Second Circuit Affirms 18 U.S.C. § 115(a)(1)(B) Conviction And Sentence For Defendant Who Posted “Kill Your Senators” Video Online

In United States v. Hunt, No. 21-3020 (2d Cir. Sept. 20, 2023) (Walker, joined by Parker and Bianco), the Circuit affirmed Hunt’s conviction and sentence for threatening to assault and murder United States officials, in violation of 18 U.S.C. § 115(a)(1)(B), based on Hunt’s online posting of a video entitled “Kill Your Senators.” In the video, which was posted on January 8, 2021, Hunt said, among other things: “We need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers …. If anybody has a gun, give me it. I will go there myself and shoot them and kill them.”

The Circuit held:

1. The evidence was sufficient. In so holding, the Circuit rejected Hunt’s argument for application of the “constitutional fact doctrine,” which would have required the court to conduct an independent review of the record to ensure that Hunt’s speech was a constitutionally unprotected true threat. Taking the government’s side in a Circuit split (see slip op. 9 n.1), Hunt held that the constitutional fact doctrine does not apply to § 115 true threat determinations. The Circuit reasoned that “the true threat determination will usually hinge on the objective assessment of a reasonable person, and thus requires only ordinary principles of logic and common experience, rather than legal judgment.” That is, a court “is no better equipped than the jury—and is arguably less equipped—to answer whether a statement is a true threat.” Thus, under the ordinary Jackson v. Virginia standard, the evidence sufficed. Hunt “emphatically stated his own violent intent” by using the first person in his video, and posted the video two days after J6. The Circuit also clarified that “a threat need not also constitute incitement to imminent lawless action” under Brandenburg v. Ohio to be proscribable. Finally, the Circuit held that any error in failing to instruct the jury in accordance with the intervening decision in Counterman v. Colorado (which holds that a true threat requires a mens rea of recklessness as to the risk that speech would be viewed as threatening violence) was harmless in light of the overwhelming evidence of recklessness.
2. The district court did not plainly err in refusing to instruct the jury that Hunt must have believed or expected that his video would reach members of Congress. 18 U.S.C. § 875(c) contains such a requirement, but that’s because that statute refers to a “communication,” an element not present in § 115(a)(1)(B).
3. The district court did not plainly err in excluding Hunt’s father from the courtroom. Closing the courtroom to the public advanced an overriding interest in protecting public health during the COVID-19 pandemic. The father was able to watch from another courtroom via an audio/video livestream. And the court instructed the jury that Hunt’s family and friends had been excluded from the courtroom, along with the rest of the public, to comply with COVID-19 protocols, thereby mitigating any potential negative inference from Hunt’s lack of visible support.
4. The district court did not err in applying the U.S.S.G. § 3C1.1 obstruction enhancement based on Hunt’s trial testimony that he “wasn’t sending this message out to anybody” and only “wanted to get people talking.” The court defensibly found these statements to be intentionally false efforts to avoid conviction. Separately, the court did not plainly err under Tapia by considering rehabilitation in imposing a 19-month sentence. The court permissibly expressed hope that Hunt would rehabilitate himself and otherwise justified the sentence with respect to deterrence, not rehabilitation.