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United States v. Fullmer

October 14, 2009

UNITED STATES OF AMERICA
v.
DARIUS FULLMER, APPELLANT,
UNITED STATES OF AMERICA
v.
ANDREW STEPANIAN, APPELLANT,
UNITED STATES OF AMERICA
v.
KEVIN KJONAAS A/K/A KEVIN JONAS A/K/A STEVE SHORE A/K/A JIM FAREER
KEVIN KJONAAS, APPELLANT,
UNITED STATES OF AMERICA
v.
JOSHUA HARPER, APPELLANT,
UNITED STATES OF AMERICA
v.
LAUREN GAZZOLA, APPELLANT,
UNITED STATES OF AMERICA
v.
STOP HUNTINGDON ANIMAL CRUELTY USA, INC., APPELLANT,
UNITED STATES OF AMERICA
v.
JACOB CONROY, APPELLANT.



On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 04-cr-00373) District Judge: Honorable Anne E. Thompson.

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued January 6, 2009

Before: FUENTES and FISHER, Circuit Judges and DITTER,*fn1 District Judge

OPINION OF THE COURT

Defendants Darius Fullmer, Andrew Stepanian, Kevin Kjonaas, Joshua Harper, Lauren Gazzola, Jacob Conroy, and Stop Huntingdon Animal Cruelty ("SHAC") collectively challenge their convictions for conspiracy to violate the Animal Enterprise Protection Act ("AEPA"), 18 U.S.C. § 43 (2002). Notably, our interpretation of this statute is an issue of first impression in this, or any, circuit court of appeal.*fn2

SHAC, Kjonaas, Gazzola, and Conroy also challenge their convictions for conspiracy to commit interstate stalking, as well as three substantive counts of stalking. Finally, SHAC, Kjonaas, Gazzola, Conroy, and Harper challenge their convictions for conspiracy to use a telecommunications device to abuse, threaten, and harass.

The overarching issues in this appeal are whether the AEPA violates the First Amendment, whether there was sufficient evidence to convict Defendants of the various charges against them, and challenges to the jury instructions. Because we find that the AEPA is neither unconstitutional on its face, nor unconstitutional as-applied to SHAC, Kjonaas, Gazzola, Conroy, Stepanian, Harper and Fullmer, we will affirm their convictions for conspiracy to violate the AEPA. In addition, we find that there was sufficient evidence to convict Defendants on all charges involving interstate stalking. Finally, we find no flaw in the jury instructions, and we will therefore affirm the Judgment of the District Court in all other respects.

I.

We begin by setting forth the two principle statutes implicated by the lengthy facts of this case: The version of the AEPA in force at the time of the conduct at issue provided, in relevant part

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 animals or records) used by the animal enterprise, or conspires to do so, shall be punished as provided for in subsection (b).

18 U.S.C. § 43(a)(1)-(2) (2002). The interstate stalking statute provides, in relevant part

Whoever travels in interstate or foreign commerce . . . with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family . . . of that person, or the spouse or intimate partner of that person . . . shall be punished as provided in section 2261(b) of this title.

18 U.S.C. § 2261A(1) (2000).

A.

Huntingdon Life Sciences ("Huntingdon") is a research corporation that performs testing for companies seeking to bring their products to market. The testing that Huntingdon provides to its clients is mandated by the laws and regulations of the United States and Europe to ensure the safety and efficacy of pharmaceuticals, agricultural products, veterinary products, and medical implants. Huntingdon has three laboratories, two in the United Kingdom and one in New Jersey. All Huntingdon laboratories use animals as test subjects. Approximately eighty-five percent of the animals used by Huntingdon are rats and mice, and the remaining fifteen percent is composed of other species, including fish, dogs, monkeys, and guinea pigs.

In the late 1990s, an individual posing as a laboratory technician videotaped the conditions inside a Huntingdon laboratory in the United Kingdom. The footage, which depicted animal abuse, became public when it was used in a television program, igniting protests against Huntingdon by a number of animal rights organizations. At about the same time, Stop Huntingdon Animal Cruelty was formed in the United Kingdom ("SHAC-UK"). The organization's mission is to close Huntingdon laboratories.*fn3

Immediately after SHAC-UK formed in November 1999, the organization published a newsletter that listed the names and addresses of the Huntingdon directors in the United Kingdom. Following the publication of the newsletter, animals rights protestors subjected the Huntingdon directors to an ongoing campaign of harassment, including vandalizing their homes and cars.

In February 2001, the Chief Operating Officer and Managing Director of Huntingdon, Brian Cass, was physically assaulted by three masked individuals in front of his home in England. Cass suffered cracked ribs, several lacerations, and a four-inch gash on his head that required nine stitches. David Blinkinsopp, who had been identified in video footage of SHAC-UK protests in front of Huntingdon, was convicted of the assault. The remaining two assailants were never identified.

SHAC-UK's campaign evolved to include companies and individuals who were associated with Huntingdon, such as suppliers and customers. In addition, SHAC-UK began to target Huntingdon's shareholders, demanding that the shareholders sell their stock in Huntingdon or face twenty-four hour demonstrations at their homes. Because the laws in the United Kingdom require companies to publish the names and addresses of their shareholders, Huntingdon relocated its financial base to the United States in an effort to protect its shareholders. SHAC then formed a branch in the United States to target the New Jersey-based branch of Huntingdon. The New Jersey branch of SHAC is one of the Defendants in this action.

B.

SHAC's campaign was multi-faceted in its approach, targeting companies that were directly and indirectly involved with Huntingdon, as well as the people who worked for those companies.*fn4 Because of the length of the record, we recount only a representative sample of the incidents that are the subject of this case. In particular, we discuss the general content of SHAC's website and the protest activity coordinated through the SHAC website, including protests directed at specific individuals.

SHAC Website

SHAC's primary organizing tool is its website, through which members coordinate future protests. It also publishes information about protests that have previously taken place.

The website includes a page dedicated to the concept of "direct action," which all parties concede is a type of protest that includes the illegal activity in this case. With regard to its position on the use of direct action, SHAC stated the following on its website:

We operate within the boundaries of the law, but recognize and support those who choose to operate outside the confines of the legal system.

Big business has shown time and time again their lack of concern for ethics, instead focusing their attention on their profit. Often, simply targeting said business proves fruitless. However, as above ground activists have successfully targeted [Huntingdon]'s financial pillars of support, underground activists have too targeted [Huntingdon]'s pocketbooks. Unidentified individuals as well as underground cells of the Animal Liberation Front and the Earth Liberation Front have engaged in economic sabotage of [Huntingdon] and their associates.

They have also spent their time directly intervening and liberating the animals who are slated to die inside of [Huntingdon]. Animals have been liberated from breeders as well as the laboratories themselves.

SHAC does not organize any such actions or have any knowledge of who is doing them or when they will happen, but [SHAC] encourage[s] people to support direct action when it happens and those who may participate in it.

(J.A. at 775.)

The website often posted the organization's "accomplishments," which lauded both legal and illegal protest activity. The illegal activity included, among other things, a break-in at the Huntingdon lab in New Jersey, during which protestors broke windows and "liberated 14 beagles," in addition to overturning a worker's car; detonating a "stink bomb" in the Seattle office of a Huntingdon investor; destroying Bank of New York ATMs, windows, and other property; sinking a yacht owned by the Bank of New York's president; launching repeated "paint attacks" in the New York offices of a Huntingdon investor; and "rescuing" dogs and ferrets from a Huntingdon breeder farm.

The website also posted "anonymous" bulletins of successful, but illegal, protest activities. One such bulletin stated Late last night, August 30th, we paid a visit to the home of Rodney Armstead, MD and took out two of his front windows . . . gave him something to labor over this Labor Day weekend. Rodney serves as an officer and agent of service for "Medical Diagnostic Management, Inc.," a scummy little company [associated with Huntingdon]. Any ties with [Huntingdon] or its executives will yield only headaches and a mess to clean up.

(J.A. at 935.) The name and home address of Dr. Armstead followed. This bulletin was prefaced by SHAC's statement that it was "excited to see such an upswing in action against Huntingdon and their cohorts. From the unsolicited direct action to the phone calls, e-mails, faxes and protests. Keep up the good work!" Similar bulletins included photographs of extensive vandalism at the homes of people indirectly affiliated with Huntingdon, such as employees of Bank of New York. These bulletins almost always contained a disclaimer that "all illegal activity is done by anonymous activists who have no relation with SHAC." (J.A. at 1233.)

The SHAC website also posted a piece called the "Top 20 Terror Tactics" that was originally published by an organization that defends the use of animals in medical research and testing. With its standard disclaimer about SHAC not organizing illegal activity, SHAC re-published the list on its website. Some of the tactics included abusive graffiti, posters, and stickers on houses, cars, and in neighborhoods of targeted individuals; invading offices, damaging property, and stealing documents; chaining gates shut or blocking gates with old cars to trap staff on site; physical assaults against the targeted individuals, as well as their partners, including spraying cleaning fluid into their eyes; smashing windows in houses when the occupants are home; flooding houses with a hose attached to an outside tap inserted through a letterbox or window while the home is unoccupied; vandalizing personal vehicles by gluing locks, slashing tires, and pouring paint on the exterior; smashing personal vehicles with a sledgehammer while the targeted individual is inside; firebombing cars, sheds and garages; bomb threats to instigate evacuations; threatening telephone calls and letters, including threats to injure or kill the targeted individual, as well their children and partners; abusive telephone calls and letters; ordering goods and services in the targeted individual's name and address; and arranging for an undertaker to collect the target's body. Following the list, the SHAC website stated, "Now don't go getting any funny ideas!" (J.A. at 780.)

The website had a series of links dedicated to educating activists on how to evade investigators. These links were entitled, "Ears and Eyes Everywhere," "Dealing with Interrogation," "When an Agent Knocks," and "Illegal Activity." In these sections of the website, SHAC advised its protesters to "never say anything over the phone, email or in your house or car that you wouldn't want the authorities to hear. If you need to discuss sensitive information, do it in a remote location. Burn anything with sensitive information on it . . . . Visit www.pgp.com and download an email encryption program to protect your email conversations." (J.A. at 1512.) "PGP" stands for "pretty good privacy," and that encryption device was generally effective at protecting e-mail conversations from outside monitoring. (J.A. at 3095-99.) PGP is also used to erase data from hard drives. The software was found on eight of the nine computers at SHAC's de facto headquarters where three Defendants also lived.

Through its website, SHAC also invited its supporters to engage in electronic civil disobedience against Huntingdon and various companies associated with Huntingdon. Electronic civil disobedience involves a coordinated campaign by a large number of individuals to inundate websites, e-mail servers, and the telephone service of a targeted company. Electronic civil disobedience also includes the use of "black faxes," repeatedly faxing a black piece of paper to the same fax machine to exhaust the toner or ink supply. SHAC sponsored monthly electronic civil disobedience campaigns on the first Monday of every month. SHAC reminded its supporters that electronic civil disobedience is illegal, so supporters should only participate if they "are like Martin Luther King and are ready to suffer the consequences . . . or if [the supporters] want to live to fight another day, do the electronic civil disobedience from a public computer that cannot be traced . . . ." (J.A. at 835.)

Another way that SHAC encouraged the use of electronic civil disobedience was through its "Investor of the Week" feature, which highlighted a company associated with Huntingdon by publishing the company's contact information. SHAC told its supporters to "Take advantage of pay phones! Especially with toll free numbers! [sic]" (J.A. at 788.) The website also provided a link to a black fax for their personal use. Alternatively, the website noted that supporters could just use black paper to "give your target's fax machine a run for its money . . . or ink!" (Id.) The website explained how a supporter could block his phone number so that it would not appear on the fax or telephone line's caller identification. In addition, the website explained how to prevent the targeted company's servers from blocking e-mails, and provided a link to encryption devices that mask the sender.

One specific example of SHAC's coordination of electronic civil disobedience was an e-mail from "shacuse@envirolink.org" that was disseminated on October 26, 2003. The subject line of the e-mail was "Electronic Civil Disobedience," and it advised SHAC supporters that on the following day, SHAC's website would provide a link to the SHAC-Moscow website where "electronic civil disobedience will be taking place." The e-mail stated that "participation is mandatory," and that by taking part in the coordinated electronic civil disobedience, supporters would "help . . . halt the ever important web medium for particular companies sponsoring Huntingdon." Participation would also "send[] a loud message that no silly injunctions or crooked politicians can derail the campaign to close Huntingdon." (J.A. at 2615.)*fn5

At trial, the government presented evidence that the cyberattacks against Huntingdon caused the company's computer systems to crash on two separate occasions, resulting in $400,000 in lost business, $50,000 in staffing costs to repair the computer systems and bring them back online, and $15,000 in costs to replace computer equipment.

Protests Against Individuals

One of the strategies SHAC frequently employed was to target the employees of Huntingdon and affiliated companies, as well as their family members. To accomplish this goal, SHAC posted the names, home addresses, and home phone numbers of the individuals on the organization's website. SHAC also posted bulletins about what happened at the protests, including acts of vandalism committed by protestors.

1. Andrew Baker*fn6

Andrew Baker is the Chairman of Life Sciences Research, a holding company for Huntingdon. In 2000, Baker and his family began receiving mail and phone calls at his home in New York which he characterized as "very abusive" and "very vulgar." The protest activity corresponded with the posting of the following on SHAC's website:

"Target: Andrew Baker":

If there is one man on whom you could place the most blame for [Huntingdon's] crimes since 1998, it is him. For the last four years since he watched little dogs getting punched in the face, Baker has put his all into keeping Huntingdon afloat. Not an easy job. As a trained chartered accountant Baker is skilled at pulling the financial strings of companies he is in charge of. . . . He currently works out of a NJ office called Focused HealthCare Partners LLC - which acts as a general partner for healthcare startups . . . or failing labs like Huntingdon. . . . Baker has been essentially reduced to scrambling full time to save Huntingdon. He has nothing else going for him. If [Focused HealthCare Partners] is the vehicle he uses to support Huntingdon, [Focused HealthCare Partners] is the company we must dismantle.

(J.A. at 937.)

SHAC posted a second page that was similar, this one entitled "TARGET: Focused Health Care Partners." (J.A. at 949.) This page listed the names and home addresses of several officers and employees of Focused Health Care Partners, including Andrew Baker. It also listed his wife's name.

There were frequent protests at Baker's home, including a painting of Baker's likeness on the sidewalk in front of his apartment building with a cross through his face. After one of these protests, the following post appeared on the SHAC website:

Forwarded from NY activists as part of the NY "March Mayhem" events:

Despite driving winds, rain, and cold weather 75 activists gathered at [address redacted] to protest the home of Andrew Baker CEO to Huntingdon. Andrew Baker is at the top of our "SH&)%^!" list for his lead in trying to save Huntingdon from certain closure. This was the largest and angriest of the 3 days of protest. . . . Andrew you and all your senior management and "science" staff have no idea what we have in store for you! Murderers, lairs [sic], thieves, and perverts deserve to be treated as such. In the near future when we see you in the gutter stripped of all your riches and fabricated respect, the only handout you will get is our spit!

(J.A. at 922.) Baker testified that protestors also targeted his daughter's New York apartment. He stated that vandals "plastered" the front door of her apartment "with posters and pictures . . . depicting [his] death." (J.A. at 2834.)

A few weeks later, the SHAC website included a page entitled "Baker's Bloody Bungalow." (J.A. at 923.) The page warned, "You can run, but you can't hide!" and included photos of Baker's Los Angeles home from the street, as well as the complete street address and home phone number. The page also included the following commentary:

So, apparently Andy is bi-coastal (as if you couldn't tell). In addition to the 2 million dollar penthouse apartment he owns on NYC's upper Westside ([address redacted]), Baker also has a sunny California home in Los Angeles. This choice location on Sunset Plaza Drive should be the number one attraction on any animal rights activist's Hollywood star-map.

[House number redacted] is a million dollar home located at the top of a hill looking over LA. Its small entrance give a false appearance of being a small abode, but it drapes back down the mountainside several floors. The current occupant, when Andy is not in, is [name redacted], Baker's pampered stepson who rumor has it took a liking to some of LA's infamous cocaine.

(J.A. at 924.) Later, the following post appeared on the SHAC website:

Sent anonymously to aboveground activists in the US. . . . [V]ery late on November 9th, we visited the home of Andrew Baker, CEO of Huntingdon and most violent American terrorist, at [address redacted]. We spray painted messages like "Huntingdon SCUM" and "PUPPY KILLER" all over the garage, wall around the house, wooden door, and sidewalk in front, so that his neighbors will know what kind of person owns this house. We'd like to make it very clear that we're only warming up. This scumbag is not welcome here.

(J.A. at 927.) The post was attributed to "ALF," an acronym for the "Animal Liberation Front."

At trial, Baker testified that the house in Los Angeles has been attacked three times. He testified that during the first attack, the protestors kicked in the gate at the street entrance, broke the front door, and broke two windows. During the second attack, the protestors broke a window in the garage and threw a smoke bomb inside. During the third attack, the protestors threw rocks and tile over the wall, hitting the top and sides of the house, including windows and doors.

2. Sally Dillenback

Sally Dillenback is the senior executive in the Dallas office of Marsh, Inc., an insurance brokerage company that provided services to Huntingdon. She testified that in early 2002, she learned that SHAC had targeted Marsh. In March 2002, Dillenback checked the SHAC website after learning that personal information about employees had been posted there. When she viewed the website, she saw that her personal information had been posted, including the names of her husband and her children, as well as their home address, the name of her children's school, the make, model and license plate of their personal vehicle, the name of their church, and the name of the country club where they were members.

Shortly after the information appeared on the SHAC website, Dillenback testified that her family began receiving phone calls, often "angry and belligerent," day and night, as well as a "tremendous" volume of mail. Dillenback testified that one morning, her family awoke to find that pictures of mutilated animals had been glued to the sidewalk in front of her home, as well as the exterior side wall of her home. At the same time, the following was posted on the SHAC website:

received anonymously on March 10:

Last night the homes of Dallas Marsh employees Michael Rogan and Sally Dillenback were visited by activists. Mr. Rogan's garage was plastered with stickers of mutilated puppies such as those his company insures. Mrs. Dillenback's side wall was covered in stickers, as was her mailbox.

Let the stickers serve to remind Marsh employees and their neighbors that their homes are paid for in blood, the blood of innocent animals that are killed in labs like Huntingdon. Every day that Marsh insures Huntingdon, they insure death.

(J.A. at 1292.) Dillenback testified that after this incident, she was "sickened and terrified," and that her children were scared, especially the youngest child who was seven years old at the time. Marsh provided 24-hour security at her home following this incident.

Dillenback also received an e-mail that she perceived as a direct threat to her youngest son. She testified that the e-mail asked how she would feel "if they cut open my son . . . and filled him with poison the way that [Huntingdon] was doing to animals . . . ." (J.A. at 3004.) She testified that this e-mail "devastated" her. She further testified that during this period of time, her husband purchased a semi-automatic weapon and that her seven-year-old son twice brandished a kitchen knife while inside the house in an effort to protect himself and the family.

After Dillenback initially testified regarding her son's use of the knife at her deposition, the following posting, attributed to "TX activists," appeared on the SHAC website:

On Saturday, December 14, activists paid a holiday visit to Sally Dillenback, head of Dallas Marsh office. She was surprised, finding her working on her Christmas tree with her family. . . . Contrary to Sally's sworn testimony at her deposition, her son did not run for a kitchen knife and to hide when he saw the activists. Instead, he and his sister seemed quite interested in the signs and appeared to be trying to read them from across the street.

Merry Christmas, Sally. Take a moment to think of all the dogs, like the one who shares your home, who will be spending Christmas in their own congealed blood and feces at ...


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