged according
the defendant's
crime in 875 (b) had already to the statute
and case law pertaining Doris V. Hernandez,
(b) as soon as it had reached Krefting's "webmaster person"
any receiver--i.e., in Los Angeles.
23 In Reed, the 2naCircuit ruled in addition to "the elements and nature of the crime," that "the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding," ought to be taken into account, besides the site of the defendant's acts. Reed Id. Page 48 I. With
regard to "places K.refting's whatever decision effects that suffer the effects to transmit the language requirement of a crime," once again, it was
the e-mails
to New York that caused might have had in New York. prosecution to take place that the
of the e-mails that stipulates
The Constitutional where includes governing the defendant's the factors
act was committed of "knowing
and the 875(b) prohibition transmission venue.
and willful" correct
must remain
considerations
in evaluating
Regarding
the suitability
for factfinding,
one still has no full account the two about
from Doris V. Hernandez handlers of the e-mails statements
nor any account in Los Angeles in the e-mails,
from Mark Kreffing,
as to their subjective and incorrect
feelings
the different
venue can be blamed issue of venue and the that Gerard in
for this. Certainly,
in deference
to the Constitutional criminal
rights of the defendant Whitmore
in a federal
case, the possibility
of ABC in New York might have needed cannot account for venue being accepted
to appear at a hearing as correct in New
Los Angeles
24 York for e-mails transmitted by the defendant from Mexico, which were received in Los Angeles.
The nature of perjury in its direct and immediate effect on a judicial proceeding in a district other than that where the oath had been articulated presented the 2n_Circuit with a particular statute, where the affected district was able to be clearly demonstrated as the primary locus of the impact of the alleged crime. The government cannot show any reason to have failed to pursue prosecution in Los Angeles in the instant case, the only place where venue was correct based on the evidence in this case of the electronic transmission from Mexico of an alleged threat that was received in Los Angeles.
In addition to the foregoing Constitutional issue as it bears upon the 875(b) statute in the instant case, the trial transcript demonstrates that the district court was uncertain about how to advise the jury regarding their charge to consider the preponderance of evidence on venue. Consequently, the jury did not receive accurate and complete instructions regarding venue before making their verdict. See trial transcript pages 308-333 and note that on page 325, the Court states "I am going to respond to note two [of three notes on venue] right now in this fashion and ask Andrew
all and then pass it to the jurors." to show it to you
The next eight pages of the transcript
25 show a further attempt by the prosecution, defense and the Court to deal with note three about venue, but there is no evidence
finally edited nor "show[n] that note two was ever in its
to you all," and it was in fact never shown for the jury, before
final form to the defense with their verdict. if venue was proper
nor finalized
the jury came in to consider
The jury could not have carried
out its charge
in New York under such circumstances
and neither ha the
could the defense process. The failure Constitutional representation represents incorrect
have carried
out its rights to fairly participate
of the defendant's
Court appointed the eighteen
attorneys
to address
the
issue of venue during of the defendant counsel.
months
of their counsel, clearly case was on
and afterwards Venue
as standby
ineffective
in New York in the instant
and the 2 "d Circuit grounds,
should
rule so, and should the incorrect
vacate judgment venue contributed
Constitutional materially
as well as because
to an unfair trial, as a review
of the following
issue will show.
III. Documents
The Court
Erred
in Admitting this because
into Evidence Their
Illegally Value
Seized was
and Compounded by Their
Probative
far Outweighed Character.
Nature
as Prejudicial
to the Defendant's
26
Appearing for the prosecution, Detective Herminio Rodriguez testified, on page 123 line 22, page 124 line 14, page 126 line 22 and page
129 line 16 (trial person", transcript), that defendant "seized had certain documents "on his
"in his possession,"
from Mr. Krangle
upon his arrest," New Jersey. In
"was on Mr. Krangle direct contradiction Rodriguez stated
at the time of his arrest" to these statements, during
in Newark,
cross-examination,
Detective
that "Documents
and any property
that you [the defendant] (trial page 134 line was not in at the time of
had were taken
away from you while you were in flight." the question "... [the defendant] entered no."(page
4) And, then, he answered possession [his] arrest?"
with them [the documents by saying "Physically,
into evidence] 134 lines
11-13).
Detective that the defendant arrest in Newark, documents United shows
Rodriguez
had clearly,
unambiguously
and repeatedly
stated
had documents
on him that were seized
from him upon had no
New Jersey but later admitted whatsoever
that the defendant
in his possession
at the time of his arrest in the
States. Testimony that FBI Agent before
from trial page 134 line 17 to page 137 line 19 had all of the documents in Newark, in his
Raul Salinas
possession
the defendant
was arrested
New Jersey and
27 that Detective Rodriguez also had no evidence that the defendant had been deported from Mexico to the United States, nor was any evidence presented in trial to explain how the defendant got from Mexico to Newark, New Jersey with FBI agent Salinas, with the defendant's documents in FBI possession. The fact that no documents were in the defendant's possession at the time of his arrest, the lack of any warrant for the prior seizure of the documents by the FBI and the absence of any documentation of the defendant's extradition to the United States from Mexico suggest extra-legal government actions against the defendant in bringing him to the United States while maintaining prior possession of his documents. The Court erred in allowing any and all such documents to be put into evidence by the prosecution.
The documents, which FBI agent Raul Salinas had refused to allow the defendant to have on the Continental Airlines flight from Mexico City to Newark, New Jersey on January 18, 2002, thus, de facto,
documents, inadmissible the defendant's Defendant were objected to by the defense in pre-tfial illegally proceedings seized as
as such and as inadmissible character would
because
their tendency
to prejudice
far outweigh
their probative
value.
told the Court: "...nothing
was found on me. This was brought
28 [by the FB1] from Mexico. THE COURT: "Your objection is noted." Trial
transcript p 9 lines 22-24.0ne as "Business of these documents, Cards" in Detective Government's Rodriguez' objected Exhibit
218, described page
trial testimony to by the asked the Court
128 line 14 to page during
129 line 16, was further
defendant
trial on page
129 line 14. The prosecution (page
to allow the tactic the jury would content)
to "pass them_around" being handed objections.
128 line 19) to the jury, so of the at trial that
experience
the cards (of. a photocopy There was no evidence
above the defendant's had actually
the defendant anywhere,
himself
ever handed
out the cards to anyone,
at any time. The cards, which
were taken by the FBI in Mexico prior to the arrest of the card and contained the
along with his passport defendant, following appeared information:
and all other documents size business
on a standard
Freedom An Argument
or Oblivion and Revolution
for Terrorism
Mark L. Krangle www.geocities.com/millenniumrevolution marcoslk@yahoo.com
The historical, manifesto, including
political
and philosophical
arguments in evidence
of the 1999 entitled "Terror's
the unit of the manifesto
29 Claim on America," would have taken hours to review for the jury by the defendant, time which was never allowed to the defendant by the Court. The manifesto, copyrighted in the Library of Congress by the defendant in 1999, was an attempt to warn the public that terrorism was coming to the United States. The only purpose of passing around to eachjuror a business-size card that carried the provocative Spring, 2001 title of the defendant's 25000word manuscript was to incite the terror-stricken New York jurors and to characterize the defendant himself as a threat. There was no evidence at trial that the corporate
instant recipients of the 1999 e-mails that form the basis of the cards or were even no that form
case had themselves
ever seen the 2001 publicity The provocative the authorship
aware of the existence probative
of the cards. regarding
cards provided of the e-mails
value whatsoever
the basis of the instant defendant defendant established
case, which had already
been admitted
by the by the
to be of his authorship to have been transmitted by the prosecution.
and had already
been admitted
by him and had already
been completely
Fed. R. Evid 404 (b) does not allow evidence defendant's ownership purposes of the cards) of showing
of other acts (the of a person, identity, only
to prove the character knowledge, intent,
for the specific
and lack of
30 mistake. However, before such evidence is admissible, it must be "relevant to some disputed issue in the trial," and satisfy the probative-prejudicial balancing test set forth in Fed. R. Evid. 403. United States v Brennan, 798F 2d 581 (2d Cir. 1986); cert denied, 490 U.S. 1022 (1989) see also United States v Gilan, 967 F. 2d 776, 780 (2d Cir 1992).
The Court erred in allowing the cards, which had been illegally maintained in government possession since Mexico, into evidence and their being passed around to each one of the jurors, when they provided no probative value and would tend to inflame the actually, violently terrorized New York jury, cause prejudice against the defendant and unfairly prejudice the defendant's ability to obtain a fair trial. The Appeals Court can rule that the trial was unfair based on the introduction of the highly charged illegally seized irrelevant prejudicial evidence, in the very middle of a short trial.
IV.
The District
Court Erred by Prohibiting Himself.
Adequate
Time for the
Defendant
to Defend
A fair trial, which represents the system of justice in the United
one of the most important States, and is protected
foundations
of
under rule 33,
could not have been possible
in the instant
case given the time restrictions
31
imposed
by the district
court.
Proof that the content
of the e-mails
required at
substantially
more time than was permitted the dramatic, logical, against
by the Court to the defense and legal arguments
trial in order to explain in the e-mails,
contained as
as well as to defend
the government's in the arguments
trial tactics, of the later (2)
has just been indicated,
will be demonstrated
issues in this brief on: (1) inadequate insufficient current, an unfair proof
jury instruction
on threats,
of intent to extort and (3) first amendment time-bound issue being addressed
issues. The of
separate,
here, as constitutive
trial under rule 33, truly encompasses during the later arguments.
the later issues and this
should be recalled
In the May 22, 2003 pre-trial defendant

testimony
transcript
on page
15 line 22 the
let the Court know he expected

and the Court responded "...a
to need "one day" for his

whole day.'? I would be
astonished...You Court's response the Court's preparation projection
don't want to bore the jury."
(Id page
16 lines 3-7). be astonished"
The in and
of itself into the trial ahead as "would statement of time needed
to the defendant's reasons
for his testimony the
of theatre,
not law, in order to try to influence testimony by the defendant greatly
of a more limited
contrasted
32
with the Court' unexpected, absolutely authoritarian form and degree of

actually limiting the defendant's testimony in the midst of trial.
On page first declared abruptly mentioned
I l, line 17 to page that the defendant
12 line 6 of the trial transcript
the Court
may make a statement,
then the Court "You
cut off the statement that I should
after only six words by the defendant, .... " Just minutes
let Mr. Duboulay
later, the Court every the trial on page
made a threat that hung over the head of the defendant instant of the trial, that "...there
throughout
will be no such interruptions You get that."
during
or that will be the end of the trial. 20 line 10 the defense references the e-mails
Soon afterwards, to the prosecution's
tried to state an objection which formed
to the e-mails,
the basis of the instant into evidence.
case, because made on page
had not yet been introduced objection,
The defendant
the "not in evidence"
immediately
after the prosecution,
19, line 22 of the trial transcript, had been three e-mails. articulation quiet during Court's
had even misstated
that the two e-mails pro se be the
The Court interrupted and ordered
the defendant's the defendant
of a valid objection the duration,"
to "Please
in a harsh and humiliating
tone and reinforced The defense statement to
earlier threat that it might end the trial at any instant. 15-minute limited opening
then had only the Court imposed
33 make about an e-mail that had taken several hours to write the final version of, and that takes several hours to adequately discuss and explain. Then the Court allowed the defendant less than 30 minutes
the actual content defendant of the e-mail during his direct testimony
to discuss
even while the for a whole e-mail
had believed
that he would have the right to testify "bore the jury."
day, even at the risk that he might content testimony runs beginning
The defendant's page
from trial transcript
179, line 1, the objective
where it says "I am going to give you two points view[point] express to page and the subjective viewpoint.
[of view],
Subjectively,
I wrote this to
myself..."
and the testimony
continues
from there for twelve pages with "We need to tone and to the jury
191, line 21, at which point the Court interrupted was said in a deprecatory
wind this up," which indeed marked
way with a cynical to explain
the end of the defendant's e-mails
opportunity
the two, more than 500-word changes
that were in evidence, one.
with the several
from the first e-mail to the second
In spite of the fact that some of the nearly 30 minutes content contained needed intention testimony, which the Court permitted remarks
of e-mail had still
to the defendant,
some objective several
about the e-mails, testimony
the defendant
times more additional
in order to fulfill his stated analysis of the e-mails,
to the jury to present
his separate
objective
34
which almost
was to accompany hurriedly completed.
the subjective
version
of his testimony
that he had
Thus, instead
of having
the time to fulfill his two complete views
stated promise
at the opening subjective
of his testimony
to present
of the e-mails--one
and one objective,
the defendant
was only in
able to just try to get in a few more sentences progress that was dedicated to and dominated
of the part of his narrative by the subjective viewpoint
with which mails.
he had begun his promised
presentation
of two views of the eover the Judge's his hand across that that was was forced from
Just at that moment,
the Judge rose up and leaned gesture at the defendant, cutting to indicate
box and made a dramatic his throat

0("
and making
a severe facial expression testimony
absolutely to respond transcript).] testimony complexities
the end of the defendant's at line 7 on page Thank you."
and the defendant
192 with "...all cutting
fight, [I'm sorry (missing off of the defendant's given the
The Court's of the e-mails
on the content
after just 30 minutes, a completely
of the e-mail rhetoric,
produced
unfair trial. The
later arguments were absolutely instant
in this brief will demonstrate essential
that hours more of testimony of the e-mails in the
in order to give the content
case a fair hearing.
The context defendant, as well.
for the e-mails
required
several
hours of testimony the Court erred in not
by the
The trial was unfair because
35 allowing the defense time to provide a complete alternative theory to the government's theory regarding what constituted the context for the e-mails. Compare cases where the prosecution asserts that one spouse did something illegal to the other because of some particular perceived wrong. The accused, besides getting ample opportunity to testify, along with having the opportunity to put experts on the stand, in order to explain that his or her act was not illegal, always
spouse subjected gets to testify about a lifetime of abuses that the other
her to, not just the supposed
precipitating
events.
In the instant relationship between
case, the defendant corporate America
had much more context and himself to provide
about the to the jury
besides just two incidents developing important harmful products Webber's media at trial.
that the prosecution not a spouse
had spent hours on or employer, had played to buy sugar Paine corporate an
ABC, although
role in influencing products
the defendant's
entire generation promoting
such as diabetes
and heart disease-
and high fat products, services to the Fortune marketing of funding
as well as alcohol 500 helped
and tobacco.
to fund such harmful
and product
activities terrorism, case.
just as truly as some organizations even though death has oftentimes industry has begun
have been accused come more slowly
in the former
Only the tobacco and deaths
to make some reparations
for the damages
caused
by their
36 products and the marketing of their products. As one New York Press writer has put it: Corporations control the flow of public information. They decide what gets promoted and what does not. They participate in the decisions and activities related to the exploitation of foreign workers and resources, and when we go to war. Corporations are like dictatorships; they are hardly accountable to their employees or the public .... Nevertheless, the government had spent hours pretending to present a context for the e-mails, but the defense needed at least as much time to present an alternative theory of context for the e-mails, context that adequately presented the dominance of corporate communication in America, time which was forbidden by the Court.
In addition to the broad socio-political, contrnunicative aspects and content aspects of the context of the e-mails that form the basis of the instant case, the defense needed time during the defendant's testimony to demonstrate that context in the instant case had real time, channel and audience components that made a motive of extortion impossible. The prosecution had presented the jury two prior personal, direct communications by the defendant to the particular corporate executives whom the defendant believed had harmed him and asserted had harmed him in particular ways as accounting for the defendant's motive for purportedly
37
threatening
the corporations theory themselves in the e-mails
in the e-mails
in the instant
case.
In contrast, with the corporate
the defendant's corporations executives)
was that the defendant (as opposed
was communicating known
to two personally
that form the basis and in concert
of the instant
case, for the very media directed entities. to the
first time, simultaneously, The e-mails corporations aimed
with other public specifically
had an embedded entire
announcement
"Legal Departments" the organized
in an attempt
to exhort discussions embedded
at unmasking
crime associated
executives
with their corporations
as well as to get the opportunity
to make his case for While the
years of abuse by the corporations earlier communications
that his class had suffered.
had just asked one individual lawyers or boards believed
from each corporation the
to admit to their corporate defendant the e-mails departments consolidated These serious,
that they had damaged a settlement would
and that they themselves
be in order, legal
that form the basis of the instant to arrange claims
case urged the corporate to the defendant
a forum to listen directly each corporation, complex during
about his
against
as well as to his terror alert. about context testimony, by the needed
real, interrelated, by the defense
explanations the defendant's which
to be demonstrated especially defendant during
that part of the testimony objective aspects
had been proposed
to represent
of the e-mails
and their context.
38 The Court's decision on time limits did not permit the development of any of the defense's arguments about context or the objective aspects of content.
In the interest of justice and a fair trial under rule 33, judgment should be vacated in the instant case because the defense was prohibited adequate time to present the arguments of his theory of context along with time to explain the objective aspects of the content issues.
V. The Court Erred in Its Charge Criteria Evidence for the Determination of "Threat"
to the Jury Regarding
the
of a Threat
and there was Insufficient as well,
as It Was Defined the Issuance
by the Jury Charge; of Subpoenas
the Court Erred Magazine,
in Denying
to Time in order for and
Newsweek
Magazine
and the New York Between
Times
Them to Testify the Reporting in Its Failure to Subpoena
Regarding of Threats,
the Distinction
a True Threat
while the Defendant to Solicit
had Ineffective Expert
Counsel and
to Fulfill Its Agreements Witnesses.
Testimony
Some language any reasonable can usually person,
can be analyzed,
interpreted and evaluated things.
by almost
as can some material
A lamp, a car, a knife or a home-made
be seen for what it is, while a white powder
39 electronic device will oftentimes require extensive expert testimony to determine what it is. The same may be true of language. Average people can evaluate much ordinary language, but most people complain that they oftentimes cannot understand legal arguments, bureaucratese and other complex formats such as medical language, some religious ideas, poetry and other literature, and arguments that are dependant on complex logic. Such language often requires expert help for accurate interpretation, or, the average person may completely misunderstand what was meant. If a white powder were the basis of a case, the Court would not even allow the prosecutor or the defense to be the unique evaluators of what the substance was. Experts must aver what the substance was.
The e-mails in the instant case contained language and logical arguments that required expert testimony, in addition to extensive testimony, in order to explain them fairly to the majority of ordinary people. Every citizen is entitled to freedom of speech under the I st Amendment
some language by experts unpunished is frightening to many ordinary speech, persons, and even if
if it can be shown speech must go
to represent by law.
allowable
the citizen's
4O On page 256 line 11 to page 257 line 6 of trial transcript,

charged which the jury on how to determine fails to meet the usual standards whether
the Court
or not there was a threat, that have The 2"a
of 2 na circuit precedents 1st amendment whether
been reiterated
over time in order to protect that the jury must consider unconditional
rights.
circuit has found statements Malik
or not the defendant's See U.S. v
were "unequivocal,
and specific."
16 F3d 45 (2 na Cir) and U.S. v Kelner
534 F 2d (2"a). In the instant all three of these determinative to this charge to as
case, the Court left out of its jury instruction markers of a true threat. The defense
stated its objections unconditional
the jury of leaving determinative
out "unequivocal,
and specific"
of a true threat before the charge was given to the jury.
Before motion Court's]
trial, the District specifically satisfy
Court had ruled against because:
the defendant's
to dismiss opinion,
"The facts of this case, in [the .... 'The threat must on its face and unconditional, a gravity of
that requirement
in the circumstances immediate purpose Kelner
in which
it is made be so unequivocal, threatened at to convey
and specific and imminent
to the person prospect
of execution.' February
That also comes from the 19, 2003
case."
Pre-trial
Conference,
41
Wherein additional, recipients'
the Appeals
court noted in Malik that "...there most significant of which
was was the case, no
substantial
evidence--the
states of minds Webber
and their reactions..." any reaction
(Id), in the instant to the e-mails
one from Paine submitted mail"...came Winston instant
expressed
that were that the eAndrew
into evidence.
Ms. Vick of Paine Webber
only testified
into our public
website .... " (trial page 70 line 22).
testified
that he did not read the e-mails no E-mails
that form the basis of the (trial
case, he said "I received 17-25). Winston
from you [the defendant]." by the
page 56 lines language company
did testify that he was frightened which
in a different would
letter that he received if Winston
stated that he and the that
be "destroyed" injured
did not admit to his company
he had financially company
the defendant
and if he did not try to get the Winston also testified as meaning to cause to or the like-to
to agree to a settlement
with the defendant.
that he had no knowledge take away power,
of the use of the word "destroyed" ruin, to cause to lose prestige, to make unable
to financially
lose a job, to cause to be blacklisted,
to compete
he only was aware of the use of the word to mean physically destroyed, "destroyed" letter which even though the other universally accepted
and violently of a
and used meanings he was referring,
fit better in the context was indeed,
of the letter to which
in any case, not the e-mails
that form the basis of
42 the instant case, which Winston had testified he had never received. Mr. Winston had also perjured himself when he denied having spoken to the defendant by telephone, which he had done on/or about November 6, 1998 when he had had a short conversation with the defendant and then had asked the defendant if he might switch the defendant's call over to Mr. Mike Robertson at the New Jersey office of Paine Webber. Mr. Robertson subsequently hung up on the defendant while the defendant was trying to argue with him that it was imperative for the Paine Webber lawyers to "discuss" the defendant's issues with him, stating "No discussions," immediately before hanging up the telephone. Some five months later, the defendant believed he had additional reasons why Paine Webber needed to have discussions with him--he believed they were possible terrorist targets, although it has turned out that certain other financial institutions have been focused on--Cantor Fitzgerald, Citibank, Prudential, the New York Stock Exchange. The defendant sent Paine Webber the May, 1999 e-mails warning them that terrorism was coming to America, that he still wanted to discuss issues of their injuries to him and that he was open to questioning and trying to help them regarding future terrorism "during the generation of rage.... " The prosecution never provided the defense with its notes of its interviews with Mike Robertson of Paine Webber, who had been advertised as a
43 prosecution witness, and it struck Mr. Robertson from the its witness
the last moment In contrast Disney Corporation before trial. Winston in Florida, Doris Hernandez and read the e-mails in evidence of the that form list at
to Andrew
in California case.
had received
the basis of the instant wrote to Mark Krefting demented
Her only response
was the note she
that she had found the e-mails (government exhibit 30-31,
to be "somewhat the e-mails). that was sent the eof ABC in New the This
and worrisome,"
was the only subjective presented in evidence
response at trial.
to the e-mails
from anyone
More than a day later, Krefling to Gerard Whilxnore
mails he received York. Gerard e-mails
from Ms. Hernandez
Whitmore
of ABC in New York said that after he received at Disney in California, he contacted the FBI, (Trial
from Mark Krefting
four days later, because page 94 line 25).
of "The threatening
tone of the messages" intended
No one testified
that the defendant expressing to extort
to do violence
nor that the defendant No one testified
made any statement intended
intent to do violence. anyone.
that the defendant
In fact, expert testimony instant bodily case did not contain injury on another
would
show that the 1999 e-mails expressing an intention_to which
in the inflict
"a statement
person
at once or in the future,"
is the
44 definition of threat given by the Court in the charge to the jury. (page 256 lines 14-16) The e-mails neither declare nor imply that the defendant intended to do anything to corporate personnel. The e-mails
statements contain expressing anyone's intentions. The e-mails, of its author, do not contain
in point of fact, rather than
statements
that are the mere beliefs else's intentions.
statements circumstances required express
of his, or anyone
Very special,
clear kinds of are are always
and clear indices of what those circumstances for it to be possible of anyone position else. for another
to be present the intentions
party to actually clear proof that a
Without
absolutely
party is in a definite audience devastating almost
to express
the intentions to challenge
of a third party, an the bad news, of the
always
feels compelled
news, threat or possible
threat or to seek confirmation
good or wonderful "How do you know?
news by some kind of questioning How can you be sure?
of the messenger:
Do you really think so? Who by a party about the of some other third almost
told you so? Etc. The very mere statement possible, parties, always probable whether exhorts or even supposedly intimately dialogue or tenuously
of beliefs
definite
intentions
connected
to the speaker
from the audience.
45 The defendant's statements in the instant case are clearly statements of mere beliefs and not statements of intentions and even at that those beliefs are stated in a form that is conspicuously not unequivocal,
and not specific, exactly the 2 "d circuit benchmarks not unconditional
that had been deleted
from the jury charge. is indeed made intentions rather
Yet, it is crucial expressing
to return to the fact that the language beliefs actually about unknown expressing and difficult examples, language agents' intentions distinction of that
of statements
than made of statements
the defendant requires patiently, philosopher English expert
or of anyone testimony
else. This is a crucial to be given with several of an English anyone
to be explained expert, a or other
along with the credentials of language experts
or a lawyer--to who should
but other lawyers
language
be able to easily make the same
observations
and distinctions
as in this brief.
In the e-mails, "real probable targets...during defendant intentions indeed targets"
the defendant
states that ABC
and Paine Webber
are
and then modified
this to "real possible The
the generation clearly signals
of rage which is about to unfold .... " that he was not in the position to ABC and Paine
to state the only
of the third parties
with regard
Webber,
46
his own or based
beliefs upon
that
were
evidently
based
on a different
third
party's
beliefs
hearsay.
The regard beliefs hearsay oaaies, Paine limited defendant Paine
defendant
does
not state Webber.
the intentions The defendant
of the third expresses
party only
with his own link third and implied ['s]"
to ABC about
and Paine what clearly
may be inferred musings
to be a "communicative of other ABC
regarding not evidently Webber
the possible even
or considerations
known
by the defendant, of rage..."
regarding And,
"during
the generation
this clearly
intelligence was
was stated willing
in the e-mails to sit down
as intelligence
that the to ABC or
eagerly when
and try to explain the corporations
Webber
the defendant
challenged
in paragraph "...act the no in a
six of the e-mails reasonable courts
to take
the opportunity form
to invalidate
his beliefs: able
communicative negligence
for the purpose death
of being suits
to show had been
in future that ABC This,
and wrongful
that there
possibility against added. accessing
the complaintant Webber..."
had information The e-mails, demanded however
regarding paragraph
terrorist
designs
and Paine while
six, emphasis for for
money
was never projections,
as a requirement productive C.A.
the defendant's
of dilemma
the corporations. 1150, the addressee
In contrast, of a letter
in U.S. vReynolds,
7 (I11.), 1976 532 F2d, would not divulge
was told that the writer
47
what he had presented unconditional
as a definite
murder
plot--i.e.,
unequivocal, payment of $10,000.
and specific--unless
and until he received
In the instant defendant e-mails because
case, not only is a true threat not transmitted of the Kelner criteria, that is that the alleged to be unambiguous possibilities
by the threat in the
do not satisfy
the requirements violent
and imrnediate, not statements
but the statements of intentions
containing
are simply
at all; however,
the definition needed
of "threat"
that the Court gave to that
the jury required expressed
that the defendant
to have made a statement in the e-mails opinions
an "intention."
The statements as opinions,
are only opinions, of possible
and they are clearly musings,
presented
of hearsay
even though
they have turned out to be closer to the truth than dots ofpre-9/l I that have been reported in the
some of the unconnected media.
Clearly,
the Court erred in its jury charge the Kelner criteria,
regarding
the components
of
a true threat by ignoring Court's definition because
while at the same time the actual statements expressing when the Court as receivers in
of a threat failed to fit the defendant's the defendant
the e-mails intentions.
did not make statements
Furthermore,
these errors were compounded
erred in failing
to issue subpoenas
to the other media indicated
48 for electronic copies on the second e-mail, Time, Newsweek and the New York Times. These media could have testified as to whether or not they had actually received the e-mails and whether or not they saw the e-mails as true threats, or to the contrary, as expressions of beliefs about possible threats. In addition, the defendant's attorney for more than a year had promised to recruit a Ph.D? expert friend of his to testify for the defense and also had promised that he would himself subpoena the print media e-mail reader departments indicated in the electronic Cc's of the e-mails. These failures by the attorney demonstrated clearly ineffective counsel in this case of pure language. "Where a defendant is initially represented by counsel but subsequently requests to proceed pro se, he may allege that counsel was ineffective at least up to the point where the defendant began to represent himself. See, Hance
v Zant 696 F.2d 940, 950 (11 th Cir. 1983; Rodriguez 1988). In addition, where v
State, 763 S.W. 2d 893, 896 (Tex.Ct.App. or advisory control though counsel assumes an advisory
standby of
role or exercises
a degree
over defendant's diminished
case, "his or her potential primary
for ineffectiveness,
by the defendant's
role, is not completely 1990); see also 212
eliminated." Hance vKemp
Ali v. United States,
581 A.2d 368, 379 (D.C. v. Costello
258 Ga. 649 in Jelinek
247 F. Supp2d
(E.D.N.Y
2003).
49
The Appeals Court ought to vacate judgment because a fair trial was not possible in this case of the transmission of a purported threat when: 1) the jury charge left out crucial components of what was needed to determine a true threat (cf. The Kelner or Malik charge) as opposed to the report of
beliefs about possible threats as proposed by the defense's as defined theory; 2) there
was insufficient charge
evidence
to prove that "threat", an intention a belief;
to the jury in the in the e-mails,
as a statement
expressing
was contained
as opposed
to a statement attorney
expressing
and, 3) the Court along with appropriate expert witnesses,
the defendant's which VI.
had failed to subpoena
each had a duty to do. There Was Insufficient Evidence of An Intention to Extort
Repeatedly, personnel $250,000." original
the government
asserted that: "ABC and Paine Webber's each corporation that the prosecution in June, paid the defendant used to obtain the
would be killed unless This is the language
complaint
from a Judge Magistrate
1999 and this is the very 10, 2002 that was to the jury to
same language indictment presented
that the prosecution
used to obtain the September
of the instant case, and this is the exact same language to the jury at trial on July 14, 2003 in the Court's charge
(see trial transcript
page 255 lines 5-7) and in the prosecution's
speeches
50
the jury.
This "pay or die" ultimatum
was stated as a fact and presented was used in the e-mails.
as a
fact to the jury, while no such language
In its opening he [the defendant] Krangle they would
statement, claimed
the prosecution
declared
that: "In the E-mail talked with Mark
that unless they [corporations]
suffer the events described
in the E-mail.
The E-mail
also claimed the E-mail events
ABC and Paine Webber demanded $250,000
were the cause of injury to Mark and in order to prevent the
from each company .... Instead
described E-mail
from happening
of 30 days of time to respond, 29 days to come up with that was described in the
the second $250,000 message
listed 29 days to respond. and destruction
or face the violence .... Mark Krangle
threatened
ABC and Paine Webber
with violence, that
iniurs,, destruction he demanded."
and death if the companies
failed to pay the money
See Trial Transcript
page 23 line 18 to page 24 linel4.
The above, misstatements Neither e-mails
underlined,
statements
by the government
are material in the e-mails. of the
of fact that were never made by the defendant demonstrate
did the government could validly
to the jury how the language
be interpreted
to mean what the government the time needed to
asserted.
In addition,
the Court prohibited
the defendant
51
demonstrate
that an objective
analysis
of the content
of the e-mails, that extortion
along
with the channel
used, made strong valid argument
was not the
intent of the e-mails.
The prosecution demonstrated evidence
also lacked any evidence
external
to the e-mails
that
that extortion
was the intent of the defendant.
There was no any money
that the defendant
had any plan or any way to collect evidence money
from the corporations.
There was neither to transfer
that any instructions to the defendant nor any
were given to the corporations evidence that the defendant
had any way or any plan to collect
any money.
Extortion
is a tremendously
serious,
menacing
crime that leaves a
victim no way to escape threats demands involve to provide
except to comply or something
with the extortionist's of value. Extortion has to in
him with money
a threat that is unequivocally
under the control except
of the extortionist with the
order that the victim extortionist. threats
truly has no choice
to comply
Extortion
is crime that needs to involve
true and credible
by a communicator
that he can and will carry out or can and will damage or harm to the victim unless or things the
cause to be carried victim complies
out serious
with his demand
of money
of value. This must be the threat:
the case even if the defendant the threat must appear
actually
had no ability to implement The defendant
to be credible.
need not have had any
52 real actual ability to carry out the threat; however,

would racket have had to be able to believe of organized people that he did.
a reasonable Extortion
person
is most often a money to groups.
crime or of small gangs who demand or individuals. by the very nature Such groups provide
protection credibility of criminal
from business routine
type threats
of the reputations
Individuals
must make a threat that is possible to be evidence
for an individual
to carry out
in order for there evidence entitled
of intent to extort.
It is not sufficient believed he was
of intent to extort just to say that an accused to money and that he had been trying to realize
his belief of his
entitlement. show evidence
Some other indices beyond
of intent to extort must exist in order to doubt of intent to extort.
a reasonable
To charge
a single individual as surrealistic,
with the crime of making given the apocalyptic besides
threats context
that in which did not as
can fairly be described the human violence
was presented,
the fact that the language nor the definition
meet the Kelner a statement as its intent, such violence, of preparations violence
conditions
of a "true threat"
of "threat" had extortion
of intentions, where
and to then insist that such language is obviously not in a position charged, where
the individual
to carry out
where
there is no conspiracy
there is no proof can control the
to carry out injury or proof against
that the individual victims,
of third parties
the supposed
the prosecution
needs
53
to demonstrate, evidence die."
beyond
a reasonable
doubt,
that the individual's
words in
can only be interpreted
by any reasonable
jury to mean "pay or to do. The of the facts ever
This is exactly
what the prosecution asserted saying
failed to even attempt misstatements
prosecution
only repeatedly rhetoric
the material
of the defendant's presenting evidence You Die." rhetoric legalistic
that it meant
"pay or die," without path demonstrating
to the jury any kind of unbroken of a true demand This is because of"Pay"
logical
to evidence
of the consequence argumentative, political,
"Or Else literary and
the fairly long, complex, which contained religious,
of the defendant, arguments
ecological
neither
warned
nor threatened
that violence money
would face or things of
the corporations value.
as a result of not giving the defendant
The defense some technical inferences permitted grammatical
can demonstrate
that the rhetoric
of the e-mails
makes
arguments
and that the prosecution the defendant.
made a series of invalid was not objective, he would do the Appeals
in order to prosecute time by the district and logical
The defense
court to make the following
arguments
at trial, as he had promised and a fair due process,
for the jury, and for the sake of justice Court can review
the facts of this matter anew.
54 First, the subject heading of the e-mails announced "Revolutionary Mercy in Exchange for Atonement by ABC Network and Paine Webber."
Atonement in the Muslim, Hebrew and Christian religions means an asking as the
for forgiveness.
The e-mails
immediately
announced
"Atonement"
price for "Revolutionary organization's corporation's augmented Online public
Mercy" electronic
in the in-box channel
of a national
news media major
(ABC),
along with another
mailbox
(Paine Webber),
audiences
that would be on the following
still with three other giant media corporations e-mail was sent.
day when the second
The word "atonement" suggests, forgiveness proclaimed "salvational "Revolutionary revolutionary religious always granting alone, minister the context
in the e-mail subject of the entire e-mails,
heading
certainly for as a self-
that asking
from God or even perhaps of God--i.e., as a religious
from the author
leader of his announced for
revolutionary Mercy."
movement" Surely,
could be exchanged
one may suggest explicitly
that God can provide himself in a does
mercy or that a person
projecting
role may facilitate tie the panoramic
such mercy. The language violence
of the e-mails
of human
with acts of God in a time of to deny these
"Judgment."
Shall the First Amendment
allow the government
55 valid religious implications of the rhetoric of a citizen who declared that his movement was "salvational?"
Did the defendant specifically suggest that he could contribute something to "Revolutionary Mercy" that he would have exchanged for mere atonement by the corporations? There were three written statements in the e-mails that conform to the notion of possible mercy offered by the defendant and none of them required giving the defendant money: 1) In
paragraph terrorist five, attacks "I will try to take your firms offofthe as describe[d] above;" 2) In paragraph whatever existing list for future
six, the defendant regarding to have; a willing right
offers to discuss terrorist designs
with the corporations against
"information
ABC and Paine Webber"
that he pretended represented
and, (3) the final, 8 th paragraph offer of "amicable of free speech corporations Amendment to contribute cooperation."
states that the e-mails The defendant
had a First Amendment with the and a First
to state and to offer to discuss in multi-party, right of freedom to compassion multi-media, of religion
his beliefs channels
public
to suggest
that he was willing
to try A
and forgiveness e-mails
to ABC and Paine Webber. that the defendant would
fair, full reading
of the complete
allows
have done whatever whatever
he may have been able to do in order to provide to provide to the corporations in
relief may have been in his power
56 exchange for the corporations' simply and only having asked the defendant for his forgiveness, if not God's, for any wrong that he may have suffered from any particular executive's conduct or by the corporations' corporate conduct over time. The words of the e-mails explicitly offer the defendant's cooperation, besides warning that class action suits might occur if the corporations refused it--without a transfer of money, without a commitment that a final monetary agreement must be reached.
The prosecution did not present proof that the intent of the alarming,
not threatening (neither stating intentions nor a true threat), rhetoric was to
get the corporations as did the defendant defendant. demonstrated corporations showed
to pay money clearly believe,
that they would not have come to believe, would have been legitimately only by the due the
The evidence
at trial, the words of the e-mails, believed
that the defendant regarding
that he was due a hearing
his claims of injuries. wished to interact
All of the e-mail evidence with the lawyers that he wanted of the his
that the defendant on the question
corporations
of his claims,
to discuss
issues and that he wanted toward a goal of arriving
the corporations at a "settlement."
to "enter into negotiations..." The language is clearly process
language--"discuss negotiations."
with me," have "discussions" The corporations are offered
and "enter into to "try.
help from the defendant
57 and take them offthe list for future terrorist attacks" just if they "enter into negotiations."
as reaching
That is the only stated quidpro
quo and that is not the same is not to settle, is not to 'or die.'
a settlement.
"Enter into negotiations"
pay, is not "to pay $250,000,"
is not "to pay $250,000"
The prosecution doubt that the defendant
cannot assert that it had proved had to be paid money
beyond
a reasonable to
in order for the defendant
have given the corporations been able to provide negotiations do not denote, money
any and all of the possible The defendant stated,
relief he might have "Enter into Those words
them with.
with me and I will try to take you off the list..." nor connote, nor imply that the corporations to the table, deposit with money
had to withdraw in the
from the bank, bring money account or do anything
money
defendant's
or any thing of value in try" to take them "off this reality of the
order to elicit the defendant's the list for future terrorist indisputable required objective
side of the bargain--"to It is for exactly
attacks."
meaning
of a good deal of language
that has so often agencies victims. to be in the and to set Such
police
detectives,
the FBI and other law enforcement extortionist and his apparent
up meetings meetings obtained. indictment,
between
a suspected
are set up in order to allow proof of the intent to extort There is no proof in the e-mails the words repeated several to support the words
times at trial by the prosecution
58 the Court that: "ABC and Paine Webber's personnel would be killed unless each corporation paid the defendant $250,000."
The defendant's statement in paragraph 5 of the e-mails, volunteering himself "to try" to get the corporations offof "the list for future terrorist
attacks" is clearly an incentive to the corporations to "enter into negotiations with me" about his claims against them of injuries done him and his "salvational revolutionary movement." Only that, to "Enter into
negotiations." firms offthe "Enter into negotiations existing with me and I will try to take your attacks as describe[d] accomplished above." the attacks
list for future terrorist
And, no human
being or group could have possibly because no human
that were described accompanying
being could have made the The first five paragraphs speech aimed at exhorting must be able a meeting
acts of God to occur. and religious
to be seen as expressive of the parties.
The defendant the e-mails value
urged the corporations having
to discuss
all of the warnings or anything of
in
with him without
to bring any money to hear the defendant
to the table, just their lawyers as the representative
out and to accept
the defendant through
for his own claims that may have proven settlement. A labor union, too,
discussions
to merit a negotiated
59
sometimes corporation
employs
alarming
tactics just so it can get accepted for its members' claims.
by a
as the negotiator
Getting
accepted
to sit at the table with a corporation's
representatives
is a real and huge play in and of itself, whether individual person. It is utterly
by union men or by an rhetoric of the e-mails
clear that the alarming legal departments
had a sit down with two corporations'
as its goal.
Not even the defendant's even his declaration than earlier corporations the defendant's of a million finally attempts
wish to achieve his claims
a monetary merited
settlement,
not
that he believed
a higher price tag to ask their --not even
to get the two accused making a settlement
executives
to consider position
with the defendant
that his claims then added up to as much as a quarter represented proof that the defendant had
dollars
per corporation, attempts
changed
his several
from over the years to try and get the on a settlement for some of
corporations his claims e-mails
to consider against
coming
to an agreement
them to the prosecution's an attempt without
declarations
that the defendant's to just hand money on a settlement with as
were finally
to force the corporations any coming
over to the defendant for any claims them. Getting
to any agreement
that he angled to finally get to sit down and fully discuss to sit down with the corporations knowledge of terrorism and to discuss
his claims,
well as his implied
is clearly
the theme of
60 paragraphs four to eight of the e-mails. Getting money Ixansferred electronically or handed over to the defendant clearly is not the theme.
The corporations declined an acknowledgement of the mere possible

legitimacy having of the defendant's claims against them as the only price for intelligence about an perhaps were possible and his
the opportunity future paranoid
to access his implied them.
apocalyptic somewhat
that might involve confession/opinion
The defendant's
that their corporations
[cf. probable] exaggerated class action hirr k proved defendant's a perfect
future targets sense
"since I had complained in saying
about them..."
of self importance
that they would wind up in without having consulted the with
suits/_/'they
were ever to get attacked, rhetoric
to be ineffective e-mail; however,
to get the corporations had provided
to answer
the e-mails
the corporations
channel
to communicate,
instantly
and with a complete
record of
the content.
No lone executive
had to explain
or to prove to the corporate or oll his or
legal department her walk to work. communication
what was said to him alone on the telephone The e-mails and the e-mail channel an instant and recordable
only urged means to do so.
and provided
How did the corporations terrorism? Why did the defendant
come to be "real possible" change "probable"
targets of Why about
to "possible?"
not have used the word "because"
in the phrase
"since I complained
61
them which
to communicative could equally The in relation might
links..." mean "from
instead that time
of the more when"
ambiguous
"since," his of the word the
he had made "since" instead that
complaints? because corporations described,
defendant
did choose
the word
to his having be a future evolved
complained. target
If his belief which
of the scenarios, his complaints that
he surreally them to some been
had somehow link,"
during
about "since"
"communicative chosen word as a hedge because,
then it is valid the unselected, might rather
to suggest more
may have choice of the
against
remorseful been more
and "because" as extortionate than the ambiguous
also have
likely
to be more guiltily
misinterpreted confessional report of some
than interpreted
as simply
"since" with
in the defendant's sometime that
ever so brief the e-mails.
comrnunications use of the word
others,
before
The defendant's believed Paine
"since"
can imply to cause
the defendant on ABC and that he
that he had caused Webber during
or had helped
a focus
the projected
"generation
of rage" institutions
or, instead,
had only himself media ABC were
discovered
that all financial targets possibility kind
and all of the news have included while the
supposed
to be future Either
and that this might might have
and Paine
Webber.
occurred chats
defendant
had been
involved
in some
of internet
on anarchist
websites.
Beyond
the uncertainty
of this particular
language
of the e-mail,
62
no evidence doubt,
whatsoever,
thus certainly
no evidence
beyond
a reasonable for
regarding
any self-believed which
(and less, any actual) the defendant
responsibility
any focus of future violence, in the e-mails
presented
surrealistically at trial.
and to be accompanied
by acts of God, was presented
The e-mails the corporations
surely allow that the defendant's from any list for future violence
offer "to try" to remove could be fulfilled links" by his
trying to get back in touch with the "communicative make some kind of appeal on behalf had shown some willingness
and his trying to because to simply they sit
of ABC and Paine Webber they had decided and maybe
to atone, because
down with the defendant, eventually complaints.
hear him out, apologize settlement
even of his
come to a monetary
based on an understanding
Could
the defendant
have succeeded existed?
in removing
the corporations
from the list that he implied succeed,
The e-mail did not say he could on a list for possible A Promotion? future A
only that he would try.
Does everyone
acts suffer, or enjoy the future acts? target for prosecution? the event. conditions The e-mails without
A raise in salary?
Being on a list is not even an assurance clearly exhorted any payment as their intent. communication to the defendant Clearly
of realizing
about all of these and so cannot be that
making
said to have had extortion
then, evidence
63 extortion was their intent was not provided by the language of the e-mails and the prosecution failed to present any other evidence beyond a reasonable doubt of the intent to extort.
The very opposite was true. The e-mails provided evidence beyond a reasonable doubt that the defendant's intention was to interact communicatively with the corporations. The door was explicitly stated in
the e-mails to be wide open for the corporations to find out whether or not the defendant really knew if the corporations may have been real possible/probable targets of terrorism--without their having had to make a
withdrawal of money fiom the bank or to bring money to the table.
It has recently become an established fact in the United States, according to the President,
Security, the Congress, the Departments of Homeland may be able to
FBI and CIA, and, the news media that: information designs. Paragraph 6 urges the corporations no charge.
deter terrorist defendant's
to access the
claim to have information--at
The prosecution meant
incorrectly
presented
as a fact that paragraph
six that
talk or die. In fact, the paragraph suit might be caused
only calls for the valid inference to access the defendant's for such access to the
a class action intelligence,
by failing
but there is no price tag demanded
64 defendant. The paragraph is clearly a goad to the corporations to make contact with the defendant. The paragraph does not permit the inference to be made that as a failure of discussing with the defendant the corporation's situation of being on a list for future terrorist attacks that the corporations would be attacked. The e-mails clearly and always
corporations portray possible might be attacked allow that the clearly do not only as a
in any case. The e-mails remedy against portrays
the defendant remedy,
as a definite
future attacks, himself
and as such the defendant
(probably for the means: risk
inaccurately) corporations
only as a hedge against possible in case of terrorist attacks.
future legal problems clearly
The sixth paragraph ABC's
talk with the defendant
in order to eliminate
and Paine Webber's
of being sued, even while the corporations to reduce defendant. dearly," negligence the defendant their risk of getting attacked,
might only have the opportunity not paying, will pay up in with the
simply by engaging, with me...you
"If you do not discuss is clearly
this situation
and only a reference
to the corporations failure
winding
suits for imprudent
and irresponsible
to communicate
if and only if the future visited upon the corporations was projecting recognized
the kinds
of events that the defendant ought to have been ineluctably (e.g. some information)
and if and only if the defendant as having some possible remedy
for the future violence
accompanied
by natural
65 disasters. This accurate grammatical and syntactical analysis of the meaning of paragraph six directly contradicts the talk or die and certainly the "pay or die" invalid inferences of the government.
The seventh paragraph is also completely hypothetical. it makes the If...then... proposition completely non-criminal.
The syntax of It is not a true
threat or part of a true threat. It does not say that any violence will come to the corporations if they do not discuss the defendant's issues with him. This is the objective, syntactic fact. The paragraph only continues the warning of the previous paragraph that " If you do not discuss my offer with me and [i/]..." violence comes to the corporations then the corporations
suits. The "if" that begins will wind up
in class action clause "and"
the first part of the hypothetical across the conjunction as the unknown but that violence or not to discuss. suits. is
that opens and thereby
the sentence makes
must be distributed
the violence to discuss
just as hypothetical or not to discuss, decision to discuss
decision
of the corporation
not dependant The "then" The "then" conditions warning acceptable,
upon the corporation's is the dependant
clause
clause
and is about class action
(class action connected
suits) clause
is dependant
upon the two "if" hypothetical. suits. The
by "and" that are both equally is only about class action interpretation
of the paragraph valid syntactic
This is the only It is
of this sentence/paragraph.
66 completely invalid and false to suggest that the sentence warns, and less that it threatens, that "If you do not discuss my offer.., then violence will come to the corporations. The paragraph cannot be interpreted that way. It is not
ambiguous and open to both interpretations. It only warns of possible class action suits if both of two hypothetical
and, 2) violence does come. conditions are met: 1) no discussions class action suits; violence. The
And it does not even threaten suits. And, it does not threaten is completely paragraphs hypothetical.
it only warns of class action violence syntactic discussion corporations' order to reduce violence would in the seventh
paragraph
The objective, to exhort
facts of the sixth and seventh
work together
even if they failed as a practical "legal departments"
effort: They urge the with the defendant in
to communicate
their vulnerability wind up striking
to future legal entanglements them without their ever having i.e., tapping
if the worst tried to his caused by
work with the defendant intelligence
in "amicable
cooperation," his beliefs
and even acknowledging even through
in his injuries
their executives,
atonement.
The prosecution's mails was, in its opening listed 29 days to respond. violence and destruction
invalid
inference
about the final paragraph that "...the second
of the ee-mail
and closing
statements
29 days to come up with $250,000 that was described in the message."
or face the (Trial
67
transcript respond page 24 lines 5-7) within Yet the paragraph actually said: "lfyou do not I
thirty days (then, twenty-nine
days in the second which
e-mail),
will not offer you the same amicable you today in this message" sentence/paragraph countdown contacting clearly
cooperation
I am willing
to offer
The word "Respond"
in the final And, the
means to e-mail back to the defendant. presented in the e-mails the defendant
of days is clearly the defendant,
as a time limit just for only implied that he while
after which
would be unwilling the corporations
to work on any of the issues with the corporations, to face "real possible" attacks "during
continued
the [not 30
days, but 10,950 days of an entire] rest of America.
generation
of rage" along with the whole
Any good student defendant corporations wanted
of English
or any attorney
can see that the lawyers that their a settlement to give the
the chance
to convince
the corporate
had damaged
the defendant
in ways that deserved clearly
to be made by them for his claims. corporate lawyers insight center,
The defendant
offered
into the terrorism
that was coming
to the United
States corporate bargain.
and to share his beliefs and the networks
about God as part of the among
Stockbrokers
have turned out to be central
the early rounds just begun.
of casualties
in this now projected
"long war" that has only
68 Any disinterested attorney or judge ought to admit that these arguments are apparent, prominent and convincing in the e-mail rhetoric of the instant case, even as disturbing, obnoxious and alarming as some of the language is. These arguments and the other arguments of this brief are patently not the kind of desperate, last ditch efforts used in the most well known law review threat appeals of U.S. v Cooper (532 F.2d 8 1975 6 th cir)
or U.S. v Cox Reynolds defense (957 F.2d 265) or U.S. v Shroeder or Malik cases, where, or U.S. Andino or U.S. v
or the Kelner
typically
after the fact, the be able to meaning
tries to argue that some word or sentence attributed see.
might possibly
have some other meaning that everyone government repeatedly, can clearly
to it other than the threatening
In none of the aforementioned inferences case.
cases did the
have to state invalid as it did in the instant By contrast,
as facts and then do so
The facts of these other cases spoke case demonstrate propositions to and
for themselves. reasonable ambiguities,
the facts of the instant language,
people clearly
that conditional
hypothetical
not "true" threats, communication purposive strategy,
were purposive
tactics of the author in legal
order to cause interactive departments. language,
with the corporate use of inexact represent
Such obviously as a communication
and equivocal
a most fundamental
69 exercise of First Amendment freedoms, exactly what the Kelner criteria was meant to protect.
The government's repeatedly invalid inferences about unequivocal true threats in the instant case, thereby trying to equate the defendant's language with that of Kelner or Malik is as bad as the kinds of distortions that presidential candidates accuse each other of. Nevertheless, when the electorate votes and that vote is nearly equally divided, as was the defendant's jury, no Court would make the error of requiring an Allen Charge in order to move the dissenting voters to unanimity.
VII. The Allen Charge

in a Case of Pure Speech
Presented
to the Jury
is Unconstitutional
The defense deadlocked
can point to his own jury, which day of deliberation persons argued
returned
to Court e-mail not to be Charge is at
after a whole
in the short-circuited
trial, as evidence punishable.
that reasonable
could find the e-mails that the content
At trial, the defense
of the Allen
given to the jury was inappropriate issue and First Amendment asked to attempt interpretations
because
in a case where pure speech should have been
rights are in play, the jurors of the opinions
to accept the honesty of language that favored
of those in favor of the without joining
the accused--even
70 with them in their opinions--rather than being asked to join with the majority. Trial transcript page 301 line 8 to page 302 line 23.
The defendant's standby attorney interviewed a juror right after trial and she reported that the deadlock was actually five for and five against the defendant, with two abstentions and that the reporting juror herself said that she had abstained at the outset as a tactic to move other jurors to her position of guilty later on. The Appeals Court should recognize that an Allen charge represents
a 1st
amendment
violation
in a case where pure language
is the to the
issue and that such stratagems unconstitutional allowed Allen Charge
as revealed
by the one juror in addition
in a case of pure language
ought not to be
to come into play if a fair trial and justice under Rule 33.
are the aim of the
proceedings
Language, interpretations, among the jurors
inherently
can have various
simultaneously
valid a contest of wills
and the Allen charge
by the Court created
that is not put into play when an Allen Charge only possibly
is given in a
trial about facts that can, in the final analysis,
be either one
way or the other way. The Allen charge in the instant case of pure language presented the judicial authority incorrectly suggesting that either one set of meaning Therefore,
juror opinions
or the other set of juror opinions but this is incorrect
about language is at issue.
could be correct,
when language
71 the Allen charge that was given was an error and was a violation of the First Amendment rights of the jurors, as well as of the defendant.
Even though the Court advised the jurors not to give up his or her opinion if he had no doubts about it, the Court in the instant case failed to advise the jury that a variant opinion about facts about language could be correct even while a juror might experience doubts about it in the face of other opinions about facts about language that may be concurrently equally as valid, something nearly impossible in cases that are not language based. In non-language based cases, the third possibility, that is, that both sides could have a valid opinion about a fact, may hardly ever exist. The Allen Charge in the instant case was based on the false premise that if the other jurors are right about certain facts, then the dissenting jurors must be wrong about those facts and that they should accede. The jurors were advised to believe that if the other jurors were fight then he or she cannot also be fight, but the truth of the matter of language is clearly quite different. That is, that the other jurors could have a valid interpretation of the language while the dissenting jurors could also have a valid interpretation of the language. The
Allen divided desirable Charge failed to suggest to the jury that in a case of pure language a very valid outcome, even the most the government, in the
jury could easily represent outcome, an outcome
that would help compel
72
future
cases
of pure
language, contact
to undertake with
a vigorous
First Amendment
screening presentation justice organized
using
experts,
the suspect,
an unmanipulated interested in serving with
to a Judge than
Magistrate giant
and other corporations U.S.
methods
rather
in serving megalomaniacal
that are imbedded
crime,
intelligence, to truth
or its own bureaucratic The Allen Charge that upon the
self aggrandizement to the jury language, First negated
and indifference the inherent must
and justice.
reasonable be allowed
variable in order members
interpretations not to impinge of the jury,
by its nature, rights
Amendment
of the individual of the Court,
and it is or any
required citizen given
of any officer to recognize to the jury, right
including this.
a pro se defendant, The Allen Charge,
this and to report did not take
as it was First conditional, doubts that The
into account to have
the fundamental used ambiguous,
Amendment inexact would Appeals Charge
of the defendant intentionally interactive vacate
language help
for the very
purpose
of creating
to exhort should both
communication judgment
by the corporations. because First the Allen
Court violated
and sentence
the jurors
and the defendant's
Amendment
rights,
and violated
the defendant's
rights
to a fair trial under
rule 33.
VIII.
The
Defendant's
E-Mails
Merited
Protection
of the First
Amendment
73
A. The First Amendment of Speech
Prohibits
Federal
Laws Abridging
Freedom
and the Press or Laws Respecting
the Establishment
of Religion
The First Amendment no law respecting exercise thereof;
to the Constitution of religion,
states: Congress or prohibiting
shall make
an establishment or abridging peaceably
the flee
the freedom to assemble,
of speech,
or of the press, or the the Government is so to re-enter While this that that
right of the people for a redress absolute.
and to petition
of grievances.
No other language
in the Constitution
All of the other amendments
leave room for Congress the First Amendment. had to believe
their respective
issues in some way, except
does not mean that the framers freedom of speech was absolute,
of the Constitution
it does have to mean that they believed
the Congress moderating
of the United the speech
States ought not to have any legislative States of America.
role in
of a citizen of the United
The founding the different discussions,
fathers
must have believed
that only other citizens Duels,
and feuds,
states should determine mediation through
the limits to free speech. agreements, one's
third parties,
mutually
imposed
and agreed upon restrictions
such as keeping
distance
in the future, speech
etc., etc., and state laws were the mechanisms in America at the founding, and the framers
in practice
to moderate
of the Constitution absolutely
aimed to of
keep those mechanism
in place by prohibiting
the imposition
74
federal laws on the matters to which the

Congress amendment was excluded by the Constitution
I st
Amendment from making
is addressed. laws regarding prohibition were not to threaten to the

1st
rights and Congress Federal would
recognized laws violating be charged
this Constitutional the I st amendment tending
for well over a century: enacted. Instead sedition
for speech
the President projected abridgment
because
such speech
was considered
to be tied directly not to be an
acts of violence of speech,
and so such law was thought
in and of itself.
That freedom circumstances Constitution excluded Amendment bearing
of speech
can only be absolute
in very special to the is to be
is not the issue. simply
The issue is that the I st Amendment clear that the federal needs government
makes utterly
from the issue.
The Constitution
to be amended federal
or the 1_t statutes in the 50
needs to be repealed
in order to make various to be Constitutional: of the 1 st Amendment
upon fi-eedom of speech
The citizenry
states need to vote on the repeal Amendment desired. repealed
just as the 21 _ integrity is
the 18th Amendment,
if Constitutional
B. The Supreme Interventions
Court Has Ruled Narrowly freedoms
on Congressional
into 1st Amendment
75
The Supreme Congress specific
Court has proceeded impinging
very cautiously
in allowing There is little but it is of the
to make statutes guidance
on freedom
of speech.
as to how to proceed
in the area of threats, very protective
clear that the Supreme citizen's
Court wants to remain of speech.
rights of freedom
In Ttle Nuremberg by Steven
Files and the
First Amendment Law Review rulings
Value of Threats,
G. Gey, 1999, in the Texas of Supreme Court
Association, threats
a very thorough
review
regarding
in the light of the 1st Amendment
has been aspect of Watts that the "What is
undertaken.
Gey notes that: The first and most important the conviction, thereby
is that the Court overturned First Amendment
establishing threats:
limits how the government
can define
a threat must be distinguished speech."
from what is constitutionally
protected
Gey observed the threatening casting speech it outside nature
that: "The Watts Court seemed
to indicate
that to justify if that
of one's words, by itself, is not enough scope of the First Amendment some immediately
the protective
does not have the effect of signaling danger to the target of the speech."
impending
C. The 2 "a Circuit Pure Speech
has Made Decisions
on Cases Involving
76
In U.S. of freedom erosion
v Kelner,
the 2 na Circuit similar
has shown Court,
caution albeit
and protectiveness continuing the
of speech
to the Supreme
of the defense's by Congress. setting
position
that the Constitution profile Kelner case
admits
of no intrusion a detailed, language. relied or not one-with the on
whatsoever precedent Nevertheless, U.S. speech namely,
The high Court
received of Kelner's
2 nd Circuit Malik
of Appeals
review
in U.S.v. (4 th Circ. contains
(2 "d Circuit, asserting has been
1994), that
the 2 nd Circuit
v Maisonet or writing whether
1973), a threat
the test of whether to be "an objective who although is familiar it advised
ruled
'an ordinary, interpret
reasonable
recipient of injury,'"
context...would jury had
it as a threat
that the the
to determine criteria
the facts
of the Kelner
criteria
and it too applied
Kelner
in the Malik
case.
The defense proof even beyond following
asserts
that in a case doubt Every always time
involving must
pure
speech, with
the burden
of
a reasonable trial by jury. or writing
remain
the prosecution, looks after the at a
and anytime States
that anyone
prosecuted conviction, highest
speech
in the United fights court,
of America, must
even
the 1st amendment deference. If an appeal's teacher
of the speaker a journalist,
be given
a historian, person
a philosopher to
of language, review
an English
or any reasonable
has the occasion to the
the speech
or writing
of a person,
the 1st Amendment
77
Constitution
warrants
that the utmost
effort must be made to give the benefit regarding his or her right to have always needs to be
of the doubt to the author composed and delivered
of the message his message
and such a review
made de novo because language evidence been tried.
every single reasonable
new opinion language
in a case of pure crime, new
is itself new evidence
about the purported witness
in the form of a new material
to the very crime that has
For Courts given writing unjust
to follow
by rote, United States v. Lincoln
that "Whether
constitutes
a threat is an issue of fact for the trial jury" is an to ambitious, politically motivated
and expensive prosecutors against
response anxious
government resources
to gain victories individuals
using their tremendous and political message dissidents in a case of the Court why even who
mentally
disturbed
have little or no resources. pure speech can be shown
When the text itselfofa to represent
1st Amendment
freedoms,
must deny any apparent
success
by the government
at trial and question
the case went to trial in the first place. aggressive receiver question against and definitive action
The Court needs to take strong,
and itself take the role of the reasonable if the communication in
of a text, make every effort to determine had to have been prosecuted, any law by Congress abridging
given the 1st Amendment freedom of speech.
prohibition
Even a single
78 member of an Appeals court panel can become a valid, newly discovered material witness in a case of pure language and should require the entire panel to vacate judgment and call for a new trial. The 2"a Circuit Court of Appeals did everything in its power to take a thorough look at Kelner's television speech after his conviction. The 2ndCircuit fortified Supreme Court caution towards criminalizing pure speech and even developed
precedent setting tools to analyze Kelner's rhetoric.
Since the Kelner case, concern has been expressed by the Court that individuals with true criminal motives might be able to use linguistic ambiguities in order to make threats that could be denied as threats and the Court has found occasion to agree with the interpretations of certain victims that a defendant's ambiguous language was indeed a criminal threat. Nevertheless, the actual caseswhen this has occurred have only been ones where the defense has put forward the most marginal possible alternative explanations of the defendant's language and the Court has opined that such fringe possibilities merely demonstrated desperation on the part of the defense. In such cases the defense was just trying to come up with some unlikely explanation for the defendant's language in order to assert a nontrue threat, non-criminal use of language. The Court has asserted that no reasonable person could possibly agree with such unlikely interpretations as
79 proof that the defendant could not have really intended his language to be interpreted by any audience in the newly invented way the defense was trying to suggest to the Court only as a way of avoiding a guilty judgment.
The benchmark threat caseshave been shown to be unequivocal, unconditional and specific. In U.S. v Cooper, 532, F.2d (I 975 6thCircuit),
Cooper's statements during were found on appeal his 13 phone to be unequivocal, unconditional that
and specific his hostages intervened time.
calls, which included be rescued, would
his explanation
could not possibly and would
be killed if police his ($7000 of) radio
only be let free once he collected
The instant
case, in sharp contrast, in the instant
makes no such pay or die case is absolutely clear that the to do what at
ultimatum. defendant he could
The language wanted
discussions
with the corporations was reached. demonstrated
and offered
for them before
a settlement
All of the evidence that the defendant a
trial presented believed settlement.
by the prosecution
clearly
that the corporations
had damaged
him in ways that merited
It is sheer manipulation
and distortion
to insist that the rhetoric be reasonably might them
of the e-mails interpreted convince had merit.
that form the basis of the instant to achieve discussions
case cannot
as aiming
where the defendant that his claims
the corporations'
"legal departments"
against
80
In U.S. v Cox, 957 F2d 265, the defendant better have my personal be a lot of hurt people unambiguous by giving threat,
said "I tell you what, you all today or it['s] going to expressing only an
items to me by five o'clock there." This, once again,
is a statement
which can be relieved,
according
to the speaker,
him property."
In U.S. v Shroeder,
902, F2d 1470, the defendant or people would
stated
"the government
either gives [him] money unequivocal,
get hurt."
This is also
even if not immediate.
The defendant's
0("
e-mail rhetoric, cases,
in sharp contrast
to Malik or Kelner
and the
aforementioned exhort discussion.
only reports
his belief in a violent has shown
future in order to prior his claims
The prosecution demonstrate
that the defendant's believed
messages merited alarming
and the e-mails a monetary projections
that the defendant
settlement
and the fact that the defendant logos and pathos
used some a
as part of his ethos,
aimed at gaining
forum for his claims
must not annul his 1st amendment
rights.
The defense threats are overbroad
believes
that the federal
statutes
addressing
the issue of need
and a threat to the community. of the 875 statutes. threat.
There is a crucial
to recognize distinguished
the overbreadth
A true threat must be The essential importance of
from a report of a possible
81 this distinction should be more obvious than ever in a post 9/1 1 environment. Citizens and agencies on the alert for violent battles unfolding on American soil during the current war need to be receptive to and invite warnings even if such warnings are couched in language that causes alarm. Extreme care needs to be taken to distinguish between the warning "Death is coming" and the threat "I am going to kill someone." A warning also may be felt as threatening, but is it prudent to have a citizen be vulnerable to prosecution because of his style of communication?
The defense believes that the Court, by carefully examining the entire speech or writing under complaint or under indictment in a case, as part of a 1st Amendment threshold evaluation or as part of the evaluation of the merits of an Appeal, needs to search for objective evidence in the words of the accused or the convicted that can establish
under the I st Amendment, terrifying. branch freedom his or her speech as a right are
that is, to speak her mind, even if her words duty to check and balance involving Constitutional
The Court has a crucial in matters
the executive issues between such as every threats, to the
of the government of speech, religion
and the press, and to distinguish probable threats
kind and style of the report of threats, that is, alarming unmistakable
and possible as opposed
speech/warnings/predictions/prophecies of "true threats."
issuing
82
The e-mails federal freedoms
that form the basis of this case ought to be protected because they represent the exercise
from
prosecution
of 1_t Amendment expressions of
under the U.S. Constitution.
The e-mails
represent
religious promoting
and literary nmlti-party
images,
and political
and persuasive
ideas aimed
at
discussions
of issues of public
concern:
The first paragraph combining Stephen
of the e-mails Revelations
is an apocalyptic and Moses'
projection with is
St. John the Baptist's King.
warnings
To deny that the first paragraph unreasonable. ABC.Online
is an attempt
at literature for
unquestionably electronic
was an open channel
publication
and Comments
@ Paine Webber
was a public
channel
that was used by the defendant more public ABC channel.
visibly and simultaneously expanded
with the even The New or of
This was further
to include
York Times and Time and Newsweek. actually expressing attempt broadcasting true threats, (as in Kelner)
While
attempting
to broadcast, on the possibility
does not foreclose a channel
it hardly represents message
through
which
to
the "pay or die" extortion
that the government
has tried to
make out the e-mails directed
to be. Reasonable
people
could find that the e-mails obviously a
into simultaneous attention to a variety
public channels device
were instead,
competitive attracted
getting
aimed at a broad audience and public interest,
that might be including
of issues of political
83 AIDS, chemical warfare, biological warfare, the environment, the perception and reality of a "totalitarian America" and Judgment Day. That the e-mails obviously announce and focus on "ABC and Paine Webber lawyers" as desired interlocutors for discussions towards arriving at an agreement to a settlement to which the defendant believed he was entitled does not suddenly cut out the broader ABC.Online or U.S. print media audiences. In fact, the e-mails only communicate to the corporations' most public of addresses, simultaneously, with the elaborate, literary rhetoric to the ultimate inclusion of the entire general public. Such speech is protected by the 1_tAmendment,
even though it might felt. Political rally. be alarming or "worrisome" as Doris V. Hernandez delivered at a
communication Political is allowed
is not limited to messages
political
communication
also takes place on the Internet. for political ideas, opinions, as such speech and action audiences comments In as or
Any individual forecasts, writing planning.
to be an audience
projections
and newsworthy
blogs, especially welfare
may relate to the receiver's Paine Webber attempt
own interests,
and ABC are especially to influence
appropriate
they relentlessly from the public
the public and also solicit policies, products
about their own conduct, Webber receive
and services. from the public oftentimes
turn, ABC and Paine
countless
comments message
on a wide range of topics and the numberless
senders
84 work especially hard to elicit responses from media corporations like ABC and other large corporations with broad public communication programs. The defendant's message was placed into a competitive, publicly open communication environment, not into the mailbox of a particular executive and it asked for discussions with whole "legal departments."
The second paragraph of the e-mails

of the combined political and religious justice,
begins
with a reinforcement stating:
themes of the first paragraph under God, is in store for idea, even focused and religious interlocked
"A new epoch of revolutionary mankind..." as a "special portrayal disasters programs, number
This global political/religious example," is protected war coming political to America
onto America The 1999
speech.
of a virtual
with ecological communication quite "a in the
sent to two large corporations
with huge interactive
along with the New York print media surely of persons," really a public of Expression notice,
represents
a press release.
T. Emerson
The System
of Freedom
suggests to general
that: "The more general issues, is addressed more readily to a
communication--the number of persons,
more it relates urges general
action--the
it is classified
as
expression."
In U.S. v Kelner
534 F2d at 1027
Even the further [adjusted
focus on ABC and Paine Webber in 2 nde-mailing] targets during
as "real probable the generation of
to "real possible"
85 rage which is about to unfold, since I complained about them to

communicative disqualified protects links with revolutionary as protected speech. speech, terrorist elements" thusly cannot be
The I st amendment and, the "Life, Liberty the speech expression.
simultaneously of
the responsive
and the Pursuit of the speaker A person's of
Happiness" predictions, be protected jeopardy to make
of the audience, warnings
in protecting
and prophetic-like
speech
must
under the I st amendment
to report that others
may be in duty
of their property such reports.
or of their lives and it is a moral or religious explicitly call for discussions simultaneously,
The e-mails
with the ask
entire legal departments for discussions terrorist calling protected designs of claims, against
of two corporations and explicitly the corporations
explicitly about
offer to share information without first collecting statements
any money, represent not
this "amicable speech,
cooperation."
These explicit
the right of an individual
to seek redress
of grievances,
only from the government, parties or political
but also from the financial
supporters
of political the to attempt of the not
candidates
who are or who are trying to become has the right under the 1 st amendment using his or her own speech warnings instead
government.
An individual
to seek a redress services
of grievances
of a law firna. The use of apocalyptic as a device to pursue the redress
that are clearly
true threats
of one's grievances
is protected
86 speech. The corporations often use non-true threat fear arousal messages in order to try and cause responses in the public audience and a member of the public can use similar tactics.
The defendant suggested in paragraph four of the e-mails that a

settlement "damages for his claims against the corporations would be compensation for
and pain and suffering will include
and in order to carry out my revolutionary my book in progress--A MANIFESTO." the corporations NEW in
work, which MILLENNIUM evidence
publishing
REVOLUTIONARY The defendant,
(Manuscript
at trial)
and the public have all publicizing his a role in its
had their 1st amendment prescient publication. journalistic
rights in play in the defendant's
manuscript
and in offering the corporations
The e-mails interactive reasonable
represent
protected
speech because of the e-mails
they are seeking is such that a to be asked
communication. person
The rhetoric
must admit that its goal is to cause questions
of the author.
The e-mails anyone
obviously
insisted
on urging
a lot of discussions
before
might have wound
up giving anyone of any claims.
else any money
or any thing of explicitly and
value based on the validity
This is patently,
87
obviously of money
evident.
The e-mails
cannot have produced as having dialogue
an undeserved
payoff
nor could they be interpreted on and worked
been intended between
to do so.
They insisted
at producing
the corporations
and the defendant--dialogue through the media.
that was to be accessible
to the public at large
The e-mails argumentative terrorism,
represented
a close to the edge, experimental two corporations in dialogue
literary
and
form of engaging politics,
about HIV, of money
ecology,
God, personal manifesto.
injury, legal settlements
and the publication
of a political has, nearly wherein
The U.S. military-industrialits contempt of the public for at large, in in
oi
criminal intellectual
complex
invisibly,
expanded
liberties,
lies the real security
its decision dialogue
to prosecute
rather than to engage honest, expert, objective
an individual evaluations
communicator of two e-mails
and to pursue
that could have and should have been published terrorism contains proposed that has come, alongside a synopsis
in 1999, as a warning manifesto, which
of the also
of the defendant's
of his yet to be published dissertation
University
of Pittsburgh,
1976 doctoral
on Freedom
Of Speech.
Submitted
by defendant,
Mark Lee Krangle,
acting pro se,
88
This
Day of December
of 2004,
And,
1 Certify
that I have
delivered
a copy
by hand
to:
AUSA,
W.S.
Wilson
Leung,
prosecutor

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Docket

below: Crim. No. 02-CR-I193 M. Berman,

: S.D.N.Y. : (Honorable : U.S.D.J.) KRANGLE,

JUDGMENT OF THE FOR YORK

Brief: Krangle, Appellant Pro Se

mailing Mark c/o 162 Lee

Hightstown, phone number

Case No. 03-1794

Appellant NO. United States 03-1794 v. Mark Lee Krangle

IN FAILING ABUSES AND AND UNFAIR TO

CORRECT POINT II VENUE

FAR OUTWEIGHED PREJUDICIAL TO CHARACTER

DEFENDANT'S POINT IV THE DISTRICT

FOR THE DEFENDANT ................

TESTIFY BETWEEN OF HAD

INEFFECTIVE FULFILL TESTIMONY ITS AND

VI THERE WAS INSUFFICIENT TO EXTORT EVIDENCE .............. OF AN 49

INTENTION POINT VII THE IS ALLEN

SPEECH POINT VIII THE

E-MAILS THE FIRST

MERITED AMENDMENT ....... 72

Amendment Laws Abridging the the Press

Prohibits Freedom or Laws of 73 of

Federal Speech Respecting Religion

Narrowly on Interventions Freedoms

Congressional Into First

United A.2d U.S.

States, 368 893 (D.C. (1991) 1990), cert. denied, 48

Costello, Supp. 2d 212 (E.D.N.Y. 2003) ....... 48

State, 893 (Tex. Ct. App. 1988) ........ 48

United 472 412

States F.2d U.S.

Bithany, (2d Cir.), (1973)

States 365 F.2d

Bozza, (2d Cir. 1966) ............ 15

Brennan, Cir. 1999) ............. 15

States 798 F.2d

Brennan, (2d Cir. 1986) ............ 30

States 523 F.2d

States 957 F.2d

Cox, (6th Cir. 1992) ......... 68, 80

Feudale, 115 (D. Conn. 1967) ......... 19

States 967 F.2d

Gilan, (2d Cir. 1992) ............ 30

States 302 F. aff'd,

United 534 429

States F.2d U.S.

States 951 F.2d

Kosma, (3d Cir. 1991) ............ 19

States 462 F.2d

Lincoln, (6th Cir. 1972) ........... 77

States 484 F.2d

Maisonet, (4th Cir. 1973) ........... 76

States F.3d U.S.

States 773 F.2d

States 532 F.2d

Reynolds, (Tth Cir. 1976) ......... 46, 68

States 526 U.S.

Rodriguez-Moreno, (1999) ................ 18

States 902 cert. F.2d

G. Gey, the First Texas L.

The Nuremberg Files Amendment Value of Rev. Ass'n (1999)