Argued: May 15, 2012
Defendant-Appellant Harold Turner appeals from his conviction by a jury in the United States District Court for the Eastern District of New York (Donald E. Walter, J.) of threatening a federal judge in violation of 18 U.S.C. § 115(a)(1)(B). On appeal, Turner argues (1) that the evidence at trial was insufficient to prove that Turner committed a "true threat"; (2) that the district court erred by failing to instruct the jury using language from United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976), regarding "true threats"; (3) that the prosecution engaged in impermissible and prejudicial conduct; and (4) that the district court abused its discretion in various evidentiary rulings. Turner, proceeding pro se, raises various additional arguments. We disagree with each of these contentions and therefore Affirm.
Richard H. Dolan (Ronald G. Russo, David Wikstrom, Harvey M. Stone, Elizabeth Wolstein & David J. Katz, on the briefs), Schlam Stone & Dolan LLP, New York, New York, for Defendant-Appellant.
William R. Ridgway, Assistant United States Attorney (Manish S. Shah, Assistant United States Attorney, on the brief), for Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, Chicago, Illinois, for Appellee.
Before: Pooler and Livingston, Circuit Judges, and Cogan, District Judge. [*]
Livingston, Circuit Judge:
On June 2, 2009, Harold Turner published a blog post declaring that three Seventh Circuit judges deserved to die for their recent decision that the Second Amendment did not apply to the states:
If they are allowed to get away with this by surviving, other Judges will act the same way.
These Judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die.
Turner's lengthy commentary declared that the blood of these three judges would "replenish the tree of liberty, " that the judges "didn't get the hint" sent by a gunman who had murdered the family of another federal judge in Chicago, that they had not "faced REAL free men willing to walk up to them and kill them for their defiance and disobedience, " that their ruling was "so sleazy and cunning as to deserve the ultimate response, " and that the judges "deserve to be killed." The next morning Turner posted photographs, work addresses, and room numbers for each of the three judges, along with a map indicating the location of the courthouse in which they worked, and a photograph of the building modified to point out "Anti-truck bomb barriers."
A jury convicted Turner of threatening to assault or murder Judges Frank Easterbrook, William Bauer, and Richard Posner with the intent to impede, intimidate, or interfere with them in the performance of their duties or to retaliate against them on account of their performance of official duties. This appeal presents several issues for our review, including whether the jury's verdict was supported by sufficient evidence of a true threat of violence. We hold that the evidence was sufficient, that the jury was properly instructed regarding a "true threat, " and that Turner was not prejudiced by any error. We affirm.
Because Turner was convicted after trial, we recite the facts taking the evidence in the light most favorable to the verdict. E.g., United States v. Gowing, 683 F.3d 406, 408 (2d Cir. 2012) (per curiam).
A. Turner's Background
Beginning in 2000, Harold Turner began operating a website located at halturnershow.com and purchasing weekly time on a shortwave radio station, both of which he used to broadcast what he described as a "talk radio show"—the "Hal Turner Show." By 2003, Turner's opinions on race and politics had made his show popular with violent white supremacist groups such as the Ku Klux Klan and Aryan Nations, and Turner was receiving invitations to speak at national rallies, such as that of the Aryan World Congress in Coeur d'Alene, Idaho. As a result, the Federal Bureau of Investigation ("FBI") contacted Turner to find out whether he would be willing to report any violent acts he learned were about to occur. Turner agreed.
Between 2003 and 2007, Turner provided the FBI with some helpful information, reporting, for instance, on extremists who visited his website and proposed acts of violence. Turner ignored repeated admonishments regarding his own violent Internet speech, however, and the FBI terminated the relationship in 2007 for what Turner's FBI handler characterized at trial as "serious control issues."
B. Turner's Statements About Judges Easterbrook, Bauer, and Posner
Two years later, on June 2, 2009—the same day the Seventh Circuit Court of Appeals handed down National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009), rev'd sub nom. McDonald v. Chicago, 130 S.Ct. 3020 (2010)—Turner published a blog post on his publicly available website entitled, "OUTRAGE: Chicago Gun Ban UPHELD; Court says 'Heller' ruling by Supreme Court not applicable to states or municipalities!" Turner's post expressed fury that "American gun owners have been put in spectacular jeopardy by a federal court ruling that enables states or cities to ban all—ALL—firearms ownership!" Turner then wrote that the three Seventh Circuit judges who decided the case should be killed:
All the years of peaceful legal challenges; all the years of peaceful appeals; all the years of peacefully and lawfully lobbying federal and state legislators, to achieve the penultimate goal of finally interpreting the meaning of the Second Amendment, only to have it all thrown in the trash by three Appellate Judges in a manner so sleazy and cunning as to deserve the ultimate response.
The government—and especially these three Judges—are cunning, ruthless, untrustworthy, disloyal, unpatriotic, deceitful scum. Their entire reason for existing is to accrue unto themselves, power over everything.
The only thing that has ever stood in the way of their achieving ultimate power is the fact that We The People have guns. Now, that is very much in jeopardy.
Government lies, cheats, manipulates, twists and outright disobeys the supreme law and founding documents of this land because they have not, in our lifetime, faced REAL free men willing to walk up to them and kill them for their defiance and disobedience.
Thomas Jefferson, one of our Founding Fathers, told us "The tree of liberty must be replenished from time to time with the blood of tyrants and patriots." It is time to replenish the tree!
Let me be the first to say this plainly: These Judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.
Turner then referred to the infamous murders of United States District Court Judge Joan Lefkow's husband and mother in Judge Lefkow's Chicago home on February 28, 2005, which he connected to Judge Lefkow's role in a court case involving a white supremacist organization, the "World Church of the Creator, " and its leader, Matthew Hale:
This is not the first politically-motivated trash to come out of the Seventh U.S. Circuit Court of Appeals. In fact, it was the Seventh U.S. Circuit Court of Appeals that decided in the Matt Hale Case, that a group which fraudulently trademarked the name "World Church of the Creator" despite the fact they knew that name had been used by a Church for 30 years, could KEEP the name because the church who had used it for 30 years didn't challenge the Trademark filing!
By not challenging the Trademark registration, the people who had used the name for years LOST IT.
That decision lead [sic] to an order by a lower court for the Church to "surrender its Bibles for destruction because they infringed on the trademark" given to the fraudsters.
Shortly thereafter, a gunman entered the home of that lower court Judge and slaughtered the Judge's mother and husband. Apparently, the 7th U.S. Circuit court didn't get the hint after those killings. It appears another lesson is needed.
These Judges are traitors to the United States of America. They have intentionally violated the Constitution. They have now also intentionally ignored a major ruling by the U.S. Supreme Court.
If they are allowed to get away with this by surviving, other Judges will act the same way.
These Judges deserve to made such an example of as to send a message to the entire judiciary: Obey the Constitution or die.
The next day, Turner posted an "update" stating: "Judges official public work addresses and a map of the area are below. Their home addresses and maps will follow soon. Behold these devils . . . ." What followed were the names and photographs of United States Circuit Judges Frank Easterbrook, William Bauer, and Richard Posner; the room numbers for each of the judges' chambers within the Everett McKinley Dirksen United States Courthouse; and a photograph and map of the courthouse's location in Chicago. On the building's photograph Turner drew red arrows and wrote, "Anti-truck bomb barriers, " to illustrate the location of these barriers around the building.
The day Turner published this post, Judge Posner received an email from an organization called Citizens Against Hate that contained a link to Turner's website and suggested that Judge Posner might want to take a look at it. Judge Posner, concerned for his safety, notified the United States Marshals Service of Turner's statements. At the same time, one of Judge Bauer's clerks discovered the blog post and informed Judge Bauer. Chief Judge Easterbrook learned of Turner's post shortly thereafter, when Judge Bauer strode into Judge Easterbrook's chambers to show him. His immediate reaction "was that somebody was threatening to kill me." Not only were all three judges acutely aware of the murder of Judge Lefkow's mother and husband (they all knew Judge Lefkow personally), the judges also knew that the individual mentioned by Turner—Matthew Hale—had been convicted of soliciting the murder of Judge Lefkow. See generally United States v. Hale, 448 F.3d 971 (7th Cir. 2006) (per curiam).
C. The Context of Turner's Statements
None of the three judges had ever heard of Turner before reading his blog post. Other posts readily accessible on the blog, however, provided context from which a reader might infer Turner's intentions in writing the post. Immediately preceding Turner's post about Judges Easterbrook, Bauer, and Posner, for example, was another post, also published on June 2, which accused a Connecticut legislator and the Connecticut Office of State Ethics (OSE) of tyranny and declared: "It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die." Turner continued, "If any state attorney, police department or court thinks they're going to get uppity with us about this; I suspect we have enough bullets to put them down too." Further, Turner's post announced that later that week he would "releas[e] the home addresses of the Senator and Assemblyman who introduced Bill 1098 as well as the home address of Thomas K. Jones from the OSE." In Turner's words, "[I]f they are so proud of what they're doing, they shouldn;t [sic] mind if everyone knows where they live." A timestamped update that was added the afternoon of June 2 stated simply: "Officer Boyle of the Connecticut State Capitol Police just called regarding this story. Seems they are concerned about the 'Commentary' below. Looks the tyrants are worried [sic]. Good."
Turner's website also declared that he was "going after" "every major player in the financial meltdown." "I intend to incite revenge, " Turner wrote. "Vicious, brutal, savage, revenge with malice aforethought." Turner explained why his blog posts should be taken seriously by his targets:
While I can't legally undertake killing, I may—just MAY—be able to say enough of the right things, to enough of the right people, to make it happen: People who have lost everything on account of you. People whose children have lost everything on account of you. People with nothing to lose by hunting you down and murdering you. I am going to be pounding them with information about you day and night. On and on, week after week after week. Sooner or later, some of them are gonna snap and you will get dead.
While I certainly would never use this blog for such an endeavor, my eight years on the radio and on the internet has gotten me in touch with enough of the right people to get it done. I know how to get it done. Federal ...