In United States v. Hunt, the Second Circuit (Walker, Parker, and Bianco) affirmed the conviction and sentence of Brendan Hunt, who in the wake of the 2020 presidential election threatened prominent elected officials on various social media platforms. On appeal, the Second Circuit rejected Hunt’s claims that (1) there was insufficient evidence on which to convict him, (2) the jury was improperly instructed, (3) his Sixth Amendment right to a public trial was violated due to the courtroom’s closure as a result of COVID-19 prevention measures, and (4) the district court erred at sentencing.
Background
In a January 2021 video that Hunt posted to BitChute, a video-sharing platform, he urged viewers to “go back to the U.S. Capitol” and “slaughter” members of the U.S. Congress, claiming that he would “go there myself and shoot them and kill them” and that people had to “take out those Senators and then replace them with actual patriots.” If there was doubt about whether he stood behind these comments, in comments on the website and in other videos released just before the inauguration of President Biden, Hunt stated “everyone should come to Washington, D.C. . . . concealed carry, body armor and just blast them all away while we still have a chance.” Referring to the Senate, he explained that “[e]very single one of them just needs to go.” On January 19, 2021, Hunt was arrested. Based on these statements, Hunt was convicted by a jury of one count of threatening to assault and murder members of Congress in violation of 18 U.S.C. § 115(a)(1)(B) and was sentenced to nineteen months’ imprisonment.
The Appeal
Sufficiency of the Evidence
Hunt contended that the evidence presented at his trial was insufficient for a jury to have found him guilty beyond a reasonable doubt of violating Section 115(a)(1)(B). A person may be found guilty under that statute if he “threatens to assault, kidnap, or murder, a United States official” with “intent to impede, intimidate, or interfere with such official . . . while engaged in the performance of official duties, or with intent to retaliate against such official . . . on account of the performance of official duties.” 18 U.S.C. § 115(a)(1)(B). The identified threat must constitute a “true threat,” or one that “an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret . . . as a threat of injury,” United States v. Turner, 720 F.3d 411, 420 (2d Cir. 2013), and must be made by the defendant at least recklessly, by consciously disregarding the “risk that his communication[] would be viewed as threatening violence,” Counterman v. Colorado, 143 S. Ct. 2016, 2111–12 (2023).
Hunt claimed that the evidence was insufficient to prove that his BitChute video was a true threat of violence unprotected by the First Amendment. On appeal, he asked the Second Circuit to apply the “constitutional fact doctrine,” which requires the Court to review the trial record de novo to determine whether the fact-finder appropriately applied the First Amendment to the facts (i.e., whether the BitChute video constituted a true threat or not). In the absence of that doctrine, the Court would apply the ordinary standard of review on sufficiency of evidence challenges: construing the evidence in the light most favorable to the government and affirming a conviction if any rational trier of fact could have found the elements proven beyond a reasonable doubt.
The Court denied Hunt’s request, holding for the first time that the constitutional fact doctrine did not apply to true threat determinations under 18 U.S.C. § 115. The Second Circuit noted that the doctrine is applied “to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984). In order to determine whether a question implicates legal principles—and thus rendering the doctrine applicable—rather than ordinary questions of fact, a court may consider whether (1) under the common-law judges had a broad role in applying the rule to factual situations, (2) the content of the rule is revealed simply by its text or rather through common-law adjudication, and (3) the First Amendment values protected by the rule. Id. at 502.
In performing its analysis, the Court concluded that the true threat determination does not implicate legal principles, but rather criminalizes threats that a reasonable person familiar with the context would view as genuine. Accordingly, it relies not on legal judgment, but on the objective assessment of a reasonable person. The Court contrasted that determination with that of a statement made with “actual malice,” which has only been given meaning through common-law adjudication. Id. at 502. Thus, the true threat determination involves no legal principles warranting de novo review by the court, and the constitutional fact doctrine is correspondingly inapplicable.
Accordingly, the Court proceeded to review the sufficiency of the evidence underlying Hunt’s conviction under the ordinary deferential standard of review. In affirming Hunt’s conviction, the Court denied Hunt’s argument that the BitChute video could not constitute a true threat because it was an incitement protected under the First Amendment. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). In rejecting that argument, the Court relied on United States v. Tuner, 720 F.3d 411 (2d Cir. 2013), in which it held that “a threat . . . need not also constitute incitement to imminent lawless action to be properly proscribed.” Id. at 425. The Court held that the jury was presented with ample bases to conclude that the video constituted a true threat, including that Hunt used the first person to state his violent intent (and double-downed on his seriousness in replies to the video in the comment section), and that the video was posted only two days after a mob violently attacked the U.S. Capital on January 6, 2021. The Court also found that there was overwhelming evidence that Hunt acted with, at the very least, recklessness as to the risk that his video would be viewed as threatening violence. The Court therefore denied Hunt’s sufficiency of the evidence challenge.
Jury Instructions
Hunt next challenged the instructions received by the jury prior to his conviction. The district court instructed the jury that “[t]he Government must prove beyond a reasonable doubt that [Hunt] acted with the intent to impede, intimidate, or interfere with the officials while they were engaged in the performance of their official duties,” and in making that determination the jury could consider “whether there is evidence [Hunt] intended or did not intend any of his statements to reach the officials in question,” but that it need not find that the Government proved “that the alleged threats actually reached those officials.” Hunt argued that the district court erred by refusing to instruct the jury that it had to find that he believed or expected that his video would reach the targeted officials.
The Court first noted that Hunt failed to object to the jury instruction before his appeal and therefore the objection was unpreserved, leading the Court to consider the jury instructions under plain error review. The Court reiterated its prior holdings that merely proposing an alternative jury instruction language does not constitute an objection, and that for an objection made at trial to preserve an objection on appeal the objections must be materially the same. In evaluating Hunt’s objection under the plain error standard of review, the Court held that it was unaware of any binding precedent supporting Hunt’s proposed instruction and thus the error was not “clear under current law.” United States v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (internal quotation marks omitted).
Sixth Amendment Right to a Public Trial
Hunt also argued that the district court violated his Sixth Amendment right to a public trial by refusing to allow his father into the courtroom. Hunt’s trial was one of the first in-person trials held since the beginning of the COVID-19 pandemic in the Eastern District of New York. As part of the resumption of in-person trials, the Eastern District, in conjunction with an epidemiologist, had implemented certain measures aimed at reducing the spread of the disease, including requiring masks and social distancing, and limiting the number of people allowed in the courtroom. During Hunt’s trial, two adjacent courtrooms broadcast the proceedings in real-time through video and audio. On the second day of Hunt’s trial, his father (through a note delivered by Hunt’s counsel) asked the district judge if he could watch the trial from the courtroom. The district judge denied the request, stating that the courtroom was over the capacity dictated by the court’s rules. However, the next day the court proposed sua sponte that he instruct the jury that public health considerations precluded Hunt’s family and friends from appearing in the courtroom and that it should not infer anything from the absence of supporters; after the defense agreed the jury was so instructed.
In evaluating Hunt’s challenge, the Court noted that under the Sixth Amendment “the public trial guarantee is not absolute,” United States v. Lauren, 33 F.4th 63, 95 (2d Cir. 2022) (quotation marks and alteration omitted); courts may constitutionally close a courtroom if “(1) closing the [proceeding] would advance an overriding interest . . .; (2) the closure is no broader than necessary to protect that interest; (3) the trial court considers reasonable alternatives . . . ; and (4) the trial court makes findings adequate to support the closure,” United States v. Smith, 426 F. 3d 567, 571 (2d Cir. 2005) (citations omitted). On each factor the Court held that the district court did not plainly err by excluding Hunt’s father from the in-person proceedings: excluding the public from the courtroom advanced the overriding interest of protecting public health during the COVID-19 pandemic; the closure, while broad in that it excluded all spectators, was mitigated by the fact that the public had access to the simultaneous video and audio stream in the nearby courtrooms; the district court considered alternatives to closing the courtroom like the real-time broadcast of the trial; and the district court made adequate findings on the record to support the closure decision. In addition, the Court held that any error in excluding Hunt’s father from the courtroom did not affect the fairness, integrity, or public reputation of the proceedings because the district court informed the jury that the absence of visible support for Hunt in the courtroom was due to the COVID-19 pandemic, thus mitigating any negative inference the jury may have drawn from their absence.
Improper Sentencing
Finally, Hunt raised two challenges to his sentence, both of which the Court rejected. First, the Court affirmed the district court’s application of a two-level Sentencing Guidelines enhancement for obstructing or impeding the administration of justice. U.S.S.G. § 3C1.1. The district court’s reasoning for applying this enhancement was that Hunt testified falsely at trial that he did not intend to retaliate against or interfere with members of Congress. The Court found that the district court made the appropriate findings in applying this enhancement, including that Hunt’s statements were intentionally false and made with the aim of preventing him from getting convicted.
Second, the Court rejected Hunt’s argument that the district court impermissibly considered a rehabilitative purpose in deciding his sentence. A district court may not impose or lengthen a prison sentence in order to promote an offender’s rehabilitation, but it may “discuss[] the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” Tapia v. United States, 564 U.S. 319, 332 (2011) (citation omitted). The Court found that the district court did not impermissibly extend Hunt’s term of imprisonment for a rehabilitative purpose, but instead correctly considered the factors required by 18 U.S.C. § 3553(a) and any statements it made relating to rehabilitation or the need for Hunt to reflect and change were made appropriately within the context of those sentencing factors.
Commentary
Hunt’s appeal presented multiple issues that clearly drew the Court’s attention and prompted it to issue a precedential opinion, even while the Court affirmed. First, the Court announced a new holding in the Circuit by finding that the constitutional fact doctrine does not apply to true threat determinations under 18 U.S.C. § 115. This brings the Court in-line with the Tenth Circuit, United States v. Wheeler, 776 F.3d 736, 742 (10th Cir. 2015), but opposed to the Fourth and Ninth Circuits, see United States v. Bly, 510 F.3d 453, 457–59 (4th Cir. 2007); United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). In a demonstration of judicial restraint and, perhaps, judicial humility, the Court noted that the true threat standard relies “upon the sensibilities of ordinary people” and so “the court is no better equipped than the jury—and is arguably less equipped—to answer whether a statement is a true threat.” Rather than accept Hunt’s invitation to be the arbiter of what constitutes a true threat, the Court chose to leave this determination to the province of the jury. However, with an increasing circuit-split on this issue, it is possible that the Supreme Court may weigh in on the debate, as it did in Bose to determine the constitutional fact doctrine’s applicability to the “actual malice” standard.
This case also provides additional insight into how the Second Circuit may view the propriety of trials conducted under the COVID-19 protocols and when courts may make exceptions to the usual rule of a public trial based on health issues. In its opinion the Court is deferential to the Eastern District of New York’s plan for conducting trials in the wake of the pandemic that included masking, social distancing, and limiting the number of people in the courtroom, noting that the plan was developed in consultation with an epidemiologist and quoting Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) for the holding that “[s]temming the spread of COVID-19 is unquestionably a compelling interest.” Id. at 67. These findings suggest that defendants who were tried and sentenced during this time period may have a difficult time arguing their Sixth Amendment or due process rights were violated by these types of measures.
Finally, Hunt is the latest in a line of defendants charged and convicted in federal court for actions taken as a result of dissatisfaction with the 2020 presidential election. The highest profile of these cases—with the notable exception of the former President Donald J. Trump—involve defendants who participated in the rally and subsequent violent attack on the United States Capitol on January 6, 2021 in an attempt to prevent certification of the 2020 election.[1] While Hunt did not participate in the attack, the Court referenced it as context lending support to the jury’s conclusion that Hunt’s video, posted two days in its wake in which he urged people to “go back to the U.S. Capitol” and “slaughter” Senators and Representatives, constituted a true threat. Like the many January 6 cases prosecuted in Washington, D.C., the judicial system has recognized that there is a notable difference between those who are engaged in protected speech and those who are engaged in violence and threats.
[1] See, e.g., https://www.justice.gov/usao-dc/capitol-breach-cases.
