darren chaker appeal reply

7/26/2019 Darren Chaker Appeal Reply

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO.15-50138&15-50193

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DARREN DAVID CHAKER,

Defendant-Appellant

Appeal from the U.S. District Court

For the Southern District of California

Honorable Larry A. Burns, Presiding

Appellants Reply Brief

Sarah R. Weinman

Federal Defenders of San Diego, Inc.

225 Broadway Street, #900

San Diego, California 92101

619.234.8467

[email protected]

Attorneys for Defendant-Appellant

Case: 15-50193, 01/22/2016, ID: 9837535, DktEntry: 39, Page 1 of 40


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TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................................ iii

INTRODUCTION ........................................................................................................ 1

ARGUMENT ................................................................................................................. 5

I. Revocation Was Erroneous Because the Condition Exludes Core

Protected Speech Like the Forced Out Statement .................................... 5

A. The sentencing court made clear the condition was intended to

guard against threats, incitement, and other unprotected speech and

that it did not infringe on core protected speech .............................. 6

B. The written judgment is consistent with and shaped by the

sentencing courts oral pronouncement of the condition ............... 11

C. Although a sentencing court may restrict more of a defendants First

Amendment interests, the sentencing court here did not do so ..... 12

D. Conclusion ........................................................................................ 12

II.

Revocation Was Erroneous Because the Condition as Interpreted by the

Revocation Court is Unconstitutionally Vague and Overbroad................ 13

A. The condition violates due process because it is impermissibly

vague .................................................................................................. 13

1. The condition is vague because the sentencing courts

explanation gave Chaker the reasonable expectation that the

forced out statement would not violate the condition ......... 14

2. The condition is vague because it mixed separate torts ........... 14

3. The condition is vague because it requires vindictive motive

but not actual malice or intent to harass .................................. 15

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B. The condition violates the First Amendment because it is

substantially overbroad ..................................................................... 18

III. Revocation Was Erroneous Because the Evidence Was Insufficient to

Prove a Violation of the Condition ............................................................ 21

A. The evidence did not prove the harassment-defamation standard

applied by the revocation court ........................................................ 21

B. The evidence did not prove even straightforward harassment ........ 24

IV. The New Special Conditions Imposed are Impermissibly Vague,

Overbroad, and Substantively Unreasonable ............................................. 29

CONCLUSION........................................................................................................... 31

CERTIFICATE OF COMPLIANCE ......................................................................... 33

CERTIFICATE OF SERVICE ................................................................................... 34

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TABLE OF AUTHORITIES

Federal Cases

Brandenburg v. Ohio,

395 U.S. 444 (1969) ................................................................................................. 6Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) ................................................................................................. 6

Elonis v. United States,

135 S. Ct. 2001 ....................................................................................................... 19

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) ............................................................................................... 17

Hustler Mag., Inc. v. Falwell,

485 U.S. 46 (1988) ................................................................................................. 17

Johnson v. United States,

135 S. Ct. 2551 (2015) .............................................................................. 13, 15, 18

New York Times v. Sullivan,

376 U.S. 254 (1964) ........................................................................................... 6, 16

R.A.V. v. St. Paul,

505 U.S. 377 (1992) ............................................................................................... 30

Rosenblatt v. Baer,

383 U.S. 75 (1966) ................................................................................................. 18

United States v. Adkins,

743 F.3d 176 (7th Cir. 2014) ................................................................................. 20

United States v. Bagdasariyan,

652 F.3d 1113 (9th Cir. 2011) ............................................................................... 26

United States v. Gnirke,

775 F.3d 1155 (9th Cir. 2015) ............................................................................... 19

United States v. Hanna,

49 F.3d 572 (9th Cir. 1995) ................................................................................... 23

United States v. Hayes,

283 F. Appx 589 (9th Cir. 2008) ........................................................................... 31

United States v. Jones,

696 F.3d 932 (9th Cir. 2012) ................................................................................. 11

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United States v. Kilbride,

584 F.3d 1230 (9th Cir. 2009) ................................................................................ 13

United States v. Montaque,

584 F. Appx 765 (9th Cir. 2014) .......................................................................... 10

United States v. Osinger,

753 F.3d 939 (9th Cir. 2014) .................................................................... 17, 25, 26

United States v. Petrovic,

701 F.3d 849 (8th Cir. 2012) ................................................................................. 26

United States v. Safirstein,

827 F.2d 1380 (9th Cir. 1987) ............................................................................... 23

United States v. Soltero,

510 F.3d 858 (9th Cir. 2007) ................................................................................. 19

United States v. Swisher,

--- F.3d ----, 2016 WL 142591 (9th Cir. Jan. 11, 2016) (en banc) ..................... 20, 30

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994) ................................................................................................. 19

Virginia v. Black,

538 U.S. 343 (2003) ................................................................................................. 5

Virginia v. Hicks,

539 U.S. 113 (2003) ............................................................................................... 18

Federal Statutes

18 U.S.C. 3553(a) ..................................................................................................... 20

18 U.S.C. 3583(d) ..................................................................................................... 20

Federal Rules

FED.R.APP.P. 28(c) ....................................................................................................... 1

FED.R.APP.P. 32(a)(7)(c) ............................................................................................ 33

Miscellaneous

Black's Law Dictionary 733 (8th ed. 2004) ................................................................. 16

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RODNEYA.SMOLLA AND MELVILLE B.NIMMER,

SMOLLA AND NIMMER ON FREEDOM OF SPEECH, 3:10 (updated 2015) ............ 30

United States v. Chaker, No. 14-20026 (5th Cir.) ........................................................... 7

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ER211. The court explained in pronouncing the condition that it did not step[] on

Chakers First Amendment rights. ER212-13.

Jurisdiction over Chakers supervised release was transferred to the Southern

District of California. While on supervised release, Chaker wrote several blogposts

about Leesa Fazal, a Nevada state investigator, including one addressed to criminal

defense or civil rights attorneys claiming to have information about why Faz[a]l was

forced out of the Las Vegas Metro Police Department and other credible material

for impeachment. ER162. Fazal excerpted the posts in an email to Chakers

probation officer. Fazal did not allege that any of the statements in the posts were

untrue. But she suggested that they violated the stalking/harassing/defaming

condition. The probation officer then filed a revocation petition alleging that the

posts violated the condition.

The sole piece of evidence offered by the government at the revocation hearing

was Fazals email. On the basis of this evidence as well as the presentence report

(PSR) filed in the Texas sentencing, the court determined that the forced out

statement violated the condition. The court revoked supervised release and sentenced

Chaker to a new supervised-release term subject to the same

stalking/harassing/defaming condition; a condition that he may not reveal private

information of others or threaten others by posting false information, disparage or

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defame others on the internet; and a condition that he shall not send anonymous

emails. ER8, 277.

On appeal, Chaker argues that the district courts decision to revoke supervised

release as well as the sentence imposed upon revocation are fundamentally flawed and

require reversal. As set out in his opening brief (AOB), the condition imposed

restricts only stalking and harassing conduct while preserving core First Amendment

rights. The statement that Fazal was forced out of the police department is a

statement about a public official concerning her official dutiesthe weightiest type of

protected speech. Yet the revocation court found that the statement violated the

condition. It did so by misinterpreting the condition to restrict all protected speech

when the sentencing court explicitly excluded at least some such speech, and by mixing

defamation and harassment in applying the condition. Alternatively, the courts

interpretation, if correct, highlighted the conditions unconstitutional vagueness and

overbreadth. Even if the condition withstands scrutiny, the revocation was improper

because the evidence did not establish harassment, let alone the courts harassment-

defamation amalgam. Under each of these alternative theories, Chaker argued that

the courts revocation order should be vacated.

In its answering brief (GAB), the government implicitly concedes that the

forced out statement is protected speech. But from that premise, the government

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scrambles to make sense of what the revocation court did. First, the government

echoes the revocation courts misinterpretation that the condition does infringe on

core speech rights, even though the sentencing court said the opposite. Second, the

government argues that the condition as interpreted by the revocation court is not

vague because Chaker should have anticipated that these core rights wouldbe stepped

on despite the sentencing courts pronouncement; that ad hoc mixing of separate torts

was not unforeseeable or arbitrary; and that omission of the essential elements of these

torts was not unforeseeable or arbitrary. The government also argues that the

condition is not overbroad, although it acknowledges that the condition restrains even

unknowingly false criticism of government officials. Third, the government argues

that the forced out statement likely violated the condition, but ignores that Fazals

email failed to prove the essential elements of the condition. Because none of the

governments arguments justify the improper order to revoke supervised release, the

judgment should be reversed.

Chaker also contends that the sentence imposed upon revocation was

unconstitutional and unreasonable. Specifically, the opening brief argued that the

new no stalking/harassing/defaming condition, the no disparaging condition, and

the no anonymous emails condition are impermissibly vague, overbroad, and

substantively unreasonable.

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The government concedes that if these three conditions prohibit more than

harassment, they are unconstitutional, but contends that they should be upheld

because the revocation court intended them to restrict only harassment. This

contention belies the revocation courts pronouncement of the conditions as well as

the structure of the written conditions, which show that the court intended all three

conditions to restrict far more than harassment. Accordingly, the sentence is

unconstitutional and should be vacated. Alternatively, to the extent that this Court

agrees that the conditions can be read to restrict only harassment, it should impose a

limiting construction collapsing all three conditions into a single, straightforward

condition that captures the courts intent: Chaker may not stalk and/or harass.

ARGUMENT

I. Revocation Was Erroneous Because the Condition Excludes Core

Protected Speech Like the Forced Out Statement

It is undisputed that the blog statement in question herethat Fazal was forced

out of the police departmentis government criticism protected by the First

Amendment. The government does not attempt to show (nor could it show) that the

statement is excepted from constitutional protection because it is a true threat, see

Virginia v. Black, 538 U.S. 343, 359-60 (2003) (defining true threat as a serious

expression of an intent to commit an act of unlawful violence to a particular

individual); advocates violence in a manner directed to inciting imminent lawless

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action, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam), or constitutes

fighting words that plainly tend[] to excite [Fazal] to a breach of peace, Chaplinsky

v. New Hampshire, 315 U.S. 568, 573 (1942). And given that the statement concerns

a public official and there is no proof of falsity or actual malice, see infra, Sections II

& III,the statement also does not qualify for the defamation exception to the First

Amendment. See New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

The question is, does the condition imposed by the sentencing court restrict

core First Amendment rights? The sentencing courts imposition of the condition

makes clear that it does not. AOB21-29. But the government argues that the

condition infringes on the full extent of First Amendment-protected speech. In so

arguing, the government (A) distorts the record of what the sentencing court actually

said, (B) claims that the written judgment and the oral pronouncement conflict and

that the latter should control, and (C) suggests that because the sentencing court could

have infringed on core speech rights, it did so here. None of these arguments is sound.

A.

The sentencing court made clear that the condition was intended to guard

against threats, incitement, and other unprotected speech and that it did

not infringe on core protected speech

As explained in the opening brief, the sentencing court imposed the no

stalking/harassing/defaming condition to deter and rehabilitate Chaker from

engaging in threatening and inciting online communications. AOB21. The court

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explained that restricting such speech did not step[] on Chakers First Amendment

rights. ER213. In claiming that the condition restricts all protected speech, the

government distorts the sentencing courts clear explanation of the First Amendment-

drawn boundaries of the condition and ignores the context in which they were made.

During the bankruptcy fraud case,2the sentencing judge heard unadjudicated

allegations that Chaker had engaged in threatening and inciting speech in the past.

The governments brief reviews these allegations at length, GAB3-22, arguing that

Chaker made overt threats and veiled threats against others. GAB3. For example,

he allegedly threatened to post peoples home addresses and said that he would not

be held responsible for any harm that might occur to the employees as a result of these

postings. PSR13. He also allegedly threatened to post inappropriate videos of an

ex-girlfriend, sent voluminous harassing emails to her, and distributed

pornographic photographs of her to her co-workers. PSR11-12.

In view of this evidence, the sentencing court expressed concern that Chaker

pos[ed] a threat, a serious threatto people by repeatedlypostingtheir [personal information]

with statements that raise the hint of danger or suggestions that things could happen. SER286

(emphasis added). The court noted that such speech can incite others. SER286.

2 An appeal of the case is pending in the Fifth Circuit. SeeUnited States v.

Chaker, No. 14-20026 (5th Cir.).

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And the court sought to prevent Chaker from taking such extraordinary measures

intended to harm others. SER287. In furtherance of this objective, the court

imposed the no stalking/harassing/defaming condition. The sentencing court made

clear that the condition was designed to prevent Chaker from engaging in speech that

was harassing becauseit threatened or incited others. For example, the court said:

If [] and when you are upset with someone who you think has been unfair

or mistreated you, you need to deal with it through the counselor and

make considered and careful judgments. You have the right of first

amendment right and a right of free speech. But when you startthreatening to indirectly invade peoples privacy or harm them by putting

things upon the internet such as home addresses with comments that

you are going toyou wont harm them but you know others who may,

thats not your problem.

ER211. The court explained that Im not telling you youre not allowed to have your

free speech rights or go on the computer. Im not saying that. And I will craft this

requirement very carefully so that Im not stepping on your toes. ER213.

Prophylactically, the sentencing urged Chaker to focus less on the First Amendment

and more on the Golden Rule:

Part of your teaching for your community service that youve been

undertaking is to teach people what it feels like to help them, lead them

to a straighter or better path. You also have to follow that straighter or

better path. Take the high road. Were not talking about legal. Were

not talking about first amendment. Were talking about give people the

benefit of the doubt.

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ER212. The court counseled Chaker to just be sensitive. You dont need to be

publicizing peoples personal information whether its legal or notbecause I dont

want you to even be that close to it. ER213-14.

In its response brief, the government quotes at length from the sentencing

courts expressions of concern about Chakers history of speech involving threats

and incite[ment] to harm people. GAB8-10, 21-22. And the government correctly

explains that the sentencing court couched its justification for restricting harassment

in these concerns. GAB21.

But the government nonetheless argues that the court restricted allfree speech

under the condition. In other words, the government contends that when the

sentencing court said, you have the right of first amendment rights, ER211, what it

meant was, you dont have those rights. And the government contends that when

the sentencing court said, Im not telling you youre not allowed to have your free

speech rights, ER213, what it meant was, Im telling you youre not allowed to have

your free speech rights.

The government is able to pull these semantic gymnastics by taking the

sentencing courts pronouncement of the condition out of context. The government

ignores the import of the very passages that it quotespassages explaining that what

the sentencing court was really concerned about was preventing conduct that was

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harassing in that it threat[ened] to indirectly invade peoples privacy or harm them

by putting things up on the internet such as home addresses with comments that you

are going toyou wont harm someone but you know others who may. ER211

(quoted at GAB36). The sentencing court believed that Chaker had engaged in such

harassing conduct in the past. And the sentencing court, in an effort to deter and

rehabilitate him, imposed the condition to prevent him from engaging in such

conduct in the future. Thus, contrary to the governments claim, the condition

limited harassment that involved unprotected speech or, at the most, the margins of

protected speech.

The government further claims that when the sentencing court explained, you

dont need to be publicizing peoples personal information whether its legal or not,

ER213, it meant that the First-Amendment status of the speech was irrelevant under

the condition. GAB35. Read in context, however, the sentencing court was saying

that protected speech was legal under the condition, but that, prudentially, Chaker

should avoid getting even that close the First-Amendment-drawn line of the

condition. ER213-14. See United States v. Montaque, 584 F. Appx 765, 766 (9th Cir.

2014) (In context, it is clear that this was just a warning by the district judge that the

defendants offensive and scurrilous [speech would be] entirely inappropriate).

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In sum, the supervised-release condition was not designed to step on core

protected speech, and the sentencing court explained as much in imposing it. The

governments decontextualized distortions cannot overcome the plain import of the

pronouncement.

B.The written judgment is consistent with and shaped by the sentencing

courts oral pronouncement of the condition

The government next argues that even if the sentencing court did say that free

speech was protected under the condition, the condition as written does not express

that caveat, and the written condition should control. There are at least two flaws

with this argument.

First, it is well-established that if a direct conflict exists between a sentencing

courts unambiguous oral pronouncement and the written judgment, the oral

pronouncement, not the written judgment, controls. United States v. Jones, 696 F.3d

932, 938 (9th Cir. 2012). Here, in imposing the condition at sentencing, the court

plainly said that it was safeguarding First Amendment-protected speech. This

pronouncement thus controls over any inconsistency in the written judgment. See id.

But in any event, no conflict exists here. Because harassment can include true

threats and incitement, the plain language of the written judgment, may not stalk

and/or harass, is consistent with and limited by the sentencing judges oral caveat

that the condition restricted unprotected speech but did not restrict protected speech.

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At a minimum, the courts oral pronouncement was clear that the full extent of

protected speech was not restricted by the condition, and the written judgment is not

inconsistent.

C.

Although a sentencing court may restrict more of a defendants First

Amendment interests, the sentencing court here did not do so

Finally, the government spends several pages explaining that a sentencing court

may infringe on First Amendment rights as a general matter. GAB37-41. But in this

case, the sentencing court made clear that the condition restricted unprotected speech

and did not infringe on core First Amendment rights. That the court had legal

authority to restrict more is irrelevant.

D.Conclusion

By defining the condition as restricting all protected speech in contravention

of the sentencing courts pronouncement, the revocation court impermissibly

misinterpreted the condition. And, since the statement criticizing a law enforcement

officer is the most protected type of speech, the revocation courts determination that

it violated the condition is reversible error. The judgment therefore should be

vacated.

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II.

Revocation Was Erroneous Because the Condition as Interpreted by the

Revocation Court Is Unconstitutionally Vague and Overbroad

A.The condition violates due process because it is impermissibly vague

A criminal statute that flouts the prohibition of vagueness violates the first

essential of due process. Johnson v. United States, 135 S. Ct. 2551, 2556-67 (2015)

(quotes and citation omitted). This is because a vague criminal statute punishes

behavior that a defendant could not have known was illegal, is capable of arbitrary or

discriminatory enforcement, and impermissibly chills free speech. See United States v.

Kilbride, 584 F.3d 1230, 1256 (9th Cir. 2009).

As argued in the opening brief, the condition that Chaker was deemed to have

violatedi.e., the condition as interpreted by the revocation courtrestricted all First

Amendment-protected speech and was defined by a scattershot application of

harassment and defamation law. AOB29-43. If the revocation courts interpretation

was correct, then the condition is impermissibly vague.

The government attempts to sidestep this argument by claiming that the

revocation courts interpretation is irrelevant to this Courts due process

analysisbecause the condition is interpreted by this Court de novo. GAB48. But

this claim misses the point. The revocation courts interpretation is proof in the

pudding that the condition provided inadequate notice and was applied arbitrarily

the very hallmarks of the vagueness doctrine.

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1.

The condition is vague because the sentencing courts explanation gave

Chaker the reasonable expectation that the forced out statement would not

violate the condition

Because the sentencing court told Chaker that he was allowed to have [his]

free speech rights, ER213, and that the condition was not talking about first

amendment, ER212, Chaker could not have known that government criticism was

restricted. In addition, when Chaker requested a modification hearing if the

condition did restrict protected speech, SVER1-12, the district court never held a

hearing or issued an order denying the request, ER263-64; this further put Chaker on

notice that the condition in fact did not restrict protected speech.

The government has no response to these points, other than to suggest that

when the sentencing court told Chaker that the restriction would not step on his First

Amendment rights, he should have understood it to mean the opposite. GAB35-36.

But no reasonable person could be expected to distort the record in this manner.

Given the sentencing courts statements and actions, the condition deprived Chaker

of due process facially and as applied to the protected, forced out statement.

2. The condition is vague because it mixed separate torts

Even if this Court determines that the condition originally imposed clearly

restricted all protected speech, the overlap of harassment and defamation law in the

condition makes it void for vagueness. The revocation court, like the government,

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agreed with Chaker that the condition limited only harassment and stalking. ER41,

44; AOB8-9; GAB32-33. But the revocation court, like the government, then sought

to merge elements of defamation and publication of private facts into its application

of harassment under the condition. ER41, 44; GAB33. As a legal principle, this is

simply incorrect; the torts are entirely distinct, and no reasonable person would have

anticipated their arbitrary commingling. The inadequacy of the notice is especially

pronounced given the sentencing courts repeated caveat that it did not intend to step

on Chakers First Amendment rights. In view of the context in which the court

imposed the condition, the caveat must be understood to mean that the court did not

intend to curtail more than harassing conduct. But by linking harassment to a list

of examples that included defamation and publication of private facts, the condition

generate[s] confusion [and] unpredictability. Johnson, 135 S. Ct. at 2561. For this

reason, too, the condition violates due process.

3.

The condition is vague because it requires vindictive motive but not actual

malice or intent to harass

Having determined that the condition subsumed a defamation analysis within

a harassment analysis, the revocation court failed to apply the most essential elements

of either: scienter. AOB35-39. The governments response to this point is

ambivalent. On the one hand, the government argues that the court was required to

apply the actual-malice and intent-to-harass requirements of defamation and

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harassment, respectively. GAB33. On the other hand, the government indicates that

it was okay for the court to do away with these elements in applying the condition

here. GAB53. The governments response shows that the no one could have

anticipated that the condition would be interpreted the way the revocation court

interpreted it and that the condition was enforced in an arbitrary and discriminatory

manner.

The government writes that when a defamatory statement involves a matter of

public concern, the government is constitutionally required to prove both the

statements falsity and the defendants fault. GAB33 (quoting Blacks Law

Dictionary 733 (8th ed. 2004)); see also New York Times, 376 U.S. at 285-86. Indeed,

the ability to criticize public officials effectively, hence diminish[ing] their official

reputation, is the fundament of defamation law.New York Times

, 376 U.S. at 273.

Thus, whatever infringement on First Amendment rights the condition permitted,

even the government agrees that knowing falsitythe actual-malice standard of New York

Timesremains sacrosanct under the condition. GAB33. Yet the revocation court

expressly disavowed application of the actual-malice requirement where the matter is

of public concern. ER107. The court determined that a statement falsely implying a

public officials wrongdoing would violate the condition whether falsity was known or

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not. This complete about-face of established defamation law was arbitrary and

unforeseeable.

Similarly, while the government emphasizes the centrality of scienter to the

harassment analysis, GAB33, 47, it fails to respond to Chakers argument that the

revocation court failed to apply the element, AOB35-37. The revocation court paid

lip service to the scienter requirement, see ER44, 107 (referencing United States v.

Osinger, 753 F.3d 939, 945 (9th Cir. 2014)), but did not meaningfully require it in

enforcing the condition against Chaker. Instead, the court swapped out an intent-to-

harass analysis for a vindictive-motive analysis. ER117-18, 119, 125, 128. The court

stated that the definition that Osinger embraces,they refer to Blacks Dictionary,

and they say look, its words or conduct or actions that are directed at a specific person

that annoybut the gist of it is dont be vindictive by making up stuff about people

that youre crossways with, dont do that. See ER117-18; see also ER119, 125, 128

(replacing intent analysis with inquiry into whether Chaker was mad at Fazal). But

motive and intent are two different inquiries, and the former does not prove the latter.

See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007); Hustler Mag., Inc. v. Falwell,

485 U.S. 46, 53 (1988). Chaker could not have anticipated that scienter could be

proven by proxy to motive in enforcing the condition against him.

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In short, when the sentencing court told Chaker that the condition protected

his Amendment rights but the revocation court determined that it did not, Chaker

lacked notice that the forced out statement could constitute a violation and was

subjected to arbitrary and discriminatory enforcement of the condition against core

protected speech. And when the condition was interpreted to cover a mix of

harassment and defamation law but omitted the most essential elements of both,

Chaker had inadequate notice and was arbitrarily revoked. Invoking so shapeless a

provision to revoke supervised release violated Chakers fundamental due-process

rights. Johnson, 135 S. Ct. at 2560.

B.The condition violates the First Amendment because it is substantially

overbroad

A statute is substantially overbroad in violation of the First Amendment if it

sweeps in a substantial amount of protected speech. See Virginia v. Hicks, 539 U.S.

113, 118-19 (2003). If the revocation courts interpretation of the condition is correct,

the condition does just that.

Criticism of government is the beating heart of First Amendment doctrine. See

Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Thus, even if the condition put in place at

sentencing may be understood as encroaching on the margins of First Amendment

rights, imposing criminal penalties for criticizing the government simply goes too far.

Specifically, any definition of the condition that holds a statement to be defamatory

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harassment not in spite of, but becauseit criticizes a public official, sweeps in far too

much protected speech to pass muster. Yet the revocation court said that a statement

would annoy, alarm, or cause substantial emotional distress to a law enforcement

officer if it implies wrongdoing and moral turpitude. ER104-05. At the very least,

the element of actual malice must apply. Yet the revocation court expressly rejected

this requirement. ER107. Any restraint of speech calling foul on police, irrespective

of whether the statement was knowingly false, is substantially overbroad.

Similarly, to the extent that a motive analysis can replace an intent analysis here,

the condition is substantially overbroad. The law presumes that a scienter

requirement applies to each element of a criminal statute, see Elonis v. United States,

135 S. Ct. 2001, 2011 (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 72

(1994)). And as the government itself recognizes, supervised-release conditions

impute an intentionality requirement. GAB44 (citing United States v. Soltero, 510 F.3d

858, 867 n.9 (9th Cir. 2007); United States v. Gnirke, 775 F.3d 1155, 1162 (9th Cir.

2015)). But, as described supra in Section II.A.3, the revocation court never

meaningfully applied this requirement.

Without once addressing the revocation courts disavowal of the actual-malice

standard or its substitution of motive for intent, the government claims that the

condition is not overbroad because it is not clear what narrower condition would

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work to curb [Chakers] behavior and facilitate his rehabilitation. GAB46. This is

short-sighted. As this Court en banc recently observed, there are a number of

narrowing strategies for preventing First-Amendment overbreadth, and many of

these could have been employed to curb threatening and defamatory speech and

facilitate rehabilitation here. United States v. Swisher, --- F.3d ----, 2016 WL 142591, at

*6 (9th Cir. Jan. 11, 2016) (en banc). For example, the condition could have required

a showing that the violative statements caused a specific harm or were made in a

context where [they] are most likely to cause harm. Id.(quotes and citation omitted).

In addition, the condition could:

(1) defin[e] the crucial terms in the existing special condition in a way

that (a) provides clear notice to [Chaker], (b) includes a mens rea

requirement (such as intentional conduct), and/or (c) is not broader than

reasonably necessary to achieve the goals of 18 U.S.C. 3553(a)(2)(b),

(a)(2)(C), and (a)(2)(D), see 3583(d); and (2) narrow[] the scope ofproscribed conduct, such as by (a) focusing on [speech that threatens,

incites, or causes substantial emotional distress].

United States v. Adkins, 743 F.3d 176, 196 (7th Cir. 2014). In short, there were plenty

of ways that the condition could have been drawn more narrowly to achieve the

relevant goals. Because it was not, the condition is substantially overbroad and must

be vacated.

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III.

Revocation Was Erroneous Because the Evidence Was Insufficient to

Prove a Violation of the Condition

Chaker argued in his opening brief that the revocation is erroneous even if the

condition otherwise passes muster because all of the evidence, viewed in the light most

favorable to the government, failed to show by a preponderance that the forced out

statement violated the condition. AOB44-53. The revocation court determined that

the statement had to meet at least some elements of defamation and at least some

elements of harassment. But the only evidence offered by the governmentFazals

email to the probation officerfailed to establish these hybrid elements. Even if this

Court determines that only harassment needed to be proven, the evidence still was

insufficient to do so.

A.The evidence did not prove the harassment-defamation standard applied

by the revocation court

The revocation court stated that the evidence had to prove some elements of

defamation law, and the government agrees that this was required. GAB33. Yet the

evidence did not prove falsity, actual malice, or other elements of defamation law

acknowledged by the government to be essential.

Throughout the lengthy revocation hearing, the court placed considerable

emphasis on the falsity requirement. ER101-05; ER146. The court presumed that

the statement that Fazal had been forced out of her previous post was false. The

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court demanded that Chaker disprove it, and then rejected his proffer. ER111, 120,

128, 130-31, 134. And, when the court eventually asked the government about it, the

government responded only that it didnt believe falsity needed to be proven. ER127.

The court then concluded that the statement was an out-and-out lie. ER126; 128.

But absolutely nothing in the record supports this. Significantly, Fazals emailthe

only evidence offerednever complains that the statement is untrue. ER162.

The government offers two explanations for this unsupported finding. First,

the government writes that Chaker likely made up the claim that Fazal had been

forced out of the Las Vegas police department, [so] it was not implausible for the

district court to conclude that the post constituted harassment. GAB51. But the

musings of the government on appeal as to the likelihood of falsity cannot make up

for the absence of any evidence to that effect in the court below. The preponderance-

of-the-evidence standard, after all, requires evidence that something is more likely

than not. And such evidence would have been relatively straightforward to present

heretestimony from Fazal, employment records, a letter from a former supervisor,

something indicating that she had left the police department voluntarily and on good

terms. But the government simply offered none. The courts unfounded

assumptions or groundless inferences although based upon proper and accurate

information [of Fazals quotes] may not, consistent with due process, form the basis

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of sentence. United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987); see also

United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995).

Second, the government claims that this evidentiary deficienc[y]w[as] not

required to be proven. ER53. While it is true that the condition should have been

read as barring only harassment, not defamation, the condition as applied included a

defamation-lite standard, with a heavy focus on falsity. Even the government writes

that a defamatory statement involving a matter of public concern and made with

intent to harass would violate the condition only if the government proved the

statements falsity. GAB33. To the extent that the governments brief simultaneously

argues that the condition requires some elements of defamation to be proven and that

the condition does not require any elements of defamation to be proven, it illustrates

that the condition imposed is void for vagueness, as argued supra in Section II.

The government also acknowledges that it was required to prove actual malice

to show that a defamatory statement violated the condition. GAB33 (the plaintiff

is constitutionally required to provethe defendants fault). Here, the revocation

court decided not to apply the actual-malice requirement. ER107-08. But even if it

had, there was no evidence offered that could have proved it. Fazals email did not

even claim that the forced out statement was false, let alone that Chaker knew it

was false. ER161-63. And the evidence showed that Chaker had gleaned the

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information from Googling and seeing other blogs about Ms. Faz[a]l, so it was

independent. ER111. Chaker told the court that I did things I think that were

proper that I had evidence behind and I have some genuine belief that he materials

that I was posting had some had some merit to it. ER134-35. Thus, there was

no evidence proving actual malice.

Finally, the government discounts without discussion Chakers argument that

the evidence was insufficient to establish other elements that the revocation court held

were required: that the statement be one of fact rather than opinion, vindictive

motive, extortionate aim, and damage to reputation. The government summarily

states that [e]ven if the United States were required to prove those facts to support

proof of harassment, the district court did not clearly err in concludingthat [the

forced out statement] purported to convey facts, that Chaker harbored a vindictive

motive and that Fazal suffered harm from the posts. GAB53 n.7. But the government

does not point to any evidence supporting these elements, and, as set forth in Chakers

opening brief, there was none. AOB48-53.

B.

The evidence did not prove even straightforward harassment

Even if this Court determines that a strict harassment analysis governs, and not

the harassment-defamation amalgam that the revocation court applied, the evidence

still failed to prove the violation. This Court has cited with approval the definition

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of harassment set forth in Blacks Law Dictionary: words, conduct, or action

(usu[ally] repeated or persistent) that, being directed at a specific person, annoys,

alarms, or causes substantial emotional distress in that person and serves no legitimate

purpose. Osinger, 753 F.3d 939, 945 (9th Cir. 2014). The revocation court adopted

this definition. ER43-44. Applying the definition here, the evidence would have to

show that the forced out statement was (1) directed at Fazal, (2) reasonably would

have annoyed, alarmed, or caused substantial emotional distress to Fazal, and (3)

served no legitimate purpose. None of these elements were proven by Fazals email.

First, the email failed to show that the words were directed at Fazal. The

statement was made on Chakers police accountability blog and was directed to

criminal defense or civil rights attorney[s] seeking credible material for

impeachment. ER162. Although Fazal was the subject of the statement, there was

no evidence that the statement was emailed to her or her coworkers or otherwise was

directed to her. This is a far cry from the harassing conduct in Osinger, for example,

which included repeated verbal threats to the defendants ex-girlfriend, posting

sexually explicit pictures of her on a Facebook page that the defendant created in a

name close to hers, and sending emails to her coworkers and friends containing

explicit photos. See 753 F.3d at 941, 943. Nor is this a situation in which the

harassment was directed at a private individual and revealed intensely private

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information about [the victim] that were never in the public domain before [the

defendant] began his campaign to humiliate [the victim]. United States v. Petrovic, 701

F.3d 849 (8th Cir. 2012) (discussed in Osinger, 753 F.3d at 948). Instead, the evidence

showed that the speech was addressed to the public about a public official discussing

material in the public domain. It was thus insufficient to prove the first element of

harassment.

With regard to the second element, the revocation court correctly determined

that whether the target of allegedly harassing speech would be annoyed, alarmed, or

experiences substantial emotional distress is an objective analysis. ER58; see also

United States v. Bagdasariyan, 652 F.3d 1113, 1118-19 (9th Cir. 2011) (applying

objective determination to criminal threat statute). The court thus rightfully

discounted Fazals subjective claim in her email to the probation officer that she was

in fear based on the blogposts. ER58; see also ER162. And while the court did

determine that no law enforcement officer would want that kind of information

[implying wrongdoing and turpitude] disseminated on them because they would be

concerned about [their] public reputation, it clearly erred in concluding that this

satisfied the second element of harassment. ER117-18. It is simply implausible to

think that anytime a public official bristles at professional criticism, this is tantamount

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to annoyance, alarm, or substantial emotional distress within the meaning of

harassment.

Finally, there was no evidence that the statement lacked a legitimate purpose.

By its terms, the statement was intended to promote police accountability and offer

credible impeachment evidence to those litigating police misconduct. ER162. And

Chaker told the court that the posting was about police accountability; he was

writing about concerns about someone whos working for the government, inviting

others to do their own investigation. ER112-13.

In short, none of the essential elements of harassment were established by a

preponderance. This leaves the implicit element of intent to harass, which the

revocation court, like the government, acknowledged was required. ER107; GAB47.

The government claims that scienter was sufficiently proven through Chakers

history with Fazal and the fact that the information relayed was false. GAB25. But

as discussed above, the evidence did not establish that the forced out statement was

false. So even if falsity theoretically could prove intent to harass,3it does not do so

here. Nor does Chakers history with Fazal establish intent to harass. Their

history consists of Fazal testifying against Chaker in a court hearing. ER161. It was

3This is a dubious claim. That defamation law requires separate proof of both

falsity and actual malice where the statement concerns a matter of public concern

shows that the bare fact of falsity cannot substitute for a finding of knowingness.

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this history that led Chaker to believe that she was impeachable. And it was

impeachment material that Chaker sought to disseminate in writing the forced out

statement in question here and the other blogposts excerpted in Fazals email. ER162.

Even assuming the veracity of Fazals allegation that Chaker offered the material

because he was furious that she testified against him, for all of the reasons stated

supra in Section II.A.3 and in the opening brief, AOB35-37, being motivated to speak

out against someone based on a gripe is not equivalent to intending to harass them.

Thus, the evidence simply does not establish the scienter element.

As a final note, the government troublingly asserts in its reply brief that Chaker

hadindicated [that] the blog [statement] was designed to harass Fazal. GAB50

(citing SER227). But the record citation that the government points to shows no such

indication, and none exists elsewhere in the record. Instead, the evidence established

that the statement was verified and was designed for the legitimate purpose of

promoting police accountability. ER113, 134.

Setting aside its affirmative misstatement of the record, the governments

responses to Chakers sufficiency challenge, like the revocation courts findings,

proceed purely on assumption and ignore the evidence before the court. This

evidence, viewed in the light most favorable to the government, failed to prove the

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essential elements of harassment or the applied harassment-defamation standard.

Accordingly, this Court should reverse the revocation order.

IV.

The New Special Conditions Imposed Are Impermissibly Vague,Overbroad, and Substantively Unreasonable

This case must be reversed for yet another reason: the new special conditions

imposed upon sentencing for the revocationthat Chaker not stalk/harass/defame as

previously conditioned (Condition 5), ER8; not reveal private information of

others or threaten others by posting false information, disparage or defame others on

the internet (Condition 11), ER8; and not send anonymous emails (Condition

13), ER277 (Dckt. #46, Minute Order)are unconstitutionally vague and overbroad

and are substantively unreasonable. AOB54-61.

The government agrees that all three conditions are unconstitutional if they

prohibit more than harassment. GAB56 n.8, 57-58 & n.9. However, the government

contends that the conditions should be upheld because the court intended them to

restrict only harassment. GAB56-58. But the conditions reach far beyond mere

harassment.

For all of the reasons identified in Section II and set out in the opening brief,

AOB54-55, Condition 5 covers a drifting mix of defamation and harassment law

without the anchor of actual malice or scienter. This makes the condition vague and

overbroad.

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With regard to Condition 11, while the court claimed at sentencing to be

restricting harassment, ER138, it also established that the reach of the condition is far

broader. The court excised a scienter element under Condition 11, stating instead

that a statement would be a violation if it looks like it was made vindictively. ER156-

57. No harm or damages element is included. Cf. Swisher, 2016 WL 142591, at *5.

And while the court indicated that the second and third restrictions involve speech

made for no purpose other than to compel a change [in] behavior, ER138, the first

onerevealing private informationdoes not include this caveat, and so could include

revealing private information for a legitimate purpose. In short, the courts

pronouncement was inconsistent, and the condition covers a vast array of speech that

exceeds the fundamental elements of harassment. Moreover, because the condition

restricts the publication of private facts that tend to put someonewhether a public

or private figurein a bad light, it amounts to viewpoint discrimination, which is all

but per seunconstitutional even in the supervised-release context. SeeAOB57 (citing

R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992); RODNEYA.SMOLLA AND MELVILLE B.

NIMMER, SMOLLA AND NIMMER ON FREEDOM OF SPEECH, 3:10 (updated 2015).

Accordingly, Condition 11 is unconstitutional and substantively unreasonable.

With regard to Condition 13, the court failed even to apply the harassment

label that it slapped onto its pronouncement of Condition 11. Condition 13

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therefore is not susceptible to a construction that limits its terms to harassment. The

government nonetheless seeks justification for such a limiting construction in an

unpublished case, United States v. Hayes, in which the sentencing court justified a

restriction on personal-computer use based on its belief that computers offer

anonymity and a convenient means of continued harassment. 283 F. Appx 589, 594

(9th Cir. 2008) (quoted at GAB57). But the court here provided no such justification

for its decision to bar anonymous emails. Its failure to narrow the restriction on

anonymous emails to harassing emails thus infringes on a core First Amendment right,

making it substantially overbroad.

For these reasons, Conditions 5, 11, and 13 must be vacated as

unconstitutional and substantively unreasonable. Alternatively, to the extent that this

Court agrees with the government that the conditions can be read to restrict only

harassment, it should impose a limiting construction collapsing all three conditions

into a single, clear, straightforward condition that captures the district courts intent:

Chaker may not stalk and/or harass.

CONCLUSION

For the foregoing reasons, this Court should vacate all conditions not directly

and solely directed at harassment, including any discussion of defamation and privacy

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and anonymous speech. This Court should also find that Chakers forced out

statement was not harassment and therefore that he did not violate the condition.

Respectfully submitted,

DATED: January 22, 2016 s/ Sarah R. Weinman

Sarah R. Weinman

Federal Defenders of San Diego, Inc.



619.234.8467

[email protected]


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CERTIFICATEOFCOMPLIANCE

I certify that, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(c) and

Ninth Circuit Rule 32-1, the attached reply brief is proportionately spaced, has a

typeface of 14 points or more and contains 6,892 words. This does not exceed the

7,000 words allowed by the rules.

DATED: January 22, 2016 s/ Sarah R. Weinman

Sarah R. WeinmanFederal Defenders of San Diego, Inc.



619.234.8467

[email protected]


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CERTIFICATEOFSERVICE

I certify that on January 22, 2016, I electronically filed the foregoing reply

brief with the Clerk of the Court for the U.S. Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system. I certify that all participants in the

case are registered CM/ECF users and that service will be accomplished by the

appellate CM/ECF system.

s/ Sarah R. Weinman

Sarah R. WeinmanFederal Defenders of San Diego, Inc.



619.234.8467

[email protected]



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