# Oral argument — United States v. Burger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A102204 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** January 20, 2026 ## Text seated good morning case for today for this sitting is 20 25 5 0 9 7 6 United States vs. James Wesley Burger we'll hear first from mr. Rickey may it please the floor thank you for taking this case seriously enough to hear it on an expedited basis during a busy week this case started because people took James Berger seriously to experienced Roblox users who were familiar with the platform reported to FBI that Berger was issuing serious expressions of an intent to cause harm so tell us which were the the most troubling statements in your view and that you think the whole context were not subject to any kind of First Amendment protection just just just lay lay them lay them out for us so that we'll know which ones the government is mainly relying on so I think the most troubling statement is probably the one charged in count to where burger said that he was planning to attack festival attacking bounties of Christians about these Christians that he was going to strike a grievous wound upon the followers of the cross he named a specific date and that lined up with a Christian music concert in Austin on that any statement said something about Austin it doesn't say something about Austin but it does say in a previous statement the one in count one which is just four days before that he was going to it was going to be on their capital and so that's that's the context we're okay that's me okay and the others and then the one in count three is the threat against law enforcement where somebody in roblox asks him what are you going to do about this or see I what are you going to do if they try and he says and that's in response to yes I have guns in case the authorities want to arrest me I'm ready to sacrifice my life for my robbed detonate of what I prepared missions and use my firearms to take many with me yes wish me luck on the path of martyrdom so I'm sorry go ahead so I was going to say that with respect to count count one and count three two separate experienced roblox users reported those statements to authorities and under this courts precedents those sorts of reactions are probative of whether a reasonably a reasonable objective observer could regard a statement which precedents say that dog and ball Colwell and I believe Jubeir refers to that to the decision from just this last summer where the defendant was saying oh these statements aren't true threats and this court said no these fearful reactions may not be dispositive but they are probative of whether an objectively reasonable they could come in I'm sorry you believe they can come in to be for the jury to determine or or unless the court could determine that as a matter of law that no reasonable person could find these to be true threats under the law then you believe that these would come in to help edify the jury if the less the court could determine that well the directly probative on the core question of whether these were true threats so they would certainly come in these two witnesses are prepared to testify but the district often let people testify as to the core issue of the case and when they're just but they're not experts or something like that and you weren't pretending to offer them as experts were you know we're not talking about them giving expert testimony but we are talking about their saying I understand this format and I have been in this format and I understand what what church is and church the environment in roadblocks and and this case this court has said over and over again that that kind of testimony it's not expert testimony it's not it goes to an element of the crime whether it was a threat it was to a defense under the First Amendment so I don't know if it's offering something that's just for the jury's edification on some other some ancillary now in these two persons one of them is a heist was a high school student at the time they heard this and now they're an informant for the FBI is that correct no your honor that the the I don't know exactly the identity of the two people who will testify as to count one I thought it was the person who reported it to the National Center which was a high school student in Nebraska there was a there was a heist there was a high school student who reported another statement by mr. Berger in a different platform that also drew the FBI's attention but I'm sorry I don't know the details of those you don't that part of it is not in the it's not in the record on appeal the exact identity of those witnesses I've looked through the trial record and it did the only perpsons in name the two people with their their handles you know for that in one of them they had the one in it was in Nebraska and then the other one and then there were these people in perhaps in Saudi Saudi Arabia perhaps that were also participating in the discussion I'm not aware of anybody in Nebraska your honor that the record is it exist and it's not a trial record of course because we haven't been able to get to trial where these people can testify but it was in Nevada I'm sorry I said that Nebraska instead of Nevada right but that's what I meant we have yes we have people within the United States contacting the FBI from Nevada and Pennsylvania and then you have other users who are linked to ISIS outside the United States and those are the ones that are saying yes we'll pray for you and providing encouragement because they people on on the internet all the time isn't that right that that may be the case but that's a case you know that as a sophisticated person as a government lawyer that people sit on the internet and egg people on and foreign countries and agitate users in America that's part of the to disrupt our systems and mr. Berger can make sure mr. Berger can make that that argument to a jury that's why do you believe it's essential for each of these counts to be looked at separately that you have to each count has to stand on its own at the time the statement was made or do you not believe that that's the case each count can stand on its own do you believe it must stand on its own as a matter of law no what case says that you you don't have to have the case the count stand on its own at the time the statement was made so when I'm saying it it doesn't have to stand on its own I'm there's two there are two parts of the true threat analysis the first part is what would an objectively reasonable observer would inductively reasonable or have believed that these were serious expressions of an intent to cause harm and there you can look at the counts on their own should you look at the counts on their own you can look at the count you keep saying you can oh you can you look at the judge do what is the requirement should you look when you're trying to decide if an objectionably objectively reasonable observer could interpret this as a true threat do you should the court or the fact finder look at each of these counts for that question to answer that question on their own and what does the law say on that so every one of these courts I'm trying to answer the questions as I can based on these courts cases because this court's cases when they assess this question are looking at a whole trial record and I can see that I'm not satisfying you with my name I'm just asking you should you look at each count if you're trying to decide as a matter of law if a count is viable to go to trial you have to look at that count right and at the time it was made with context of what was existed at that time I think the reason that we're getting wrapped up is that when you get to the second part of the true threats analysis which is about the defendants recklessness or intent which is also under countermeasure what we have to look at and the reason I'm really dealing with part one if it doesn't get over part one we don't even get to part two so the part one is what a reasonable observer believe it was a threat at the time given and in order to analyze that should you look at the count separately from the other counts I don't know the answer to that question but I can tell you that if you do look at them separately from the other counts they still stand up okay do you believe it's necessary to establish a specific time or place or person with risk in order to be a truce threat under the Supreme Court's authority that's the question I know that the count two for instance does name a specific time and it refers to a specific place when in context and count one does the same thing but the question is whether does it violence on Christians at their capital which is the capital for Christians it's not clear what the capital for Christians is is it could that be Jerusalem or Austin or Washington DC or it doesn't have to be a secular capital heaven I you know I don't know what would be the capital for Christians in that context this court's cases show that threats are often not precise about an exact time well I thought you were saying that one did give a time and a place well it gives it gives the month and that's at least as precise as the threat this court found to be a true threat and morale so it wasn't there evidence of some kind of web searches about the the organization that had some kind of a Christian rally or something scheduled for what turned out to be April 12th is that I'm not trying to put words in your outfit explain to us what what the evidence shows about about about those web searches and other web searches about what weapons are making bombs or whatever what to tell us that's a multifaceted question but tell us about that sure there are searches in mr. burgers devices that show that he was searching for the promoter of this concert looking at their website before and after the dates on which he issued the threats and then when you look and see are there concerts in Austin on those dates you see that there actually are there it was a concert on that specific date in Austin but you look at those materials in deciding whether a reasonable observer or listener would interpret those as a true threat things that happened after the statements were made and or things that were not in the con were not privy to the listener you understand the question that we just had was about other searches and other things that some of which were after the threats the alleged threats so could when deciding prong one is to a reasonable observer would they interpret as a threat could you look at these things or not the prong one analysis is confined to what a reasonable observer would have viewed about that statement at that time but these statements are still threats under that test and you only have to look at the reaction of the reasonable observers to see that so can you look so would you or would you not consider the search history of mr. burger in determining whether something was a true threat if the search history is after the alleged comment was made with respect to prong one no with respect to prong two yes and I'll also point out that when you're looking at the observer on as to count to recall that that that one of the people who was seeing burgers statements that is charged in count to was with mr. burger on discord a separate platform where there were where mr. burger says and this is not role-playing in any sense mr. burger says I've come to a conclusion about the time and place and then that user says move let's move over to roblox and then they go over to roblox and that and they and then mr. burger says I concluded that it's going to happen on April 12th help me here this is more foundational we don't we don't see this kind of case every day where an indictment has been dismissed and the government's appealing it what what is the standard by which we're assessing the grant of a dismissal of an indictment in other words a lot of what we're talking about it's we're forecasting what may or may cannot come in at trial whether the defendant testifies whether the defendant doesn't testify what witnesses say we don't know any of that so what is our standard here and now for dismissing this indictment or reviewing it it's whether the the question that the court tried to answer was one that is committed to a jury involves disputed facts so under Flores the this court or the district court should not dismiss something under rule 12 if it involves disputed facts that go to the the the circumstances surrounding the crime that's Covington so that's why we're here now is not to have a kind of early trial on this case but to say we should be able to take this case to trial and rule 12 is careful about that trying to do that too early and warns against doing that too early I also want to mention since I just have a few second that we are still asking the court to vacate the second release order we do not believe that the second release order has been mooted in any sense so and we're also assuming for purposes of discussion that there are statements that were made that are subject to Miranda or or statements that Chief Judge Elrod asked you about regarding web searches that assuming those might not be admissible in terms of measuring the indictment or admissible at trial they would still be admissible though in terms of our decision about detention orders would they not I see my time has expired my answer yes yes of course this court can look at the entire record and the rules of evidence don't constrain what a district court or this court can look at I'm looking at a question of a detention or release pending trial or pending appeal for that you argue that the district court lacked jurisdiction to impose conditions after the courts December 23rd order but you did not appeal that order did you know we did not so we don't have jurisdiction to look at your complaints about those conditions doing you have jurisdiction to address whether the second release order is still in force and that requires you to look at whether the third release order mooted that and under Willis the third order really sort of did not move that because it is a nullity district court not just a nullity when we said that the district court could continue on ruling as new facts and things became available and as hearing said both in both orders that the court issued they said that the district court retained jurisdiction to deal with detention issues under this relevant statute both orders that both the motions panel order and and the merits panel order allowed the district court to continue to look at issues about detention as they rose and as the government and the defense counsel wish to bring them up not none of the orders said precisely that your honor what they said and we've looked at them and tried to interpret them precisely was the district court can proceed the first one said the district court can proceed under 3143 the district court did not follow that procedurally and then we did appeal from that order and then the last order that was clarification said that the government in its discretion could seek detention or pursuant to the statute right right then the district court had a hearing and the government requested relief and the district court granted some of that relief I mean it seems squarely it seems squarely encompassed by the order we entered as the merits panel and your position is in the issues that you raised in the 28 J letter that you sent is nothing is not tantamount to a motion for any relief or anything like that with regard to this latest detention order no we didn't understand the this courts December 23rd order as giving the court full sway over any kind of decision about detention release we're reading the letter of what this court said which is government in its discretion can seek detention or can seek conditions release on conditions and we didn't seek release on conditions we sought detention and the district court said no I'm gonna do release on conditions and that's why we have said that that that third release order is a nullity well the government could seek something but the district court didn't have to do what the government said it could choose its own remedy under the statute in the panel as long as it followed due process and that's not what the order says it's lesser included relief so to speak so and the government had been seeking either or all along so we understood that order as seeking as giving the government two alternatives and emphasizing the government's discretion to seek that if that's not what that order means then then you know the the district court did have the power to do what it did but that's how we read the order and that's our position on that order and the important part there is that the the district court takes seriously the issues that are raised by this matter so on the question of assignment to a different district judge and I think we all at least I certainly understand that it's an uncomfortable position for any attorney in here for the government to be requesting that but we all get we all get paid to do difficult things so that's anyway I'm going to ask you about that so tell us what are the main reasons the main things that the judge has done or said that you believe either justify us in or would would require us to order that this matter be assigned to a different judge in the Western District that's exactly right we don't make these requests willy-nilly we have to go to the Solicitor General to seek authorization to do it personal authorization and the main things that we see are the pattern of events that has occurred since we filed our first appeal if if it had just been as a couple of straight comments in a couple of motions hearing before that we would not have sought reassignment but once we filed a notice of appeal and once this court intervened on an emergency basis and said to the district court you need to give your reasons for doing this quickly and you need to act under section 3143 to figure out whether there's going to be released or detention here the district court didn't act under 3143 it decided to grant on personal recognizance and it did so without even imposing the conditions that are required for a personal recognizance release and then when we after an indictment had been dismissed and no charges were pending against the district court was in its prerogative to allow release with with no conditions if for someone whose indictment had been dismissed had it but the district court went back and heard and gave conditions pretty substantial conditions so you know in order to travel things because the home detention and a monitor and all of that and so at the point I'm talking about your honor this court in the administrative panel had already stayed the dismissal of the indictment so that that dismissal order had been stayed and so we're talking about what do we do with release pending the appeal and if that at that point the court the district court had entered conditions we might not have any problems we might have any of these complications with multiple appeals but at that point the district court says you're gonna stay in my unconditional release order here here's another unconditional release order that is inconsistent with the statute and then when we appeal from that order we end up with a third hearing which the district court expresses antipathy towards the government's case that was supposed to be a hearing by the way about release or detention and now we have comments from the district court saying this trial is going to be impossible impugning the credibility of the government's counsel and so weren't those in the context of the the issue with the Miranda warnings that if the court expressed frustration about the difficulty of the trial wasn't that because of the issue with Miranda and so it's that's what made the case more difficult to try and that underscores why it's so unusual that the district court would begin bringing this up and talking about trial it underscores that the district court is to use the first con factor having trouble letting letting go of its previously expressed views the parties had already resolved that this Miranda issue because the government said because there was a whole like ten pages of the transcript dealing with cross-examination and what could come up and so the court was just expressing it was a very difficult scenario to have a Miranda thrown out because because of the Miranda error which was a Miranda error I think the government didn't chose not to litigate that that it was going to cause a big problem for retrial if the case had for trial if the case so that's the context of the court being frustrated and when you when you point out Chief Judge Elrod that the government chose not to litigate that that's why it's so unusual that when we have we're having a hearing about detention and release the district court is going back to this issue that is has been resolved by the parties that's not going to come up because mr. Berger has stated flatly that he's not going to testify when when those issues start getting injected back into a hearing and those criticisms start getting injected back to a hearing about a trial that will not occur until this court remains for a trial that's why we see the district court as fixed in his views of the case and having trouble letting go of an issue that is already before this court and already forecasting what he'll do about that issue did the district judge as I understand it would correct me exactly what the record says did the district judge indicate that if he were on the jury he would acquit yes he did at one of the motions hearing if I were on the jury I would acquit so if this goes to trial on the merits he can listen to the government's case and then enter granted a motion for judgment of acquittal and that would be the end of that's not not not appealable probably it would be it would likely be unappealable and that's why this is of such concern to the government here we do think that if he heard our trial case he'd have a much harder time granting a rule 29 motion the fact that he avoided that is part of the problem here he should hear the case first but yes that is one reason the government is so concerned here is that if we go back to a district judge who's already decided that acquittal is the right answer here then we're going to have very limited avenues for trying to correct that problem even if the district court misunderstands true threats as his order advances you know said I've heard many federal judges give talks and things on this that judges can express opinions that they don't believe witnesses and the jury is free to when the judge has on the judge hat it's different than someone having on the juror hat and in sometimes they let the judge give the judge's opinions about the facts in front of the jury and sometimes but no one's arguing that that's happening here but if you did you understand that that statement to be one that he was going to wear his judge hat and do something in a rule and a law or did you understand him to be saying if he were on the jury he would have a juror viewpoint and is that illegal for the judge to have a juror viewpoint assuming that he is not sharing it with the jury it's not illegal and the latter way is how we understood it at the the motions hearing but our request for reassignment which is not something we made right after that motions here we didn't rush up here and say reassign the case it's how the case developed over really the month of December where you have the district judge repeatedly expressing antipathy to the government's case in writing context where it's irrelevant to the issue before the judge at that time is it relevant at all that the judge may have been irritated that the government kept trying to go to the magistrate judge rather than back to the district court is that some kind of subtext of what's going on I hesitate to opine about subtext but I will say that our position all along has been that under section 3142 the judicial officer that should have looked back at this when this court first in its first administrative stay order said hey you can go back under 3143 under the operation of the statute our position was this goes back to the judicial officer who heard it before under 3142 F I believe G well I didn't at all and it didn't go back to that person right and so I don't know of any rule that says it must go back to the same magistrate judge and the district court doesn't maintain supervision over the magistrate judges that can at any time take a case but anyway and maybe we're getting far afield did you have a response and do any of the judge have a question okay that you saved time for rebuttal thank you may it please the court we're here today because a teenager exercised extremely poor judgment and made some disturbing comments in an online role playing game but the First Amendment protects speech that is disturbing distasteful or discomforting and then you give us an example it would be hypothetical not in the record of this case I'm not suggesting that it is but can you give us an example of a statement on this particular platform in the what is the church whatever it's whatever it's called that would be actionable and not protected by the First Amendment would be considered a threat under the statute in the case I think you have to be very specific it would have to be specific as to what the target is so that you can give us an example I if for example it had made reference to a Christian music festival in April on on April 12th in in Austin would that be would that be substantial and sufficient I think if it named a specific festival in a specific city so that I mean because we're in a context where players from all over the world are congregating you know anonymously if it gave a specific event in a specific city on a specific date I think that would be enough but here I mean at least maybe to go to a jury I mean I think this is so difficult because this context is so unique do we have any cases where they've ever gone to a person playing a role where anyone's been convicted of a true threat while they're playing a character absolutely not nothing even remotely similar to this context I mean this is a Roblox website country people right now I think are doing reenacting Charlie Kirk's assassination and pretending they're the killer right now and they had to take that down over the last week I believe because people liked for whatever reason which seems abhorrent to reenact murders as someone that never heard of Roblox before I was assigned this case I have been kind of horrified to you know see what is going on do you have any sense of how many complaints are sent to the law enforcement FBI any agency over the any period of time from users of Roblox I have no idea that's not in the record I just want I'm just wondering are the two complaints that happened here with users who perceive this I guess is a threat or threatening language is that uncommon is it every day of the week is it I mean it's just interesting to know or if these are the only two in the country wouldn't that suggest that at least the the recipient of the threat saw them as threatening so a couple things to address that judge Wilson first I don't know that there's any evidence that these are the only two so I think that is not something that I have access to but I want to take a step back because the government really relies on these you know players you know contacting law enforcement and this might be stating the obvious but every single one of these cases that brings these kind of charges starts because someone perceives a statement as a threat but that doesn't mean that they are true threats as a matter of law so we look at Watts and that's a Supreme Court case where you know somebody had a rally says I'm gonna put LBJ in my sights obviously somebody saw that statement and thought that is threatening and the Supreme Court said as a matter of law no if you look at the entire context most of the people were laughing that's not a true threat so what if somebody on Roblox says I've been studying bomb making and I've exchanged some information with someone in Russia about how to make bombs and I'm going to set off a bomb at this year's Super Bowl Super Bowl in Santa Ana California on February whatever date it is is would that be would that be protected by First Amendment if it's on that platform I think it comes certainly closer to the facts here I mean again this platform is so odd that we really I mean and but you but you but you I assume you would acknowledge or I'll ask you the question would it be reasonable for people who have tickets to that Super Bowl to think that that was a threat and that they should feel unsafe in attending I think that gets closer to a jury question because we still have this strange context but there's at least some specificity to it so I think that does get closer to a jury question here we don't have that specificity and I think the specificity is really important because we need to look at these statements and we need to say do they show a real possibility do we look at each statement individually for the reasonable observers view or I look at them in all of them together I think you have to look at them individually because they're charged in separate counts there's no evidence that any particular individual saw all of these statements you know one after another so I think you have to look at them individually but going back to the specificity point I think the specificity is so important because the truth threats analysis is whether there's a reasonable chance that you know violence well how far do we telescope out then I mean there's a continuity here there's a time element there are multiple platforms there are searches on Google there are other contacts that are made there are the family references that uncle took away the guns and they put keystroke trackers on the computer I mean how much of that do we consider in determining the context none so we just look at this video game and we disregard everything else the the Supreme Court encounter and said that the truth threats analysis the existence of a true threat depends not on the author's state of mind but what that statement conveys to a reasonable person what the listeners are aware of so it would be inappropriate for us to look at the Google searches to buttress these crap to determine whether or not it's people it's the top prong under the Supreme Court's authority is that absolutely it's a reasonable person what they are aware and I want to take it just so the reasonable person did not know that he had a gun or that he was doing research right okay nobody knew that there's no indication and I want to take it back to these people that you know reached out to the FBI that's fine we can encourage reporting we do if you see something say something but these statements should have been the start of the the investigation instead they were the end they charge the pure speech and now these other this other evidence of Google searches and everything the government's kind of trying to shoehorn an attempt case into a case about pure speech but the government's admitted you know this other evidence isn't enough to be criminal and that's really important because when we see an attempt type case we don't convict someone based only on their mental thoughts we look to action they have to take a substantial step but you know the courts have cautioned about cases that involve a mens rea situation of taking them out in rule 12 the idea that these dismissals sometimes are premature and so wouldn't a jury be able to determine if this is more like a play where the person's doing research to play a character so you look up all these jihadi things because they're playing a character of jihad and that's they and then the other people could say no this is really they really were you know in trance with this and they were gonna go out and do this and that and then the jury gets to decide well that isn't relevant though to the prong one really whether a true threat exists again on one we're not looking at state of mind whatsoever we're looking at what does a reasonable person who hears these statements think and that you know countermeasures so prong one you think as a matter of law prong one stops the whole case right and we don't even get into prong two and the recklessness and I mean right I mean to be clear they have to you know if it were to go to trial they have to prove recklessness this is a prong one test like does there is there a true threat as a matter of law and so I think you know in that context we have to look at context we have to look at content and just you know to address the rule 12 thing the statements themselves are not disputed they're alleged to the indictment and the context isn't disputed either this is on Roblox it's an online gaming platform in it you know the government has never disputed that the church is a toxic you know experience intended for debate Roblox you go on the website and it says immediately be anything you can imagine so you know these are Lego like avatars dressed as characters and in this context when you look at the context and then the lack of specificity from these statements there's just no way for a reasonable juror to think that these statements are serious expressions to commit crimes in the real world and someone says well it says it's in Austin and we know it's in Austin there's no evidence of that nobody there's no indication that anyone knew he was in what the capital meant like you said that is completely ambiguous but it's tough but it's talking about a Christian activity of some sort on April 12th and that happened to be you know in Austin where this defendant lives and where the festival was to occur so there's no indication that anyone in Roblox knew that a burgers avatar where burger live was Austin there's no indication they knew about this festival and you know it is kind of telling count to alleges that it's gonna happen at a music festival and so we the government keeps saying there's this prominent music festival happening then they haven't told us until the reply brief here what is the actual festival and it just kind of a concert it's not a music argue that to the district court did they about the festival they kept kind of vaguely referencing you know there's a prominent music festival but even what they put in their reply brief it's just a concert that's happening in Austin but it's not but if we know we know that there's a music concert in Austin on that in April if we know that does that change this case no because a reasonable person on roblox doesn't know that and the government conceded we don't have anything to link burger to that particular festival we don't you know we have no idea we're just guessing the government's guessing and to go back to the attempt point the reason we require a substantial step before you can prove you know an attempted crime is because we don't want to rely on speculative inferences and convict somebody based on otherwise innocent conduct that's where we have juries right just to sit and listen to the evidence from both sides and to determine whether a reasonable person would feel we do but not when a threat is not a true threat as a matter of law that takes it out of the jury's hands and because the fundamental right is at stake it's so important that you know the district court acts as a gatekeeper here and that's what courts in this district have done that's what this court didn't know Dwyer and it's really important in the first amendment context because you have disturbing speech you have fringe speech in this case and you have a dispassionate district judge that can look at the speech and say I think it's important it was made in a cesspool this was bad speech but yet I realize that you're calling this district judge dispassionate in this case given the record is that what you're saying yeah he considered the right he thought this was a tough he's obviously said that if you were on the jury he would enter a judgment of acquittal you know I mean I've been doing this job a long time I've never I don't ever remember I'm not saying there's never been but I don't ever remember dealing with a case where the record showed that a district judge in a criminal case made that kind of statement I mean we cited the case in our brief where the judge opining on the strength of a case isn't you know that's not reassignable that's just human nature that a judge is going to form some opinions and the context but saying I would render a judgment of acquittal is putting it a lot more strongly than suggesting to the government that a particular facet of its case might ultimately be weak I don't think that's quite what he said judge Smith I think he said if I was on the jury and based on the evidence I've heard I would acquit but it was also in the context of this discussion of do I take it to a jury or do I rule as a matter of law and the fact that he said he would acquit just kind of is natural that he thought that these are not true threats as a clear he said I will give the government a fair trial I will do whatever the Fifth Circuit says I'm ready to you know I'm on the sidelines if you want to appeal you can appeal I thought he sort of said again correct me because you know the statements record better than I do but I thought he basically said in effect that a trial is going to be a waste of time something like that did he not we don't need a trial or whatever no I think he said I'm ready to you know give the defendant a fair trial you do my best way said it would be an impossible trial I think there are gonna be difficulties for sure and difficulties every trial has difficulties absolutely but that's different than impossible yes but I think he was using a little bit hyperbole obviously a trial is not going to be impossible but I mean does it suggest that the judge is going to throw a wrench in the works every turn the prosecution tries to take so the judge can't be fair absolutely not I mean and this is all of the government's making you know the government is the one that didn't once you've got once that once the district court said well I would have quit if I were a juror ultimately he is sort of the 13th juror because he can dismiss the indictment at the end of trial hearing the evidence etc but then he also said this is going to be an impossible trial is the judge if we send this back going to be able to suspend all of that and then make sure the trial is fair for both sides and etc absolutely I think this is opposed to being a self-fulfilling prophecy I mean that's human nature also this judge has shown his ability to reconsider his views like he did on release initially it was without conditions and then came back had a huge hearing and he said all right I'm gonna post strict conditions he's flexible he is you know he's it may be flexible with a little help from this court I mean we said some things in our successive orders about the detention sure that's that may be the government can come back and seek relief of detention and they did and then yes the district court reconsidered but I mean how much does that tell us I think it shows that he's willing to reconsider his views and you know come back and I think these are just two things that the government is cherry picked off of a big record showing him carefully considering this case saying he's gonna give a fair trial and saying that he's gonna you know do whatever this court tells him to do so I think in the entire record we can't assume the worst in this district judge and none of these little things you know if look I you know I'm a defense lawyer we lose a lot but we don't move to reassign in every case even when there's some you know stuff that's not so savory and this is just there's no basis here to reassign this case to a different judge I guess just briefly on the release issue I think it's moved they haven't appealed the other order regardless it's gonna be on released with strict conditions and he's doing well on release with strict conditions so that there's just nothing to decide there on this court so I just want I want to understand I'm not arguing with what you said but I want to be sure that I've got it straight are you saying that we're not as things stand today we're not empowered to ourselves to impose a condition of total confinement right that issue is not before this court the issue before this court that the government appealed is whether the district court erred by releasing Berger unconditionally whether that was inducing discretion the government has appealed the district court's order saying that he will be released on strict conditions strict conditions that the government asked for one that's the one that they did appeal is now moved because there's a new one and they haven't appealed the new one that's 100% correct so if there are no further questions you would ask the score to affirm the district court's order if if again I don't mean to interrupt you you're doing a good a good job but if if we were to order the reinstatement of the indictment would it still go back then to the to district judge either this one or a new one to decide conditions of confinement or would we be able to order conditions of confinement or order that there be no special conditions so technically the indictment is in effect right now because that order is stayed I am NOT aware of any authority that would allow this court to say he must be confined because that issue just certainly is not before this the government hasn't argued that you know the district air by not confining him they argued that the court aired by not releasing by releasing him unconditionally so it will regardless go back for a you know right now the order is that he's released on strict conditions so and that order hasn't been appealed so that is in effect right now for the indefinite future until something else happens in the district under an indictment that's still in effect as you just explore right right and and the district court said you know I've you everything that's happened you know in the months since he was arrested you know I'm gonna let him out even if it comes back on these strict conditions home detention ankle monitors so that you know so if something happened if I'm not foreshadowing that if the case went back it was unstayed that the indictment was not dismissed and something happened that that he wasn't you know staying where he's supposed to stay or going to his therapy or whatever in the district court then the government could move for the district court to change the conditions to be more strenuous if it was not of course or they can move for just like on anyone else who's on home detention that's indicted of course or the government if he violates his conditions they can move for detention that's a change circumstance but right now as it stands he's out on strict conditions and he's doing well and that order isn't before this court right now you have to file a notice of appeal to get an order before the court we would ask for this court to affirm thank you once you concede that a statement in roblox can be a true threat then it becomes a question for a jury whether looking at the context of the statement in the statement itself that was a statement in roblox be a true threat has there ever been anyone playing a game with an avatar making a statement that has been convicted in all of America under making a threat yes that ever happened is this sui generis I don't think it's sui generis your honor I don't have a case showing somebody playing a game but the point is that the factual dispute and the reason this should not have been resolved under rule 12 is was Berger playing a game and did people understand him as playing a game because not everybody understood him as playing a game for sure no that is roblox the game in the church room I mean that is subject to dispute and I'm going to go back to the statement in count to where he is on a different platform which is not a game and says I've decided when and where this is going to happen and then that person says let's move over to roblox and by the way we've also pointed but is that statement on the other platform and issue in counts one or two and count you okay yes if this that is the setup for count to and it's not that that's not count to count to statement is the roblox statement right he doesn't make the threat in the other platform he says in the other platform now I know where I'm going to take out do this attack and suggestion in the other platform that if you want to get First Amendment protection you want to move to a different platform the suggestions that we have are that moving to roblox is a way to avoid the attention of authorities so by saying I'm going to be in roblox that's a way to create a zone where I can collaborate with co-conspirators issue threats all kinds of things and then laugh it off later and say it was just a game I was just playing a role but that is a question for a jury once you see that there is a dispute and there is a dispute here as to what was happening in roblox not only how Berger understood it but how the people around him understood it because of that dispute that becomes a question for a jury under rule 12 that under rule 12 going all the way back to this court's decision in man a district court is not to resolve factual disputes that go to the general issue at stake so but I just want to make sure do we have do we not have any case where an avatar has made statements in the game and there was a true threat case brought I don't know such case I don't have any case like that and it doesn't matter because there are as we pointed out in the reply brief there are many situations in which new media are used to issue threats and for instance in Perez where you have a Facebook post you have emojis cry laughing and that defendant came to you and said oh it was just a joke see I was just this is Facebook I'm commenting and this court said no a reasonable a jury could and did reasonably view this that wasn't a character right that was a person on their own Facebook that that wasn't a character but people can use Facebook or something it couldn't be that I guess that could be argued to the jury that is a question for the jury mr. Berger can go to the jury and he can say I was just being a character we create a circuit split were we to rule that this should go to a jury because of the second circuits opinion no I believe that actually ruling from mr. Berger here would create the circuit splits the circuits aren't elaborate on that sure so that the circuits have been aligned that rule 12 is not a vehicle for district courts to resolve incomplete indisputed records that's Rodriguez Rivera from the First Circuit you mentioned the Second Circuit the wed decision that we cite in our briefs says this rule 12 is not a mechanism to say to the government give us all your evidence or we're going to dismiss your case surely Gonzales from the Eighth Circuit justice Gorsuch's or then judge Gorsuch's decision in Pope from the Tenth Circuit all of those circuits are aligned in saying that rule 12 is not a mechanism to do what the district court did here and so I don't know of any any circuit that would we would get out of line with if this court were to reverse and say there are factual disputes here about exactly what was occurring how a reasonable observer would have understood what was occurring that is a question for the jury we're not asking this court to enter a judgment of conviction we're just asking for a chance to prove this to a jury and that's where the district court went wrong here the district court assumed that this had to be a game that he was just playing a game and that everybody understood it that way the end of the discussion with mr. innings he talked about and you talked about to earlier about our jurisdiction over conditions of confinement I don't mean to be repetitious but I want to be sure I know what the government's position is on our authority today whether we do have or don't have authority today to impose either to impose different conditions of confinement or to direct either this district judge or a replacement district judge to impose conditions of confinement or is that something that we we are without jurisdiction to do given the posture of the case what this court can do today is rule that the third release order was issued without jurisdiction and that it is therefore nullity and that you were reviewing the second release order which is the release unconditional release order on personal recognizance rule that that was an abuse of discretion is the administrators administrative panels already suggested and then remain preferably to a new district judge for that district judge to enter either a detention order or an order of release on conditions okay I'm trying to understand further so if the third order was not appealed how do we have jurisdiction to say whether or not the district court had jurisdiction under the third order does that come back to the one court principle or what I'm just trying to understand that I'm not quarreling with you or mr. Hennings about that but we need we need to have it straight sure and I appreciate the opportunity under Willis and Griggs only one court at a time can be addressing the question of release or detention the government's appeal from the second release order put that issue before this court and took the jurisdiction away from the district judge is that what and took jurisdiction away from the district judge this court gave the district judge a very confined task saying that the government in its discretion could seek detention we sought detention the district judge did ignore that and said no I'm going to do something different first before we did that though we said the district court could continue to look at we specifically gave the baton back to the district court in the motions panel order didn't we yes you did that was a prior order and then when the district court took that baton he just wasn't the one court position because we gave the baton back to the district court on purpose and said you're free to continue to rule in this area if you wish and then he he took the baton he exercised his discretion abused it we appealed that order so that's the second appeal notice and that's the notice that put the release or detention question back in this courts in this courts field so you would say we would go back to that time where this this young man has no conditions on him and we would be in that world no and then we would have to rule that that world is wrong because that's not that that's moot because there actually are conditions on him here today no the first release order has been stayed and is no longer in effect because of this court stay the second release order has been stayed and the third release order is a nullity so what is in effect is the detention order from May right now mr. Berger should be detained so you could for it to answer judge Smith's question say there is a nullity we have two state release orders right now you're in your detention order and at that point you could pass the baton back to the district court and said the district court can do anything it wants during I'm not with within the law fault based upon requests which you were allowed to bring are you talking about in in the third release order both the the motions panel and the our merits panel allowed the district court to continue to rule in this area so with respect to the motions panel we appeal that order once the district court exercise discretion bringing it back to this court and with respect to the merits panel in that order we still understand that order to have given the discretion to the government to seek detention and not to the district court to do whatever or home confinement right we could have sought we could have sought some sort of release on conditions but we didn't and that's not how the order reads okay thank you I think we have your argument unless someone else has something further in which case this case is submitted we appreciate the arguments of counsel and this concludes this session of the court --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A102204. Public record. Not legal advice.