By Alyson Palmer, From Daily Report

A South Florida woman has won the reversal of her federal conviction for a late-night email in which she said she would go to a government building and show “government hacks” what the Second Amendment “is all about.”

The U.S. Court of Appeals for the Eleventh Circuit on Sept. 3 vacated Ellisa Martinez’s conviction based on a June decision by the U.S. Supreme Court construing the federal statute on criminal threats. While not answering precisely what the government had to prove in order to secure a conviction under that statute, the justices said in Elonis v. United States that the government had to prove more than merely that a reasonable person would regard the defendant’s communication as a threat.

Following that ruling, both sides agreed that Martinez’s conviction had to be tossed, although the Eleventh Circuit left room for the government to seek a new indictment that could meet the Supreme Court’s standard.

The case, which came before the appeals court in 2013 and then again this year, stems from an email Martinez sent to Fort Lauderdale radio talk show host Joyce Kaufman in November 2010. According to a brief filed by Martinez’ lawyer, Martinez was up late, unable to sleep because of a migraine, watching the news. She saw coverage of remarks that Kaufman had made to a gathering in Kentucky in which Kaufman said she supported the “extermination” of left-wing politicians. Having taken migraine medication and drunk some wine, Martinez felt inspired to email Kaufman, according to the defense brief.

In her anonymous message, Martinez said she was glad to hear Kaufman “encourage us to exercise our Second Amendment gun rights.” Martinez said she knew Kaufman agreed that “one election is not enough to take our country back from the illegal aliens, Jews, Muslims and Illuminati who are running the show.” Martinez continued that she was “planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I’m going to walk in and teach all the government hacks working there what the 2nd amendment is all about.”

According to the 2013 appeals court opinion in the case, the radio station where Kaufman worked received an anonymous call a few hours later. The caller told station officials that her husband had sent the email and that he was planning to open fire at a nearby school. The radio station contacted the police, according to the defense brief, prompting police to institute a lockdown on all Broward County schools for about three hours.

Investigators soon discovered that both communications were sent by Martinez, according to the 2013 appeals court decision. She was arrested and charged with violating a federal law against sending a threatening communication, based on the email, but she was not prosecuted for the phone call.

Martinez’s lawyers moved to dismiss the indictment, arguing that it was invalid under the First Amendment because it didn’t allege that she intended to threaten anyone. After U.S. District Judge K. Michael Moore denied the motion, Martinez agreed to plead guilty in exchange for favorable sentence recommendations by the government. Martinez also was allowed to reserve the right to appeal the denial of her motion to dismiss. According to Martinez’s lawyer, Martinez has maintained that her email was intended to be “satirical” and that she didn’t believe her words would be taken seriously.

Moore sentenced Martinez to two years in prison, a sentence she completed in 2012 while her appeal was pending. Martinez’s lawyer, Samuel Randall, argued on appeal that the indictment of Martinez violated the First Amendment because it did not allege that Martinez actually intended to intimidate or induce fear.

At the Eleventh Circuit, a panel of Chief Judge Edward Carnes, Senior Judge Susan Black and a visiting judge, Judge Jane Restani of the U.S. Court of International Trade, ruled against Martinez in the unsigned opinion issued in 2013. Weighing in on a circuit split, the panel sided with circuit courts that held the First Amendment does not require the government to prove that a defendant actually intended to intimidate or induce fear in order to secure a conviction under any statute that prohibits threats. Rather, the panel said, a threat may be punished when the government shows that “a reasonable person would perceive the threat as real.”

Carnes wrote separately to say he wasn’t sure his colleagues’ reading of a key Supreme Court case, Virginia v. Black, 538 U.S. 343 (2003), was correct. He said the court needed to rule against Martinez nonetheless, due to a binding Eleventh Circuit decision, United States v. Alaboud, 347 F.3d 1293 (2003), issued after the Supreme Court decision.

Martinez filed a petition for certiorari to the Supreme Court, just one week after another defendant filed for cert to challenge a Third Circuit opinion that the Eleventh Circuit had relied on in Martinez’s case. The defendant in Elonis v. United States was convicted under the same statute as Martinez for posting on Facebook his rap lyrics including violent language about his wife, co-workers and others. At trial, he protested an instruction that told the jury it could convict him if a reasonable person would perceive his statements as a threat.

In June, the U.S. high court reversed the Third Circuit ruling that upheld Elonis’ conviction. The majority said that although it would not decide exactly what mental state of the defendant must be shown to get a conviction under the threat statute, mere negligence that someone might perceive a communication as threatening was not sufficient. (Justice Clarence Thomas dissented, while Justice Samuel Alito wrote a separate opinion saying the court should have sent the case back to the Third Circuit to consider whether Elonis’ conviction could be upheld under a reckless intent standard.)

A week later, the high court granted Martinez’ cert petition in a one-page order, vacating the Eleventh Circuit’s decision and directing the court to reconsider the matter based on the Elonis ruling. The Eleventh Circuit asked both sides to brief the matter, and both agreed that the indictment of Martinez had to be dismissed without barring the government from seeking a new one.

The U.S. attorney’s office in South Florida said that including a detailed description or direct quotation of Martinez’s communications would have resulted in a sufficient indictment by setting forth facts from which Martinez’s wrongful intent might be inferred. But the prosecutors acknowledged they hadn’t done that, pointing to prior precedent from the Eleventh and nine other circuits that such a wrongful intent was not an element of the crime.

The same Eleventh Circuit panel of Carnes, Black and Restani last week overruled the court’s prior decisions in Martinez and Alaboud as a result of the Supreme Court’s ruling in Elonis. The Eleventh Circuit panel said that, under Elonis’ holding that negligence was not enough to support a conviction under the statute, Martinez’ indictment was insufficient in that it failed to allege an essential element of the crime.

The U.S. attorney’s office declined to comment.

Randall, who took Martinez’s case with him to handle pro bono when he left the public defender’s office for private practice at Kenny Nachwalter, said the threat statute had been “dangerously unconstitutional” as previously interpreted by the Eleventh Circuit. He said he thought both sides should move on.

“The government’s gotten their pound of flesh,” he said. “I don’t see any reason why this case needs to be recharged five years after the fact.”

IMAGE: U.S. Court of Appeals for the Eleventh Circuit

For more on this story go to: http://www.dailyreportonline.com/id=1202736748116/US-Supreme-Court-Ruling-Leads-to-Reversal-of-Conviction-for-Online-Rant#ixzz3lLiB60B5