Govn.opposition.dismiss.superced.indict

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UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA : Criminal No. 04-373 (MLC)

v. :

STOP HUNTINGDON ANIMAL :CRUELTY USA, INC.,KEVIN KJONAAS, a/k/a :“Kevin Jonas,” a/k/a “SteveShore,” a/k/a “Jim Fareer,” :LAUREN GAZZOLA,a/k/a “Angela Jackson,” a/k/a :“Danielle Matthews,”JACOB CONROY, :

JOSHUA HARPER, ANDREW STEPANIAN, :DARIUS FULLMER, andJOHN MCGEE :

MEMORANDUM OF THE UNITED STATES INOPPOSITION TO MOTIONS OF DEFENDANTSTO DISMISS THE SUPERSEDING INDICTMENT

CHRISTOPHER J. CHRISTIEUnited States Attorney970 Broad StreetNewark, New Jersey 07102(973) 645-2700

On the Memorandum:

Charles B. McKennaRicardo Solano Jr.

Assistant U.S. Attorneys

Case 3:04-cr-00373-AET Document 81 Filed 02/18/05 Page 1 of 129



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TABLE OF CONTENTS

Cross-Reference Tables . . . . . . . . . . . . . . . . . iii

Preliminary Statement . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . 14

I. THE SUPERSEDING INDICTMENT PROPERLY ALLEGESCRIMINAL ACTIVITY AND SHOULD NOT BE DISMISSED 14

A. The Standard. . . . . . . . . . . . . . . . 15

B. The Superseding Indictment. . . . . . . . . 16

C. The Use By SHAC of Websites . . . . . . . . 26

D. References to Congressional Testimonyon 18 U.S.C. § 43 . . . . . . . . . . . . . 30

E. Time Frame of The Conspiracy . . . . . . . 32

II. VENUE IS PROPERLY LAID IN THE DISTRICT OFNEW JERSEY . . . . . . . . . . . . . . . . . . 37

III. UNDER 18 U.S.C. § 43(a) IT IS A FEDERAL OFFENSETO CONSPIRE TO COMMIT ANIMAL ENTERPRISETERRORISM . . . . . . . . . . . . . . . . . . . 41

IV. THE CORPORATE DEFENDANT CAN PROPERLY BE CHARGEDWITH CONSPIRACY IN THIS CASE. . . . . . . . . . 49

V. THE SUPERSEDING INDICTMENT PROPERLY ALLEGES AND

THE STATUTES CHARGED REQUIRE AN INTERSTATE

COMMERCE NEXUS . . . . . . . . . . . . . . . . 55

VI. THE CRIMINAL CONDUCT CHARGED IN COUNT ONE OF THE

SUPERSEDING INDICTMENT, 18 U.S.C. § 43(a), IS NOT

PROTECTED UNDER THE FIRST AMENDMENT. . . . . . 59

A. The Conduct Alleged In Count One Is

Not Protected Speech . . . . . . . . . . . 59

B. The Animal Enterprise Terrorism Statute

Is Not Facially Overbroad . . . . . . . . . 85

C. The Animal Enterprise Terrorism Statute




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Is Not Overly Vague . . . . . . . . . . . . 90

VII. THE CRIMINAL CONDUCT CHARGED IN COUNTS TWO

THROUGH FIVE OF THE SUPERSEDING INDICTMENT,

18 U.S.C. § 2261A, IS NOT PROTECTED UNDER

THE FIRST AMENDMENT. . . . . . . . . . . . . . 94

VIII. THE CRIMINAL CONDUCT CHARGED IN COUNT SIX OFTHE SUPERSEDING INDICTMENT, 47 U.S.C. § 223, IS

NOT PROTECTED UNDER THE FIRST AMENDMENT. . . . 99

IX. THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSED AGAINST DEFENDANTS FULLMER AND HARPER. . . . . 105

X. DEFENDANT’ FULLMER’S REQUEST FOR SEVERANCE LACKSFACTUAL AND LEGAL BASIS . . . . . . . . . . . . 109

XI. THIS COURT SHOULD DENY DEFENDANT HARPERS’S

MOTION TO SUPPRESS BECAUSE THE WARRANT TO SEARCHHARPER’S RESIDENCE WAS BASED UPON PROBABLE CAUSE AND IT DESCRIBED THE ITEMS TO BE SEIZED WITHPARTICULARITY. . . . . . . . . . . . . . . . . 112

XII. THE GOVERNMENT HAS NO OBJECTION TO THEDEFENDANTS' REQUESTS TO JOIN IN THE

APPLICABLE MOTIONS FILED BY THEIR RESPECTIVECO-DEFENDANTS . . . . . . . . . . . . . . . . . 124

Conclusion . . . . . . . . . . . . . . . . . . . . . . . 125




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Cross-Reference Tables

Defendant SHAC’s Brief Response in Government’s Brief

Point I – Venue Point II

Point II – 18 U.S.C.§ 43(a)(1) Does Not Have A

Conspiracy Count

Point III

Point II – Superseding

Indictment Fails To Show Two

Natural Person Who Are

Authorized To Bind Corporation

Conspired

Point IV

Point II – Corporation Cannot

Conspire With Own Employees

Point IV

Point III – Superseding

Indictment Is Lacking

Interstate Nexus

Point V

Point IV – Prosecution under

18 U.S.C. § 43(a) Violates

First Amendment

Point VI

Point V – The 18 U.S.C.

§ 2261A Count Is Legally

Insufficient

Points I, VII

Point VI – The 47 U.S.C. § 223Count Is Legally Insufficient Points I, VIII

Point VI – The 47 U.S.C. § 223

Count Violates The First

Amendment

Point VIII




-iv-

Defendant Kjonaas’s Brief Response in Government’s Brief

Point I, pages 29-40, 43-44 –

Count One Of The Superseding

Indictment Is Legally

Insufficient

Point I

Point I, pages 39-40, 41, 44-

50, 53, 55-56 – The Charges In

Count One Violate The First

Amendment

Point VI

Point II, pages 57-61 – Counts

Two Through Five Of The

Superseding Indictment Are

Legally Insufficient

Point I

Point II, page 61 – The

Charges In Counts Two ThroughFive Violate the First

Amendment

Point VII

Point III, pages 62-64 – Count

Six Of The Superseding

Indictment Is Legally

Insufficient

Point I

Point II, page 63, 64-65 – The

Charges In Count Six Violate

the First Amendment

Point VIII




1 Raised in memorandum in support of preliminary motions,

filed on October 25, 2004.

2 Raised in memorandum in support of preliminary motions,

filed on October 29, 2004.

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Defendant Gazzola’s Brief Response in Government’s Brief

Point II – 18 U.S.C. § 43 Is

Unconstitutional On Its Face

And As Applied

Point VI

Point III – 18 U.S.C. § 2261AIs Unconstitutional As Applied

Point VII

Point IV – 47 U.S.C. § 223 Is

Unconstitutional On Its Face

And As Applied

Point VIII

Defendant McGhee’s Brief Response in Government’s Brief

Point I – Count One Is Legally

Insufficient As To Defendant

McGhee

Point I

Defendant Fullmer’s Brief Response in Government’s Brief

Point I – Count One Is Legally

Insufficient As To Defendant

Fullmer

Point I, IX

Point IV – Defendant Fullmer’s

Case Should Be Severed1

Point X

Defendant Harper’s Brief Response in Government’s Brief

Point I – The Superseding

Indictment Is Vague And Lacks

Probable Cause2

I, IX

Point III – Motion For

Suppression

Point XI




PRELIMINARY STATEMENT

The United States respectfully submits this memorandum of

law in response to the motions to dismiss the Superseding

Indictment submitted by the defendants in this case. The United

States respectfully reserves its right to supplement its

responses by oral argument.




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STATEMENT OF FACTS

The instant action arises from a conspiracy on the part of

the defendants to force the closing of Huntingdon Life Sciences,

(“HLS”) an animal testing laboratory that operates a facility in

East Millstone, New Jersey.

HLS (“HLS”) is a Delaware corporation engaged in the

business of contract animal testing, largely for pharmaceutical

companies. It has testing laboratories in the United Kingdom and

East Millstone, New Jersey. Stop Huntingdon Animal Cruelty, USA,

Inc., (“SHAC”) is a Delaware corporation which for the relative

period alleged in the Superseding Indictment did business in New

Jersey. SHAC’s avowed purpose was, and is, to shut down the HLS

because it is involved in the scientific testing of laboratory

animals.

As alleged in the Superseding Indictment, SHAC was formed

with the specific purpose of interrupting the business of HLS and

to ultimately force it to cease operations altogether thereby

causing a total disruption of its business.

SHAC was operated from a residence at 101 Home Street in

Somerset, New Jersey. Defendant Kjonaas, the then-President of

SHAC, lived at 101 Home Street with defendants Gazzola, Conroy

and others. As is set forth in the Superseding Indictment, SHAC

has, by its own account, used a multi-pronged attack against HLStargeting its employees and shareholders as well as companies

(and their employees) that receive services from, or provide

services to, HLS. SHAC has distributed a newsletter and operated




3 After the original Indictment in this case was unsealed,

the SHAC website changed in appearance and content. The

discovery provided to defendants contains the website pages that

the Government will rely upon at trial in support of the charges

in the Superseding Indictment.

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a series of websites that disseminated its animal rights ideology

and furthered its mission by, among other things, posting

information relating to individuals and organizations that SHAC

targeted for action. Among the websites that SHAC has operated

was www.shacamerica.net. Information that has appeared on the

SHAC website has included names and addresses as well as other

personal information about individuals who were employed by HLS

and other targeted companies. The SHAC website and its other

means of communication were designed to target individuals and

companies for the purpose of “direct action” in order to force

them from doing business with HLS. Indeed, the purpose of the

SHAC website was to provide information to SHAC sympathizers and

to incite them to cause physical harm to property and emotional

harm to individuals all in furtherance of driving HLS out of

business, thereby disrupting its business by forcing it to cease

its operations.3

The Superseding Indictment alleges specific postings on the

SHAC website and when those postings were made. The Superseding

Indictment also alleges the date, time and place of specific

attacks that occurred after the SHAC website postings. Further,

the Superseding Indictment alleges the specific dates of postings

on the SHAC website that reported the accounts of attacks that




4 The Indictment was returned on or about May 20, 2004.

The individual defendants were Kevin Kjonaas, the then-president

of SHAC; Lauren Gazzola; Jacob Conroy; Joshua Harper; AndrewStepanian; Darius Fullmer; and John McGhee.

5 Defendants argue that only direct harm to HLS can violate

18 U.S.C. § 43. However, harm to companies doing business with

HLS for the express purpose of disrupting the business of HLS in

the course of the conspiracy is actionable under the statute.

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occurred and alleged the purpose of the postings – to bring about

other attacks at the same locations or other locations provided

by the SHAC website. In short, the Superseding Indictment sets

forth a pattern of activity on the part of the defendants that is

specific as to time, place and manner. It fully appraises the

defendants of what they are charged with and permits them

information necessary to mount a defense.

Based upon this and other information, a grand jury sitting

in Newark, New Jersey returned a five Count Indictment against

SHAC and seven individuals4 charging in Count One a conspiracy to

violate Tile 18, United States Code, Section 43, the Animal

Enterprise Terrorism statute, in that the individual defendants

conspired with one another and with others to use a facility in

interstate and foreign commerce for the purpose of causing the

physical disruption to the functioning of HLS and to

intentionally damage and cause tho loss of property used by HLS

in an amount exceeding $10,000. Specifically, the defendants

targeted individuals and companies for the purpose of causing the

disruption of HLS’ business.5

Count Two charges SHAC and three of the individual




6 The individual defendants were Kevin Kjonaas; Lauren

Gazzola; Jacob Conroy.

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defendants with conspiring to violate the interstate stalking

statute, 18 U.S.C. § 2261A(2), and Counts Three through Five

charges SHAC and the same three defendants6 with substantive

counts of stalking. On September 16, 2004, the grand jury

returned a Superseding Indictment that added a sixth count

charging SHAC and four individual defendants with conspiring to

use a telecommunications device to abuse, threaten and harass

persons contrary to 47 U.S.C. §223(a)(1)(C), in violation of 18

U.S.C. § 371.

The essence of the conspiracy to violate the Animal

Enterprise Terrorism Statute is that the defendants, through the

use of the SHAC corporate entity, embarked on a campaign to

enlist and incite animal rights activists to engage in activity

meant to harm the business of HLS in any manner available --

including violence. SHAC utilized e-mail and web-based

communications to disseminate information and inflame its

constituency and call them to violent action. The defendants

also coordinated the activities of individuals in furtherance of

the campaign to shut down HLS and thereby disrupt its business

operations.

SHAC espoused and encouraged others to engage in what it

termed “direct action.” The SHAC website described direct action

as activities which “operate outside the confines of the legalsystem.” For instance, the SHAC website posted what it termed




7 Defendant Kjonaas argues that this posting and certain

others, alleged in the Superseding Indictment to have occurred

outside the time frame of the conspiracy, fail in and of

themselves to state a cause of action. See Kjonaas Mem. at 37-

38. As with other postings which occurred before the time framefor the conspiracy in the Superseding Indictment, they remained

on the website after the start of the conspiracy and were

therefore adopted by the conspirators. In addition, they had an

impact on the victims who became aware of the activities of SHAC

through the postings that remained on the website when they

themselves became SHAC-targets.

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the “top 20 terror tactics” which described various types of

“direct actions” that could be taken against individuals7. These

tactics included:

demonstrations at one’s home using a loudspeaker;abusive graffiti, posters and stickers on one’s car andhouse;

invading offices and, damaging property and stealingdocuments;

chaining gates shut, and blocking gates;

physical assault including spraying cleaning fluid intoone’s eyes;

smashing the windows of one’s house while the individual’s

family was at home;

flooding one’s home while the individual was away;

vandalizing one’s car;

firebombing one’s car;

bomb hoaxes;

threatening telephone calls and letters including threats tokill or injure one’s partner or children . . . . . . ;

e-mail bombs in an attempt to crash computers;

sending continuous black faxes causing fax machines to burnout;

telephone blockades by repeated dialing to prevent the use




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of the telephone; and

arranging for an undertaker to call to collect one’s body.

SHAC also coordinated telephone and e-mail “blitzes” as well

as computer blockades of HLS and companies that it targeted for

direct action. In order to facilitate these activities, the SHAC

website would list telephone numbers, facsimile numbers and

computer downloads which assisted individuals in sending massive

amounts of e-mails to targeted addresses. SHAC and the

defendants, through the use of the SHAC website, coordinated the

days that certain companies would be acted against in order to

maximize the damage caused by various methods of attack.

Perhaps the most insidious aspect of the SHAC campaign to

shut down HLS was the posting of personal information of people

who either worked for HLS or for companies that did business with

HLS. This information included home addresses, home telephone

numbers, the names of spouses and children of the employees and

other information such as the types of vehicles they owned, where

they went to church and where their children attended school.

Postings on the website encouraged and incited direct acting

against these people and very often acts of vandalism were

perpetrated on the homes and personal property of the individuals

whose personal information appeared on the website.

Once direct action was carried out against theseindividuals, the SHAC website reported on the vandalism in a

manner designed to foster additional acts of terror against those

employees as well as others whose information had been posted on




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the SHAC website. For instance, the SHAC website posted

information on or about April 15, 2001 which stated in part that

“we’ll be at their offices, at their doorsteps and on their

computers. There will be no rest for the wicked.”

As set forth in the Superseding Indictment, on or about

March 31, 2001, the SHAC website listed the name and address of

an HLS employee and within days, rocks were thrown through the

individuals home windows. One of his cars was overturned in his

driveway and a second car was vandalized. When the individual

ultimately left the employ of the HLS, the SHAC website touted

that he had “resigned after months of pressure, including

protests property destruction, [and] home blockades at home and

work.” This message was designed not only to spur others on to

similar actions but to warn other HLS employees that they too

were in harms way and could be targeted at any moment. Indeed,

as is set forth in the Superseding Indictment, other HLS

employees have also had information posted on the website about

them which led to acts of vandalism and destruction at their

homes. The end game of this conspiracy of terror was the

destruction of HLS.

This pattern of personal information being posted on the

SHAC website about employees of companies along with language

inciting violence against them; followed by attacks upon theirhomes and personal property due to the incitement; followed by

SHAC website postings touting the attacks that occurred in a

manner designed to spur individuals on to additional direct




8 SHAC and the defendants believed that if they could force

the insurance broker from providing insurance services to HLS, it

would be forced to shut down its operations due to a lack of

liability and other insurance.

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action; continued time and again over the years since 2001. Not

only were homes vandalized but clubs that employees belonged to

were also vandalized or harassed. For instance, as is set forth

in the Superseding Indictment, after posting the name of the golf

club where an employee of a company that provided insurance

services for HLS was to be,8 the golf green of the golf course

were vandalized. That employee’s home was also vandalized.

These acts of violence, as set forth in the Superseding

Indictment, were then reported on the SHAC website. Indeed, in

one posting on the SHAC website, it boasted that “[d]amages from

this action may in fact exceed hundreds of thousands of dollars

between the damage to the well maintained golf course, the

disruption to the PGA event and to the club itself.” In yet

another instance set forth in the Superseding Indictment an

employee of a company that SHAC targeted because SHAC believed it

did business with HLS had information about an orienteering club

that she belonged posted on the SHAC website stating in part:

K**** “the killer” S****** of C***** Corp.’s toxicologydepartment has been infiltrated. She is a long timetreasurer of the Cascade Orienteering Club .. TheClub’s Officers; board members; and co-ordinators , andmembers have all been written polite e-mails explainingthe nature of K**** S*******dirty business. They wereasked for personal or embarrassing information onK****. When no one responded in days they werebombarded with e-mails depicting K**** as the coldblooded killer she is. The Club’s e-mail list had also

been infiltrated, and now nothing is secret.




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After a demonstration of this same employee’s home, the SHAC

website reported that “at about 12 am we bid him a fond goodnight

and left questioning. So K****, did you tuck your family in to

bed and explain why we were out there, or were you too cowardly

to be home? Either way, we win. Because WE ALWAYS WIN.” The

purpose of targeting these individuals for violence was because

they worked for companies that did business with HLS. The

defendants attempted through this activity – and in many cases

succeeded – in driving companies from doing business with HLS for

the purpose of making it impossible for HLS to do business,

thereby disrupting its operation.

In addition to the violence perpetrated on certain

individuals and companies due to the concerted activity of the

defendants, certain victims set forth in the Superseding

Indictment were placed in fear of death and serious bodily

injury, and feared for the lives of their spouses and children,

based upon the publication of their names, home addresses,

telephone numbers and other personal information over the

interstate lines of the internet in the context of the SHAC

website as well as the various visits to their homes by angry

groups dressed in menacing garb. These individuals, and the

activities which occurred to cause the emotional distress they

live with, are set forth in the Superseding Indictment and borneout in the discovery provided to the defendants. Indeed, various

videotapes chronicling the stalking activity has been turned over

during discovery.




9 In order to ensure the anonymity of the callers and

senders of faxes, as is set forth in the Superseding Indictment,

the SHAC website instructed its followers to utilize the *67

function to successfully block caller identifications systems

from divining the callers telephone number.

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Finally, as is set forth in the Superseding Indictment,

certain of the defendants conspired to use a telecommunications

device to abuse, threaten and harass persons without disclosing

their identity in violation of 47 U.S.C. § 223(a)(1)(c). The

defendants caused the flooding of business with telephone calls,

caused individuals to be harassed at their homes with telephone

calls and caused black faxes to be sent to companies all with the

purpose of abusing and harassing the recipients of the calls and

faxes9. Any doubt about the intent of the defendants is

dispelled by a review of the SHAC web postings as well as the

statements of the defendants themselves. Indeed, defendant

Harper, in a tape that was provided to the defendants in

discovery stated:

as I explained earlier, how to use black faxes, ifyou’ve got access to a fax machine, boy, I can’t tellya how great it is. Like uh, ya hit star six seven, yadial the fax number and you feed it about three sheetsof those and ya tape ‘em end to end to end and I - itknocks out the entire line of communication. And I’veworked for-for like, the dumb corporations like Horusbefore well not exactly Corus, but I know that doinglike secretarial work at places like that, it you hadto deal with that sort of thing coming through all thetime, it would definitely, uh, raise a siege mentalitylevel, in uh, the workplace.

Unfortunately for the victims of SHAC’s campaign, defendant

Harper was correct.

The defendants have now made the following motions in




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support of dismissing the Superseding Indictment:

1. Venue is Improper in New Jersey;

2. 18 U.S.C. § 43(a) Does Not Have a Conspiracy Count;

3. The Superseding Indictment Fails To Show Two Natural

Person Who Are Authorized To Bind SHAC Conspired;

4. SHAC Cannot Conspire With Own Employees;

5. The Superseding Indictment Is Lacking Interstate Nexus;

6. The Prosecution under 18 U.S.C. § 43(a) Violates the

First Amendment;

7. The Prosecution under 18 U.S.C. § 2261A Violates the

First Amendment;

8. The Prosecution under 47 U.S.C. § 223 Violates the

First Amendment;

9. Permitting defendants to join in the applicable motions

filed by their co-defendants.

In addition, defendant Fullmer has filed a motion for an order

severing his case from the other defendants; and defendant Harper

has filed a motion to suppress evidence seized pursuant to a

court-authorized search of his residence.

For the reasons set forth below, the United States asserts

that each of the motions, with the exception of number 9, should

be denied.




10 In providing the Court with it’s self-serving recitation

of what is contained in the Superseding Indictment, defendant

Kjonaas misstates and obfuscates its content. For instance, in

referring to certain allegations in the Superseding Indictment,

Kjonaas claims that there is no time frame (See Kjonaas Mem. at

p. 6 (“without any time specification”) and p. 7 (“[t]he

indictment, without otherwise defining the relevant time frame”).

By making this argument, defendant Kjonaas conveniently overlooksthat as a preamble to the specific clauses he cites, the

Superseding Indictment states “At times relevant to this

Indictment,” thereby incorporating the time periods alleged

throughout the Superseding Indictment. [Emphasis added]. Thus,

while defendant prefers not to acknowledge it, there is a

sufficient temporal grounding for the allegations.

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ARGUMENT

I. THE SUPERSEDING INDICTMENT PROPERLY ALLEGESCRIMINAL ACTIVITY AND SHOULD NOT BE DISMISSED.

Defendant Kjonaas spends a good deal of the first 28 pages

of his memorandum of law explaining, in scattershot fashion, what

the Superseding Indictment is not.10 Indeed, the Government

admits that at trial far more than what is contained in the

Superseding Indictment will be presented to the jury. However,

it is not the purpose of the charging document in this case to

lay bare all of the Government’s proofs. Rather, the purpose of

the Superseding Indictment in this case is to set forth the

elements of the offense in sufficient detail to provide the

defendants with notice of the charges against them and to guard

against the possibility of double jeopardy. When measured

against the proper legal standard, the Superseding Indictment

properly alleges the crimes charged; places the defendants on

sufficient notice of what it is they are charged with; and

ensures that there is no possibility of double jeopardy.




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1. The Standard.

For purposes of ruling on a motion to dismiss an

indictment, all well pleaded allegations in the indictment are

taken as true. United States v. Eichman, 756 F. Supp. 143, 146

(S.D.N.Y. 1971), aff'd, 957 F.2d 45 (2d Cir. 1992). Moreover, as

the Eichman Court stated, "[a] motion to dismiss is not a device

for the summary trial of the evidence; it is addressed only to

the facial validity of the Indictment." Indeed, if an Indictment

is valid on its face, it cannot be challenged on the ground that

it cannot be supported by competent evidence. Costello v. United

States, 350 U.S. 359, 363 (1956); United States v. Eisenberg, 773

F. Supp. 662, 709 (D.N.J. 1991). In Costello, the Supreme Court

held that "[a]n indictment returned by a legally constituted

grand jury ... if valid on its face, is enough to call for a

trial of the charges on the merits," reasoning:

If indictments were to be held open to challenge on theground that there was inadequate and incompetentevidence before the grand jury, the resulting delaywould be great indeed. The result of such a rule wouldbe that before trial on the merits a defendant couldalways insist on a kind of preliminary trial todetermine the competency and adequacy of the evidencebefore the grand jury. This is not required by theFifth Amendment.

So long as the indictment sets forth the elements of the

offense in sufficient detail to provide the defendants with

notice of the charges against them and does not present doublejeopardy problems, it is impervious to attack on a motion to

dismiss. Hamiling v. United States, 418 U.S. 87, 117 (1974),

United States v. Donsky, 825 F.2d 746, 749 n.5 (3d Cir. 1987);




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United States v. Eichman, 756 F. Supp. at 146. It is sufficient

for an Indictment to track the statutory language, "so long as

there is sufficient factual orientation to permit the defendant

to prepare his defense and to invoke double jeopardy in the event

of a subsequent prosecution." United States v. Shirk, 981 F,2d

1382, 1389 (3d Cir. 1992), quoting, United States v. Olatunji,

872 F.2d 1161, 1166 (3d Cir. 1989); United States v. Eufrasio,

935 F.2d 553, 575 (3d Cir. 1991), cert. denied, 112 S.Ct. 340

(1991). See also, United States v. Scanzello, 832 F.2d 18, 22

(3d Cir. 1987)(conspiracy indictment sufficient if elements of

offense are alleged).

2. The Superseding Indictment.

The elements of the conspiracy charged in Count One of the

Superseding Indictment are that each defendant conspired and

agreed with each other and others to use the facilities of

interstate commerce for the purpose of causing a physical

disruption to the functioning of Huntingdon Life Sciences, an

animal enterprise as defined under the statute and intentionally

agreed to cause a loss of property to HLS in an amount exceeding

$10,000. The allegations in the Superseding Indictment allege

that the defendants conspired to shut down HLS which would have

caused a cessation of its business and therefore a disruption of

its work, causing a loss in excess of $10,000. The SupersedingIndictment clearly indicates how each defendant coordinated and

was otherwise involved in the conspiracy.

The conspiracy charged in Count Two of the Indictment




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alleges that SHAC and the individual defendants charged agreed to

use a facility in interstate commerce to engage in a course of

conduct calculated to place another individual or a member of

that person’s immediate family in reasonable fear of death or

serious bodily injury. The Superseding Indictment sets forth who

the particular victims of the interstate stalking are and, by

reference to the preceding paragraphs in Count One, how it was

they were placed in fear of death or seriously bodily injury.

The Superseding Indictment also alleges some of the particular

SHAC web postings that lead to the stalking. Counts Three, Four

and Five, similarly allege specific acts of stalking that the

named defendants aided and abetted in carrying out. These

counts, therefore, satisfy the requirements of an indictment.

See United States v. Bowker, 372 F.3d 365, 377 (6th Cir. 2004)

(“The indictment’s reference to the specific dates and locations

of the offenses, as well as the means used to carry them out

(travel, internet, telephone) provided [defendant] fair notice of

the conduct with which he was being charged.”).

The conspiracy charged in Count Six alleges that defendants

Kjonaas, Gazzola, Conroy, Harper and SHAC knowingly agreed to

utilize a telecommunications device to abuse, threaten and harass

persons at the called number who received the communication

without disclosing the identity of the person utilizing the

telecommunications device. In particular, the Superseding

Indictment alleges that the defendants charged in Count Six urged

and agreed to have people send what are known as “black faxes” to




11 In addition, the Superseding Indictment also chronicles

the use of what SHAC referred to as e-mail and telephone

“blitzes” which were designed to harass and annoy various

individuals at HLS and companies that HLS did business with infurtherance of the defendants’ campaign to shut down HLS.

12 While John McGee is not alleged to have coordinated the

activities of SHAC, he is alleged at paragraph 23 of the

Superseding Indictment to have slashed the tire of an HLS

employee’s car in furtherance of the conspiracy.

- 17 -

companies for the express purpose of annoying them by

monopolizing the recipients’ fax machines which printed out black

pages, thereby using excess amounts of ink, taking large amounts

of time, and in instances, burning out the machine unit

altogether11.

Thus, the charges are specifically set forth in the

Superseding Indictment and there is a more than ample factual

orientation to permit the defendants to prepare their defenses.

Moreover, there is sufficient particularity in the Superseding

Indictment to permit the defendants to invoke double jeopardy in

the event of a subsequent prosecution for the same offense.

In this case, the Superseding indictment alleges at

paragraph 1(b) that:

at times relevant to this Indictment.... [t]heactivities of SHAC and the SHAC website were chosen andcoordinated at various times by the defendants KEVINKJONAAS, a/k/a “Kevin Jonas,” a/k/a “Steve Shore,”a/k/a “Jim Fareer,” LAUREN GAZZOLA, a/k/a “AngelaJackson,” a/k/a “Danielle Matthews,” JACOB CONROY,JOSHUA HARPER, ANDREW STEPANIAN, and DARIUS FULLMER12.

Defendant Kjonaas argues that this is insufficient because “[t]he

indictment does not state whether the persons who chose and

coordinated the specified information for publication on the SHAC




- 18 -

website composed the information, or whether they republished it

for informational purposes, to expand the marketplace of ideas in

cyberspace, rather than as an expression of agreement without

reservation as to the viewpoint expressed in the piece.” In

essence, defendants want more than is required under the law.

Defendants seem to be requiring that the Government lay bare

every fact to support every inference that could exist in its

prosecution. In this defendants go too far. The Superseding

Indictment places the defendants on notice and permits them to

prepare a defense. That is what is required. The Government

will be put to its factual test at trial where many of




13 In this regard, the defendants have listed, in chart

format, various of the allegations and overt acts that appear inthe Superseding Indictment. Defendants have also characterized

and in instances mischaracterized these as criminal acts or not.

For instance, the chart which appears at Kjonaas Mem. at 13 lists

the fact that on or about July 11, 2001, over 2 million e-mails

were sent through a business computer which caused damage to the

company’s operations. Defendants then in a footnote liken that

intentional occurrence to Vice President Cheney’s mistaken

misidentification of a website during a nationally televised

debate. Clearly, there is no similarity between a mistaken

misidentification which causes a large number of people to go to

a website and the intentional direction of a large number of

people using automatic dialers and sophisticated software toinvade a website for the purpose of causing it to overload. One

is an innocent mistake and the other an intentionally criminal

act. Defendants seek to have this Court decide which it was in

this case without the benefit of a trial. However, that is a

question for a jury to decide after all the facts have been

placed before it.

- 19 -

defendants’ arguments must await.13

With regard to the interstate stalking counts, defendant

Kjonaas, again, asks this Court to rule that an indictment must

set forth all of the proof for its allegations – i.e., proof of

the agreement; proof that he and the other defendants conspired

to use a facility in interstate commerce; proof that the

individuals stalked were actually located in another state.

Defendant SHAC, similarly, claims that “there can be no evidence

adduced” that SHAC conspired to commit interstate stalking or had

the requisite intent. SHAC Mem. at 56-57.

Contrary to defendants’ suggestion, there is no requirement

that an indictment set forth all of the evidence that supports

the allegations. The evidence to support the allegations in the




14

Not surprisingly, defendant Kjonaas cites no legalauthority for this proposition. The Justice Department “has

estimated that over 1 million women and over 370,000 men are

currently stalked each year.” 145 Cong. Rec. H11910 (daily ed.

Nov. 10, 1999). Moreover, “they estimate that one out of every

12 women and one out of ever 45 men has been stalked at some

point in their lives.” Id.

- 20 -

Superseding Indictment has been provided to the defendants

through discovery and will be presented at trial where the

Government will be subject to its burden of proof beyond a

reasonable doubt. That the Superseding Indictment does not

satisfy that burden is to be expected given that it is not the

purpose of a charging document to do so. Furthermore,

notwithstanding SHAC’s contention, it is axiomatic that because

we are at a pre-trial stage no evidence has been “adduced.” That

is the purpose of a trial. It is not the basis for dismissing a

legally sufficient superseding indictment.

Defendant Kjonaas’s also incorrectly suggests to this Court

that the Interstate Stalking statute is not applicable in this

case because it should only apply in domestic violence cases.

Kjonaas Mem. at 60-61.14 Contrary to Kjonaas’s suggestion,

however, the Interstate Stalking statute is not limited to

incidents of domestic stalking. See Comment, “Cyberstalking:

Can Communication Via The Internet Constitute A Credible Threat,

And Should An Internet Service Provider Be Liable If It Does?,”

17 Santa Clara Computer & High Tech. L. J. 115, 136 (Dec. 2000)

(available on Westlaw at 17 SCCHITLJ 15)(explaining that




- 21 -

“cyberstalking does not just involve a man stalking a woman in a

state of obsession” and providing examples of cyberstalking).

Section 2261A makes it unlawful for any person to use a

facility of interstate commerce for the purpose of placing a

person in another State, a member of that person’s family, or

that person’s spouse or intimate partner in reasonable fear of

death or serious bodily injury. 18 U.S.C. § 2261A. Hence, if

any individual conspires to, or aids or abets, interstate

stalking, it is a violation of the statute. Compare Bowker, 372

F.3d 365, 389 (6th Cir. 2004) (finding that evidence of

defendant’s threats, including “I know all of your neighbors . .

. . I know the names of all your relatives and where they live,”

were sufficient to satisfy cyberstalking count under 18 U.S.C.

§ 2261A) with Superseding Indictment ¶ 48 (SHAC website posting

stating: “We have been monitoring the protection and home for

quite some time now, FT we were well aware of the security

patrols at your home . . . . Did you think that armed guards or

the installation of motion sensors, cameras, lights, and steel

grating around your basement windows would somehow make the

animal liberation movement go away?”); and ¶ 64 (SHAC website

posting warning C. Corp. employees, “We know where you are, we

know what you look like we know where you socialize and best of

all we know where you live”). Indeed, in the Committee Report

relating to the 1999 amendments to the stalking statute, it




- 22 -

states that H.R. 1869, which was ultimately codified at 18 U.S.C.

§ 2261A, “would be the first amendment to the federal stalking

statute since its enactment in 1996 and would help Federal

prosecutors respond to predatory stalking behavior that is

presently beyond their reach, such as cyberstalking and stalking

using the mail and telephone.” H.R. Rep. No. 106-455 (1999).

Defendant Kjonaas’s attempt to restrict § 2261A to domestic

violence, therefore, has no basis.

Defendant McGee also argues that the allegations set forth

in the Indictment are facially insufficient as to him, and simply

do not set forth a cause of action under 18 U.S.C. § 43. McGee

Mem. at 3. In this the defendant is incorrect. The Superseding

Indictment alleges that Defendant McGee was affiliated with SHAC.

Superseding Indictment at ¶ 1i. The Superseding Indictment also

alleges that “SHAC was formed to interrupt the business of HLS

and ultimately to force it to cease operations altogether due to

its use of animals for research and testing. Superseding

Indictment at ¶ 1b. The Superseding Indictment also alleges that

the SHAC campaign encouraged “direct action” including

vandalizing cars. Superseding Indictment at ¶ 6. Finally,

defendant McGee was alleged in the Superseding Indictment to have

engaged in such direct action. Superseding Indictment at ¶ 23.

The Superseding Indictment also sets forth the fact that acts of

vandalism occurring at any time were used as examples to other




- 23 -

targeted individuals in order to intimidate and harass other

victims in order to place those other individuals in reasonable

fear of serious bodily injury and death. Superseding Indictment

at ¶ 11. Thus, the Superseding Indictment clearly puts defendant

McGee on notice of what it is that he is being charged with

having done.

As a co-conspirator, there is no requirement that the

Government allege that any particular defendant did all of the

acts that comprise the underlying crime for which they have

conspired with others to commit. See United States v. Riccobene,

709 F.2d 214, 225 (3d Cir. 1983); see also United States v.

Addanizio, 449 F.2d 100, 102 (3d Cir. 1971) (“Once the existence

of a conspiracy has been established, only ‘slight evidence’ is

necessary to support a jury verdict that an individual was a

member of he conspiracy”). The Supreme Court in Blumenthal v.

United States, 332 U.S. 539, 556-57, 68 S.Ct. 248, 256, 93 L.Ed.

154 (1947) held:

For it is often true, especially in broad schemes

calling for aid of many persons, that after discovery

of enough to show clearly the essence of the scheme and

the identity of a number participating, the identity

and the fact of participation of others remain

undiscovered and undiscoverable. Secrecy and

concealment are essential features of successful

conspiracy. The more complete they are achieved, themore successful the crime. Hence the law rightly gives

room for allowing the conviction of those discovered

upon showing sufficiently the essential nature of the

plan and their connections with it without requiring

evidence of knowledge of all its details or of the

participation of others. Otherwise the difficulties,




- 24 -

not only of discovery, but of certainty in proof and of

correlating proof which pleading would become

insuperable, and conspirators would go free by their

very ingenuity.

Moreover, the Government is not limited at trial to the

overt acts alleged in the Superseding Indictment. United States

v. Adamo, 534 F.2d 31, 37 (3d Cir. 1976). The purpose of the

Superseding Indictment, is to provide the defendant with the

elements of the offense in sufficient detail so that he is placed

on notice of the charges against him and guard him against any

possibility of double jeopardy. Once the defendant is so

situated the Superseding Indictment is impervious to attack on a

motion to dismiss. Hamiling v. United States, 418 U.S. 87, 117

(1974), United States v. Donsky, 825 F.2d 746, 749 n.5 (3d Cir.

1987); United States v. Eichman, 756 F. Supp. at 146. As set

forth herein, it is sufficient for an Indictment to track the

statutory language, "so long as there is sufficient factual

orientation to permit the defendant to prepare his defense and to

invoke double jeopardy in the event of a subsequent prosecution."

United States v. Shirk, 981 F,2d 1382, 1389 (3d Cir. 1992),

quoting, United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir.

1989); United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir.

1991), cert. denied, 112 S.Ct. 340 (1991); see also United States

v. Scanzello, 832 F.2d 18, 22 (3d Cir. 1987)(conspiracyindictment sufficient if elements of offense are alleged). In

this regard the Superseding Indictment does just that.

Accordingly, the defendants’ motion to dismiss should be denied.




15 Certain corporate websites permit customers to log in

and purchase items or find information specific to them and alter

personal information. Generally speaking, however, an individual

cannot go to the IBM website, for instance, and begin making

- 25 -

3. The Use By SHAC of Websites.

Defendant Kjonaas sets forth a selective recitation of the

workings of the internet and cyberspace in general that does not

apply to the facts in this case. Nevertheless, the Government

agrees that it is important to note what SHAC was doing with its

websites. Defendant Kjonaas relies for his explanation of

cyberspace on Reno v. American Civil Liberties Union, 521 U.S.

844 (1997). While Reno provides a basic understanding of the

operation of certain aspects of the internet, it did not deal

with websites such as the one operated by SHAC. Rather it dealt

with “electronic mail (e-mail) automatic mailing list services

(“mail exploders,” sometimes referred to as “listservers”),

“newsgroups,” “chatrooms,” and the “World Wide Web.” Reno, 521

U.S. at 851. Unlike websites that do not contain an interactive

component - websites like the SHAC Website -- the focus of the

Reno discussion was on interactive websites and other aspects of

the internet that permit random users to post information and

messages as well as retrieve specific information. A website

such as the SHAC Website, while it is available on the World Wide

Web when one types in the web address, is not generally

interactive. Thus, one cannot go to the SHAC website, or the

website of many a company and alter the content of their

websites.

15

On the other hand, chat rooms, e-mail listservers,




changes to the format or content of the information posted on

that site.

- 26 -

and newsgroups, such as those services discussed in Reno, all

permit internet users to post material on the World Wide Web – in

some cases anonymously.

Congress has clearly delineated a difference between

individuals and entities who provide interactive aspects of the

internet and those who provide content. See 47 U.S.C. §230

(f)(2),(3). In addition to stating that it is the policy of the

United States “to ensure vigorous enforcement of Federal criminal

laws to deter and punish trafficking in obscenity, stalking, and

harassment by means of computer,” Congress differentiated between

interactive computer services that provide a forum for others to

speak and information content providers who are “responsible in

whole or part for the creation or development of information

provided through the Internet or any other interactive computer

service.” 47 U.S.C. § 230 (f)(3). Interactive computer services

are entities such as AOL that provide a forum for people and

entities to publish and exchange ideas through services and

chatrooms. Since companies like AOL provide a forum for the

thoughts of others, often without the ability to review the

information that was posted, Congress did not want them held

liable for the works of others. See Zeran v. America Online,

Inc., 129 F.3d 327, 330-31 (4th Cir. 1997)(“Congress made a

policy choice, however, not to deter harmful online speechthrough the separate route of imposing tort liability on




16 Certainly there was no way for proponents of animal

research in furtherance of perfecting new drugs and treatments to

save lives to have their voices heard on the SHAC website in any

manner other than as perverted by the defendants.

17

So, too, defendant Kjonaas argues that those whocommitted acts of vandalism “may have acted for wholly

independent reasons following from wholly separate information

disseminated by other sources without connection to SHAC, the

SCHAC Website, or individual defendants.” Kjonaas Mem. at 22.

Those matters are clearly issues to be decided by the trier of

fact at the completion of trial in this matter.

- 27 -

companies that serve as intermediaries for other parties’

potentially injurious messages”). By contrast, the SHAC websites

were internet content providers in that they did not provide

interactive abilities. Rather, they were vehicles to dispense

SHAC propaganda and were not, as defendants would suggest,

vehicles which fostered the marketplace of ideas.16 Thus, the

party responsible for posting the information can always be held

responsible for the content of its message. Zeran, 129 F.3d at

330 (“original culpable party” who posts “defamatory messages”

cannot escape accountability).

Defendants argument that no one can be held liable for

information published on the website premised on the Reno Court’s

discussion of the internet and its operation is simply incorrect.

Thus, when defendant Kjonaas argues “[t]he Reno Court addresses

the feasability – indeed the futility – of trying to hold those

using the Internet accountable if persons outside their intended

audience should seek access to information the website,” Kjonaas

Mem. at 22, the argument simply distorts reality17. It is true

that in many instances the writer of a posting in a chatroom or




- 28 -

on an interactive website is not capable of being identified and

therefore cannot be held responsible for the acts. That,

however, is a matter of identification and not a legal impediment

to liability. Here, the websites were SHAC sponsored and

therefore the corporate entity and those responsible for choosing

and coordinating and carrying out the activities of the corporate

entity – the defendants in this case – can be held responsible

with sufficient proof of their complicity.

Indeed, commentators have written on the problems posed by

the ability of users of the internet to threaten and incite

others to commit acts of violence in ways that did not exist

prior to the World Wide Web. See e.g., Hammack, The Internet

Loophole: Why Threatening Speech On-Line Requires A Modification

Of the Court’s Approach to the True Threat and Incitement, 36

Colum. J.L. & Soc. Probs., 65, 67 (2002)(“[t]he unique

characteristics of the Internet blur the distinction between

threats and incitement by allowing speakers to threaten by

incitement – that is, by creating a fear by increasing the

likelihood of ensuing violence without actually threatening to

carry out the violence by themselves); Brener, True Threats –

More Appropriate Standard for Analyzing First Amendment

Protection and Free Speech When Violence is Perpetrate Over the

Internet, 78 N.D. L. Rev. 753 (2002)(“[t]o allow violent threatsto go unregulated over such a vast means of communication would

compromise the integrity of the First Amendment).

Thus, while defendant Kjonaas argues that “[t]he Reno Court




18 This argument is especially interesting in light of

defendant’s earlier arguments to this Court that there was some

grand conspiracy on the part of various arms of the Government to

prosecute him.

- 29 -

identified the futility of attempting to attribute to any

individual user (as opposed to any given computer) the

publication of a particular message through electronic means,”

Kjonaas Mem. at 23, the Court was engaging not in a discussion of

identifying publishers of information, but rather, whether the

age or identity of someone accessing the information can be

properly determined. In short, defendant Kjonaas has attempted

to create issues where none exist. At the trial in this matter,

the Government will be required to prove beyond a reasonable

doubt the activities of each defendant as they relate to the

charges in this case. Whether or not it can meet its burden

awaits a jury determination. Dismissal at this juncture would

usurp the jury’s role in this process.

4. References to Congressional Testimony on 18 U.S.C. § 43

Defendant Kjonaas, abandoning the law, cites to the

Department of Justice’s lobbying efforts to create stronger laws

in order to argue that no laws relate to him18. However, various

individuals’ testimony before congressional bodies in order to

address perceived deficiencies in the law lacks the force of

statutes and interpretive decisions of courts – the laws upon

which criminal jurisprudence is based.

Defendant’s true argument is that the Government should be




19 Defendant is not, and indeed cannot argue, a reliance

upon public authority defense. See United States v. Cross, 113

F. Supp.2d 1253, 1264-65 (S.D. Ind. 2000).

- 30 -

estopped from bringing the instant case because two government

officials have taken a view of the statute that could be argued

to be at odds with the Superseding Indictment in this case19.

Defendant’s argument is simply incorrect. Even when Congress —

which is charged with enacting the legislation – makes policy

statements about existing legislation, those subsequent

statements do not carry the force of law. See Pierce v.

Underwood, 487 552, 566 (1981) (“[I]t is the function of the

courts and not the Legislature, much less a Committee of one

House of the Legislature, to say what an enacted statute

means.”).

In the instant case, these statements by Department of

Justice employees have even less force of law. The statements

were not made in support of legislation passed by Congress.

Rather, they were statements made at Congressional hearings

several years after the statute was enacted. Thus, they have no

legal efficacy whatsoever, and only illustrate the desperateness

of defendant’s situation.

5. Time Frame of The Conspiracy

Defendant Kjonaas argues that certain postings on the SHAC

website alleged in the Superseding Indictment occurred outside

the time frame of the conspiracy and, thus, fail in and of




20

This argument is more often manifested in the reversesituation from that which is presented here. Generally

defendants argue after a trial that the Government introduced

evidence outside the time frame of an indictment that was not

alleged. They argue, therefore, that there was a variance from

the Indictment that has prejudiced them. Courts generally

dismiss such claims where the defendants have had notice and were

not prejudiced by the time differential. See, e.g. United States

v. Rashid, 274 F.3d 407, 414-15 (6th Cir. 2001)(“when evidence is

presented of activities that occurred outside of the conspiracy

dates charged in the indictment (as opposed to the statute of

limitations dates), that did not constitute a fatal variance);

United States v. Edwards, 366 F.2d 853, 871-72 (2d Cir.1966)(evidence that meeting in furtherance of conspiracy took

place almost a month prior than alleged not a fatal variance);

United States v. Johnson, 165 F.2d 42 (3d Cir. 1947). Here, the

defendants have been appraised of the facts as alleged in the

Superseding Indictment. There is no variance and there is no

prejudice.

- 31 -

themselves to state a cause of action. See Kjonaas mem at ¶. 37-

38. As with other postings which occurred before the time frame

for the conspiracy in the Superseding Indictment, they remained

on the website after the start of the conspiracy and were

therefore adopted by the conspirators. In addition, they had an

impact on the victims who became aware of the activities of SHAC

through the postings that remained on the website when they

themselves became SHAC-targets. Thus they are part of the

continuing activities of the defendants that form the basis of

the conspiracies charges in this case.20

The case law is clear that when the Government charges that

an offense occurred generally "on or about" a date, " . . . the

defendant is on notice that the charge is not limited to the

specific date or dates set out in the indictment." United States




- 32 -

v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989)(citing United

States v. Creamer, 721 F.2d 342 (11th Cir. 1983)), cert. denied,

493 U.S. 1080 (1990). Accordingly, "[p]roof of a date reasonably

near the specified date is sufficient." Id. at 1403 (citing,

United States v. Champion, 813 F.2d 1154 (11th Cir. 1987). In

Reed, the Circuit Court applied this principle to uphold a

conviction where the Indictment charged that the offense occurred

"on or about the 6th day of August" but the proof at trial

established that the event occurred in July. The Court wrote:

The Indictment set forth the material

allegations of the offenses charged . . .

Thus, the substance of the testimony . . .

could not have substantially prejudiced

Appellant through surprise. Reed was

apprised on the first day of trial the

government intended to prove a date that

occurred approximately one month earlier than

the dates alleged in the Indictment. Reed,

887 F.2d at 1403.

The same analysis should be applied in this case. The

Superseding Indictment outlined the time frame of the conspiracy

in general, non-specific terms and, importantly, specifically

notified the defendants that the object of the conspiracy was “to

physically disrupt the operations of HLS and drive it out of

business by (a) directly disrupting the business of HLS or (b)

disrupting the business of companies that either provided

services to, or purchase services from HLS, thereby forcing those

businesses to cease doing business with HLS and make it

impossible for HLS to conduct its business.” Superseding




21 A similar Manner and Means paragraph alleges activities

against companies doing business with HLS and their employees.

Superseding Indictment at ¶ 17.

- 33 -

Indictment at ¶ 3. Moreover, the Manner and Means paragraphs of

the Superseding Indictment clearly delineate for the defendants

the conduct they are alleged to have engaged in, including, the

fact “that acts perpetrated on HLS and its employees, which were

reported on the SHAC Website, would be used as examples in order

to intimidate, harass and threaten other individuals and

companies and place individuals in a reasonable fear of serious

bodily injury and/or death.” Superseding Indictment at ¶ 1121.

The inclusion of these actions on the part of the defendants puts

them on notice of the allegations so that they can defend against

them. As such, it is perplexing to see how the defendants are

prejudiced by the notification by the Government of what they are

alleged to have done and that the Government intends to introduce

as evidence in support of the conspiracy charges.

Finally, the evidence in question occurred in very close

proximity to the approximate time period specified in the

Superseding Indictment. This is certainly close enough to

satisfy the "reasonably near" standard applied in Reed. The

principle applied by the Reed Court is also the controlling law

in the Third Circuit. In United States v. Somers, the Third

Circuit addressed the question of whether there was a variance in

the proofs from the indictment in a case charging extortion




- 34 -

"between on or about" certain dates. 496 F.2d 723 (3d. Cir.

1974), abrogated on other grounds, United States v. DiLoreto, 888

F.2d 996 (3d Cir. 1989). In Somers, as in Reed, the government

presented evidence indicating that the charged crime occurred

some time before the delineated dates. Indeed, in Somers, the

Court permitted, and the Third Circuit upheld the Government's

offer of proof that occurred over one year prior to the date on

or about which the conspiracy was alleged. The Court rejected

the defendant's variance argument reasoning that the dates in the

indictment were sufficiently vague to permit the evidence. The

Court wrote:

[where] the grand jury identifies specific

dates...it is reasonable to assume that the

grand jury was indicting the defendant for

acts occurring on the specific dates charged.

Where, however, the grand jury speaks in more

general terms, this assumption fails. By the

use of the qualifying phrase "on or about",

the grand jury indicates its unwillingness to

pinpoint the date of the offense charged. We

will not particularize by a per se rule what

the grand jury leaves vague.

Id. at 745.

Again, the same principle should be applied in this case.

Here, the grand jury did not particularize the specific date this

conspiracy began but, rather, left the Superseding Indictment

generalized to an approximate date of “at least as early as

October, 2001." Superseding Indictment at ¶ 2. Furthermore, as

indicated, the charging language of the Superseding Indictment

specifically notified the defendants that the conspiracy involved




22 The Webster’s II New Collegiate Dictionary defines

temporal as: “1. Relating to, concerned with, or limited by time.

2. Relating to or concerned with worldly affairs.” In essence,

the argument of defendant is that SHAC is not of this world.

This defies credulity.

- 35 -

the very activity for which the Government seeks to introduce

evidence.

In conclusion, the defendants were charged by the grand jury

with participating in a conspiracy that contemplated the physical

disruption of HLS by ultimately forcing it to cease operations

through various means. The defendants are aware of the fact from

the face of the Superseding Indictment, the discovery produced,

and through communications between counsel. The events in

question are "reasonably near" the generalized time period of the

Indictment and, as such, the United States requests that the

Court deny defendant's motion.

II. VENUE IS PROPERLY LAID IN THE DISTRICT OF NEW JERSEY.

Defendant SHAC asserts that the action as against it is

improperly laid in this district. Defendant does not state where

venue would be proper. Indeed, since defendant argues that

“SHAC-USA does not really exist in the temporal world,” SHAC Mem.

at 10, one suspects it is defendant’s position that there is no

venue where the corporate defendant could be prosecuted.22 As

will be discussed more fully herein, venue is proper in this

district. Accordingly, defendant's motion should be denied.




23 Moreover, many of the acts in this case, such as the

stalking allegations, began in New Jersey and were completed in

other districts.

- 36 -

Section 3237 of Title 18, states, in pertinent part:

(a) Except as otherwise provided by enactment ofCongress, any offense against the United States begunin one district and completed in another, or committedin more than one district, may be inquired of and

prosecuted in any district in which such offense wasbegun, continued, or completed.

Any offense involving the use of the mails,transportation in interstate of foreign commerce, orthe importation of an object or person into the UnitedStates is a continuing offense and, except as otherwiseexpressly provided by enactment of Congress, may beinquired of and prosecuted in any district from,through, or into which such commerce, mail matter, orimported object or person moves.

Since the offenses in this case utilized computers which are

connected to the internet through the interstate lines of

communication, See Reno v. ACLU, 521 U.S. at 850 (internet is

unique and wholly new medium of worldwide communication), it is a

continuing offense and therefore may be prosecuted in any

district "from, through or into which such commerce" moved.23

Indeed, as the Court stated in United States v. Goldberg, 830

F.2d 459, 566 (3d Cir. 1987):

[w]here the acts constituting the crime and the nature ofthe crime charged implicate more than one location, theconstitution does not command a single exclusive venue. Theconstitution requires only that the venue chosen bedetermined from the nature of the crime charged as well asfrom the location of the acts constituting it, and that itnot be contrary to an explicit policy underlying venue law.

Quoting, United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985).

Here, the crimes touched a number of jurisdictions, including New




- 37 -

Jersey. Therefore, given the continuing nature of the crimes

charged as well as the New Jersey nexus, venue in this district

is proper.

Count one of the Indictment charges the corporate defendant

and other with conspiracy to violate Title 18 U.S.C. § 43. Count

Two charges it with conspiracy to engage in interstate stalking

in contrary to 18 U.S.C. § 2261A, in violation of 18 U.S.C. §

371. Counts Three through Five charge the corporate defendant

and others with stalking and in particular aiding and abetting in

the stalking of three separate individuals. Finally, Count six

charges the corporate defendant and others with using the lines

of interstate telecommunications for purposes of harassment

contrary to 47 U.S.C. § 223 (a)(1)(C)2261A, in violation of 18

U.S.C. § 371.

As to each of these counts, the Superseding Indictment

charges that the corporate defendant’s principal place of

business was located in New Jersey. Moreover, the Superseding

Indictment alleges in each count that the activities alleged

occurred in “at Somerset, in the District of New Jersey, and

elsewhere.” That is where the then-president of the corporate

defendant resided, where four other of the defendants resided and

where the principal place of business of the corporate defendant

was located.In addition, as to Count One, the district of New Jersey is

where certain of the overt acts in furtherance of the Superseding

Indictment were alleged to have occurred. See Superseding




- 38 -

Indictment at ¶¶ 21 and 22 (attack’s at HJ’s New Jersey home);

¶ 29 (posters referring to HLS employee s “deluded and deranged”

posted in Princeton, New Jersey area), ¶¶ 58, 59 (actions against

W. Corp., a company headquartered in New Jersey).

As to Count Two, the same is true. The company and certain

of the co-conspirators resided in New Jersey and carried out the

conspiracy there. Information was posted on the SHAC website

relating to the individuals that were stalked. Counts, Three,

Four and Five are similar in that while the individuals who were

stalked resided in states other than New Jersey, the aiding and

abetting of the stalking involved acts in New Jersey. Finally

the conspiracy charged in Count Six of the Superseding Indictment

involved planning and web postings on the SHAC Website which

originated in New Jersey and then involved other districts and

places around the world.

In sum, in each Count charged in the Superseding Indictment,

the scheme was anchored in New Jersey, which is where the then-

president of the corporate defendant directed the corporation’s

activities and where the corporation had its principal place of

business. Not surprisingly, defendants do not posit any place

other than New Jersey for venue. Indeed, under defendant’s

arguments where the corporate defendant exists nowhere, venue

simply does not exist as to it. Such an argument fails in lightof the allegations in the Superseding Indictment.




- 39 -

III. UNDER 18 U.S.C. § 43(a) IT IS A FEDERAL OFFENSE TOCONSPIRE TO COMMIT ANIMAL ENTERPRISE TERRORISM

Defendants argue that Count One of the Superseding

Indictment, which charges animal enterprise terrorism under 18

U.S.C. § 43(a), fails to set forth a charge under which the

defendants may be held criminally liable. E.g., Kjonaas Mem. at

29. As discussed below, defendants’ argument is based upon a

fundamentally flawed and untenable reading of § 43. Accordingly,

this Court should reject it.

In interpreting a statute, a Court must begin by looking at

the plain and unambiguous meaning of the language in the statute.

E.g., Smirko v. Ashcroft, 387 F.3d 279, 288 (3d Cir. 2004). In

applying this canon of statutory construction, however, the Court

does not look at the language in isolation of the rest of the

statute. See Gozlon-Peretz v. United States, 498 U.S. 395, 407

(1991). As the Court explained in Gozlon-Peretz, “[i]n

determining the meaning of the statute, [the Court] must look not

only to the particular statutory language, but to the design of

the statute as a whole and to its object and policy.” Id. at

407 (internal quotation marks and citation omitted).

Reading a statute’s plain language in the context of its

overall design and objective avoids an absurd interpretation

based upon a literal reading of the language. To that end, “[i]t

is the obligation of the court to construe a statute to avoid

absurd results, if alternative interpretations are available and




- 40 -

consistent with the legislative purpose.” United States v.

Scheider, 14 F.3d 876, 880 (3d Cir. 1994); accord United States

v. Combs, 379 F.3d 564 (9th Cir. 2004) (a court is “not required

to interpret a statute in a formalistic manner when such an

interpretation would produce a result contrary to the statute’s

purpose or lead to unreasonable results”).

Count One of the Superseding Indictment charges all seven

defendants with violating 18 U.S.C. § 43(a). Section 43(a)

codifies the federal offense of animal enterprise terrorism.

Specifically, § 43(a) states:

Whoever –

(1) travels in interstate or foreign commerce, or uses

or causes to be used the mail or any facility in interstate

or foreign commerce for the purpose of causing physical

disruption to the functioning of an animal enterprise; and

(2) intentionally damages or causes the loss of any

property (including animal or records) used by the animal

enterprise, or conspires to do so,

shall be punished as provided in subsection (b).

18 U.S.C. § 43.

A plain and common sense reading of § 43(a) evidences that

this criminal statute creates one substantive offense – animal

enterprise terrorism – with two elements – subsections (a)(1) and

(a)(2). Put differently, subsections (a)(1) and (a)(2) are two




- 41 -

elements of a single substantive offense – the offense of animal

enterprise terrorism. In addition, § 43(a) creates liability

for conspiring to commit that substantive offense – i.e., for

conspiring to do (a)(1) and (a)(2).

Consistent with § 43(a), Count One of the Superseding

Indictment properly charges a federal offense under § 43(a).

Specifically, Count One alleges that all seven defendants “did

knowingly and willfully combine, conspire and agree with one

another and others to use a facility in interstate and foreign

commerce for the purpose fo causing physical disruption to the

functioning of HLS, and animal enterprise, and intentionally

damage and cause the loss of property used by HLS, in an amount

exceeding $10,000.” Superseding Indictment ¶ 2. Count One,

therefore, charges conduct that § 43 plainly criminalizes: a

conspiracy to commit animal enterprise terrorism.

Nevertheless, defendants are asking this Court to ignore a

plain and common sense reading of § 43(a) in favor of a tortured

construction. Defendant Kjonaas, for example, claims that

“[u]nder the (a)(1) section, a defendant must be charged with a

substantive act” and “[o]nly the (a)(2) section includes

allowance for conspiratorial liability.” Kjonaas Mem. at 29-30.

He, therefore, argues that the indictment must be dismissed

because it charges a conspiracy under subsection (a)(1).

Defendant Kjonaas’s construction of § 43(a), however, is at




- 42 -

odds with a plain reading of § 43(a). Kjonaas’s interpretation

would essentially create two substantive crimes – one under

§ 43(a)(1) and one under (a)(2) – as well as the inchoate crime

of conspiracy under (a)(2). Under his interpretation, § 43

would make it a federal offense to: (1) travel in interstate

commerce, or uses or causes to be used the mail or any facility

in interstate commerce for the purpose of causing physical

disruption to the functioning of an animal enterprise; or (2)

intentionally damage or cause the loss of any property (including

animal or records) used by the animal enterprise; or (3) conspire

to intentionally damage or cause the loss of any property

(including animal or records) used by the animal enterprise.

This construction is at odds with § 43(a) as it is plainly

written in the conjunctive (using “and”), and not the disjunctive

(which would require an “or”).

Defendants SHAC and McGee, likewise, argue that the

Government is implying a 43(a)(2) conspiracy provision into

43(a)(1). See SHAC Mem. at 19; see also McGee Mem. at 5 (“It

must be noted that while 18 U.S.C. § 43(b)(2) allows for

conspiratorial liability, 18 U.S.C. § 43(b)(1) does not.”). Like

Kjonaas’s, their argument is based upon the premise that § 43

creates two distinct crimes – one under subsection (a)(1) and one

under subsection (a)(2). See, e.g., SHAC Mem. at 18 (“SHAC is

indicted under 18 43(a)(1) – which does not have a conspiracy




24 In its memorandum, defendant SHAC conveniently ignores

the “and” when quoting § 43(a). See SHAC Mem. at 18.

25 Defendant Kjonaas asserts as a rule that “[w]here

Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in thedisparate inclusion and exclusion.” Kjonaas Mem. at 30 (quoting

Gozlon-Pertz v. United States, 498 U.S. 395, 404 (1991)).

Presumably, defendant Kjonaas is suggesting that Congress should

have included the language “or conspires to do so” in § 43(a)(1).

Given the plain reading of the statute, including the language

“or conspires to do so” in (a)(1) would have been redundant.

- 43 -

count”). Clearly that is not the case. As stated above, § 43(a)

creates one substantive crime with two elements – (a)(1) “and”

(a)(2).24 Section 43(a) then makes it a crime to conspire to

commit that offense – i.e., to commit (a)(1) “and” (a)(2).25

In addition to ignoring a plain reading of § 43(a),

defendants’ tortured reading of the statute would require this

Court to interpret § 43(a) in a way that produces absurd results

that Congress could not have intended. Under defendants’ reading

of the statute, this Court would have to conclude that Congress

intended to create a federal offense with elements that the

defendants actually committed the conduct in § 43(a)(1), but only

conspired to do the conduct in § 43(a)(2). See, e.g., Kjonaas

Mem. at 29-30 (“Only the (a)(2) section includes allowance for

conspiratorial liability.”); McGee Mem. at 4-5 (arguing that only

subsection (a)(2) “allows for conspiratorial liability”). Put

differently, the defendants would be co-conspirators to an

element of a crime rather than co-conspirators to a crime.




26 Arguably, the federal RICO statute’s requirement that

there be at least two predicate acts, 18 U.S.C. § 1961, can

result in an “element” of the RICO offense being a conspiracy.

However, such an element would still require a conspiracy to

commit an offense – i.e., the predicate act.

- 44 -

There is no federal criminal statute that criminalizes a

conspiracy to commit an element of a substantive offense, instead

of the actual substantive offense.26 The entire concept of

conspiracy liability is premised upon an agreement to commit a

crime – not an element of a crime. See 18 U.S.C. § 371 (“If two

or more persons conspire either to commit any offense . . . .”)

(emphasis added); Pinkerton v. United States, 328 U.S. 640, 643

(1946) (“A conspiracy is a partnership in crime.”) (emphasis

added). Congress clearly could not have intended such an absurd

and dramatically different criminal offense whereby defendants

are charged as co-conspirators only to an element of an offense.

To the contrary, Congress purposely placed the animal enterprise

terrorism offense in Title 18 to “ensure that its provisions are

interpreted consistently with comparable provisions in other

criminal statutes.” H.R. Rep. 102-498, at 5 (1992), reprinted in

1992 U.S.C.C.A.N. 816, 819.

In such a case, where the “literal meaning of a statute

would lead to a patently absurd result that no rational

legislature could have intended,” a Court should adopt an

interpretation that accurately reflects the legislature’s intent

and the statute’s purpose. Fogleman v. Mercy Hospital, 283 F.3d




27 It is also not reasonable that Congress would have

intended the Government to charge a conspiracy to violate § 43(a)

under 18 U.S.C. § 371. First, requiring the Government to charge

a conspiracy under § 371 would render the phrase “or conspires to

do so” in § 43(a) completely superfluous; this Court, however,

should be “reluctant to adopt a construction [of a provision in a

statute that] mak[es] another statutory provision superfluous.”

Hohn v. United States, 524 U.S. 236, 249 (1998). Second,

charging § 371 would result in the Government charging that the

defendants (1) conspired to travel in interstate or foreign

commerce, or use or cause to be used the mail or any facility in

interstate or foreign commerce for the purpose of causingphysical disruption to the functioning of an animal enterprise

and (2) conspired to conspire to intentionally damage or cause

the loss of any property (including animal or records) used by

the animal enterprise. This Court should reject this

unreasonable construction of § 43(a).

- 45 -

561, 569 (3d Cir. 2002). As the Third Circuit recognized in

Fogleman, “[f]ollowing the letter, rather than the spirit of the

law in such cases would go against the court’s role of construing

statutes to effectuate the legislature’s intent.”27

Defendants’ untenable reading of the § 43(a) would indeed

contradict the legislature’s intent and the statutory purpose of

§ 43(a). While there is not extensive legislative history for 18

U.S.C. § 43, the history that does exist refutes defendants’

theory. In the House Report on the bill that became § 43 after

some amendments, the Judiciary Committee reporting on the bill

explained that the bill “would create a federal offense for

disrupting an enterprise that uses animals for food or fiber

production, agriculture, research or testing.” H.R. Rep. 102-

498, at 2 (1992), reprinted in 1992 U.S.C.C.A.N. 816, 816




28 After an amendment, the “disruption” provision in

§S43(a) was codified in § 43(a)(1) (“travels in interstate or

foreign commerce, or use or cause to be used the mail or any

facility in interstate or foreign commerce for the purpose of

causing physical disruption . . .”). Given the Committee’sexplanation above, it further evidences that the provision “or

conspires to do so” was meant to apply to both (a)(1) and (a)(2),

and not simply (a)(2).

29 It is not clear whether this is an alternative

argument, but defendant Kjonaas also claims that Count One should

- 46 -

(emphasis added). Then, to explain why the bill was amended to

add conspiracy liability, the Judiciary Committee stated: “[t]he

bill reported by the Judiciary Committee criminalizes

conspiracies to disrupt facilities, as well as the disruptions

themselves.” Id. at 4, reprinted in 1992 U.S.C.C.A.N. 816, 818

(emphasis added).28 Hence, contrary to defendants’ theory, it is

clear that the provision “or conspires to do so” in § 43(a) was

intended to criminalize a conspiracy to disrupt an animal

enterprise (i.e., § 43(a)(1)) and damage or cause the loss of any

property (i.e., § 43(a)(2)). Put differently, Congress intended

to criminalize a conspiracy to commit the crime set forth in

§ 43, not just a conspiracy to violate an element of that crime.

In sum, defendants’ tortured reading of § 43(a) would yield

an absurd result, it would frustrate the purpose of the statute,

and would contravene the legislature’s intent. Accordingly, for

all these reasons, this Court should reject defendants’ argument

that Count One of the Superseding Indictment does not properly

charge a conspiracy to commit animal enterprise terrorism.29




be dismissed because § 43 “does not criminalize a conspiracy

which involves the attempt to” cause damage to an animalenterprise. Kjonaas Mem. at 31. The Superseding Indictment,

however, charges a conspiracy to violate § 43. It is does not

charge an attempt to violate § 43, nor does it charge a

conspiracy to attempt to commit § 43 (assuming for purposes of

defendant Kjonaas’s argument that it is even possible to have a

conspiracy to attempt).

- 47 -

IV. THE CORPORATE DEFENDANT CAN PROPERLY BE CHARGED WITHCONSPIRACY IN THIS CASE.

SHAC, the corporate defendant in this case, posits that it

cannot be charged with conspiracy. For the reasons set forth

below, this Court should reject this argument.

A conspiracy is an agreement between two or more individuals

or entities to commit a criminal act. A corporation, while not

in reality a person, is regarded by the law as “a separate legal

entity” that is “separate and apart from its stockholders.”

United States v. Sain, 141 F.3d 463, 474 (3d Cir. 1998) (quoting

William M. Fletcher, Fletcher Cyclopedia of the Law of Private

Corporations § 5 at 441 (Permanent ed. 1990)). “It has a real

existence with rights and liabilities as a separate legal

entity.” Id. Thus, a corporation is capable of entering into a

conspiracy.

While there must be two or more people involved in a

conspiracy, “[i]t is well-established that one conspirator need

not know the identities of all of his co-conspirators, nor be

aware of all the details of the conspiracy in order to be found

to have agreed to participate in it.” United States v.

Riccobone, 709 F.2d 214, 225 (3d Cir. 1983). See, Blumenthal v.




- 48 -

United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947);

United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982);

United States v. Boyd, 595 F.2d 120 (3d Cir. 1978). In this

case, Count One of the Superseding Indictment alleges seven

specific individual co-conspirators as well as others unnamed and

unknown, in addition to the corporate defendant, SHAC. Count Two

alleges three known individual conspirators in addition to the

corporate defendant, SHAC, and Count Six alleges four known

individual defendants in addition to the corporate defendant,

SHAC.

Defendant SHAC relies upon United States v. Stevens, 909

F.2d 431 (11th Cir. 1990) for its argument that a conspiracy

charge against the corporation violates its due process rights.

In Stevens, the sole stockholder in a company was charged along

with the company itself in a conspiracy. No other defendant was

named. The Court held “that a sole stockholder who completely

controls a corporation and is the sole actor in performance of

corporate activities cannot be guilty of a criminal conspiracy

with that corporation.” Stevens, 909 F.2d at 431. Thus, Stevens

is wholly inapposite to the case sub judice. Interestingly,

defendant does not argue that Kjonaas or anyone else named in the

Superseding Indictment completely controls the activities of

SHAC. Indeed, defendants seem to be arguing just the opposite –that no one knows who does what with respect to the




30 Defendant SHAC’s argument that all of the defendants

were acting as a single entity completely contradicts defendant

Kjonaas’s argument that the Superseding Indictment does not

allege who was doing what with respect to SHAC. Kjonaas Mem. at

25-26.

- 49 -

corporation.30

The United States agrees that it could not charge only

Kjonaas, SHAC’s then-president and SHAC itself with having

engaged in the conspiratorial conduct that is alleged in Counts

One, Two and Six of the Superseding Indictment. However, the

Government has not charged only those two defendants. Rather, it

has charged several other individuals and the Superseding

Indictment makes it clear that there were other unnamed

individuals who agreed to be part of the activities as alleged.

Thus, this is not a case as Stevens where there is only one

individual - the sole shareholder and actor for a corporation –

and the corporation for which he acts who are named as co-

conspirators. Accordingly, defendant’s motion in this regard

should be denied.

Defendant, realizing that its argument, relying as it does

on Stevens, a wholly inapposite case, is sheer sophistry, next

argues that the other co-conspirators named in the Superseding

Indictment are part of a “single entity” and therefore should be

deemed as one, thus leaving them unable as well to be co-

conspirators. This argument totally turns the law on its head

and should be denied.

First, in Stevens, the very case defendant relies upon to




- 50 -

make the first prong of its argument, the court rejected the

single entity theory stating:

Although a conspiracy under 18 U.S.C.A. § 371 requiresan agreement between two or more persons, we have held

that a corporation may be held criminally liable under§ 371 when conspiring with its officers and employees.In so holding we rejected the “single entity” theorythat all agents of a corporation engaging in corporateconduct for a single collective legal person – that is,the corporation – and the acts of the agent constitutesthe acts of the corporation. [footnotes omitted]

Stevens, 909 F.2d at 432.

Moreover, every case cited by defendant in support of its

argument has rejected the single entity theory. For instance,

defendant cites Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,

603 (5th Cir. 1981) in support of his argument that a

corporation’s employees should be viewed as a single entity for

deciding whether a conspiracy exists. Like Stevens, however,

Dussouy does not support defendant’s argument. In Dussouy, the

Court addressed the question of the single entity theory of

liability. The Court first looked to Nelson Radio & Supply v.

Motorola, 200 F.2d 911 (5th Cir. 1952), an antitrust case wherein

the single entity theory was embraced over a strong dissent. In

opining on the viability of the theory the Dussouy Court wrote:

There are, however, strong arguments against the NelsonRadio rule. The original purposes of the ruleattributing agents’ acts to a corporation were toenable corporations to act, permitting the pooling of

resources to achieve a social benefit and, in the caseof tortious acts, to require a corporation to bear thecosts of its business enterprise. But extension of therule to preclude the possibility of intracorporateconspiracy does not serve either of these goals. SeeNote, Intracorporate Conspiracies under 42 U.S.C. §1985(c), 92 Harv. L. Rev. 470, 477-78 (1978); see




31 Defendant states at p. 24 of its memorandum of law:

“[t]herefore, in the civil rights context, the Courts have

generally refused to find a conspiracy where members of a

corporation were alleged to have conspired among themselves.

Defendant cites to Bivens Gardens Office Bldg. V. Barnett Banks,Inc., 140 F.3d 898, 912 (11th Cir. 1998) for this proposition.

Unlike Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,

91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) which did deal with matters

of civil rights but not the “single entity” theory, the Bivens

Gardens case cited by defendant dealt with a civil RICO action.

The Court in Bivens Gardens found, not that the conspiracy

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generally Note, Intracorporate Conspiracies under 42U.S.C. § 1985(c): The Impact of Novatney v. Great

American Savings & Loan Association, 13 Ga. L. Rev.591, 602-03 (1979). Some courts have found thisreasoning persuasive when dealing with problems outsidethe federal antitrust area. For instance, in Novatney

v. Great American Savings & Loan Association, 3 Cir.1978, 584 F.2d 1235 (en banc), vacated on othergrounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957(1979), the Third Circuit, although it did not considerwhether the corporation could be party to theconspiracy, held that the officers and directors of asingle corporation could be liable for a conspiracyunder 42 U.S.C. § 1985(c). Similarly, a corporationcan be convicted of criminal charges of conspiracybased solely on conspiracy with its own employees.United States v. Consolidated Coal Co., 424 F. Supp.577 (S.D. Ohio 1976); see Novatney v. Great AmericanSavings & Loan Association, 3 Cir. 1978, 584 F.2d 1235,

1258 (en banc) (dictum), vacated on other grounds, 442U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Inthese situations, the actions by the incorporatedcollection of individuals creates a “group danger” atwhich conspiracy liability is aimed, and the view ofthe corporation as a single legal actor becomes fictionwithout a purpose.

Dussouy v. Gulf Coast Inv. Corp., 660 F.2d at 603.

Similarly, United States v. Hartley, 678 F.2d 961 (11th Cir.

1982), cited by defendant, followed Dussouy and a number of other

courts in rejecting the “single entity” theory. Indeed,

defendant cites to no court that has accepted the rather narrow

holding of Nelson Radio.31 Accordingly, even were all of the




allegations against the corporation and the individuals were not

permissible, but rather, that the plaintiffs did not adduce

sufficient evidence at trial. Bivens Gardens, 140 F.3d at 912.

Hence, not only is Bivens Gardens not a civil rights, case, it

does not support defendant’s argument.

- 52 -

defendants charged in the conspiracy counts of the Superseding

Indictment employees of SHAC, the defendant’s argument fails.

Moreover, all of the defendants charged in the conspiracy

counts of the Superseding Indictment are not direct employees of

SHAC. As defendant states, SHAC “does no business, sells no

products, and has no office or paid staff.” SHAC Memo. at 20.

Defendant further alleges that “under the best view of the

Government’s allegations, there is only one human actor involved

with SHAC, Mr. Kjonaas.” Id. While the Government agrees that

Mr. Kjonaas was the president of SHAC, it does not follow that

all those who acted in furtherance of its objectives were

employees or agents that would make them a single entity.

Accordingly, defendant’s motion in this regard should be denied.

V. THE SUPERSEDING INDICTMENT PROPERLY ALLEGES, AND THE

STATUTES CHARGED REQUIRE, AN INTERSTATE COMMERCE NEXUS

Defendant SHAC argues that the Superseding Indictment lacks

an interstate commerce nexus. Defendant relies upon United

States v. Lopez, 514 U.S. 549 (1995). In Lopez, the Supreme

Court considered the constitutionality of the Gun-Free School

Zones Act, 18 U.S.C. § 922(q), which created a federal offense

“for any individual knowingly to possess a firearm at a place




- 53 -

that the individual knows, or has reasonable cause to believe, is

a school zone,” 18 U.S.C. § 922(q)(1)(A). Pointedly, § 922(q)(1)

contained no jurisdictional element at all. In addressing the

constitutionality of that statute, the Court enumerated three

categories that Congress could regulate under the Commerce

Clause: (1) the channels of interstate commerce; (2) the

instrumentalities of interstate commerce, or persons or things in

interstate commerce; and (3) activities which have a “substantial

relation to interstate commerce . . . i.e. those activities that

substantially affect interstate commerce.” Lopez, 514 U.S. at

558-59. The Lopez Court found § 922(q) to be an unconstitutional

exercise of Congress’s authority under the Commerce Clause due to

the total dearth of an interstate nexus requirement.

Specifically, the Court found that the statute “contain[ed] no

jurisdictional element which would ensure, through case-by-case

inquiry, that the firearm possession in question has the

requisite nexus with interstate commerce.” Id. at 561.

Fatal to defendant SHAC’s reliance on Lopez is its own

admission that “[t]he AEPA, the Federal Stalking Act and the

Telecommunications act share one common jurisdictional factor,

proof of an interstate commerce nexus.” (SHAC Mem. at p. 25).

Thus, by its own admission, Lopez is inapposite and the Court

should deny defendant’s motion. Indeed, unlike § 922(q), 18 U.S.

C. §§ 43 (“Whoever travels in interstate or foreign commerce, or




- 54 -

uses or causes to be used the mail or any facility in interstate

commerce....”) 2261A (“Whoever uses the mail or any facility in

interstate commerce....”) and 47 U.S.C. § 223 (“Whoever in

interstate or foreign communications”) all have express

jurisdictional elements that ensure that an adequate interstate

nexus is established.

What defendant really argues is that the use of the internet

is not in or effecting interstate or foreign commerce. For this

argument, defendant relies on Reno v. ACLU, 521 U.S. 844, 844-49

(1999). Reno, however, did not hold that the internet was not an

instrumentality of interstate commerce. In fact, the interstate

nexus in Reno was as it is in this case – the internet. Rather,

the Court affirmed a lower court ruling that two provisions of 47

U.S.C.§ 223 dealing with “obscene or indecent” messages were

“inherently vague” and hence unconstitutional. Id. at 862.

Thus, the Court in Reno did not find any infirmity with the

jurisdictional basis which was the use of the internet.

Defendant’s argument that a communication using the website

provides no proof of any interstate activity and that

“transmission of electronic data over the internet is not within

the current Lopez definition of interstate commerce,” SHAC Mem.

at 28, simply does not comport with legal or factual reality.

Many courts have held the internet to be an instrumentality of

interstate commerce. E.g., United States v. Hornaday, 392 F.2d




32 The Government does not concede, as defendant argues,

that use of the internet involves only intrastate activities.

See SHAC Mem. at 26, 28. Defendant argues that:

- 55 -

1306, 1311 (11th Cir. 2004)(“The internet is an instrumentality

of interstate commerce”); United States v. Panfil, 338 F.3d 1299

(11th Cir. 2003)(same); United States v. Runyan, 290 F.3d 223 (5th

Cir. 2002)(same); United States v. Carroll, 105 F.3d 740 (1st

Cir. 1997)(same); see also United States v. Macewan, 2004 WL

3019316 (E.D.Pa. Dec. 29, 2004)(“Numerous courts have held that

the modern phenomenon of the internet is thoroughly connected to

and part of interstate commerce.”). Recently in United States v

Tykarsky, 2004 WL 1813206 (E.D.Pa. July 20, 2004), the Court in

dealing with an argument similar to that put forth by the

defendant here stated:

It is defendant’s contention that the government should

have been required to prove that the Internet

communications in question actually traveled across

state lines. We are not persuaded. Telephone networks

and the Internet are undoubtedly “facilities of

interstate commerce.” Using a computer connected to

the Internet equates to “the use of a facility in

interstate commerce,” even though the communications in

question may have been intrastate in character. See

United States v. Gil, 297 F.3d 92, 99-100 (2d Cir.

2002). United States v. Baker, 82 F.3d 273, 275-76

(8th Cir. 1996); United States v. Giordino, 260 F.

supp. 477, 482 (D. Conn. 2002). As the Supreme Court

has observed, Congress is empowered to regulate and

protect the instrumentalities of interstate commerce,

or persons or things in interstate commerce, even

though the threat may come only from intrastate

activities.” United States v. Lopez, 514 U.S. 549, 558

(1995).

Tykarsky, 2004 WL 1813206 at *2.32 Accordingly, use of the




Internet communication is generally accomplished by a

computer with a modem connecting a local access number for

an Internet Service Provider(ISP). After connection is

established the “e-mail program” translates what is typed on

a keyboard or an attached to the e-mail into an electronic

digital code and transmits the code into the “Internet”.

The message or attachment is electronically “transmitted” to

the Server of the recipient’s ISP. This is a far cry from

the type of conduct which [is] traditionally associated with“use of facilities” in interstate commerce.

Defendant could not be more wrong. It’s argument assumes that

the “Internet” is in some netherworld. Moreover, it defies the

reality that information over the internet is routinely

transferred not only interstate, but around the world.

- 56 -

internet satisfies the interstate commerce nexus, is properly

pleaded in the Superseding Indictment, and this Court should

dismiss defendant’s argument.




33 Throughout different sections of his memorandum,

defendant Kjonaas makes a series of conclusory statements

regarding the defendants’ speech being protected under the First

Amendment. This section of the Government’s memorandum responds

to all of the First Amendment arguments raised by defendants in

connection with 18 U.S.C. § 43(a).

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VI. THE CRIMINAL CONDUCT CHARGED IN COUNT ONE OF THE

SUPERSEDING INDICTMENT, 18 U.S.C. § 43(a), IS NOT

PROTECTED UNDER THE FIRST AMENDMENT.

All of the defendants, either individually or by joining the

arguments of others, claim that Count One of the Superseding

Indictment should be dismissed because it violates their First

Amendment right to free speech. The First Amendment challenges

against Count One generally fall into three categories: (1) that

the conduct charged in Count One constitutes protected speech

under the First Amendment; (2) that 18 U.S.C. § 43 is invalid on

its face under the doctrine of overbreadth; and (3) that 18

U.S.C. § 43 is overly vague. For the reasons discussed below,

defendants’ claims fail.33

A. The Conduct Alleged In Count One Is Not Protected

Speech.

Defendants set forth a lengthy discussion of the First

Amendment and its protection of political speech and the right to

protest “matters of public concern.” E.g., Kjonaas Mem. at 45.

The Government does not deny that the First Amendment protects

the right to engage in political discourse and to engage in

lawful protest. However, the issue for this Court is not whether

the defendants’ have a general First Amendment right to engage in




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political discourse or protest, but rather, whether the conduct

alleged in the Superseding Indictment is protected by the First

Amendment.

This is so because it is equally true that the First

Amendment is not absolute. Virginia v. Black, 538 U.S. 343, 358

(2003) (“The protections afforded by the First Amendment . . .

are not absolute, and we have long recognized that the government

may regulate certain categories of expression consistent with the

Constitution.”). Furthermore, the fact that the defendants may

have engaged in some protected speech does not shield them from

criminal liability for their conduct that exceeds First Amendment

protection. E.g., United States v. Bellrichard, 994 F.2d 1318,

1322 (8th Cir. 1993) (“a person may not escape prosecution for

uttering threatening language merely by combining the threatening

language with issues of public concern”); see also United States

v. Viefhaus, 168 F.3d 392, 396 (10th Cir. 1999) (“The fact that a

specific threat accompanies pure political speech does not shield

a defendant from culpability.”). For the reasons set forth

below, the defendants’ conduct in this case exceeded the bounds

of protected speech.

In addressing defendants’ First Amendment arguments, it is

important to note that the defendants are charged with violating

the Animal Enterprise Terrorism statute, 18 U.S.C. § 43. Section

43 is not aimed at speech. It is a generally applicable criminal




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statute aimed at conduct that has the purpose, and is done with

the intent, to unlawfully disrupt an animal enterprise. The

Superseding Indictment, as discussed further below, charges the

defendant with conduct that a grand jury found violated the

statute. The fact that their conduct included speech does not

ipso facto entitle it to protection under the First Amendment.

Furthermore, in determining whether the Superseding

Indictment alleges conduct that exceeds the First Amendment, this

Court must consider the statements and conduct in the context in

which they occurred. See Bellrichard, 994 F.2d at 1321 (“When

determining whether an alleged threat falls outside the realm of

protected speech, it is important to focus on the context of the

expression.”); United States v. Orozco-Santillan, 903 F.2d 1262,

1265 (9th Cir. 1990) (whether conduct or speech is threatening

“must be considered in light of [the] entire factual context,

including the surrounding events and the reaction of the

listeners”). It is not appropriate, therefore, to isolate

statements and claim, as defendants have done here, that, in a

vacuum, the statement is protected.

In addition, unless it is clear that the conduct is

protected under the First Amendment, the issue is one reserved

for the trier of fact. E.g., United States v. Viefhaus, 168 F.3d

392, 397 (10th Cir. 1999) (“We consistently have held that

whether a defendant’s statement is a true threat or mere




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political speech is a question for the jury. If there is no

question that a defendant’s speech is protected by the First

Amendment, the court may dismiss the charge as a matter of law.”)

(citation omitted); United States v. Hinkson, — F. Supp. 2d —,

2004 WL 2965864 (D. Idaho Dec. 22, 2004) (“Whether a given

statement properly qualifies as a ‘true threat’ is a factual

inquiry informed by the ‘entire factual context, including the

surrounding events and reaction of the listeners. . . . it is a

question for the jury that may only be decided after listening to

the complete presentation of the evidence.’”) (citation omitted).

This is so particularly in a case such as here, where the

threatening, intimidating and harassing nature of defendants’

conduct is evidenced by a pattern of activity that spanned

several years – not isolated incidents. Furthermore, the

testimony of several victims will also evidence the threatening,

intimidating and harassing consequences of defendants’ conduct.

See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969 (per

curiam) (considering the reaction of the recipients of the speech

in determining whether it was threatening).

Indeed, the principal cases upon which the defendants and

the Government rely were decided after a trial in which all of

the evidence and testimony had been presented. The defendants,

however, are asking this Court to dismiss this Superseding

Indictment before a complete factual record can be developed.




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For the reasons set forth below, this Court should decline

defendant’s invitation.

As charged in the Superseding Indictment and discussed in

the Statement of Facts, supra, the defendants are alleged to have

conspired “to physically disrupt the operations of HLS and drive

it out of business either by: (a) directly disrupting the

business of HLS or (b) disrupting the business of companies that

either provided services to, or purchased services from, HLS.”

Superseding Indictment ¶ 3. In furtherance of the conspiracy,

the defendants “espoused and encouraged others to engage in

‘direct action,’ which as described by SHAC involved activities

that ‘operate outside the confines of the legal system.’” Id. 6.

Furthermore, of particular importance to the First Amendment

issue, the Superseding Indictment alleges that the SHAC website:

1. posted the “top 20 terror tactics,” which included

“invading offices,” “damaging property,” “stealing

documents,” “physical assault,” and vandalism, id. ¶ 6;

2. posted “the names, addresses, home telephone numbers

and other personal information of HLS employees” and of

employees of companies targeted by SHAC because of

their business relationship to HLS, id. ¶¶ 9, 16;

3. encouraged “people to engage in acts of harassment and

intimidation against those HLS employees” and employees

of the targeting companies, including those described

above, id. ¶¶ 9, 16;

4. reported the acts of harassment and intimidation acts

carried out against HLS employees and employees of the

targeted companies, id. ¶¶ 11, 17; and

5. used the reports of past acts of harassment and




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intimidation as examples of what could happen to anyone

who either works for HLS or a company that has a

business relationship with HLS, id. ¶ 11, 17.

In short, the defendants set out to disrupt the business of

HLS by conspiring to intimidate, harass, stalk, and bring

violence to employees of HLS and any company that had a business

relationship with HLS. It is this pattern of targeting victims

for “direct action,” learning that those targets were in fact

subjected to “direct action,” then continuing to target new

victims that violated the law. That language was used to seek

such ends renders the conduct devoid of First Amendment

protection.

As the Supreme Court recognized in Virginia v. Black, “the

First Amendment . . . permits a state to ban a ‘true threat.’”

123 S. Ct. at 1547; accord R.A.V. v. City of St. Paul, 505 U.S.

377, 388 (1992). The Court in Virginia v. Black defined a “true

threat” as “those statements where the speaks means to

communicate a serious expression of an intent to commit an

unlawful act of violence to a particular individual or group of

individuals.” 123 S. Ct. at 1548. The Court made clear,

however, that it is irrelevant whether the speaker intended to

carry out the threat. Id.

In addition, the Court in Virginia v. Black explained that

“intimidation in the constitutionally proscribable sense of the

word is a type of true threat.” Id. The Court defined




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intimidation to mean “where a speaker directs a threat to a

person or group of persons with the intent of placing the victim

in fear of bodily harm or death.” Id.

At issue in Virginia v. Black was a Virginia law outlawing

cross burnings done with the intent to intimidate. Id. at 1549.

While recognizing that cross burning is symbolic express, the

Court nevertheless concluded that when done with the intent to

intimidate it falls outside the contours of free speech. Id. at

1549-50.

Likewise, in this case, the Government recognizes that some

of defendants’ activities and speech is protected under the First

Amendment. However, simply because speech occurs in a public

forum or in a “marketplace of ideas” like the internet does not

entitle it to protection under the First Amendment. When that

speech or conduct rises to the level of intimidation, or is part

of criminal conduct, it loses any protection. See Giboney v.

Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (“[I]t has

never been deemed an abridgment of freedom of speech or press to

make a course of conduct illegal merely because the conduct was

in part initiated, evidenced, or carried out by means of

language, either spoken, written, or printed.”).

For example, in Planned Parenthood of the

Columbia/Willamette, Inc. v. American Coalition of Life

Activities (“ACLA”), a case factually analogous to the instant




- 64 -

action, the Court of Appeals addressed whether ACLA’s conduct

toward physicians and two health clinics that provided medical

services to women, including abortions, was protected by the

First Amendment. 290 F.3d 1058, 1062 (9th Cir. 2002) (en banc).

In Planned Parenthood, ACLA presented a poster during a press

conference at the March for Life event in Washington, D.C., that

had the captions “GUILTY . . . OF CRIMES AGAINST HUMANITY” and

“THE DEADLY DOZEN” followed by the names and home addresses of

certain physicians who performed abortions (hereinafter the

“DEADLY DOZEN” poster). Id. at 1064-65. The poster also offered

“a ‘$5000 REWARD’ ‘for information leading to arrest, conviction

and revocation of license to practice medicine.’” Id. at 1065.

This poster and another one with similar information (hereinafter

the “GUILTY” poster) were published in a newsletter and presented

at other pro-life events. Id. In addition, ACLA also

established the Nuremberg Files website that listed

“[a]pproximately 200 people . . . under the label “ABORTIONISTS:

the shooters,” as well as “judges, politicians, law enforcement,

spouses, and abortion rights supporters.” Id. Under the

“ABORTIONISTS” section of the website, physicians names appeared

in either black font (if they were currently working), a grey

font (if they had been wounded), or were struck through if the

physician had been murdered. Id. The names of three physicians

murdered by pro-life activists were struck through. Id.




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Following a trial, the jury held ACLA liable under the

Freedom of Access to Clinics Entrances Act for threatening

reproductive health services providers. On appeal, the Court

rejected the ACLA’s First Amendment arguments.

ACLA, like the defendants here, argued that the action

against it was barred by the First Amendment because it “was

based on political speech that constituted neither an incitement

to imminent lawless action nor a true threat.” Id. at 1070. In

rejecting ACLA’s arguments, however, the Court made it clear that

“context is critical in a true threats case and history can give

meaning to the medium.” Id. 1078-79. Indeed, the Court found

that, “[b]ecause of context,” it could not find that the posters

generally described above were “just a political statement.” Id.

at 1079.

The Court stated that even if the first couple of posters of

this type were political messages, ACLA knew that after the first

couple of posters were released, three physicians identified in

those posters had been murdered because they performed abortions.

Id. at 1079-80; see also 1063-64 (discussing the murders and the

fact that they were preceded by “WANTED” posters identifying the

physicians). The Court further explained that knowing the

murders followed the release of their posters, and knowing that

it generated fear among the reproductive health services

community, ACLA released the “DIRTY DOZEN” and “GUILTY” posters




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to intimidate those physicians. Id. at 1079. It was this

pattern that the Court found highly probative of the threatening

nature of the ACLA’s conduct:

The true threats analysis turns on the poster pattern.Neither the Crist poster nor the Deadly Dozen poster

contains any language that is overtly threatening. Both

differ from prior posters in that the prior posters were

captioned "WANTED" while these are captioned "GUILTY." The

text also differs somewhat, but differences in caption or

words are immaterial because the language itself is not what

is threatening. Rather, it is use of the "wanted"-type

format in the context of the poster pattern – poster

followed by murder – that constitutes the threat. Because of

the pattern, a "wanted"-type poster naming a specific doctor

who provides abortions was perceived by physicians, who are

providers of reproductive health services, as a serious

threat of death or bodily harm. After a "WANTED" poster on

Dr. David Gunn appeared, he was shot and killed. After a

"WANTED" poster on Dr. George Patterson appeared, he was

shot and killed. After a "WANTED" poster on Dr. John Britton

appeared, he was shot and killed. None of these "WANTED"

posters contained threatening language, either. Neither did

they identify who would pull the trigger. But knowing this

pattern, knowing that unlawful action had followed "WANTED"

posters on Gunn, Patterson and Britton, and knowing that

"wanted"-type posters were intimidating and caused fear of

serious harm to those named on them, [defendant] published a

"GUILTY" poster in essentially the same format on Dr. Crist

and a Deadly Dozen "GUILTY" poster in similar format naming

Dr. Hern, Dr. Elizabeth Newhall and Dr. James Newhall

because they perform abortions. Physicians could well

believe that [defendant] would make good on the threat. One

of the other doctors on the Deadly Dozen poster had in fact

been shot before the poster was published. This is not

political hyperbole. Nor is it merely "vituperative,

abusive, and inexact." In the context of the poster

pattern, the posters were precise in their meaning to those

in the relevant community of reproductive health service

providers. They were a true threat.

Id. at 1085 (citations omitted). In short, the Court held that

although the posters themselves did not contain an overt threat,

they constituted threats when considered in the proper context.




34 As discussed in Point I, supra, the factual allegations

in the Superseding Indictment are provided by way of example to

give defendants sufficient factual orientation for the criminal

charges the Government is alleging. Clearly, it does not

represent all of the evidence the Government intends to introduce

- 67 -

Id. at 1079, 1085.

Moreover, although the posters were publicly distributed,

the Court found that it did not diminish its threatening nature.

Id. at 1086. As the Court explained, the posters specifically

identified the doctors and ACLA knew that each doctor would be

worried. Id. Indeed, the Court noted that the doctors named in

the posters were “seriously worried.” Id.

With regard to the Nuremberg Files website, the Court found

that it, too, constituted threatening speech unprotected by the

First Amendment. Id. at 1080, 1085. The Court explained that

the website listed the names of physicians who provided abortion

services, and had the name in a grey font if that physician was

wounded or struck through if he or she was killed. Id.

As in Planned Parenthood, the First Amendment analysis in

this case turns on the pattern of website postings and other

communications. Through the defendants’ coordinated efforts,

SHAC targeted specific individuals for “direct action” because of

their connection to HLS. SHAC did so by publishing their names

and other personal information necessary to locate them. After

these individuals were so identified, they were in fact subjected

to “direct action.” By way of example,34 the Superseding




at trial to prove the charges in the Superseding Indictment.

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Indictment states that after the names and addresses of HLS

employees were posted on or about March 31, 2001, rocks were

thrown through their homes. The SHAC website then reported on

these and other similar incidents in a manner designed to spur

similar action against other targets and to warn other targets

that they, too, would be subjected to direct action. Thereafter,

knowing of this pattern, SHAC continued to identify new targets,

provided their personal information, then reported on the website

any direct action taken against the targets.

This pattern lasted throughout the time period alleged in

the Superseding Indictment. For example, after several years of

this pattern, and after numerous past targets had been subjected

to acts of vandalism, intimidation and harassment, SHAC targeted

C. Corp. in or about May 2003, and warned: “We know where you,

we know what you look like we know where you socialize and best

of all we know where you live.” Superseding Indictment ¶ 64.

Following this announcement, as had occurred each time before, C.

Corp. employees were subjected to acts of vandalism,

intimidation, and harassment.

Given this pattern, and given the defendants’ knowledge that

after individuals were targeted they were subjected to unlawful

conduct, the defendants’ claim that they were simply providing

public information or advocating a point of view rings hollow.




35 In addition, this pattern of identifying targets through

the Internet for the purpose of encouraging direct action,

including violence, further illustrates the threatening nature of

the defendant’s conduct. See Scott Hammack, The Internet

Loophole: Why Threatening Speech On-Line Requires A Modification

Of The Court’s Approach To True Threats And Incitement, 36 Colum.J.L. & Soc. Probs. 65, 67 (2002). As one commentator has

explained:

A threat in certain contexts may not cause its recipient to

be fearful if its occurrence seems very unlikely. However,

that same threat masquerading as incitement will generate

reasonable fear if it is particularly likely to provoke a

third party to carry out the threatened act. The Internet

facilitates these threat/incitement hybrids by making them

more likely to cause the act they seek to bring about. In

particular, the Internet allows a potentially unlimited and

transient audience to communicate across the world withgreat speed and anonymity, and to do so at a fraction of the

costs of other modes of communication.

Id. Here, it was not simply “likely” that the threats

masquerading as incitement would provoke others to carry out the

threat, it was (based upon experience) an almost sure thing.

- 69 -

The defendants knew, and thus it can be inferred they intended,

that each time a target was identified by SHAC he or she would be

subjected to the same unlawful acts. Such conduct falls outside

the ambit of the First Amendment.35

Nevertheless, defendants rely on a series of Supreme Court

cases in support of their argument that this criminal prosecution

is barred by the First Amendment. Each of these cases, however,

is distinguishable from this case.

In Watts v. United States, the defendant, an 18-year old

Vietnam war protester, told a crowd at a public rally that he was

not going to the war and exclaimed, “If they ever make me carry a




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rifle the first man I want to get in my sights is [President]

L.B.J.” 394 U.S. 705, 706 (1969) (per curiam). For that

statement, he was prosecuted for threatening the life of the

President. Id. at 705-06. The Court reversed the conviction,

holding that while threatening a person with violence is not

protected under the First Amendment, there was a distinction

between threatening a person with violence and “political

hyperbole.” Id. at 707, 708. The Court found that defendant’s

statement fell into the latter category. Id. at 708. Taking

into account the conditional nature of the statement (“If they

ever make me carry a rifle . . .”) and the reaction of the

listeners (the crowd laughed), the Court interpreted defendant’s

statement as “a kind of very crude offense method of stating a

political opposition to the President.” Id.

As the Court in Watts made clear, the speech or conduct must

be considered in its context. In Watts, defendant made a single,

conditional statement to a crowd at a rally, and the audience

laughed. The context of defendants’ conduct in this case is much

different. First, victims were specifically targeted for

prolonged periods of time because of their employment with HLS or

to a company with business ties to HLS; defendants are not being

prosecuted because of a single, isolated statement. Second,

there were no conditional hyperbole. Rather, the defendants

coordinated efforts to subject their targets to direct action.




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Third, the reaction of the recipients was much different than the

crowd in Watts. The victims targeted have not laughed. For

example, several witnesses at trial will testify that they were

aware that Brian Cass, CEO of HLS, had been beaten with an ax

handle by animal rights activities. This information, coupled

with warnings from SHAC such as “we know where you live,”

Superseding Indictment ¶ 65, led these witnesses to reasonably

fear for their safety and the safety of their families. As a

result, in several instances victims were provided 24-hour-a-day

security; in one instance a victim relocated her family; and, in

other instances, as even the SHAC website acknowledged, victims

were mentally anguished, e.g., Superseding Indictment ¶ 24 (SHAC

posting reported that DD’s, an HLS employee’s, wife “is

reportedly on the brink of a nervous breakdown and divorce”).

The Court’s opinion in Brandenburg v. Ohio, 395 U.S. 444

(1969), is also distinguishable. In Brandenburg, the Court

declared that the First Amendment does not protect “advocacy . .

. directed to inciting or producing imminent lawless action and

is likely to incite or produce such action.” Id. at 447. The

Ohio Syndicalism Act, however, did not distinguish between “mere

advocacy” and “incitement to imminent lawless action.” Id. at

448. The Court, therefore, held that the statute was

unconstitutional under the First Amendment. Id. at 449.

Defendants claim that under Brandenberg, political speech




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may only be regulated if it rises to the level of inciting

lawless action. First, the Court’s subsequent, more recent

opinion in Virginia v. Black, discussed supra, clearly refutes

such a narrow interpretation of the First Amendment. Second,

merely labeling conduct as “political speech” does not conclude

the analysis. As discussed above, defendants’ conduct

constituted intimidation, harassment, and threats and, thus, fell

outside the First Amendment regardless of the fact that may have

been intertwined with political speech. See Viefhaus, 168 F.3d

at 396 (“The fact that a specific threat accompanies pure

political speech dos not shield a defendant from culpability.”).

In any event, even under the Brandenberg standard,

defendants do not prevail because their coordinated efforts

(including their use of the SHAC website) incited numerous acts

of violence against SHAC’s targets, and the defendants, as

evidenced by the subsequent reporting of these acts, were well

aware that they did. Furthermore, after companies and their

employees were targeted for “direct action,” the acts of violence

imminently followed.

Likewise, the Court’s opinion in NAACP v. Claiborne Hardware

Co., 458 U.S. 886 (1982), does not support defendants’ position

in this case. In Claiborne, the NAACP and its field secretary

organized a boycott on white merchants in Claiborne County,

Mississippi. Id. at 898-902. Along with the NAACP, the field




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secretary for the NAACP was sued for, inter alia, giving two

speeches. Id. at 889-90. In the first speech, the defendant

told the audience “that blacks who traded with white merchants

would be answerable to him” and “‘uncle toms’ who broke the

boycott would ‘have their necks broken.’” Id. at 900 n.28. In

the second speech, the defendant told the audience: “If we catch

any of you going in any of them racist stores, we’re gonna break

your damn neck.” Id. at 902. The Supreme Court found that the

“emotionally charged rhetoric” of defendant’s speeches did not

rise to the level of inciting imminent lawless action. Id. at

928. The Court explained that it was not followed by violence

and there was no evidence the defendant authorized, ratified, or

directly threatened violence. Id. at 928-29.

Unlike the defendants in this case, the defendant in

Claiborne did not target specific individuals. To the contrary,

defendant’s statement in Claiborne was conditioned upon “if we

catch any of you.” The SHAC website, however, identified

specific individuals as targets and, in many instances, provided

their names, home addresses, telephone numbers, spouses,

children, or other personal information. Furthermore, whereas in

Claiborne the “emotionally charged rhetoric” was not “followed by

acts of violence,” Id. at 928, the defendants here knew that

their “targets” in the past had been subjected to “direct

action,” which included acts of violence. Hence, each time the




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SHAC website targeted a new person, it can be inferred that the

defendants intended for the new targets to be subjected to the

same type of conduct.

The present case is also distinguishable from Claiborne

where there was no history that the defendant or the NAACP had

engaged in violence against others. Indeed, those who heard the

defendant’s “rhetoric” in Claiborne did not take it as a serious

threat; they continued to shop at the white merchants. By

comparison, targets of SHAC have been subjected to acts of

violence. Hence, an individual targeted on the SHAC website has

a clear understanding of what could happen to him or her. In

that regard, victims will testify that they considered being

targeted by SHAC as a serious threat, and feared for their own

safety as well as the safety of their family members. See Watts,

394 U.S. at 708 (considering “the reaction of the listeners” in

deciding whether statement was threatening); Planned Parenthood,

290 F.3d at 1075 (explaining that the statement should be

considered in light of the entire factual context, including “the

reaction of the listeners”).

Defendants’ conduct in this case is similarly

distinguishable from the defendant’s conduct in Hess v. Indiana,

414 U.S. 105 (1973) (per curiam). In Hess, the police were

attempting to clear a public street of antiwar demonstrators who

were blocking the passage of vehicles. Id. at 106. As they




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passed the defendant, he yelled in “a loud voice”: “We’ll take

the f***ing street later” or “We’ll take the f***ing street

again.” Id. at 107. Defendant was convicted following a jury

trial of disorderly conduct. Id. at 106. On appeal, the Supreme

Court held that defendant’s statement did not constitute fighting

words as (1) it “was not directed by any person or group in

particular”; and (2) the sheriff who heard it did not believe it

was aimed at him because defendant had his back to the sheriff.

Id. at 107. The Court also found that the statement – which at

worse amounted to “advocacy of illegal action at some indefinite

future time” – did not constitute inciting imminent lawless

action. Id. at 108.

Again, for the reasons discussed above, defendants’ conduct

is distinguishable from Hess. First, the defendants’ conduct is

outside the First Amendment not for any one particular, isolated

statement, but for the pattern of intimidation, harassment, and

stalking (see Point VII, infra). Second, defendants have

targeted specific individuals with the knowledge (based upon past

experience) that these individuals would be subjected to

unlawful acts.

Next, in addition to relying on the above Supreme Court

cases, defendant Gazzola claims that the statute is

unconstitutional as applied to her under the O’Brien test.

United States v. O’Brien, 391 U.S. 367 (1968). In O’Brien, the




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Court declared that a statute that has an “incidental” effect on

First Amendment protection is, nonetheless, constitutional if the

government regulation (1) “is within the constitutional power of

the Government”; (2) “furthers an important or substantial

Government interest”; (3) the “governmental interest is unrelated

to the suppression of free expression”; and (4) “the incidental

restriction on alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest.” Id. at

377. The O’Brien standard, however, is not the appropriate

standard in this case as the charge in Count One is aimed at

conduct that, for the reasons discussed at above, is devoid of

any First Amendment protection. See id. at 376 (“We cannot

accept the view that an apparently limitless variety of conduct

can be labeled ‘speech’ whenever the person engaging in the

conduct intends thereby to express an idea.”).

Nevertheless, even accepting defendant’s argument, the

statute at issue passes constitutional muster under O’Brien.

First, the Government’s power to regulate interstate commerce is

beyond question. U.S. Const., Art. I, § 8. Second, the

Government has a substantial interest in protecting animal

enterprises from unlawful disruption. See Discussion, infra,

pages 89-90. Third, that interest is wholly unrelated to the

suppression of free speech. Fourth, § 43 is narrowly tailored to

further that interest – i.e., to restrict the unlawful disruption




36 Defendant Kjonaas’s argument is bereft of analysis and

merely sets forth as a bare assertion of fact: “[A]s with the

CDA [the Communications Decency Act], the AEPA ‘is a content-

based regulation of speech.” Kjonaas Mem. at 56. This Court

should not consider such a claim which is raised without anyanalysis of the legal standard, the facts of the case, or

argument in its support. Cf. United States v. Irizarry, 341 F.3d

273, 312 n.23 (3d Cir. 2003) (holding that defendant did not

preserve the claim for appeal because he failed to “develop[] any

argument” in his brief to support the claim). In any event, this

argument fails for the reasons set forth above.

- 77 -

of an animal enterprise.

Next, defendant Kjonaas claims that the defendants’ conduct

could not constitute true threats because SHAC’s “stated goal is

to cause economic results.” Kjonaas Mem. at 49. However, that

the end sought by the defendants was economic in nature does not

insulate them from criminal liability if the means chosen to

achieve it include threats, intimidation, stalking, and violence.

Defendant SHAC and defendant Kjonaas also argue, without

analysis, that “[i]t is axiomatic that the government may not

regulate speech based on its substantive content or the message

it conveys . . . .” SHAC Mem. at 30 (quoting Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)).36 To

the extent that SHAC is arguing that Count One must be dismissed

because the charges are based upon their particular message, this

argument misses the mark. First, the Animal Enterprise Terrorism

statute is not viewpoint-specific. The statute criminalizes the

disruption of an animal enterprise without regard to the message

of the violator. Second, as the Court explained in Virginia v.




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Black, if the speech falls “within a proscribable area of speech”

there is “no significant danger of idea or viewpoint

discrimination.” 123 S. Ct. at 1549 (reiterating that “it would

be constitutional to ban only a particular type of true threat”).

Here, because the defendant’s conduct constitutes intimidation,

threats, and harassment, it is irrelevant what substantive

message they were also trying to convey.

Defendant SHAC also has a point heading, without any

argument, that states that “prior restraint is not permitted by

the Brandenberg doctrine.” SHAC Mem. at 33. It is not clear,

however, how prosecuting SHAC for past conduct constitutes a

prior restraint on speech. Indeed, other than the reference to

“prior restraint” in the point heading and a short quote from New

York Times Co. v. United States, 403 U.S. 713 (1971) (explaining

that the Government carries a heavy burden when imposing a prior

restraint), see SHAC Mem. at 30, defendant SHAC makes no attempt

to explain how this prosecution for conduct that has already

occurred constitutes a prior restraint. As a result, if SHAC is

raising a claim of prior restraint, it lacks merit.

In addition, as part of its First Amendment and Due Process

arguments, defendant SHAC argues that SHAC cannot be liable for

the activities of others. SHAC Mem. at 39-40. The defendants,

however, are charged in the Superseding Indictment for their own

conduct. To be sure, the defendants relied upon, and

incorporated, the activities of others to further their goal of




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intimidating, harassing, threatening, stalking, and coercing

victims into ceasing their ties with HLS. However, they are

being charged for noone’s conduct, but their own.

Similarly, defendant SHAC mischaracterizes the Superseding

Indictment by suggesting that the Government is prosecuting SHAC

for “providing offenders camouflage.” SHAC Mem. at 45-48. SHAC

is not being prosecuted for simply publishing anonymous

information. SHAC is being prosecuted for the statements it

published on its website, the activities it coordinated and

directed, and the context in which those statements were made and

activities coordinated.

Defendant SHAC also argues that the acts of posting personal

information and the “top twenty terror tactics” are

constitutionally protected under the First Amendment. SHAC Mem.

at 48-56. Again, defendant SHAC attempts to separate the

postings from the context in which they were made and to minimize

its conduct. The determination of whether the conduct in this

case falls outside the First Amendment “is a factual inquiry

informed by the ‘entire factual context, including the

surrounding events and reaction of the listeners.’” United

States v. Hinkson, — F. Supp. 2d —, 2004 WL 2965864 (D. Idaho

Dec. 22, 2004) (quoting United States v. Orozco-Santillan, 903

F.2d 1262, 1265 (9th Cir. 1990)). This is so because in avacuum, there are certainly circumstances under which the

publishing of personal information and a list such as the “top

twenty terror tactics” is protected under the First Amendment.




37 The fact that an individual’s personal information may

be in the public domain does not insulate a defendant from

liability if he or she misappropriates that information to

threaten and intimidate that individual.

- 80 -

It turns, however, on a question of intent. For example, a

newspaper may have a right to publish news even if, in the

process of reporting the story, it releases personal information.

That is a wholly distinct situation from this case.

The evidence at trial will show that the defendants released

the personal information with the intent and knowledge that it

would lead to harassment, stalking, and violence – i.e., SHAC did

not merely stand by and report on the activities of others.

SHAC’s very existence was to coordinate the campaign to shut down

HLS. SHAC selected the targets to accomplish this goal, chose

the methods to be utilized, and reported on the resulting acts

taken against the targets in an attempt to intimidate and

threaten these individuals into severing all ties with HLS and

any company affiliated with HLS.37 That SHAC was not merely

reporting on the activities of others is perhaps best evidenced

by the fact that SHAC sent letters to its victims offering them

the opportunity to sever their ties with HLS and, in return, SHAC

would cease the “direct actions.”

Finally, the fact that the SHAC website had a disclaimer

also fails to insulate the defendants from criminal liability.

In some instances, the disclaimer would do little, if anything,

to discourage the illegal activity the posting incited. For

example, defendant Kjonaas cites the following disclaimer that




38

SHAC also posted the following self-serving statement:“SHAC does not organize, fund or take part in any illegal

activity.” Kjonaas Mem. at 13 n.5. However, this disclaimer

also does little to discourage illegal activity as it is

immediately followed by the following sentence: “we do support

any action that does not harm any animal, human or non human, to

further the campaign to shut down HLS.” Id. (emphasis added).

- 81 -

followed the posting of the “top 20 terror tactics”: “Now don’t

get any funny ideas!” However, “a jury could readily find [such

a disclaimer] to be transparent sarcasm designed to intrigue and

entice.” Rice v. Paladin Enterprise, Inc., 128 F.3d 233, 254

(4th Cir. 1997). Indeed, a disclaimer, itself, “can be couched

as an incitement and should not always be accepted at face

value.” Laura Leets, Responses To Internet Hate Sites: Is Speech

Too Free In Cyberspace, 6 Comm. L. & Pol’y 287, 313 (2001)

(pointing out that the website for the hate group World Church of

the Creator “has a disclaimer but its members increasingly have

been linked with violence.”). In addition, disclaimers are often

ignored by viewers of the website and, thus, are ineffectual.

Id. As a result, the fact that the SHAC website had disclaimers

does not bar this prosecution for criminal conduct outside the

First Amendment.38

In sum, the First Amendment is designed to protect and

affords the greatest protection when individuals are engaged in

speech or expressive conduct designed to persuade or open a

dialogue for a free exchange of ideas. The defendants in this

case, however, were not merely seeking to open a dialogue or




39 Indeed, defendants, while wrapping themselves in the

cloak of the First Amendment, wholly discount the fact that they

were trammeling the rights of others to engage in activities of

their own choosing.

- 82 -

persuade others through advocacy. Rather, defendants coordinated

and conspired to use “direct action” including intimidation,

harassment, stalking, and violence to force HLS, companies doing

business with HLS, and their employees from engaging in lawful

activity. Although the First Amendment guarantees the right to

express one’s views, it is not a license to invade the rights of

others. The defendants are seeking to use the First Amendment –

not as a shield to protect their rights – but as a vehicle to

justify intimidation, threatening conduct, and harassment for the

purpose of coercing others into accepting their message.39 The

First Amendment was not intended to protect such conduct. See

Federalist Paper No. 63, at 386 (James Madison) (Clinton Rossiter

ed., 1961) (warning “that liberty may be endangered by the abuses

of liberty as by the abuses of power”). Accordingly, for all of

the reasons set forth above, defendants’ First Amendment argument

fails.

B. The Animal Enterprise Terrorism Statute Is Not Facially

Overbroad.

Several of the defendants also claim that 18 U.S.C. § 43(a)

is overbroad and, thus, unconstitutional under the First

Amendment and the Due Process Clause. E.g., Gazzola Mem. at 3-7.

In support of this position, defendant Gazzola asserts that “a




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law is facially void for overbreadth if it ‘does not aim

specifically at evils within the allowable area of [government]

control, but . . . sweeps within its ambit other activities that

. . . constitute an exercise’ of constitutionally protected

expression.” Id. at 3 (quoting Thornhill v. Alabama, 310 U.S.

88, 97 (1940)). Although stated accurately, the standard

suggested by defendant Gazzola’s quote does not correctly reflect

the overbreadth doctrine as clarified by the Supreme Court and

the Third Circuit in the nearly sixty-five years since Thornhill.

As the Third Circuit recognized in Gibson v. Mayor and

Council of the City of Wilmington, invalidating a statute “for

facial overbreadth is ‘strong medicine.” 355 F.3d 215, 226 (3d

Cir. 2004) (quoting New York v. Ferber, 458 U.S. 747, 769 (1982);

Aiello v. City of Wilmington, 623 F.2d 845, 852 (3d Cir. 1980)).

Hence, “the overbreadth doctrine is not casually employed.” Los

Angeles Police Department v. United Reporting Publishing Corp.,

528 U.S. 32, 39 (1999). To the contrary, a Court must “‘employ[

it] with hesitation, and then only as a last resort.’” Id.

(quoting Ferber, 458 U.S. at 768).

Under the overbreadth doctrine, a court must not declare a

statute unconstitutional unless it “reaches a substantial amount

of constitutionally protected conduct.” Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494

(1982) (emphasis added). Simply put, it is not enough for




- 84 -

defendant to show some overbreadth. Furthermore, in undertaking

an overbreadth analysis, the Third Circuit has identified the

following factors: “the number of valid applications, the

historic or likely frequency of conceivably impermissible

applications, the nature of the activity or conduct sought to be

regulated, and the nature of the state interest underlying the

regulation.” Gibson, 355 F.3d at 226 (internal quotation marks

and citation omitted).

In support of her argument, defendant Gazzola identifies the

following reasons: (1) “the statute can be read to punish

interstate protest activities, such as a boycott, which are

effective at stymying animal testing yet are wholly protected by

the First Amendment”; (2) it “authorizes prosecutions against

individuals who speak out against companies which harm animals

and, who, as a result, reduce the profits generated from the

companies’ acts of animal cruelty”; and (3) it “criminalizes

organized political campaigns the include elements of expressive

conduct as well as pure speech.” Gazzola Mem. at 6-7.

The defendants in this case “bear[] the burden of

demonstrating, ‘from the text of [the law] and from the actual

fact,’ that substantial overbreadth exists.” 539 U.S. 113, 122

(2003) (quoting New York State Club Assn., Inc. v. City of New

York, 487 U.S. 1, 14 (1988)). Here, the defendants have failed

to satisfy this burden, offering only generalized statements,




- 85 -

scenarios, and hypotheticals while ignoring the actual text of

the statute.

First, defendants’ hypothetical applications ignore the

actual text of the statute. Section 43(a) requires that a

defendant (1) have the purpose of causing physical disruption to

the proper functioning of an animal enterprise and (2)

intentionally damage or cause the loss of any property used by

the animal enterprise. Alternatively, § 43(a) requires that a

defendant conspire – i.e., knowingly and willfully agree – to

cause physical disruption to an animal enterprise and damage or

cause the loss of property used by that animal enterprise. The

language of the statute makes it clear that it is aimed at

conduct – specifically, the damaging or causing the loss of

property used by an animal enterprise. That is not protected

speech. While advocacy is clearly protected, damaging or causing

the loss of another’s property is not. Hence, the “nature of the

activity or conduct sought to be regulated” does not support

defendants’ overbreadth argument. Gibson, 355 F.3d at 226.

Second, the Government has a compelling interest to protect

animal enterprises from individuals who seek to unlawfully

disrupt their functioning by damaging or causing the loss of

their property. Under § 43, an animal enterprise includes “a

commercial or academic enterprise that uses animals for food or

fiber production, agriculture, research or testing.” 18 U.S.C.




- 86 -

§ 43(d)(1)(A). Regardless of differing opinions about the

ethicalness of animal testing, it is undeniable that the

Government has an interest in ensuring that commercial or

academic enterprises that use animals to produce food or fiber,

for agriculture purposes, or for research (including research

mandated by the Food and Drug Administration) are permitted to

conduct their lawful business without being subjected to acts of

terrorism. Accordingly, “the nature of the state interest

underlying the regulation” also militates against defendants’

claim of overbreadth. Gibson, 355 F.3d at 226.

Third, “the historic or likely frequency of conceivably

impermissible applications” does not support a claim of

overbreadth. Id. Notwithstanding defendants’ hypotheticals, the

defendants have not offered a single example (outside of their in

this case) that § 43(a) has been applied in any of the scenarios

they suggest. For example, defendants have not identified a

single actual incident in which an “anti-fur ad campaign endorsed

by numerous celebrities” has been the subject of a prosecution

under § 43(a). Gazzola Mem. at 6.

Although defendants have “conceived” impermissible

applications of the statute, it is clear that under established

Supreme Court precedence, some overbreadth is not sufficient to

invalidate a federal statute. Rather, defendants must prove that

the statute is substantially overbroad. Defendants have not done




- 87 -

so. To the contrary, it is not – as defendant Gazzola would have

this Court believe – “hard to conceptualize what exactly this

statute punishes if it does not punish boycotts and other

organized political action.” Gazzola Mem. at 6. By its plain

language, it is clear the statute’s most likely applications will

involve individuals who set fires to animal enterprises, who

vandalize the property of animal enterprises, who steal animals

from an animal enterprise, and (as in this case) individuals who

engage in intimidation and threats to shutdown an animal

enterprise. In such a case, where “the number and weight of

permissible applications far outweigh the possible invalid

applications” – whether in number or in kind – the statute is not

unconstitutionally overbroad. Gibson, 355 F.3d at 227. Simply

put, given the more likely permissible applications of this

statute, there is no substantial likelihood of chilling free

speech rights.

Last, this is not a case in which the doctrine of

overbreadth should be employed as a last resort. The scenarios

conceived by defendants so clearly fall within the ambit of

protected speech that defendants’ claim that such conduct will be

subjected to prosecution under § 43 rings hollow. Instead,

individuals who are actually engaged in such protected speech and

who are prosecuted can challenge the statute as applied to them

in the unlikely event such a prosecution occurs. In this case,




- 88 -

however, for the reasons discussed in Point VI.A, supra,

defendants are not such an example. Accordingly, this Court

should reject their claim to challenge the statute on overbreadth

grounds.

C. The Animal Enterprise Terrorism Statute Is Not Overly

Vague.

Defendant SHAC claims that the animal enterprise terrorism

statute is overly vague for these reasons. SHAC Mem. at 41-42.

First, SHAC claims the statute’s definition of animal enterprise

“applies to entities which directly work with animals. However,

in the indictment the Government contends that actions taken

against businesses which work with [HLS] or assist [HLS] are

violations of the AEPA.” Id. at 42. Second, SHAC states that

“the Act defines ‘physical disruption’ to exclude public or

employee reaction to disclosure of information,” yet that is what

SHAC does. Id. Third, “no reasonable person could understand

what is covered by ‘economic damage’ as defined in [§ 43(d)(3)].”

Id.

To sustain a vagueness challenge to a statute, a defendant

must show that the statute “‘forbids or requires the doing of an

act in terms so vague that men of common intelligence must

necessarily guess at its meaning.’” Gibson, 355 F.3d at 225

(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926));

see also City of Chicago v. Morales, 527 U.S. 41, 52 (1999)( “It

is established that a law fails to meet the requirements of the




- 89 -

Due Process Clause if it is so vague and standardless that is

leaves the public uncertain as to the conduct it prohibits . . .

.”).

Here, SHAC’s own understanding of the statute defeats any

claim of vagueness. In particular, SHAC clearly understands that

the statute generally defines an animal enterprise as an entity

“which directly work[s] with animal[s].” As SHAC admits, that is

HLS. Count One of the Superseding Indictment charges that the

defendants conspired to shut down HLS – an animal enterprise.

That is the violation of § 43 with which the defendants are

charged.

One of the many ways in which the defendants sought to

accomplish the objective of that conspiracy – i.e., to shut down

HLS – was by engaging in “direct action” against any company –

regardless of what business it was in – that had a connection to

HLS. Nothing in the Superseding Indictment, however, suggests

that the defendants are charged with conspiring to shut down any

of those companies. To the contrary, defendants made it clear to

each of the non-HLS companies that if they ceased to do business

with HLS they would be left alone. There is, therefore, nothing

vague about § 43 or the charge in the Superseding Indictment.

Likewise, there is nothing vague about the term “physical

disruption.” As SHAC seems to understand from its own

memorandum, the statute defines “physical disruption” to exclude




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public or employee reaction to disclosure of information. See 18

U.S.C. § 43(d)(2). SHAC, however, misrepresents the exclusion.

The actual language of the statute provides: “the term ‘physical

disruption’ does not include any lawful disruption that results

from lawful public, governmental, or animal enterprise employee

reaction to the disclosure of information about an animal

enterprise.” Id. (emphasis added). As discussed at length

above, the defendants are charged with, and the evidence at trial

will establish, that SHAC engaged in unlawful conduct, including

intimidation, harassment, stalking, and violence to shut down

HLS. Such conduct clearly does not fall within the definition

set forth in the statute.

Finally, SHAC makes the conclusory statement that “no

reasonable person could understand what is covered by economic

damage.” SHAC Mem. at 42. There is nothing vague, however,

about the requirement that economic damages exceed $10,000 for a

felony. Defendant SHAC has offered no reasons why a person of

reasonable intelligence cannot understand this provision.

That the defendants do not believe their conduct is a

violation of the statute does not support the conclusion that the

statute is vague. The animal enterprise terrorism statute sets

forth the specific conduct that it prohibits, the specific intent

and purpose the defendant must have, and clearly defines several

of its terms, including “physical disruption,” “animal




- 91 -

enterprise,” and “economic damage.” Defendants, therefore,

cannot show that “men of common intelligence must necessarily

guess at [the statute’s] meaning.” Gibson, 355 F.3d at 225.




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VII. THE CRIMINAL CONDUCT CHARGED IN COUNTS TWO THROUGH FIVE

OF THE SUPERSEDING INDICTMENT, 18 U.S.C. § 2261A, IS

NOT PROTECTED UNDER THE FIRST AMENDMENT.

Defendants also claim that the charges under the interstate

stalking statute infringes upon their First Amendment rights.

Defendants SHAC and Kjonaas essentially rely on the First

Amendment arguments advanced in connection with the animal

enterprise terrorism statute. See SHAC Mem. at 56; Kjonaas Mem.

at 61. Defendant Gazzola similarly relies on the Supreme Court

case law discussed above in support of her claim that her speech

is akin to political speech.

For the reasons discussed in Point VI, supra, the evidence

at trial will establish that defendants’ conduct exceeded First

Amendment protection. In particular, with regard to the

interstate stalking counts, the allegations in the Superseding

Indictment are sufficiently pled. Those allegations, if true, by

definition would constitute unprotected speech. Compare 18

U.S.C. § 2261(A)(2) (“. . . with the intent . . . to place a

person in another State . . . in reasonable fear of the death of,

or serious bodily injury . . . .”) with Virginia v. Black, 538

U.S. 343, 360 (2003) (defining true threats — which are

unprotected under the First Amendment – to include “where a

speaker directs a threat to a person or a group of persons with

the intent of placing the victim in fear of bodily harm or

death”) (emphasis added). Accordingly, it is a factual issue for




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the jury to decide whether the defendants’ conduct constitutes

conspiracy to commit, and aiding and abetting, interstate

stalking.

In addition, the defendants are charged in Counts Three,

Four and Five with aiding and abetting interstate stalking, a

crime under § 2261A. That the defendants’ aiding and abetting

may have taken the form of speech or expressive conduct does not

immune them from criminal aiding and abetting liability. As the

Court of Appeals made clear in Rice v. Paladin Enterprises, Inc.,

“every court that has addressed the issue . . . has held that the

First Amendment does not necessarily pose a bar to liability for

aiding and abetting a crime, even when such aiding and abetting

takes the form of the spoken or written word.” 128 F.3d 233, 244

(4th Cir. 1997).

In Rice v. Paladin Enterprises, Inc., the defendants

published the “Hit Man: A Technical Manual For Independent

Contractors” – a 130-page book “of detailed factual instructions

on how to murder and become a professional killer.” Id. at 239.

The relatives and representatives of a family murdered by James

Perry in exchange for a fee sued the defendant because Perry

followed the manual in carrying out the killing. Id. at 240-41.

The Fourth Circuit held “that the First Amendment did not pose a

bar to a finding that [defendant] is civilly liable as an aider

and abetter of Perry’s triple contract murder.” Id. at 242.




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Although it was a civil case, the Court explicitly noted it was

relying on principles of criminal law. See id. at 247-48.

The Court in Rice explained that “while even speech

advocating lawlessness has long enjoyed protections under the

First Amendment, it is equally well established that speech

which, in its effect, is tantamount to legitimately proscribable

nonexpressive conduct may itself be legitimately proscribed,

punished, or regulated incidentally to the constitutional

enforcement of generally applicable statutes.” Id. at 243.

Hence, while recognizing that the First Amendment may preclude

liability “on the basis of mere foreseeability or knowledge that

the information could be misused for an impermissible purpose,”

the Court made it clear the First Amendment does “not relieve

from liability those who would, for profit or other motive,

intentionally assist and encourage crime and then shamelessly

seek refuge in the sanctuary of the First Amendment.” Id. at

248. Put differently, the Court held that the First Amendment

was not a bar to liability where it can be established that the

speech or expressive conduct was “undertaken with specific, if

not criminal, intent.” Id. The Court recognized that whether or

not the speaker acts with the requisite intent is an issue that a

jury could reasonably find based upon the evidence. Id. at 248,




40 In Rice, the defendant stipulated to a specific intent,

and thus, there was no issue for a jury to decide. Id. at 248.

- 95 -

252.40

Furthermore, for purposes of aiding and abetting liability,

the fact that the criminal conduct being assisted does not occur

imminently does not insulate it from criminal liability.

See Rice, 128 F.3d at 246 (explaining that Brandenberg’s

imminency test is not the relevant inquiry because it is the

assistance, not the advocacy, that is being criminalized). As

the Court explained in United States v. Barnett,

The fact that the aider and abettor’s counsel and

encouragement is not acted upon for long periods of time

does not break the actual connection between the commission

of the crime and the advice to commit it. It is only

necessary that the [defendant] counseled and advised the

commission of the crime, and that the counsel and advice

influenced the perpetration of the crime. We know of no

rule of law which fixes a time limit within which the crime

must be perpetrated.

667 F.2d 835, 841 (9th Cir. 1982).

Here, if the defendants successfully assisted others by

detailing to them how to engage in the crime – interstate

stalking – they are criminally liable. The evidence at trial

will show that the defendants in Counts Three, Four and Five

detailed to sympathizers who to target, what to do, and then, in

further assistance of the actual stalking, reported on the

incidents as part of a design to warn others that they, too,

could be subjected to it. Thus, targets of SHAC who visited the




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website would see the type of acts being taken against other

targets and, thus, fear for their own safety. See

generally Comment, “Cyberstalking: Can Communication Via The

Internet Constitute A Credible Threat, And Should An Internet

Service Provider Be Liable If It Does?,” 17 Santa Clara Computer

& High Tech. L. J. 115 (Dec. 2000) (available on Westlaw at 17

SCCHITLJ 15) (discussing the concept of cyberstalking – i.e., the

“use of the Internet, e-mail or other electronic communications

devices to stalk another person through threatening behavior”).

Furthermore, based upon all of the circumstances (including in

some instances defendants’ own statements), a jury could

reasonably find that the defendants acted with the specific

intent to assist the acts of intimidation, stalking, and violence

– i.e., they were not engaging in pure abstract advocacy.

Ultimately, whether or not this evidence is sufficient to

prove beyond a reasonable doubt that the defendants aided and

abetted interstate stalking is an issue the trier of fact must

decide. Accordingly, for these reasons, this Court should reject

defendants’ motion to dismiss Counts Two through Five.




41 Section 223(1)(D) prohibits the making of repeated

telephone calls “with intent to harass.”

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VIII. THE CRIMINAL CONDUCT CHARGED IN COUNT SIX OF THE

SUPERSEDING INDICTMENT, 47 U.S.C. § 223, IS NOT

PROTECTED UNDER THE FIRST AMENDMENT.

Defendants raise several arguments in support of their

motion to dismiss Count Six of the Superseding Indictment.

First, defendants claim that the Communications Act of 1934, 347

U.S.C. § 223, “is unconstitutional on its face” under the First

Amendment. See Gazzola Mem. at 11-12. In support, defendant

Gazzola cites United States v. Popa, 187 F.3d 672 (D.C. Cir.

1999). A reading of the opinion in Popa, however, offers little

support for defendant Gazzola’s claim. The Court of Appeals in

Popa explicitly refused to consider a facial challenge to § 223.

See 187 F.3d at 678. Instead, the Court found the statute

unconstitutional as applied to that defendant’s conduct and

refused to consider defendant’s facial challenge. Id.

In addition, defendant Gazzola’s facial challenge to the

statute fails for the reasons cited by the Third Circuit in

United States v. Lampley, 573 F.2d 783 (3d Cir. 1978), wherein

the Court rejected a facial challenge to § 223(1)(D) – a

subsection similar to § 223(1)(C) charged in Count Six. Id. at

786-788.41 In Lampley, the Third Circuit recognized that

Congress has the power “to impose criminal sanctions on the

placement of interstate calls to harass, abuse, or annoy.” Id.




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at 787. As the Court explained, “Congress had a compelling

interest in the protection of innocent individuals from fear,

abuse or annoyance at the hands of person who employ the

telephone, not to communicate, but for other unjustifiable

motives.” Id. Furthermore, the Court continued, the statute’s

“narrow intent requirement [i.e., that the defendant acted “with

intent to annoy, abuse, threaten, or harass”] precludes the

proscription of mere communication” and, thus, saves it from

constitutional attack for overbreadth. Id.

Here, notwithstanding Gazzola’s claim, § 223(1)(C) does not

apply to “anonymous communications that are made for political

reasons.” Gazzola Mem. at 12. Rather, like the provision at

issue in Lampley, § 223(1)(C) explicitly requires a specific

intent – i.e., the “intent to annoy, abuse, threaten, or harass.”

The Superseding Indictment sufficiently alleges the requisite

intent, and the Government intends to prove it at trial. As in

Lampley, this intent requirement saves § 223(1)(C) from

constitutional attack for overbreadth.

The Third Circuit’s opinion Lampley also defeats defendants’

argument that § 223 is void for vagueness. The Court in Lampley

rejected this argument, holding:

[Defendant] cannot claim confusion about the conduct

proscribed where, as here, the statute precisely specifies

that the actor must intend to perform acts of harassment in

order to be culpable.

Id. at 787. Likewise, in this case, the defendants cannot claim




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confusion about what the statute proscribes.

Furthermore, § 223 is not unconstitutional as applied to the

defendants’ conduct. The defendant again rely on Popa in support

of their claim that the sending of black faxes is protected

speech. In Popa, the defendant, a political refugee from

Romania, made seven telephone calls to the U.S. Attorney for the

District of Columbia, calling him “a criminal, a negro,” a

“criminal with cold blood,” and a “whore, born by a negro whore,

[who] became chief prosecutor of Washington, D.C.” 187 F.3d at

673-74. At trial, the defendant claimed he made the calls to

complain about two African-American police officers who, he said,

threatened to beat him up. Id. at 675 & n.*. He also claimed he

called to complain about a pending case against him. Id. After

a jury trial, defendant was convicted of violating 47 U.S.C.

§ 223(a)(1)(C). On appeal, the District of Columbia found that

the defendant engaged in protected, political speech that could

not be the subject of a prosecution under § 223. Id. at 677-78.

The Court reasoned that the defendant’s “complaints about the

actions of a government official were a significant component of

his calls.” Id.

Unlike the defendant in Popa, the defendants did not

conspire to send black faxes to engage in a political discourse.

By their own statements (and the statements of co-conspirators),

black faxes were sent to harass and annoy, as well as to prevent




42

The fact that, as defendant Gazzola claims, the ultimateend was “to bring about change in corporate policies” does not

diminish the fact that the particular means were specifically

intended to annoy and harass the recipient of the black fax.

Throughout their memoranda, defendants employ an ends-justify-the

means approach. When the means violate the law, however, the end

is irrelevant.

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the recipients of the faxes from conducting their business by,

among other things, “knock[ing] out the entire line of

communication.” Superseding Indictment, Count Six ¶ 6. In that

regard, “black faxes” — according to the “top 20 terror tactics”

posted by the SHAC website – were intended to “caus[e] fax

machines to burn out.” This case, therefore, is distinguishable

from the political refugee in Popa who called “to complain about

having been assaulted by police officers and about the

prosecutor’s conduct of a case against him.” 187 F.3d at 416.42

It must also be pointed out that SHAC, and the other

defendants are charged with conspiring to violate 47 U.S.C.

§ 223(a)(1)(C), in violation of 18 U.S.C. § 371. Superseding

Indictment, Count Six ¶ 2. Defendant SHAC claims that Count Six

should be dismissed because “there is no evidence that SHAC-USA

sent any transmissions” or that “SHAC did not disclose its

identity.” SHAC Mem. at 58-60. Similarly, defendant Kjonaas

asserts that there is no allegation that “the individual

defendants used any telecommunications device for any purpose

whatsoever, ever.” Kjonaas Mem. at 62. While accurate, it

ignores the fundamental differences between a substantive offense




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and a conspiracy. Count Six of the Superseding Indictment

charges a conspiracy. The evidence at trial will support that

charge – namely, that SHAC and the other defendants conspired

“with one another and others” to send black faxes for the purpose

of abusing, threatening, and harassing the persons at the called

numbers.

Moreover, defendants are not being prosecuted for the

content of their communication, but for their agreement to send

black faxes for the specific intent of harassing and annoying the

persons at the called numbers. As noted above, the evidence will

show that the defendants intended to block the recipients from

using their faxes and, thus, to annoy and harass.

The harassing nature of the facsimile is further increased

because the recipient has no method of identifying the actual

sender and confronting him or her. That SHAC coordinated these

activities – and thus could be identified as the cause of them,

see SHAC Mem. at 60 – does little to identify the actual senders.

To the contrary, the SHAC website instructed individuals on what

to do to avoid having their identity revealed.

Last, the defendants fail to appreciate that First Amendment

rights are available to all individuals. A facsimile or

telephone is a medium for individuals to engage in speech. The

defendants’ intent, however, was to “knock out the entire line of

communication” of the recipients of the black faxes, thus




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frustrating their ability to engage in speech. Certainly, the

defendants’ First Amendments rights do not usurp the rights of

the victims they targeted.




43 The Fullmer memorandum of law is not paginated.

Citations to it will be made by using the page beginning with

“STATEMENT OF FACTS AND PROCEDURAL HISTORY” as page 1 and

counting from there.

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FULLMER’S AND HARPER’S MOTIONS

In addition to joining the motions of other defendants,

defendants Fullmer and Harper have renewed certain preliminary

motions that were not resolved by the Court during the hearing on

November 19, 2004. In its Memorandum In Opposition to those

motions, filed on November 12, 2004, the Government responded to

those motions. For the Court’s convenience, those arguments are

reproduced below.

IX. THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSEDAGAINST DEFENDANTS FULLMER AND HARPER.

Defendant Darius Fullmer and Joshua Harper argue, for

similar reasons, that the Superseding Indictment should be

dismissed as against them. Defendant Fullmer argues that the

Government has not set forth a cause of action as to him (Fullmer

Mem. at 743), while defendant Harper argues that “no probable

cause is revealed” to support the Superseding Indictment.

(Harper Mem. at 7). In essence, both defendants argue that the

case should be dismissed as against them because the Superseding

Indictment itself is lacking.

Defendant Fullmer cites two cases in support of his

argument, both of which are inapposite to the instant motion and

both of which favor the denial of his motion. In United States




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v. Lyons, 53 F.3d 1198 (11th Cir. 1995), the Court affirmed the

conviction of a defendant after trial. The case does not deal

with dismissal of a matter based upon an infirmity in the

indictment. Thus, citation to Lyons does not support defendant’s

argument.

United States v. Locasio, 6 F.3d 924 (2d Cir. 1993) is

similar to Lyons. In Locasio, the defendants were convicted

after trial. Defendant Locasio argued on appeal that he should

not have been convicted merely for his presence at certain

meetings. Locasio, 6 F.3d at 944. The Government had proven at

trial that he presence at certain meetings, even thought he did

not speak, was an important fact in the full panorama of events.

Id. Ultimately, the Court, in rejecting the defendants arguments

and holding that the jury was entitled to consider whether it was

likely that the defendant’s mere presence was in furtherance of

the conspiracy, stated that “the government did far more than

establish mere presence.” Id. at 945. So too here, the ultimate

resolution of this matter should await the presentation of

evidence by the Government and the deliberation of the facts by a

jury.

Both defendants Fullmer and Harper misperceive the pleading

and proof requirements of the overt acts in furtherance of the

conspiracies in this case. Both seem to understand that theGovernment must allege all of the overt acts in furtherance of

the conspiracy in the Superseding Indictment. Indeed, both argue

that they are not named in many of the overt acts and that in




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some way supports their argument for dismissal. However, “the

Government is not limited in its proof at trial to those overt

acts alleged in the Indictment.” United States v. Adamo, 534

F.2d 31, 38 (3d Cir. 1976). Moreover, the Government is “under

no obligation to prove every overt act alleged.” Id. All that

is required is that the Government prove that a single overt act

in furtherance of the Superseding Indictment be proven to the

jury beyond a reasonable doubt. The overt act need not even be

in itself illegal. United States v Palmeri, 630 F.2d 192, 200

(3d Cir. 1990), citing Braverman v. United States, 317 U.S. 49,

53, 63 S.Ct. 99, 101, 87 L.Ed.2d 23 (1942). Thus, this matter

must await trial where the Government will be put to its burden

of proof. Accordingly, defendants’ motion to dismiss at this

time should be denied.

Defendant Harper seeks dismissal of the Superseding

Indictment because it is “vague and lacks probable cause” (Harper

Mem. at 7) yet cases that he cites do not address either of those

points. Rather, he argues that the First Amendment precludes the

Government from prosecuting him. See Terminiello v. Chicago, 337

U.S. 1, 69 S.Ct. 894, 93 L.Ed. 113 (1949); Bridges v. California,

314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Craig V. Harney,

331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); and Herndon ve

Lowrey, Sheriff, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066

(1937). As is set forth above, that argument and its resolution

should await further briefing by all parties. The argument made

here -- that the Superseding Indictment is vague and lacks




- 106 -

probable cause – is, for the reasons set forth above, lacking in

merit and should be dismissed.




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X. DEFENDANT’ FULLMER’S REQUEST FOR SEVERANCE LACKSFACTUAL AND LEGAL BASIS.

Defendant Fullmer asserts that he cannot receive a fair

trial unless he is severed for trial from his co-defendants. For

the reasons set forth below, this is not supported by law or

fact.

Rule 8(b) permits the joinder of defendants in the same

indictment if they are alleged to have participated in the same

act or transaction or series of acts or transactions constituting

an offense. If the pleadings allege participation in the same

act or series of acts, this is sufficient to justify joinder,

even if the count of the indictment alleging this participation

is ultimately dismissed. Schaeffer v. United States, 362 U.S.

511, 514 (1960). The Court of Appeals for the Third Circuit has

found that since a conspiracy claim "provides a common link, and

demonstrates the existence of a common scheme or plan" it

satisfies the "series of acts" requirement. United State v.

Somers, 496 F.2d 723, 729 (3d Cir. 1074), abrogated on other

grounds, United States v. DiLoreto, 888 F.2d 996 (3d Cir. 1989);

see also United States v. Irizarry, 341 F.3d 273, 289 (3d Cir.

2003) (quoting Somers for this proposition). Relatedly, the

Third Circuit has expressed a clear preference in conspiracy

cases "to have all of the parties tried together so that the full

extent of the conspiracy may be developed." United States v.

Provenzano, 688 F.2d 194, 199 (3d Cir. 1982). In such cases, the

important interest in judicial economy usually weighs in favor of




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trying the defendants in a single trial. Id.

Under Rule 14 of the Federal Rules of Criminal Procedure,

however, the court has the discretion to grant a severance of the

defendants if it appears that the defendant or government will be

prejudiced by a joint trial. Neither mere allegations of

prejudice nor the assertion that a severance would improve a

defendant's chance for acquittal justifies a severance. United

States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981).

Similarly, a defendant is not entitled to severance merely on the

basis of a disparity in the strength of the evidence against a

co-defendant, since "if that were the case, a joint trial could

rarely be held." United States v. Dansker, 537 F.2d 40, 62 (3d

Cir. 1976), cert. denied, 429 U.S. 1038 (1977). See also United

States v. Adams, 759 F.2d 1099, 1113 (3d Cir.), cert. denied, 474

U.S. 906, 971 (1985); United States v. Simmons, 679 F.2d 1042 (3d

Cir. 1982), cert. denied, 462 U.S. 1134 (1983).

Instead, a defendant must show that the evidence is so

complex or confusing that a jury could not compartmentalize the

evidence and consider it for its proper purposes, Dansker, 537

F.2d at 62; United States v. DeLarosa, 450 F.2d 1057 (3d Cir.

1971), cert. denied, 405 U.S. 957 (1972), and that the failure to

sever clearly and substantially prejudices him to the point of

depriving him of a fair trial. Reicherter, 647 F.2d at 400.In the case at bar, each defendant is on trial for

conspiring with others, through illegal actions, to shut down

HLS. Each of the defendants – including Fullmer - has




44 To this end, the United States respectfully suggests

that the Court instruct the jury in accordance with the dictates

of the case law cited above regarding the consideration it should

give the evidence offered against each defendant.

- 109 -

participated in one or more acts in furtherance of the object of

the conspiracy. This conspiracy, and the acts engaged in to

further its object, provide a satisfactory basis for a joint

trial of these defendants.

Moreover, the nature of the evidence against each defendant

is not complex or confusing. Rather, the evidence against each

defendant can be compartmentalized by the jury and the Court can

instruct the jury regarding the proper use of the evidence.44

For all these reasons, the defendant's request for severance is

without basis and should be denied.




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XI. THIS COURT SHOULD DENY DEFENDANT HARPERS’S MOTION TOSUPPRESS BECAUSE THE WARRANT TO SEARCH HARPER’SRESIDENCE WAS BASED UPON PROBABLE CAUSE AND ITDESCRIBED THE ITEMS TO BE SEIZED WITH PARTICULARITY.

Defendant Harper is challenging the search conduct by FBI

agents of his residence at 5526 17th Avenue, Seattle, Washington.

The search of this residence was conducted pursuant to a search

warrant issued by a United States Magistrate Judge for the

Western District of Washington. As discussed further below, the

warrant was based upon probable cause that a search of Harper’s

residence would reveal evidence, fruits, or instrumentalities of

the commission of crimes committed in violation of 18 U.S.C.

§§ 43, 371, and 875(c). In that regard, the warrant authorized a

search for, and the seizure of, specific items related to the

violations of those federal offenses. See Attachment ----

(Attachment A to Warrant). FBI agents relied upon the judicially

issued warrant to conduct the search of Harper’s residence.

Harper now argues that the warrant lacked probable cause

that (1) he “was a principal in SHAC”; and (2) he engaged in

specific illegal activity. Harper Mem. at 15. While

acknowledging that “SHAC’s listed criminal activities [in the

affidavit] may have been sufficient to search SHAC headquarter,”

and that “it is clear Harper associated with SHAC,” Harper

nevertheless claims that these facts do not provide probable

cause for a search of his residence because “[m]ere association

with an organization absent more, is never sufficient.” Id.

Harper also suggests that probable cause is lacking because the




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affiant who submitted the affidavit in support of the warrant

“did not speak from personal knowledge.” Id. at 16. In

addition, Harper asserts that the warrant lacks particularity.

Id. at 17.

All of Harper’s arguments fail. As discussed below, the

affidavit did provide sufficient probable cause to support the

issuance of the search warrant. Moreover, the items to be seized

were described with the requisite particularity. In any event,

the FBI agents relied upon the warrant in good faith, and thus,

suppression is unjustified based upon the Leon good faith

exception.

A. The Warrant Demonstrated The Existence Of ProbableCause.

The warrant demonstrated the existence of probable cause.

Probable cause is determined by a totality of the circumstances

test. United States v. Williams, 124 F.3d 411, 419 (3d Cir.

1997). In determining whether there is probable cause based upon

the facts contained in an affidavit, this Court must give

deference to the initial probable cause determination made by the

magistrate judge . United States v. Conley, 4 F.3d 1200, 1205

(3d Cir. 1993); see also United States v. Hodge, 246 F.3d 301,

305 (3d Cir. 2001) (explaining that the Court of Appeals “sits

like a district court and must, like the district court, give

great deference to the magistrate judge’s probable cause

determination”).

The task of the issuing magistrate is simply to determine




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whether there is a “fair probability that contraband or evidence

of a crime will be found in a particular place.” Id. The

reviewing court is “to uphold the warrant as long as there is a

substantial basis for a fair probability that the evidence will

be found.” Id. Although “in a particular case it may not be

easy to determine when an affidavit demonstrates the existence of

probable cause, the resolution of doubtful or marginal cases in

this area should be largely determined by the preference to be

accorded to warrants.” United States v. Ventresca, 380 U.S. 102,

109 (1965); accord United States v. Hodge, 246 F.3d 301, 305 (3d

Cir. 2001). Finally, in making this determination, the affidavit

must be read in a common sense and nontechnical manner. Williams,

124 F.3d at 420; Conley, 4 F.3d at 1205-06.

The warrant in the case sub judice demonstrated the

existence of probable cause that evidence of the commission of

crimes in violation of 18 U.S.C. § 43 (Animal Enterprise

Terrorism), § 371 (conspiracy), and § 875(c) (threatening

interstate communications) may be found at Harper’s residence.

The existence of such probable cause was sufficient to authorize

a search of Harper’s residence. See Illinois v. Gates, 462 U.S.

213, 238 (1983) (defining probable cause to search as “a fair

probability that contraband or evidence of a crime will be found

in a particular place”).

First, the affidavit in support of the warrant showed that

“[n]otwithstanding SHAC’s claim that it is a legal organization




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that does not break the law, following their identification as

targets of SHAC, HLS and its employees, and companies doing

business with HLS and their employees, have been subjected to

numerous criminal acts, including acts of violence.”

See Gutierrez Aff. ¶ 8 (Appendix A to Harper’s Mem.). In

support, the affidavit noted that “one of the managing directors

of HLS in the United Kingdom was severely beaten” and “at least

eleven of HLS’s United Kingdom employees have had their cars

firebombed.” Id. The affidavit also noted that “in March 2001,

animal rights activists broke into an HLS facility in New Jersey

and stole fourteen beagles.” Id. ¶ 9. The affidavit explained

that although the SHAC website posts these events anonymously and

states that SHAC “does not condone illegal activities,” the

affiant had probable cause to believe “that this anonymity and

these statements represent nothing more than an effort to evade

responsibility for the crimes at issue.” Id. In support, the

affidavit set forth one example in which resumes of students who

submitted applications to HLS were stolen from a job fair at

Rutgers University. Id. ¶ 10. SHAC placed a posting on its

website from the person responsible, but claimed it was

anonymous. Id. ¶ 11. “Within days,” however, SHAC itself posted

the names and addresses of the students and posted a sample

letter that others could send to the students to harass them.

Id. at ¶ 11. In addition, the affidavit stated that the SHAC




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website itself (1) “threatens individuals as to what will happen

to them if they become targets of SHAC” (and cited as an example

the “Top 20 terror tactics” posted on the website), and (2)

claims that its “efforts have caused substantial disruption to

HLS and its business.” Id. ¶¶ 13, 15. Taken as a whole, these

factual assertions in the affidavit provided a “fair probability”

that SHAC and its organizers were engaged in criminal activity,

including violations of 18 U.S.C. § 43. Indeed, Harper concedes

as much. See Harper Mem. at 15.

Second, the affidavit provided probable cause that Harper

was “an active participant and leader in the SHAC campaign.”

Gutierrez Aff. ¶ 20. In support, the affidavit stated that:

(1) Harper was active at numerous SHAC events and protests

(including a presentation in which Harper explained that “we” at

SHAC “were telling people this guy’s the owner [i.e., Warren

Stevens of S. Corp.], here’s the board of directors, and that’s

what we were targeting”); (2) Harper stayed at the SHAC

headquarters while in New Jersey; and (3) Harper himself had

publicly stated on several occasions that he was involved with

the SHAC campaign. Gutierrez Aff. ¶¶ 20-22, 27. In addition,

the affidavit pointed out that an analysis of telephone toll

records revealed that the telephone at Harper’s residence had

been in regular contact with the SHAC headquarters. Id. ¶ 23.

Similarly, an analysis of Harper’s e-mail account indicated that




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he had been in regular contact with defendant Kjonaas. Id. ¶ 24.

Taken as a whole, these factual assertions in the affidavit

provided a “fair probability” that Harper was an active

participant in the SHAC campaign.

Given the factual assertions in the affidavit that SHAC was

involved in criminal activity and that Harper was active in SHAC

and in regular contact with others in SHAC, the search warrant

was supported by probable cause that evidence of SHAC’s criminal

activities may be found at Harper’s residence. This Court,

therefore, should not set aside the magistrate judge’s probable

cause determination.

Harper appears to believe that if the warrant did not

demonstrate that evidence of Harper’s own criminal activity would

be found within the residence, it did not demonstrate the

existence of probable cause. This is incorrect. Although the

warrant did not necessarily provide direct evidence that proof of

Harper’s participation in criminal activity would be present in

his residence, “direct evidence linking the place to be searched

to the crime is not required for the issuance of a search

warrant.” Conley, 4 F.3d at 1207. Instead, probable cause can

be, and often is, inferred from the type of crime, the nature of

the items sought, the opportunity for concealment, and normal

inferences about where a criminal might hide items. See id.

Here, the warrant provided evidence that SHAC engaged in illegal




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activities, that Harper was an active participant in SHAC, and

that Harper had regular contact (via e-mail communications) with

others engaged in SHAC’s illegal activities. Given these facts,

it was a reasonable inference that in his residence (and

specifically in his computer) there might be evidence regarding

these illegal activities.

Harper also challenges the warrant by attempting to argue

that the warrant lacked probable cause because it “relied

exclusively on information told to the affiant.” Harper Mem. at

16. This assertion, however, is refuted by the affidavit itself.

In the affidavit, Special Agent Gutierrez of the FBI, states that

the information in the affidavit is based upon (1) his “own

investigation,” which he had participated in for approximately

one year; (2) his review of reports prepared by other law

enforcement officers; and (3) information provided to him by

other law enforcement officers. Gutierrez Aff. ¶ 1. Throughout

the affidavit, Agent Gutierrez indicates that he has personal

knowledge of the information contained in the affidavit, e.g.,

id. ¶ 23 (“I am aware that telephone calls regularly have been

made . . .”); ¶ 25 (“I also know that Harper has continued to

maintain e-mail contact with SHAC . . . . I am aware of e-mail

sent between Harper’s e-mail address and SHAC’s . . .

headquarters”). Agent Gutierrez also makes numerous references

to the materials he is relying upon in the affidavit, see, e.g.,




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id. ¶ 6 (“According to a newsletter published by SHAC . . .”; ¶ 8

(“a posting on SHAC’s website . . .”); ¶ 13 (“The website also

threatens individuals as to what will happen to them if they

become targets of SHAC.”); ¶ 14 (“Another posting on the SHAC

website gives tips on making harassing telephone calls.”). The

affidavit makes clear that the affiant relied upon his own

personal knowledge and information he reviewed. Consequently,

Harper’s assertion that Agent Gutierrez “relied exclusively on

information told to” him by others is not accurate.

Last, Harper suggests that probable cause to seize his

computer was lacking because, as the affidavit recognizes,

“Harper’s computer was struck by a tree and . . . he had used a

special kind of software to ‘wipe’ out information.” Harper Mem.

at 17. Harper conveniently ignores the following explanation in

the affidavit:

Although it has been reported that Harper used a “wiping

software” that erased the hard drive on his own personal

computer each time the computer was turned off, computer

experts with whom I have consulted have informed me that it

still is likely that they will be able to recover evidence

from the computer using sophisticated software and/or

techniques. Those same experts have informed me that they

also believe that, even though Harper’s personal computer

was damaged when the tree fell and caused an electrical

surge and rendered the computer inoperational in December

2002, they believe that it is likely that stored evidence

still could be recovered from the computer.

Therefore, Harper’s argument that there was no probable cause to

search his computers lacks merit.

For all these reasons, the “totality of the circumstances”




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regarding the evidence in the warrant was sufficient to establish

probable cause – ”a fair probability that contraband or evidence

of crime will be found in a particular place.” Illinois v.

Gates, 462 U.S. at 238. This was all that was required.

B. The Warrant Described The Items To Be Seized With

Sufficient Particularity.

Harper also claims that the warrant failed to adequately

particularize the property to be seized. This argument, however,

is somewhat confusing. Harper relies on the inventory of items

seized during the search to claim that the search warrant lacked

particularly. See Harper Mem. at 17. It is not clear how an

inventory of items seized during the ensuing search either adds

or subtracts from the particularly of a search warrant. In any

event, the warrant in this case described the items to be seized

with sufficient particularity.

A search warrant’s language describing the items to be

seized “must be sufficiently definite to enable the searcher to

reasonably ascertain and identify the things authorized to be

seized.” United States v. Mosby, 101 F.3d 1278, 1281 (8th Cir.

1996) (quotations omitted). The purpose of this requirement is

to prevent “general exploratory rummaging” through a person’s

belongings. Id; Conley, 4 F.3d at 1207 (in order to prevent a

generally, exploratory rummaging, a warrant must give a

particular description of the things to be seized). However, the

standard in reviewing the particularity requirement is not a




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hypertechnical one; rather, a “standard of practical accuracy” is

used. Mosby, 101 F.3d at 1281; United States v. Jones, 54 F.3d

1285, 1291 (7th Cir. 1995) (holding that the particularity

requirement traditionally has been applied in a pragmatic fashion

that recognizes realistically the needs of law enforcement and

gives due regard for the practicalities of the situation).

Here, the warrant provided the particularity required. It

allowed for the seizure of items that constituted evidence,

fruits, or instrumentalities of violation of 18 U.S.C. § 43, 371,

and 875(c), including specifically: (1) documents referring to

or relating to HLS, (2) documents referring to or relating to

SHAC, (3) documents referring to or relating to companies and

employees targeted by SHAC (and listed specific companies),

(4) documents relating to animal enterprise terrorism or any

illegal activity related to interstate travel in aid of those

crime, (4) mailings lists, telephone books, and similar items,

(5) all computers and computer-related items. This specificity

fulfilled the particularity requirement of the Fourth Amendment.

This Court has upheld general categories when the categories

are limited by the type of crime being investigated in this

manner. For example, in Conley, the warrant used the phrase “all

revenue records.” However, this Court noted that the warrant

limited the search to items related to an illegal gambling

operation, which had the requisite specificity. See United




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States v. Kepner, 843 F.2d 755, 762-63 (3d Cir. 1988); United

States v. Johnson, 690 F.2d 60, 64-66 (3d Cir. 1982) (upholding

warrant against particularity challenge where warrant allowed

seizure of “instrumentalities of the commission of the crime of

conducting an illegal gambling business”). Here, as in earlier

Third Circuit cases, the allegedly general authorization to seize

the items is limited by the type of crimes identified in the

affidavit – namely, violations of 18 U.S.C. §§ 43, 371, and

875(c). As this Court has noted, “no tenet of the Fourth

Amendment prohibits a search merely because it cannot be

performed with surgical precision.” Conley, 4 F.3d at 1208.

Here, the warrant provided the requisite particularity to satisfy

the Fourth Amendment.

C. The Officers Relied On The Warrant In Good Faith And

Thus Suppression Is Not Warranted.

In any event, suppression is unnecessary because the items

seized “were obtained in objectively reasonable reliance” on the

warrant issued. United States v. Leon, 468 U.S. 897, 920-26

(1984) Under Leon, even if warrant lacks probable cause, the

exclusionary rule cannot be applied to suppress evidence obtained

in objectively reasonable reliance on a warrant issued by a

detached and neutral magistrate. Id. (“a warrant issued by a

magistrate normally suffices to establish” that reliance on the

warrant was objectively reasonable). Only where the warrant was

based on a “barebones” affidavit “so lacking in indicia of




45 There are four exceptions to the Leon good faithexception: (1) the magistrate issued the warrant in reliance on adeliberately ro recklessly false affidavit; (2) the magistrateabandoned his judicial role and failed to preform his neutral anddetached function; (3) the warrant was based on an affidavit “solacking in indicia of probable cause to render official belief inits existence entirely unreasonable”; or (4) the warrant was sofacially deficient that it failed to particularize the place tobe searched or the things to be seized. See Williams, 3 F.3d at74 n.4. None of these exceptions is present here.

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probable cause as to render official belief in its existence

entirely unreasonable,” can evidence be suppressed. 468 U.S. at

915, 919, 923.45

Here, the warrant was not so lacking in indicia of probable

cause as to render the agents’ belief in its existence entirely

unreasonable. As set forth supra, the warrant presented a number

of specific facts. This was not a case in which the warrant

contained mere conclusory assertions or a single piece of

evidence “which the law of the stationhouse shop would recognize

as clearly insufficient.” Williams, 3 F.3d at 74. See Williams,

124 F.3d at 421. Accordingly, for this additional reason,

suppression is unjustified.




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XII. THE GOVERNMENT HAS NO OBJECTION TO THEDEFENDANTS' REQUESTS TO JOIN IN THE APPLICABLEMOTIONS FILED BY THEIR RESPECTIVE CO-DEFENDANTS.

Each of the defendants has moved for leave to join in the

motions filed by their respective co-defendants. The Government

has no objection to their request to join in the applicable

motions of their co-defendants.




CONCLUSION

For the foregoing reasons, the Court should deny the

defendants' motions.

Respectfully submitted,

CHRISTOPHER J. CHRISTIEUnited States Attorney

By: s/ Charles B. McKennaCharles B. McKennaAssistant U.S. Attorney

s/ Ricardo Solano Jr.Ricardo Solano Jr.

Assistant U.S. Attorney

Date: February 18, 2005Newark, New Jersey


Documents

Govn.opposition.dismiss.superced.indict