Petition for Writ of Certiorari — Suzanne Ellen Kaye, Petitioner v. United States

Supreme Court briefFeb 23, 2024

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APPENDIX

TABLE OF APPENDICES

Appendix A: Opinion by the U.S. Court of Appeals for the

Eleventh Circuit (Jan. 16, 2024) ............................................................ 1a

Appendix B: Parties’ Proposed Jury Instructions (May 26, 2022) ........................... 18a

Appendix C: District Court’s Jury Instructions (June 29, 2022) ............................. 45a

Appendix D: Judgment entered by the U.S. District Court for the Southern

District of Florida (Apr. 24, 2023)........................................................ 59a

APPENDIX A

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11423

____________________

UNITED STATES OF AMERICA,

Plaintiﬀ-Appellee,

versus

SUZANNE ELLEN KAYE,

a.k.a. Muckbang01,

a.k.a. suzannekaye3,

a.k.a. agent of Angry Patriot Hippie,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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Opinion of the Court

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D.C. Docket No. 9:21-cr-80039-RLR-1

____________________

Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.

PER CURIAM:

Suzanne Kaye was convicted by a jury of one count of violating 18 U.S.C. § 875(c) for making threats to shoot an FBI agent

in videos she posted to her social-media accounts. On appeal, Kaye

argues that the district court erred by excluding her expert and failing to adopt three of her requested jury instructions. After careful

consideration, we affirm.

We take the facts below from the evidence adduced at trial.

Kaye, under her username “Angry Patriot Hippie,” began

posting videos on social media in 2020 to “get famous.” Among

the content she shared, Kaye posted videos with political content.

On January 16, 2021, ten days after the events at the Capitol

on January 6, 2021, the FBI received a tip about Kaye and January

6th. The FBI referred the tip to its oﬃce in West Palm Beach, Florida, which assigned Agent Arthur Smith to interview Kaye. After

attempting to visit Kaye at her last known address, Agent Smith

eventually connected with Kaye over the phone. Kaye told Agent

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Smith that she wasn’t at the Capitol on January 6th. 1 Still, she invited Agent Smith to visit her home to chat with her, and she gave

him her home address.

Agent Smith told Kaye he would visit her residence later that

day, but as it turned out, he was ultimately unable to do so. Instead,

Agent Smith called Kaye and left a voicemail message to let her

know that he would not be coming, but he never heard back from

her. For her part, Kaye did not receive the message. So, she testiﬁed, when nobody showed up, she concluded that the call had been

a “joke.”

Kaye took this “joke” as an idea for a post for her social-media accounts, and she wrote a script for a video “parody[ing]” her

experience with Agent Smith. According to Kaye, “[t]he video was

supposed to have shown a nervous person taking a swig of whiskey2 out of a bottle and then retelling the story of what happened

on the telephone.” Kaye made several diﬀerent takes of the video,

publicly posting two versions to diﬀerent social-media accounts on

the evening of January 31, 2021.

In a 50-second video posted on Facebook entitled, “Fuck the

FBI,” Kaye stated the following:

At trial, the district court informed the venire that Kaye was not alleged to

have been present at the Capitol for the events of January 6th, and she was not

charged with any events related to January 6th.

2 According to Kaye, the whiskey bottle contained iced tea.

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Hello my TikTok patriot friends. Gotta have a drink.

[Drinks from the whiskey bottle] Just got a call from

the FBI. They want to come talk to me about my visit

to D.C. on January 6th. I told them: you can’t come

and talk to me unless I have counsel. And being that

I can’t aﬀord counsel, you’ll have to arrest me so I can

use my right of counsel. You guys just spent four

years persecuting a three-star general with no evidence. 3 You think I’m gonna let you come fucking

talk to me? You’re out your motherfucking mind,

bro. That’s not gonna happen. I’m a fucking patriot.

And I exercise my First Amendment right on my freedom of speech, and my Second Amendment right to

shoot your fucking ass if you come here.

Kaye also posted this video to Instagram. This video formed the

basis for Count One.

The second video at issue in this case, a 59-second video

Kaye also posted on Instagram, was likewise titled “Fuck the FBI.”

But in this longer take, Kaye’s tone was noticeably angrier:

Friends. I’m here to let you know I need a drink.

[Drinks from the whiskey bottle] Just got a call from

the FBI. They want to come talk to me about my visit

to D.C. on January 6th. I told them: Bro, I ain’t gonna

talk to you unless I have counsel. And being that I

can’t aﬀord counsel right now, you’re gonna have to

arrest me so I can exercise my right to counsel. And

3 Kaye testified that she was referring to Michael Flynn, whom she viewed as

having been persecuted by the FBI.

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being that you don’t even know where I live and you

have to ask me, I ain’t talking to you either. You just

spent four years persecuting a three-star general with

no evidence. You think I’m gonna fucking let you

come talk to me? I’m an American. I know my fucking rights. My First Amendment right to free speech.

My Second Amendment right to carry a gun, to shoot

your fucking ass if you come to my house. So fuck

you. Fuck you following me. I don’t fucking care.

I’m glad you know who I am, motherfucker.

Kaye posted this same video on her TikTok account as well. In the

TikTok version of the second video, Kaye added a cover of the Police song “Every Breath You Take” as background music because,

she said, the FBI was “watching” Kaye, like the lyrics in the song.

This second video formed the basis for Count Two. While Agent

Smith acknowledged the videos related to each count were similar,

he distinguished the two videos by the angle at which they were

shot, the “tone” of each video, and the inclusion of music in the

second video.

Kaye testiﬁed that she did not intend to threaten the FBI, and

that the video was just “a freaking TikTok.” She also testiﬁed that

she did not own any guns because she has a marijuana license, and

she’d “rather smoke than shoot.” Kaye did not tag or otherwise

direct the videos to the FBI or Agent Smith’s attention.

Unaware of the videos, Agent Smith went to Kaye’s address

unannounced on February 2, 2021. When no one answered the

door, Agent Smith called Kaye. But she did not answer. At that

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point, Agent Smith left, and he and his supervisor decided to “close

down” the lead related to Kaye.

On February 8, 2021, a second tip alerted the FBI about

Kaye’s videos. Because of the perceived threat to an agent’s life,

the FBI sent the tip and the videos to the West Palm Beach Oﬃce

with priority status. After receiving the video from his supervisor,

Agent Smith understood the video as “a threat to shoot me if I go

[to Kaye’s house].”

Law enforcement arrested Kaye, and a grand jury charged

her with two counts of violating § 875(c), one for each video. The

district court found that whether Kaye’s statements constituted a

“true threat” and were therefore unprotected by the First Amendment presented a question for the trier of fact, so Kaye’s case proceeded to trial.

Before trial, the district court issued several rulings that Kaye

now appeals.

First, the district court granted the government’s motion to

exclude Kaye’s media law and policy expert, Dr. Brooks Fuller.

United States v. Kaye, No. 21-80039-CR, 2022 WL 860380 (S.D. Fla.

Mar. 23, 2022). Kaye gave notice of her intent to call Dr. Fuller to

“testify to the historical and contemporary protection aﬀorded to

controversial political expression” and to opine that the videos

“likely do[] not articulate a true threat in violation of 18 U.S.C.

§ 875(c).”

After a Daubert hearing, the district court granted the government’s motion to exclude Dr. Fuller’s testimony on three

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grounds. Kaye, 2022 WL 860380, at *2–5. First, the court found

that Dr. Fuller’s case-speciﬁc testimony took the form of a legal

conclusion, which Federal Rule of Evidence 704 bars. Id. at *4–5

(“Whether or not a true threat existed is central to the ﬁrst element

of 875(c) and remains solely within the jury’s province.”). Second,

the court determined that the remaining testimony (both case-speciﬁc and about media generally) was not helpful under Rule 702(a)

because the jury was capable of evaluating how a reasonable person would view the video and its context in social media without

the testimony of an expert. Id. at *3–4. And third, the court concluded that the testimony created a risk of confusing the issues for

the jury under Rule 403 because the jury might conﬂate Dr. Fuller’s

evaluation and understanding of the law with the jury’s task and

the court’s instructions. Id. at *3–5. For example, the court reasoned, Dr. Fuller’s expert testimony could confuse the jury about

“the very nature of the reasonable person standard,” which “presupposes non-expertise.” Id. at *4. In short, the court was concerned that Dr. Fuller’s testimony would “distract the jurors from

applying the law to the facts of this case.” Id.

Second, the court declined to adopt three of Kaye’s proposed

jury instructions. Kaye requested, and the government opposed, a

modiﬁed § 875(c) oﬀense instruction, a defense-theory instruction,

and an instruction informing the jury that it could not convict Kaye

based on her political views.

For the oﬀense instruction, the government asked for the

Eleventh Circuit’s pattern instruction, which deﬁnes “true threat”

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as “a serious threat—not idle talk, a careless remark, or something

said jokingly—that is made under circumstances that would place

a reasonable person in fear of being injured.” United States v. Elonis,

575 U.S. 723 (2015); 11th Cir. Crim. Pattern Instr. O30.3 at 215 (Mar.

10, 2022). Kaye’s proposed modiﬁed instruction removed the pattern instruction’s deﬁnition of “true threat” and added two paragraphs about “protected political speech.” 4 The court rejected the

modiﬁcation and gave the pattern instruction instead.

4 Kaye’s modified instruction proposed omitting the pattern instruction’s def-

inition of “true threat” and replacing it with the following:

An issue in this case is whether the defendant’s speech

was constitutionally protected political speech or whether it

constituted a “true threat.” “True threats” encompass statements in which the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence

to a particular individual or group of individuals. A “true

threat” is not the same as crude, reactionary, unpleasant, or offensive language. Speech that merely advocates force or violence, when it does not incite imminent lawless action, is protected under the First Amendment.

In considering whether speech was a “true threat,” you

must also consider the entire context in which her speech was

made. For example, the Supreme Court has found that telling

a group of protestors at an anti-draft political rally at the

height of the Vietnam war that “if they ever make me carry a

riﬂe the ﬁrst man I want to get in my sights” is the president

was constitutionally protected political speech and not a true

threat. In so doing, the Court considered the entire context in

which the statement was made and not solely the defendant’s

words.

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Kaye also requested a defense-theory instruction that contrasted “true threats” with “vehement, caustic, and sometimes unpleasant sharp attacks on public oﬃcials” protected by the First

Amendment. Although the court gave a defense theory instruction, it cut much of the language Kaye suggested. The court’s defense-theory instruction stated that “Kaye contends that her statements were not ‘true threats,’ but rather, political speech protected

by the First Amendment.” The instruction did not deﬁne political

speech, but it again deﬁned a “true threat” as “a serious threat—

not idle talk, a careless remark, or something said jokingly—that is

made under circumstances that would place a reasonable person in

fear of being kidnapped, killed, or physically injured.” And the

court directed that if the jury had a reasonable doubt as to whether

Kaye’s statements were “true threats,” it must ﬁnd Kaye not guilty.

In declining to use Kaye’s instruction, the court emphasized its

view that although it found Kaye’s proposed language to be inappropriate for a jury instruction, “[i]t doesn’t mean that the Defense

can’t make that argument in its closing arguments.”

The defense also proposed instructing the jury that it could

not “ﬁnd the Defendant guilty because you disagree with or ﬁnd

distasteful her political views.” 5 The court declined to give the

5 Kaye’s proposed instruction provided,

You have just heard testimony and actually observed some exhibits related to what might be considered the Defendant’s political views. You must treat this evidence with caution. This

evidence alone cannot be used to find the Defendant guilty of

the offense charged in the Indictment. It may, however, be

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instruction, again opining that the argument was appropriate for

closing but not for a jury instruction. While the court did not give

Kaye’s proposed political-views instruction, it did instruct the jury

“not be inﬂuenced in any way by either sympathy for or prejudice

against the Defendant or the Government.”

After a three-day jury trial, the jury acquitted Kaye on Count

One (for the shorter Facebook/Instagram video) but convicted her

on Count Two (for the longer Instagram/TikTok video). The district court sentenced Kaye to 18 months in prison, a downward variance from the guideline range of 27–33 months.

II.

We begin with Kaye’s challenge to the district court’s exclusion of her expert. We review the district court’s rulings on the

admissibility of expert testimony for abuse of discretion. United

States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). 6 So

considered by you for limited purposes, such as considering

the context in which statements attributed to the Defendant

were made, what the Defendant’s intent was in making the

statement, and her expectation regarding the effects of her

statement. You cannot find the Defendant guilty because you

disagree with or find distasteful her political views.

6 To the extent that Kaye argues that de novo review applies to the challenged

district-court decisions because her defense involves the First Amendment,

she is incorrect. To be sure, “we review district court decisions of constitutional issues––the most important issues of law––not for abuse of discretion

but de novo.” United States v. Shamsid-Deen, 61 F.4th 935, 944–45 (11th Cir.

2023). But this appeal does not require the court to resolve any constitutional

questions. So review for abuse of discretion is appropriate.

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we will not reverse the decision to exclude an expert “unless the

ruling is manifestly erroneous,” id. (quoting Gen. Elec. Co. v. Joiner,

522 U.S. 136, 142 (1997)) and it resulted “in a substantial prejudicial

eﬀect,” United States v. Machado, 886 F.3d 1070, 1085 n.14 (11th Cir.

2018). Here, the district court did not abuse its discretion when it

excluded Kaye’s expert.

Kaye argues that the district court was obligated to allow her

expert to educate the jury or to instruct the jury on the concepts

of protected political speech and the First Amendment. We disagree.

The district court properly excluded Kaye’s expert for all the

reasons it listed in its thorough opinion, including the one Kaye

challenges on appeal: that Dr. Fuller’s testimony about “a long

American tradition protecting political speech invoking violence”

created a risk of confusing the issues for the jury. Kaye, 2022 WL

860380, at *2–5. The district court’s discretion is “particularly

broad” with respect to Rule 403 determinations. Bhogaita v.

Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1291 (11th Cir.

2014). And it was well within the district court’s discretion to conclude that admitting Dr. Fuller’s testimony would create “an unjustiﬁable risk that the jury would substitute the expert’s evaluation

of the video for their own.” Kaye, 2022 WL 860380, at *3. The

district court similarly acted within its discretion in determining

that Dr. Fuller’s testimony included an explanation of “contextual

factors of political speech” that might confuse the jury as to what

law it was supposed to apply. Id. at *4. Given the “talismanic

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signiﬁcance” that jurors may assign to expert testimony, the district

court did not abuse its discretion in excluding all of Dr. Fuller’s testimony, including the historical testimony Kaye explicitly challenges on appeal. See Frazier, 387 F.3d at 1263. And that is especially

so because Dr. Fuller’s proposed testimony included impermissible

legal conclusions. Kaye, 2022 WL 860380, at *2–3, *5 (“Whether or

not a true threat existed is central to the ﬁrst element of 875(c) and

remains solely within the jury’s province.”).

III.

We next consider Kaye’s challenges to the district court’s rulings on jury instructions.

“We review the legal correctness of jury instructions de novo,

but the district court has ‘wide discretion as to the style and wording employed.’” United States v. Caldwell, 81 F.4th 1160, 1175 (11th

Cir. 2023). In other words, so long as the instruction is not inaccurate or misleading, “[w]e apply a deferential standard of review to

a trial court’s jury instructions.” United States v. Puche, 350 F.3d

1137, 1148 (11th Cir. 2003).

We review “a district court’s refusal to give a proposed jury

instruction” for abuse of discretion, United States v. Watkins, 42 F.4th

1278, 1282 (11th Cir. 2022), cert. denied, 143 S. Ct. 1754 (2023), and

we “defer on questions of phrasing absent an abuse of discretion,”

United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). A district court’s failure to give an instruction is reversible error only

where the requested instruction “(1) was correct, (2) was not substantially covered by the charge actually given, and (3) dealt with

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some point in the trial so important that failure to give the requested instruction seriously impaired the defendant's ability to

conduct his defense.” United States v. Eckhardt, 466 F.3d 938, 947–48

(11th Cir. 2006). “Under this standard, we will only reverse if we

are left with a substantial and eradicable doubt as to whether the

jury was properly guided in its deliberations.” Id. at 947–48.

The district court did not abuse its discretion in instructing

the jury.

We begin with the district court’s decision not to give Kaye’s

proposed oﬀense instruction instead of the pattern instruction and

not to provide the entirety of Kaye’s proposed defense-theory instruction. At the ﬁrst consideration, Kaye’s proposed instructions

fail because her proﬀered “true threat” instructions were not complete. Although they included the subjective mens rea requirement

(that the person transmitted the communication for the purpose

of issuing a threat, or with knowledge that the communication

would be viewed as a threat), they omitted the objective part of the

oﬀense: that is, that a reasonable person would regard the communication as a threat. Elonis, 575 U.S. at 726, 740; 11th Cir. Crim.

Pattern Instr. O30.3 at 216 (Mar. 10, 2022) (“The Court’s opinion

[in Elonis] did not foreclose the possibility that both an objective

and a subjective standard be used in determining whether the defendant knowingly sent a threat. . . . Thus, . . . the objective person

standard remains useful in the determination of whether the defendant’s statement actually constitutes a ‘true threat[.]’”). Kaye’s

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instructions about “true threats” were not correct because they

eliminated this objective component.

Not only were Kaye’s proposed “true threat” instructions incomplete, but the instructions the district court gave covered the

substance of Kaye’s requested instructions: that the jury could convict Kaye “only if ” it found a true threat, that political speech is

protected by the First Amendment, and that the jury should consider the political-speech exception in this case. And while Kaye

may have preferred her proposed version of the instructions, “we

aﬀord district courts ‘wide discretion to decide on the style and

wording of [an] instruction’ so long as it ‘accurately reﬂect[s] the

law.’” United States v. Fleury, 20 F.4th 1353, 1373 (11th Cir. 2021).

The purpose of jury instructions “is to give the jury a clear and

concise statement of the law applicable to the facts of the case,”

and that is what the district court did here. Pesaplastic, C.A. v. Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir. 1985).

The district court’s decision not to give Kaye’s proposed instructions also did not “substantially impair” Kaye’s ability to present an eﬀective defense that her speech was political and protected

by the First Amendment. Eckhardt, 466 F.3d at 947–48. Kaye herself testiﬁed that her statements were not true threats, but “parody” for “shock value.” And in closing, her counsel argued extensively that her speech was political and protected by the First

Amendment. See Booth v. Pasco Cnty., 757 F.3d 1198, 1209 (11th Cir.

2014) (ﬁnding no prejudicial harm where the district court refused

to give a jury instruction but permitted the plaintiﬀ to make the

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same point during closing: “While this solution was unorthodox, it

mitigated any prejudice that may have otherwise resulted.”).

To the extent that Kaye argues that the court’s instructions

as a whole were misleading or inaccurate because they did not include a deﬁnition of “political speech,” Kaye does not cite any cases

requiring the court to include such a deﬁnition. When a court

properly deﬁnes “true threat,” as the district court did in this case,

the court need not also deﬁne what a “true threat” is not. The jury

could convict “only if ” Kaye’s speech constituted a “true threat”

made with knowledge or intent to threaten. And if the speech satisﬁed the elements of a true threat, as the jury decided it did in

Kaye’s case, it was not protected political speech.

The jury reviewed the videos and heard Kaye testify. After

doing so, it rejected the Government’s argument that Kaye’s ﬁrst

video was a “true threat” but agreed with the Government that

Kaye’s second, longer video—the one with the angrier tone and

more targeted profanity—was a true threat, not a political parody.

If anything, we think the split verdict here suggests the jury’s careful application of the jury instructions on true threats to the evidence. As we’ve noted, the videos have a diﬀerent quality to them,

and the jury was free to reject Kaye’s contention that the second

video was not a true threat, especially given the repeated nature of

the threat. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.

1995) (“[W]e have said that, when a defendant chooses to testify, he

runs the risk that if disbelieved ‘the jury might conclude the opposite of his testimony is true.’”).

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In short, the district court did not abuse its discretion in refusing to adopt Kaye’s proposed oﬀense instruction and proposed

instruction related to true threats and political speech.

Next, we address Kaye’s proposed instruction directing the

jury that it could not convict her based on her “political views.” We

again conclude that the district court did not abuse its discretion in

declining to give the instruction as Kaye requested it.

Instead, the district court instructed the jury that it could not

convict Kaye based on prejudice against her: “You must not be inﬂuenced in any way by either sympathy for or prejudice against the

Defendant or the Government.” “[P]rejudice against the Defendant” includes prejudice against Kaye for her political beliefs. And

Kaye cannot demonstrate that her defense was impaired or that the

jury was otherwise misguided by the instructions given.

Indeed, both Kaye and the Government argued in closing

that the jury could not convict Kaye for her political beliefs, with

Kaye’s attorneys asking the jury “to step away” from their political

“tribes” in considering the evidence, and the Government stating

that “Ms. Kaye is not on trial . . . . because she expressed her political views.”

And though not a part of the jury instructions, before trial

began, the court asked the venire, “Is there anyone who cannot be

fair and impartial in rendering judgment based on the evidence and

the law that I instruct you on if you learn that any of the parties or

the witnesses hold political beliefs either contrary to or consistent

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with your own political beliefs?” No one raised their hand.

Though not an instruction, this was nonetheless an aﬃrmative representation by the jurors that they would not render a judgment

based on diﬀerences in political views.

The court instructed the jury not to consider its personal

prejudice, and we must presume that it followed that instruction.

United States v. Almanzar, 634 F.3d 1214, 1222 (11th Cir. 2011). At

bottom, we are not “left with a substantial and eradicable doubt”

that the jury convicted Kaye based on her political beliefs. Eckhardt,

466 F.3d at 947–48.

IV.

For the foregoing reasons, we aﬃrm the judgment of the

district court.

AFFIRMED.

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APPENDIX B

Case 9:21-cr-80039-RLR Document 107 Entered on FLSD Docket 05/26/2022 Page 1 of 24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-CR-80039-RLR(s)

UNITED STATES OF AMERICA

vs.

SUZANNE ELLEN KAYE,

a/k/a “muckbangXX,”

a/k/a “suzannekaye3,”

a/k/a “Angry Patriot Hippie,”

Defendant.

_____________________________/

JOINT PROPOSED JURY INSTRUCTIONS

COURT’S INSTRUCTIONS

TO THE JURY

Members of the Jury:

It’s my duty to instruct you on the rules of law that you must use in deciding

this case. After I’ve completed these instructions, you will go to the jury room and

begin your discussions – what we call your deliberations.

You must decide whether the Government has proved the specific facts

necessary to find the Defendant guilty beyond a reasonable doubt.

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B2.1

Duty to Follow Instructions and the Presumption of Innocence

Your decision must be based only on the evidence presented here. You must

not be influenced in any way by either sympathy for or prejudice against the

Defendant or the Government.

You must follow the law as I explain it – even if you do not agree with the

law – and you must follow all of my instructions as a whole. You must not single

out or disregard any of the Court's instructions on the law.

The indictment or formal charge against a defendant isn’t evidence of guilt.

The law presumes every defendant is innocent. The Defendant does not have to

prove his innocence or produce any evidence at all. The Government must prove

guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not

guilty.

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B2.2

Duty to Follow Instructions and the Presumption of Innocence

when a Defendant does not Testify

Your decision must be based only on the evidence presented during the trial.

You must not be influenced in any way by either sympathy for or prejudice against

the Defendant or the Government.

You must follow the law as I explain it – even if you do not agree with the

law – and you must follow all of my instructions as a whole. You must not single

out or disregard any of the Court's instructions on the law.

The indictment or formal charge against a Defendant isn’t evidence of guilt.

The law presumes every Defendant is innocent. The Defendant does not have to

prove his innocence or produce any evidence at all. A Defendant does not have to

testify, and if the Defendant chooses not to testify, you cannot consider that in any

way while making your decision. The Government must prove guilt beyond a

reasonable doubt. If it fails to do so, you must find the Defendant not guilty.

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Definition of “Reasonable Doubt”

The Government's burden of proof is heavy, but it doesn’t have to prove a

Defendant's guilt beyond all possible doubt. The Government's proof only has to

exclude any “reasonable doubt” concerning the Defendant's guilt.

A “reasonable doubt” is a real doubt, based on your reason and common sense

after you’ve carefully and impartially considered all the evidence in the case.

“Proof beyond a reasonable doubt” is proof so convincing that you would be

willing to rely and act on it without hesitation in the most important of your own

affairs. If you are convinced that the Defendant has been proved guilty beyond a

reasonable doubt, say so. If you are not convinced, say so.

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Consideration of Direct and Circumstantial Evidence;

Argument of Counsel; Comments by the Court

As I said before, you must consider only the evidence that I have admitted in

the case. Evidence includes the testimony of witnesses and the exhibits admitted.

But, anything the lawyers say is not evidence and isn’t binding on you.

You shouldn’t assume from anything I’ve said that I have any opinion about

any factual issue in this case. Except for my instructions to you on the law, you

should disregard anything I may have said during the trial in arriving at your own

decision about the facts.

Your own recollection and interpretation of the evidence is what matters.

In considering the evidence you may use reasoning and common sense to

make deductions and reach conclusions. You shouldn’t be concerned about whether

the evidence is direct or circumstantial.

“Direct evidence” is the testimony of a person who asserts that he or she has

actual knowledge of a fact, such as an eyewitness.

“Circumstantial evidence” is proof of a chain of facts and circumstances that

tend to prove or disprove a fact. There’s no legal difference in the weight you may

give to either direct or circumstantial evidence.

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Credibility of Witnesses

When I say you must consider all the evidence, I don’t mean that you must

accept all the evidence as true or accurate. You should decide whether you believe

what each witness had to say, and how important that testimony was. In making that

decision you may believe or disbelieve any witness, in whole or in part. The number

of witnesses testifying concerning a particular point doesn’t necessarily matter.

To decide whether you believe any witness I suggest that you ask yourself a

few questions:

•

Did the witness impress you as one who was telling the truth?

•

Did the witness have any particular reason not to tell the truth?

•

Did the witness have a personal interest in the outcome of the case?

•

Did the witness seem to have a good memory?

•

Did the witness have the opportunity and ability to accurately

observe the things he or she testified about?

•

Did the witness appear to understand the questions clearly and

answer them directly?

•

Did the witness's testimony differ from other testimony or other

evidence?

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B6.1

Impeachment of Witnesses because of Inconsistent Statements

You should also ask yourself whether there was evidence that a witness

testified falsely about an important fact. And ask whether there was evidence that at

some other time a witness said or did something, or didn’t say or do something, that

was different from the testimony the witness gave during this trial.

But keep in mind that a simple mistake doesn’t mean a witness wasn’t telling

the truth as he or she remembers it. People naturally tend to forget some things or

remember them inaccurately. So, if a witness misstated something, you must decide

whether it was because of an innocent lapse in memory or an intentional deception.

The significance of your decision may depend on whether the misstatement is about

an important fact or about an unimportant detail.

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Introduction to Offense Instructions

The indictment charges two separate crimes, called “counts,” against the

Defendant. Each count has a number. You’ll be given a copy of the indictment to

refer to during your deliberations.

Both counts charge that the Defendant did knowingly transmit in interstate

commerce a communication containing any threat to injure the person of another. I

will explain the law governing this substantive offense in a moment.

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B9.2

On or About a Particular Date; Knowingly

You’ll see that the indictment charges that a crime was committed “on or

about” a certain date. The Government doesn’t have to prove that the offense

occurred on an exact date. The Government only has to prove beyond a reasonable

doubt that the crime was committed on a date reasonably close to the date alleged.

The word “knowingly” means that an act was done voluntarily and

intentionally and not because of a mistake or by accident.

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10.2

Caution: Punishment

(Single Defendant, Multiple Counts)

Each count of the indictment charges a separate crime. You must consider

each crime and the evidence relating to it separately. If you find the Defendant

Guilty or not guilty of one crime, that must not affect your verdict for any other

crime.

I caution you that the Defendant is on trial only for the specific crimes charged

in the indictment. You’re here to determine from the evidence in this case whether

the Defendant is guilty or not guilty of those specific crimes.

You must never consider punishment in any way to decide whether the

Defendant is guilty. If you find the Defendant guilty, the punishment is for the Judge

alone to decide later.

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B11

Duty to Deliberate

Your verdict, whether guilty or not guilty, must be unanimous – in other

words, you must all agree. Your deliberations are secret, and you’ll never have to

explain your verdict to anyone.

Each of you must decide the case for yourself, but only after fully considering

the evidence with the other jurors. So you must discuss the case with one another

and try to reach an agreement. While you’re discussing the case, don’t hesitate to

reexamine your own opinion and change your mind if you become convinced that

you were wrong. But don’t give up your honest beliefs just because others think

differently or because you simply want to get the case over with.

Remember that, in a very real way, you’re judges – judges of the facts. Your

only interest is to seek the truth from the evidence in the case.

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B12

Verdict

When you get to the jury room, choose one of your members to act as

foreperson. The foreperson will direct your deliberations and will speak for you in

court.

A verdict form has been prepared for your convenience.

[Explain verdict]

Take the verdict form with you to the jury room. When you’ve all agreed on

the verdict, your foreperson must fill in the form, sign it, date it, and carry it. Then

you’ll return it to the courtroom.

If you wish to communicate with me at any time, please write down your

message or question and give it to the marshal. The marshal will bring it to me and

I’ll respond as promptly as possible – either in writing or by talking to you in the

courtroom. But I caution you not to tell me how many jurors have voted one way or

the other at that time.

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Note-taking

You’ve been permitted to take notes during the trial. Most of you – perhaps

all of you – have taken advantage of that opportunity.

You must use your notes only as a memory aid during deliberations. You must

not give your notes priority over your independent recollection of the evidence. And

you must not allow yourself to be unduly influenced by the notes of other jurors.

I emphasize that notes are not entitled to any greater weight than your

memories or impressions about the testimony.

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O30.3

Interstate Transmission of Threat to Kidnap or Injure

18 U.S.C. § 875(c)1

It’s a Federal crime to knowingly send in interstate commerce a true threat to

injure any person.

The Defendant can be found guilty of this crime only if the following facts

are proved beyond a reasonable doubt:

The United States objects to any additions or deletions to the Eleventh Circuit Pattern Jury Instruction, Offense

Instruction 30.3 (hereinafter “Pattern Instruction”). See Pattern Instruction, Attached hereto as Exhibit A. As the

Annotations and Comments to the Pattern Instruction makes clear, it is based on the Supreme Court’s decision in

United States v. Elonis, 575 U.S. 723, 135 S.Ct. 2001 (2015). It was crafted thoughtfully post-Elonis to accurately

reflect the elements of the charged crime and the pertinent definitions. As such, it requires no additions or deletions. It

has been affirmed in multiple Eleventh Circuit cases. See, e.g., United States v. Fleury, 20 F.4th 1353 (11th Cir. 2021)

(affirming defendant’s conviction where the Pattern Instruction was used). It has also been used by multiple judges

in this district post-Elonis. See, e.g., United States v. Hussaini, Case No. 19-60387-cr-Altman; United States v. Fleury,

Case No. 18-cr-60056-Ruiz; United States v. Key, Case No. 18-cr-14053-Graham; United States v. Henry (Case No.

15-cr-20930-Graham.

Defendant’s proposed additions and deletions to the Pattern Instructions also should be rejected because they contain

misstatements of law or argument; or rely upon pre-Elonis cases and out-of-district cases. For example, defendant

relies heavily on Virginia v Black, 538 U.S. 343 (2003), a pre-Elonis case, to support her proposed changes, but cites

no post-Elonis case law that has accepted the kind of changes she is requesting.

Finally, the defendant seeks to add in language to the pattern instructions without citing any legal support for her

request. For example, she requests that court instruct the jury that they “must consider evidence of her intent and

mental state in deciding whether her speech was a ‘true threat’” and that they “can consider whether she had the

means to carry it out.” Defendant cites case law to support these propositions. In fact, the jury certainly is permitted

to consider many factors in determining whether the defendant made a “true threat,” such as her tone of voice, her

demeanor, and her language, including whether she used profanity. None of these considerations is contained in the

Pattern Instruction. To single out only those contextual factors that the defendant wants the jury to focus on is

inappropriate.

Defense response: While the pattern jury instructions are “generally considered ‘a valuable resource,

reflecting the collective research of a panel of distinguished judges,’ they are not binding; Eleventh Circuit

case law takes precedence.” United States v. Dohan, 508 F.3d 989, 994 (11th Cir. 2007) quoting United States v.

Polar, 369 F.3d 1248, 1252–53 (11th Cir.2004). See also Judicial Council of the Eleventh Circuit Resolution

(“[T]he content of such instructions ... must await case by case review by the Court.”). It follows then that

Supreme Court decisions and other accurate statements of the law must take precedence.

Additionally, there is no basis for suggesting that Elonis somehow overruled Black; to the contrary, Elonis reaffirmed the importance of subjective intent for 875(c) prosecutions.

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(1)

the Defendant knowingly sent a message in

interstate commerce containing a true threat to

injure the person of another; and

(2)

the Defendant sent the message with the intent to

communicate a true threat or with the knowledge

that it would be viewed as a true threat. To

constitute a true threat, the speaker must have

subjectively intended to convey a threat; it is not

enough that a reasonable person might have

understood the words as a threat. 2

To transmit something in “interstate commerce” means to send it from a place

in one state to a place in another state.

While the government does not have to prove that the Defendant intended to

carry out the threat, you must consider evidence of her intent and mental state in

deciding whether her speech was a “true threat.” For example, you can consider

whether she had a plan or the means to carry out the threat, or whether she

took any substantial step toward carrying out the threat.3

Several courts have read Virginia v. Black, 538 U.S. 343 (2003), as requiring subjective intent to make a true

threat. See, e.g., Commonwealth v. Knox, 190 A.3d 1146, 1156-57 (Pa. 2018); United States v. Heineman, 767

F.3d 970, 975-82 (10th Cir. 2014); United States v. Bagdasarian, 652 F.3d 1113, 1117-18 (9th Cir. 2011); United

States v. Cassel, 408 F.3d 630-33 (9th Cir. 2005); see also Perez v. Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor,

concurring in the denial of certiorari) (opining that Black and Watts “strongly suggest that it is not enough that

a reasonable person might have understood the words as a threat—a jury must find that the speaker actually

intended to convey a threat”). This additional language is unnecessary and not supported by the Eleventh Circuit

Pattern Instruction. The Pattern Instruction already states that the defendant must intend to communicate a true

threat or with the knowledge that it would be viewed as a true threat. This language, which was drafted post-Elonis,

sufficiently informs the jury of the mental state required to commit the crime.

The government objects to the court singling out any contextual factor for the jury to consider. The attorneys will

argue to the jury in closing arguments that context matters. Each side will address the factors that it believes supports

its position. It would be inappropriate for the court to instruct the jury that they may consider the factors that the

defendant wants them to focus on, without addressing the factors that are favorable to the government. Since the

Pattern Instructions do not address any such factors, the government requests that no factors be included in the

instructions.

Moreover, the law does not require the government to prove that the defendant took a substantial step toward carrying

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An issue in this case is whether the defendant’s speech was

constitutionally protected political speech or whether it constituted a “true

threat.” 4 A “true threat” is a serious threat – not idle talk, a careless remark, or

something said jokingly – that is made under circumstances that would place a

reasonable person in fear of being injured.5 “True threats” encompass statements

in which the speaker means to communicate a serious expression of an intent to

commit an act of unlawful violence to a particular individual or group of

individuals. 6 A “true threat” is not the same as crude, reactionary, unpleasant,

out the threat. To the contrary, the law does not require the government to prove that she intended to carry out the

threat. As the Second Circuit has cautioned, “[w]hether a threat is ultimately carried out is, at best, of marginal

relevance to whether the threat was made in the first place; indeed, the speaker need not even have intended or been

able to carry out the threat...” for the crime to apply. United States v. Turner, 720 F.3d 411, 429 (2d Cir. 2013). Thus,

it would be confusing to the jury for the court to tell them that they can consider a fact that the government does not

have to prove. There is no authority for adding this element to the crime.

Defense response: As described in the motion to dismiss litigation, the government frequently introduces

evidence of defendants’ taking such steps in order to show the Elonis and Baker requirements that the

defendant subjectively intended to threaten and as 404(b) evidence. In this instance, the reverse is true and

such evidence is relevant to show a lack of intent. Furthermore, the Second Circuit opinion cited above has

likely been abrogated by Elonis, which requires the defendant intend to threaten.

The government objects to the court instructing the jury as to the issues of the case. As the finder of fact, the jury

decides what issues it needs to focus on. The court simply provides them with the law. The law does not define the

issues for the jury.

The jury instruction’s objective standard used to define “true threats” does not comport with the intent

requirement of Elonis v. United States, 575 U.S. 723 (2015)(“a ‘reasonable person’ standard,” the Court noted,

“is inconsistent with ‘the conventional requirement for criminal conduct—awareness of some

wrongdoing.’”) As such, defendant requests the standard articulated by the Supreme Court in Virginia v. Black,

538 U.S. 343, 359 (2003). The government objects to the removal of this sentence. As indicated in the Annotations

and Comments to the Pattern Instruction, the Pattern Instruction is based on Elonis. Therefore, the defendant’s

assertion that it does not comport with the intent requirement of Elonis is clearly false. Moreover, defendant does not

cite a single case in support of her position that this sentence should be removed from the Pattern Instruction, because,

of course, the law is clear that this definition of “true threat” is accurate.

Virginia v. Black, 538 U.S. 343, 359 (2003). While defendant’s proposed definition of true threats here is a correct

definition, it is not the only correct definition and thus, should not be included in the jury instructions. See United

States v. Fleury, 20 F.4th Cir. 1353, 1373 (11th Cir. 2021) (affirming the district court’s rejection of the defendant’s

proposed language). As the Eleventh Circuit recognized last year, Black stated that “true threats encompass those

statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals… [T]he Court never stated that the category of true threats

is limited to such statements, only that the category ‘encompass[es]’ them.” Id. Thus, the Eleventh Circuit held that

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or offensive language. 7 Speech that merely advocates force or violence, when it

does not incite imminent lawless action, is protected under the First

Amendment.8

In considering whether speech was a “true threat,” you must also

consider the entire context in which her speech was made. 9 For example, the

Supreme Court has found that telling a group of protestors at an anti-draft

political rally at the height of the Vietnam war that “if they ever make me carry

a rifle the first man I want to get in my sights” is the president was

constitutionally protected political speech and not a true threat.10 In so doing,

the trial court’s refusal to give the jury the same definition of true threats as requested in the instant case was not

improper. Like the defendant in Fleury, the defendant in the instant case has not shown that the definition of true

threats in the Pattern Instruction is an incorrect statement of the law.

Defense response: In Fleury, the Eleventh Circuit noted that the defendant’s proposed instruction based on

Black was a correct statement of the law. The Fleury instruction omitted the “encompass” language from Black,

and so his definition was arguably incomplete; our proposed instruction, however, takes the Black language

verbatim. In Fleury, there was an additional subjective intent instructions given on the cyberstalking counts

(which is where the issue came up) that will not be given in this case, and such, necessitates the court clarify the

subjective intent requirement. Finally, the Eleventh said Fleury failed to show why the court’s instruction was

an incorrect statement of the law; but as to this 875(c) charge, the defense has explained why the standard

instruction is incorrect and that is because Black requires a purely subjective test, and the “reasonable person”

language in the pattern is inconsistent with that subjective standard.

See Watts v. United States, 394 U.S. 705, 708 (1969). The defendant’s reliance on cases that pre-date Elonis to

override the will of the Eleventh Circuit by adding language to the Pattern Instruction is unpersuasive. The Eleventh

Circuit has considered the state of law since Elonis and chose not to include this language. Therefore, the government

objects to its inclusion.

Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). The Government objects for the same reason set forth in footnote

Watts, 394 U.S. at 705; Black, 538 U.S. at 367; United States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir. 2003).

The government objects to the court singling out any contextual factors for the jury to consider. The attorneys will

argue to the jury in closing arguments that context matters. Each side will address the factors that it believes supports

its position. It would be inappropriate for the court to instruct the jury that they may consider the factors that the

defendant wants them to focus on, without addressing the factors that are favorable to the government. Since the

pattern instructions do not address any such factors, the government requests that no factors be included in the

instructions.

Watts, 394 U.S. at 708. The Government objects for the same reason set forth in footnotes 7 and 8.

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the Court considered the entire context in which the statement was made and

not solely the defendant’s words.

If you have no reasonable doubt that the defendant’s speech was a true

threat, then you should find her guilty. On the other hand, if you have a

reasonable doubt whether Ms. Kaye’s speech was a “true threat” or protected,

political speech, then you must find her not guilty. 11

This paragraph misstates the law and is already covered by Pattern Instructions. To tell the jury that they “should”

find the defendant guilty if they have no reasonable doubt, but “must” find her not guilty if they do is not an accurate

statement of the law. Basic Instruction 2.1 correctly describes the Government’s burden of proof by stating that “the

Government must prove guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not guilty.”

Defense response: It is important that the jury understands that the First Amendment and true threats

requirement is not an affirmative defense. Therefore, if the jury has a reasonable doubt about whether the

speech is a true threat, they must acquit. An alternative would be to simply use the last sentence of the

instruction to avoid the “should” and “must” issue: if you have a reasonable doubt whether Ms. Kaye’s speech

was a “true threat” or protected, political speech, then you must find her not guilty.

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Theory of Defense Instruction12

The First Amendment of the United States Constitution protects the

content of speech and only permits restrictions in a few, well-defined

The government objects to this entire instruction. Defendant relies solely on pre-Elonis and sister circuit cases in

support of this instruction. For example, the defendant relies on Virginia v. Black to alter the Pattern Instruction by

providing a definition of “true threat” that is encompassed within the phrase but not as accurate as the one used in

the Pattern Instruction. As stated in footnote 6, Fleury recognized that the Court in Virginia v. Black never stated

that the category of true threats is limited to its definition, only that the category “‘encompass[es]’ them.” Fleury, 20

F.4th Cir at 1373. Thus, the Court should use the definition of “true threats” that the Eleventh Circuit has chosen in

the Pattern Instructions. See id. (rejecting defendant’s request to use the “true threats” language from Virginia v.

Black, but instead relied on the Pattern Instruction).

The remaining requested language should not be given because it is not necessary for the defendant’s ability to present

an effective defense. See id. at 1373-74.

While a criminal defendant is entitled to a theory-ofdefense instruction where there is a foundation for the instruction in the evidence, United States v. Lively, 803 F.2d

1124, 1126 (11th Cir. 1986), the Court is not obligated to adopt the precise wording of a defendant’s proposed

instruction. Fleury, 20 F.4th Cir at 1373. In Fleury, the defendant requested a theory of defense instruction that was

much less broad than the defendant’s request in the instant case, although it did discuss the First Amendment.

Specifically, Fleury’s instruction focused mostly on the definition of “true threat” as articulated in Virginia v. Black.

The court provided the jury with the following modified version of the defendant’s proposed theory of defense

instruction:

The First Amendment of the United States Constitution permits restrictions upon the content of

speech in only a few well-defined and narrow classes of speech. The only exception relevant here is

for “true threats.” A “true threat” is a serious threat—not idle talk, a careless remark, or something

said jokingly—that is made under circumstances that would place a reasonable person in fear of

being kidnapped, killed, or physically injured. Mr. Fleury contends that his statements were not

“true threats.” If you have a reasonable doubt as to whether the Instagram messages were “true

threats,” you must find Mr. Fleury not guilty as to all counts.

Id. at 1372.

On review, the Eleventh Circuit held that the modified instruction given by the court, coupled with the charge

as a whole, was proper because it adequately “cover[ed] the gist” of Fleury’s proposed instruction and the failure to

give the instruction as defense requested did not substantially impair the defendant’s ability to present an effective

defense. Id. at 1373-1374.

In the instant case, if the Court is included to give a theory of defense instruction, an instruction similar to

what was given in Fleury, coupled with the pattern jury instructions, would suffice. The court does not have to give

the jury examples of constitutionally protected speech, as the defendant has requested in her proposed theory of

defense instruction, for the jury to understand the definition it has provided. Certainly, the Pattern Instructions

contain no such language. Regardless, the defendant will be permitted in its closing argument to provide the jury

with the same type of examples from its requested charge to argue the limited scope of non-protected speech. The

Court does not have to provide examples of constitutionally protected speech to allow the defendant to present an

effective defense, just like it does not have to provide the jury with examples of non-protected speech to guarantee the

government a fair trial. The pattern jury instructions are more than sufficient to unsure a fair trial for both sides.

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exceptions. The only possible exception, which may be relevant to this case, is a

“true threat,” in which the speaker means to communicate a serious expression

of an intent to commit an act of unlawful violence to a particular individual or

group of individuals. 13 The First Amendment protects vehement, caustic, and

sometimes unpleasantly sharp attacks on public officials, including members of

the Federal Bureau of Investigation (FBI), unless that speech is a “true

threat.” 14 Indeed, the freedom to verbally oppose or challenge police officers

without risk of arrest is one of the principal characteristics distinguishing our

free nation from a police state.15 As such, law enforcement must tolerate coarse

criticism and exercise greater restraint in their response than the average

citizen.16 “The language of the political arena…is often insulting, abusive, and

inaccurate and the First Amendment protects very crude offensive method[s]

Virginia v. Black, 538 U.S. 343, 359 (2003).

Watts v. United States, at 708 (“debate on public issues should be uninhibited, robust, and wideopen, and

that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and

public officials”) quoting New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (The right to criticize the

government is the “central meaning of the First Amendment.”)

City of Houston, Tex. v. Hill, 482 U.S. 451, 462–63 (1987)

Wood v. Eubanks, 25 F.4th 414, 423 (6th Cir. 2022); Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 216 (6th

Cir. 2011)(“Indeed, because the First Amendment requires that police officers tolerate coarse criticism, the

Constitution prohibits states from criminalizing conduct that disturbs solely police officers.”) citing City of

Houston v. Hill, 482 U.S. 451, 461–63 (1987) (“[T]he First Amendment protects a significant amount of verbal

criticism and challenge directed at police officers.... The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is one of the principal characteristics by which we

distinguish a free nation from a police state.”); Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell,

J., concurring) (“[A] properly trained officer may reasonably be expected to exercise a higher degree of

restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.” (internal

quotation marks omitted)).

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of stating political opposition. 17 Cursing, when used in connection with political

speech18, and the use of hurtful speech pertaining to public issues is protected

under the First Amendment to ensure that we do not stifle public debate.19

Indeed, speech on public issues is afforded greater protection than speech

involving solely private matters because of the need to safeguard free and

robust debate of public issues. 20 The First Amendment protection of speech also

applies to the internet because it has become the modern public square.21

If you have a reasonable doubt whether Ms. Kaye’s speech was protected

by the First Amendment, then you must find her not guilty.

Watts, 394 U.S. at 708 (“The language of the political arena…is often vituperative, abusive, and inexact.” The

First Amendment protects “very crude offensive method[s] of stating political opposition.”)

Cohen v. California, 403 U.S. 15 (1971); Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S. Ct. 2038,

2047 (2021).

Snyder v. Phelps, 562 U.S. 443, 461 (2011)(“this Nation has chosen to protect even hurtful speech on public

issues to ensure that public debate is not stifled”); New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)(“debate on public issues should be uninhibited, robust, and wideopen”).

Snyder, 562 U.S. at 452.

Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (2017) quoting Reno v. Am. C.L. Union, 521 U.S. 844,

870 (1997) (“Through the use of chat rooms, any person with a phone line can become a town crier with a voice

that resonates farther than it could from any soapbox.”)

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CONSIDERATION OF POLITICAL VIEWS22

You have just heard testimony and actually observed some exhibits related to

what might be considered the Defendant's political views. You must treat this

evidence with caution. This evidence alone cannot be used to find the Defendant

guilty of the offense charged in the Indictment. It may, however, be considered

by you for limited purposes, such as considering the context in which statements

attributed to the Defendant were made, what the Defendant's intent was in

making the statement, and her expectation regarding the effects of her

statement. You cannot find the Defendant guilty because you disagree with or

After conducting a thorough Westlaw search of all federal cases, the Government has located only one case in

which the court has provided an instruction similar to this requested instruction – an unpublished decision from a

district court in New York. See United States v. Hunt, --- F.Supp.3d ---, 2021 WL 5399986 (E.D.N.Y. Nov. 18, 2021).

However, Hunt is factually dissimilar to the instant case. In Hunt, the defendant was charged with threatening to

assault and murder members of the United States Congress, in violation of 18 U.S.C. 115(a)(1)(B). Defendant

allegedly made four statements on social media websites that threatened, or incited others, to murder members of

Congress. By doing so, the Government alleged that the defendant intended “to impede, intimidate, or interfere with

[the federal officials] while engaging in the performance of official duties,” as required to convict under the charged

statute. The defendant’s alleged threats referenced, for example, “want[ing] actual revenge on democrats,” “a rigged

election,” “go[ing] back to the U.S. Capitol when all of the Senators and a lot of Representatives are back there,”

and the “so called inauguration” of President Biden. Defendant called for the “public execution” of the House

Majority Leader Nancy Pelosi and the Senate Minority Leader Chuck Schumer. The defendant also expressed support

for former President Trump in text messages. Clearly, the defendant’s threats were motivated by his political views.

The Court likely believed that the Consideration of Political Views was necessary to prevent the jury from convicting

the defendant based on his political views, which may have been different from most members of the jury in New York.

In the instant case, the defendant allegedly threatened to kill law enforcement if they came to her house to interview

her about whether she knew anyone who had been at the Capitol on January 6, 2021. At no time in her video posts

does she reference the President, any member of Congress, or any political party. Although she references her

“patriot friends” and the persecution of a three-star general, the instant case is not fraught with politics like as in

Hunt. Rather, the threat is directed toward law enforcement officers.

In fact, even though a 2019 trial in this district involved alleged threats made to the U.S. Congressman because of the

defendant’s dissatisfaction with his political views, a “consideration of political views” instruction was not given to

the jury. See United States v. Key, Case No. 18-14053-CR-Graham. No such instruction is necessary here either,

particularly given the attenuated relationship with politics.

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find distasteful her political views. 23

To convict Mrs. Kaye based on her political beliefs would be a miscarriage of justice. This Court should

instruct the jury not to do so, and the government should welcome a jury decision based only on the evidence

in the case and not an improper consideration. Additionally, because the government will introduce evidence

related to Mrs. Kay and January 6, it is important for the jury to receive a cautionary instruction regarding

that evidence and her other political statements, which will be introduced by both parties. This court gave the

jury a similar admonition in the statement of the case in Tracy v. Florida Atlantic University Board of Trustees

et al, 16-cv-80655-RLR. This political views instruction was taken, verbatim, from the instruction given by

the district court in United States v. Hunt, 21-CR-86 (PKC), (EDNY) at DE 92.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cr-80039-RLR(s)

UNITED STATES OF AMERICA

vs.

SUZANNE ELLEN KAYE,

a/k/a “muckbangXX,”

a/k/a “suzannekaye3,”

a/k/a “Angry Patriot Hippie,”

Defendant.

____________________________/

VERDICT

As to Count One of the Indictment, Interstate Transmission of a Threat

to Injure, we, the Jury, unanimously find by proof beyond a reasonable doubt, the

Defendant, Suzanne Ellen Kaye,

Guilty ______

Not guilty_____

As to Count Two of the Indictment, Interstate Transmission of a Threat

to Injure, we, the Jury, unanimously find by proof beyond a reasonable doubt, the

Defendant, Suzanne Ellen Kaye,

Guilty ______

Not guilty_____

SO SAY WE ALL.

________________________

Foreperson

Date:____________________

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O30.3

Interstate Transmission of Threat to Kidnap or Injure

18 U.S.C. § 875(c)

It’s a Federal crime to knowingly send in [interstate] [foreign] commerce a

true threat to [kidnap] [injure] any person.

The Defendant can be found guilty of this crime only if the following facts

are proved beyond a reasonable doubt:

the Defendant knowingly sent a message in [interstate]

[foreign] commerce containing a true threat to [kidnap any

person] [injure the person of another]; and

the Defendant sent the message with the intent to communicate

a true threat or with the knowledge that it would be viewed as a

true threat.

The Government doesn’t have to prove that the Defendant intended to carry

out the threat.

[To transmit something in “interstate commerce” means to send it from a

place in one state to a place in another state.]

[To transmit something in “foreign commerce” means to send it from a place

in the United States to anyplace outside the United States.]

A “true threat” is a serious threat – not idle talk, a careless remark, or

something said jokingly – that is made under circumstances that would place a

reasonable person in fear of [being [kidnapped] [injured]] [another person being

[kidnapped] [injured]].

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ANNOTATIONS AND COMMENTS

18 U.S.C. § 875(c) provides that:

Whoever transmits in interstate or foreign commerce any

communication containing any threat to kidnap any person or any

threat to injure the person of another, shall be fined under this title or

imprisoned not more than five years, or both [shall be guilty of an

offense against the United States].

Maximum Penalty: Five (5) years imprisonment and applicable fine.

This instruction is based on Elonis v. United States, 575 U.S. __, 135 S. Ct. 2001

(2015). In Elonis, the Supreme Court rejected a district court’s instruction that

failed to consider the defendant’s subjective mental state. The Supreme Court held

that an objective standard requiring that “liability turn on whether a ‘reasonable

person’ regards the communication as a threat—regardless of what the defendant

thinks—reduces culpability on the all-important element of the crime to

negligence.” Id. at 2011 (citation omitted). The Court specifically held that the

mental state requirement of § 875(c) “is satisfied if the defendant transmits a

communication for the purpose of issuing a threat, or with knowledge that the

communication will be viewed as a threat.” Id. at 2012. The Court declined,

however, to determine whether a finding of recklessness on the part of the

defendant would be sufficient. Id. at 2012-13.

The Court noted that the defendant’s conviction could not be “premised solely” on

a reasonable person standard and that it was an error for the Government to “prove

only that a reasonable person would regard [the defendant’s] communications as

threats.” 135 S. Ct. at 2011-12 (emphasis added). The Court’s opinion did not

foreclose the possibility that both an objective and a subjective standard be used in

determining whether the defendant knowingly sent a threat. Id. at 2012 (“Federal

criminal liability generally does not turn solely on the results of an act without

considering the defendant’s mental state.” (emphasis added)). Thus, although the

Supreme Court has made clear that the defendant’s subjective mental state must be

taken into account, the objective person standard remains useful in the

determination of whether the defendant’s statement actually constitutes a “true

threat,” as that term has been defined in prior case law. See e.g., United States v.

Martinez, 736 F.3d 981, 984-86 (11th Cir. 2013), overruled on other grounds, __

F.3d __, 2015 WL 5155225 (11th Cir. Sept. 3, 2015) (discussing Watts v. United

States, 394 U.S. 705 (1969) as the origin of the “true threats” doctrine).

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In United States v. Evans, 478 F.3d 1332 (11th Cir. 2007), the Court of Appeals

considered and rejected the argument that the “threat to injure” language contained

in 18 U.S.C. § 876(c) (which deals with mailing threatening communications)

included only future threats. The Eleventh Circuit joined the Second, Third, and

Fifth Circuits in holding that a future threat is not necessary and that the statute

also applied to immediate threats of harm.

This subsection, as distinguished from § 875(a) (implicitly), and § 875(b) and §

875(d) (explicitly), does not require an intent to extort.

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APPENDIX C

Case 9:21-cr-80039-RLR Document 119 Entered on FLSD Docket 06/29/2022 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-CR-80039-RLR(s)

UNITED STATES OF AMERICA

vs.

SUZANNE ELLEN KAYE,

a/k/a “muckbangXX,”

a/k/a “suzannekaye3,”

a/k/a “Angry Patriot Hippie,”

Defendant.

_____________________________/

JURY INSTRUCTIONS

Members of the Jury:

It’s my duty to instruct you on the rules of law that you must use in deciding

this case. After I’ve completed these instructions, you will go to the jury room and

begin your discussions – what we call your deliberations.

You must decide whether the Government has proved the specific facts

necessary to find the Defendant guilty beyond a reasonable doubt.

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Duty to Follow Instructions and the Presumption of Innocence

Your decision must be based only on the evidence presented here. You must

not be influenced in any way by either sympathy for or prejudice against the

Defendant or the Government.

You must follow the law as I explain it – even if you do not agree with the

law – and you must follow all of my instructions as a whole. You must not single

out or disregard any of the Court's instructions on the law.

The indictment or formal charge against a defendant isn’t evidence of guilt.

The law presumes every defendant is innocent. The Defendant does not have to

prove his innocence or produce any evidence at all. The Government must prove

guilt beyond a reasonable doubt. If it fails to do so, you must find the Defendant not

guilty.

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