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Thursday, February 16, 2017

Ind. Decisions - 7th Circuit decides one Indiana case today, re threats on Facebook wall - Posner

In USA v. Samuel Bradbury (ND Ind., Simon), a 7-page opinion, Judge Posner writes:

On June 8, 2014, Jerad and Amanda Miller, originally of Lafayette, Indiana, shot and killed two police officers and one civilian in Las Vegas. The couple died in an ensuing shootout with police, Amanda committing suicide after Jerad was shot. At approximately 11:15 p.m. on June 19, 2014, Samuel L. Bradbury, a Lafayette resident, placed the following message on his Facebook “wall,” where it was readable by his Facebook “friends,” who could moreover take screenshots of the message to convey to others: * * *

On the basis of these discoveries, and the threats in the Facebook post, Bradbury was indicted on federal charges of threatening to use explosive materials to kill law enforcement officers and state court judges and destroy a courthouse and police vehicles, all by means of the thermite found in his bedroom—thermite ignitable by the magnesium also found there. But a superseding indictment changed the charges to “willfully mak[ing] any threat” and “maliciously convey[ing] false information.” The jury trial that ensued resulted in Bradbury’s acquittal of the first charge and conviction of the second. The judge sentenced him to 41 months of imprisonment to be followed by two years of supervised release.

The count of which he was convicted was based on 18 U.S.C. § 844(e), which provides, so far as relates to this case, that “whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, … maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made or to be made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, by means of fire or an explosive, shall be imprisoned for not more than 10 years or fined under this title, or both.” The judge instructed the jury that to act “maliciously” means “to act intentionally or with deliberate disregard of the likelihood that damage or injury will result.” He added that the jury should find the defendant guilty if it concluded that he’d intentionally “conveyed false information, knowing the same to be false,” that “the false information was conveyed maliciously and via an instrument of interstate commerce,” and that it “concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public property by use of fire or explosives.” And so the jury found.

Bradbury argues that the judge’s definition of “maliciously” allowed the jury to convict him merely for posting the message (an intentional act) even if he didn’t intend the post to cause harm—in other words if his Facebook post was a joke and so there was nothing malicious about it, just as in United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000), which vacated a conviction under the Bomb Hoax Act, 18 U.S.C. § 35(b), in which a similar instruction had been given to the jury and the defendant had argued that the false statements about a bomb in his airline luggage were jokes. * * *

It’s true that the word “maliciously” is not precise; if you google “maliciously synonyms,” Thesaurus.com gives you 16 words, ranging in gravity from “crookedly” to “roguishly.” See www.thesaurus.com/browse/maliciously (visited Feb. 16, 2017). But at least “malice” and “malicious” are reasonably clear and they in turn guide interpretation of “maliciously.” “Malice” is the noun, “malicious” the adjective, and “maliciously” the adverb—and so to act maliciously is to act with malice, or equivalently to be malicious. All three cognates well describe Bradbury’s post, which he knew might be read by people not all of them his pals and communicated by them to the police and to the persons named in the post as intended victims of him and his cronies. Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. § 844(e), as explained by the district judge, even if the harm that ensues is fright rather than physical injury. AFFIRMED

Posted by Marcia Oddi on February 16, 2017 01:22 PM
Posted to Ind. (7th Cir.) Decisions