United States v. Cantwell ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1186
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER CANTWELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Gelpí, Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Anna Z. Krasinski, Assistant United States Attorney, with
whom John J. Farley, Acting United States Attorney, and John S.
Davis, Assistant United States Attorney, were on brief, for
appellee.
April 5, 2023
LIPEZ, Circuit Judge. On the basis of a series of heated
online messages, Christopher Cantwell was convicted of
extortionate interstate communications under 18 U.S.C. § 875(b)
and threatening to injure property or reputation under 18 U.S.C.
§ 875(d). He appeals his conviction and sentence, arguing that
the government improperly relied on statements made by a non-
testifying witness in its closing argument, that the district court
improperly instructed the jury that provocation was not a defense,
and that the district court abused its discretion by refusing to
grant a downward departure due to the victim's provocative behavior
under U.S.S.G. § 5K2.10. Because Cantwell has not met his burden
on any of these claims of error, we affirm.
I.
A. Background
Cantwell was a New Hampshire-based media personality who
gained popularity in the online white nationalist community. As
of late 2017, he hosted a call-in radio show called Radical Agenda,
which he described as an intentionally "shocking production"
featuring obscene, racist, and homophobic language from Cantwell
and his callers. Cantwell also hosted a website related to his
radio show content and was active across several social media
platforms, including Telegram.1
1 Telegram is an "online instant message platform." Users
can send private messages directly to an individual and can also
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In 2017, Cantwell began communicating online with
members of an extremist group called the Bowl Patrol, who were
calling into his program. The Bowl Patrol was a white nationalist
hate group, whose members subscribed to "accelerationism," or the
aggressive advocacy of government collapse.2 The group's primary
activity was producing a podcast, the "Bowl Cast," on which they
espoused racist, anti-Semitic, homophobic, and misogynistic views.
The Bowl Patrol operated solely online using platforms
like Telegram, with its members relying on pseudonyms to maintain
anonymity in all their online activities. One of the Bowl Patrol's
members was Missouri-based Benjamin Lambert, known online only by
his alias, "Cheddar Mane."3 Cantwell, who ran his live radio show,
website, and Telegram channels under his own name, was initially
on good terms with the Bowl Patrol and was the first guest on the
Bowl Cast podcast.
In the fall of 2018, members of the Bowl Patrol began to
target Cantwell's platforms after concluding that Cantwell "didn't
actually believe what he was saying" and that he was "simply
create "channels," which bring together multiple people who can
comment and post messages to a group.
2 The Bowl Patrol was so named in reference to the bowl-cut
hairstyle of Dylann Roof, who shot and killed nine Black people in
a church in Charleston, South Carolina, in 2015. The Bowl Patrol
group revered Roof and his crime.
3 Lambert also used variations on his alias, such as "Cheddar
Man," "Cheddy Blac," and "Hombre Cheddar."
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[trying] to make money." Members of the Bowl Patrol, including
Lambert, began to make a series of prank calls to Cantwell's
Radical Agenda show. The prank callers filled Cantwell's phone
lines with unintelligible sounds, imitations of fictional
characters, and generally disruptive noise. These activities
continued through the first months of 2019, and Lambert himself
made 10-15 prank calls to Cantwell's live show between fall 2018
and the end of February 2019. In February 2019, the Bowl Patrol's
harassment campaign escalated when members of the group posted
pornography and other obscene content to Cantwell's website.
Cantwell believed this incident to be the work of the Bowl Patrol's
leader, known by the alias "Vic Mackey." Cantwell reported the
calls and website defacement to the FBI and the local police on
February 11, 2019, but they declined to investigate Cantwell's
claims.
In March 2019, Cantwell decided to take further action.
He wrote to Lambert on Telegram telling him to stay "away from me
and my platforms or I'll dox4 your stupid ass." Cantwell also told
Lambert that he did not want him "or [his] faggot ass friends
anywhere near" Cantwell's platforms. Lambert was one of the only
members of the Bowl Patrol whose identity Cantwell knew, and whose
4"Doxing" refers to the practice of revealing an individual's
private information online, especially as a form of revenge. See
Dox, The Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/dox (last visited Mar. 31, 2023).
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personal information he could therefore reveal. Despite the
precautions that Lambert took to maintain anonymity online, he had
met someone in Cantwell's entourage in person: Cantwell's then-
girlfriend, Katelyn Fry, alias "Peach." In November 2018, Fry had
visited Lambert at his home in Missouri and therefore had Lambert's
home address, as well as photos of Lambert and his wife and
children. After Cantwell threatened to dox him, Lambert did not
make any more prank calls to Cantwell's show and encouraged other
members of the Bowl Patrol to stop harassing Cantwell.
B. Cantwell's June 15-16, 2019 Texts to Lambert
Lambert and Cantwell next interacted on June 15, 2019,
following two incidents that prompted Cantwell to contact Lambert.
Shortly after midnight on June 15, 2019, Fry received a Telegram
message from an unknown sender reading, "So why did you take
pictures of those kids? . . . Do you think we're going to forget?"
Fry forwarded the message to Cantwell and asked if "Cheddar" had
sent it. Cantwell initially told Fry that he did not think that
Lambert had sent the anonymous message but later decided that it
must have come from him.
Later that same day, Lambert clicked on a link in the
Bowl Patrol group chat which took him to a private Telegram channel
called "Peaceful White Folk." Peaceful White Folk was Cantwell's
private, invitation-only channel, though Lambert maintains that he
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did not know this when he clicked the link.5 When Cantwell noticed
Lambert in his private channel, he removed him from the chat.
Moments later, Lambert received a direct message from Cantwell,
and a series of messages between Cantwell and Lambert followed.
The precise language of Cantwell's messages became the basis for
the criminal charges against him. We therefore reproduce key parts
of the exchange in full (the statements quoted in the indictment
are bolded):
6/15/19
9:00pm (EDT) - Cantwell
I guess you forgot the lesson which kept you away for a short
while, do you need to be reminded?
9:29pm - Cantwell
[Sends the name of the street where Lambert lives]
11:24pm - Lambert
What are you talking about
. . .
11:56pm - Lambert
Let's think about this. Every time someone you think is in
[Bowl Patrol] talks shit about you -- a public figure -- you
threaten to dox me? Say you did. What then?
5 Cantwell testified that Peaceful White Folk was an
invitation-only group, meaning that a person could only join if
they had the invitation link, but that the invitation link had
been widely shared.
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6/16/19
12:21am - Lambert
I honestly don't know what I even did
I followed a link into a group I didn't even know you were in
3:56am - Cantwell
Get a fucking life or I will ruin the one you have
3:57am - Cantwell
Don't bother anyone, then you won't have to worry about
crossing me
2:13pm - Lambert
I haven't given you any thought and it was an honest mistake.
Didn't even know you were in there or I'd have thought better
of it. Other than that, all I can do is just leave you the
fuck alone and tell other people to do the same -- which I
have done.
. . .
4:15pm - Cantwell
You're a fucking liar. You came here with your loser fucking
pals . . . and because of that fact, you are going to lose
everything you have.
4:45pm - Cantwell
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Next time I post that photo,6 the faces won't be blurred, and
then you're going to start getting unexpected visitors
And I don't care if it's you causing the trouble, you're the
one who's gonna suffer cause you're the one who I can get
4:47pm - Cantwell
If you wanna dox Vic, he's a better target, but if you give
me fake info then your wife is gonna have trouble sleeping at
night
. . .
6:39pm - Lambert
So I am assuming peach took the picture. Guess that means
you d[o]n't care what happens to her either
6:41pm - Cantwell
As a matter of fact, I don't. So if you don't want me to
come and fuck your wife in front of your kids, then you should
make yourself scarce
7:10pm - Cantwell
Give me Vic, it's your only out
8:17pm - Cantwell
I guess I'm going to have to prove my seriousness
8:21pm - Lambert
Show me the picture you have
6 It is unclear to which photo Cantwell is referring at this
point in the exchange.
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8:23pm - Cantwell
No
8:27pm - Cantwell
[Sends a photo of Lambert's wife and three small children]
8:27pm - Cantwell
More where that came from
8:28pm - Cantwell
I bet one of my incel7 listeners would love to give her another
baby
Cantwell then told Lambert that he was going to call the FBI and
tell them that Lambert was a drug user, and that he would send
information about Lambert's activities with the Bowl Patrol to
Missouri's Child Protective Services. Finally, Cantwell
reiterated to Lambert that he wanted Vic Mackey's information:
"Tell Vic that if he gives himself up, he can save your family."
Cantwell was true to his word. On June 17, 2019 -- the
day after the above exchange concluded -- Cantwell posted photos
of Lambert, his wife, and his children to Cantwell's public
Telegram channel. That same day, Cantwell called the Child Abuse
and Neglect Hotline of the Missouri Department of Social Services
7 "Incel" is a shorthand term for "involuntary celibate," a
term used to refer to individuals (usually men) who desire a sexual
partner but cannot find one. Incels typically express extreme
resentment and hostility to women for denying them sex. See Incel,
The Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/incel (last visited Mar. 31, 2023).
- 9 -
to make a report against Lambert. Cantwell claimed that Lambert
was putting his children in danger because he used drugs and was
involved in a right-wing extremist group.8
C. The Charges
Cantwell was charged with four counts relating to his
conversation with Lambert on June 15-16, 2019. Count 1 charged
extortionate interstate communications in violation of 18 U.S.C.
§ 875(b), based on Cantwell's messages about having sex with
Lambert's wife in front of their children and asking for Vic
Mackey's identifying information. Count 2 charged threatening
interstate communications in violation of 18 U.S.C. § 875(c),
based on the same messages. Count 3 charged Cantwell with
threatening to injure property or reputation in violation of 18
U.S.C. § 875(d), based on his messages about Lambert's family,
calling the FBI, and calling child protective services. Finally,
Count 4 charged Cantwell with cyberstalking in violation of 18
U.S.C. § 2261, based on the same messages. The government
dismissed Count 2 shortly before trial and the jury ultimately
acquitted Cantwell on Count 4.
Under 18 U.S.C. § 875(b), the basis for Count 1, the
government had to show (1) that the defendant transmitted a
communication in interstate commerce; (2) that the communication
8 The Department of Social Services determined that the call
did not warrant further action and so did not follow up.
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contained a threat to injure the person of another; and (3) that
the defendant transmitted the communication with the intent to
extort something of value from another. Similarly, under 18 U.S.C.
§ 875(d), the basis for Count 3,9 the government had to establish
(1) that the defendant transmitted a communication in interstate
commerce; (2) that the communication contained a threat to injure
the reputation of another or to accuse another person of a crime;
and (3) that the defendant transmitted the communication with the
intent to extort something of value from another. Because the
mental state that the government had to prove is relevant to the
errors Cantwell claims on appeal, we will briefly contextualize
the parties' presentation of these issues by outlining the legal
framework on which they rely.
The parties did not dispute below that the mental state
required under sections 875(b) and (d) could be proved by an intent
to extort by threat. They did dispute, however, how the government
could prove an intent to extort by threat. Cantwell argued that
to prove the requisite intent, the government needed to establish
both that he intended to extract something of value from another
and that he intended to make a threat -- that is, that he made a
communication "for the purpose of issuing a threat" and with "the
9 This count became Count 2 under the superseding indictment,
once the government dismissed its original Count 2. For ease of
reference, we will continue to refer to the count charging Cantwell
under 18 U.S.C. § 875(d) as Count 3.
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knowledge that the communication would be viewed as a threat."
The government disagreed initially and argued that it could prove
an intent to extort by threat by showing only that Cantwell was
reckless as to whether the communication would be viewed as a
threat.
The district court rejected the government's position
and appears to have adopted Cantwell's understanding of the mens
rea element. The court's jury instruction laying out the mental
state that the government had to prove stated:
To act with intent to extort means to act with
the intent to obtain something of value from
another person with that person's consent but
induced by wrongful use of threatened force,
threatened violence or fear. An intent to
extort by threat also requires that the
defendant act with an intent to threaten.
The parties proceed on appeal with this understanding of the
required mental state. Indeed, Cantwell's challenges focus solely
on the latter portion of this inquiry -- that he "act[ed] with an
intent to threaten" -- though neither he nor the government offer
any gloss on their understanding of what an "intent to threaten"
requires. Nonetheless, we assume, favorably to the defendant,
that to prove an intent to extort by threat, the government had to
prove that Cantwell made a communication "for the purpose of
issuing a threat" and with "the knowledge that the communication
would be viewed as a threat." We analyze the parties' appellate
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arguments accordingly while drawing no conclusions going forward
that the intent to extort under 875(b) and (d) should be understood
in our circuit to require such proof. We also choose this course
as a matter of prudence as there was not adequate briefing on this
issue below or on appeal.
Finally, we must also address the question of what
constitutes a "threat," a separate element of the offenses under
sections 875(b) and (d) and one that is also critical to the
parties' arguments on appeal. In keeping with our prior law
interpreting this element of 18 U.S.C. § 875(b), a threat is a
communication that a reasonable recipient familiar with the
context of the communication would find threatening. See United
States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003) (holding
that a "threat is one that a reasonable recipient familiar with
the context of the communication would find threatening"); cf.
United States v. Oliver, 19 F.4th 512, 517-18 (1st Cir. 2021)
(reasoning that a jury could reasonably find that a communication
was, indeed, a threat under 18 U.S.C. § 876(c) because the victim
perceived the communication as a threat).
D. Cantwell's Trial and Sentencing
The government sought to prove its case on Count 1 by
presenting evidence that Cantwell intended to extort a thing of
value from Lambert, namely Vic Mackey's identifying information,
by intentionally threatening harm to Lambert's wife through
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messages that would reasonably cause Lambert to fear such harm.
The government's case on Count 1 solely concerned Cantwell's
message "[s]o if you don't want me to come and fuck your wife in
front of your kids, then you should make yourself scarce[.] Give
me Vic, it's your only out."
On Count 3, the government sought to prove that Cantwell
intended to extort Vic Mackey's identifying information by
intending to threaten harm to Lambert's reputation and accusing
him of a crime, through messages that would reasonably cause
Lambert to fear such harm. The core of the government's argument
relied on these messages: "you are going to lose everything you
have," "you're the one who's gonna suffer because you're the one
who I can get," "tell Vic that if he gives himself up, he can save
your family," and Cantwell's messages saying he would report
Lambert to the FBI and Missouri Child Protective Services.
The government's main witness at trial was Lambert, who
testified about the Bowl Patrol's activities, his interactions
with Cantwell, and how Katelyn Fry -- Cantwell's former girlfriend
-- had acquired photos of the Lambert family. On direct
examination, Lambert said that Cantwell's messages about his wife
and children made him "scared," "angry," and that he "didn't sleep
that night" because the messages so unsettled him. Lambert also
testified that when he received Cantwell's messages about his wife
and children, he "felt as though a line had been crossed." He
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stated that he began to worry for his wife's safety, though he did
not tell her about the messages. The government elicited testimony
from a second member of the Bowl Patrol community, Paul Nehlen,
who testified that he had never seen one member of the community
threaten another's wife and children, and that such a message was
"over the line."
The government also introduced a recorded telephone
conversation between Cantwell and Fry from December 2019 in which
Cantwell discussed the fallout from his messages to Lambert. The
admitted call contained statements by both Fry ("KF") and Cantwell
("CC"), including the following exchange:
CC: The only choices that I have are to go to law enforcement
or to . . . commit a crime myself.
. . .
[Lambert and the Bowl Patrol] broke the law and the only
remedy I have is law enforcement.
KF: Okay, but you threatened Cheddar Mane and said you are
going to come and rape his wife.
CC: I didn't say I was going to rape his wife, ok? I left
that out there, okay?
Later, in its rebuttal closing argument, the government
returned to this telephone call. The prosecutor discussed how
Cantwell himself characterized his interactions with Lambert as
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"form[s] of violence."10 The prosecutor then stated that Cantwell
"confide[d] in" Fry and said, "he tells her about what he meant,
and we're going to play a portion of [that call]." The government
then played an excerpt of the call, beginning with Fry's statement,
"[o]kay, but you threatened Cheddar Mane." The government went on
to argue that Fry and other members of Cantwell's community thought
that Cantwell's messages "crossed a line," stating, "you've heard
Ms. Fry's reaction to [the messages]." The parties did not mention
the phone call any further.
Cantwell, for his part, hoped to persuade the jury that
he did not intend to threaten by drawing attention to the context
of his messages. Cantwell's defense elicited testimony from
Lambert, Paul Nehlen, and Cantwell about the extreme and derogatory
rhetoric that members of the Bowl Patrol routinely used. The
defense questioned Lambert about his appearances on the Bowl
Patrol's podcast, during which he had "made jokes about rape" and
other forms of violence. Cantwell also testified about the Bowl
Patrol's defacement of his website with sexually explicit and
10 Cantwell testified on cross-examination that he viewed
doxing -- and, therefore, his exchange with Lambert about doxing
him -- as a "form of violence." The prosecutor's rebuttal referred
to this when she stated: "And as you're thinking about whether or
not [Cantwell] intended []his statement [about Lambert's wife] to
reflect violence, think about his previous statements on doxing,
that it's helpful to think of doxing as a form of violence. Do
you really think that he intended his threat to dox, to convey
some sort of form of violence, but he didn't intend for this
statement to convey a form of violence?"
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violent material, which Cantwell characterized as "terrorist
propaganda." Cantwell argued that the extremist online space in
which he and Lambert communicated was therefore dominated by
insults, violent language, and antagonizing communications, and
that, in this context, his messages did not evince an intent to
threaten Lambert.
The defense also suggested that Cantwell had been baited
into making the statements at issue in this case. Cantwell's
cross-examination of Lambert sought to highlight Lambert's
participation in the Bowl Patrol's harassment of Cantwell,
including his "mocking and taunting [of Cantwell]" through fall
2018 and into 2019. Cantwell himself testified that the prank
calls to his show felt like a "campaign of nonstop torment" and
that his statements about harming Lambert's wife were a response
to Lambert's "ominous statement about [Fry]" -- that is, Lambert's
message to Cantwell stating "guess that means you d[o]n't care
what happens to [Fry]." Marshalling this testimony, Cantwell
claimed that his messages to Lambert were a reaction to
longstanding harassment, arguing from the trial's very outset that
"[Cantwell] had been pushed, taunted, and harassed for months to
make him angry, to wind him up, to provoke a bigger and bolder
response."
The court voiced its concern on at least three occasions
before the charging conference that Cantwell's strategy veered
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close to implicitly presenting an affirmative provocation defense,
which is not a defense to crimes committed under 18 U.S.C.
§§ 875(b) and (d).11 The court noted that Cantwell's defense
strategy regarding his mental state had "a potential for an
improper purpose" because it suggested that Lambert provoked
Cantwell's outburst when he participated in the Bowl Patrol's prank
calls and impliedly threatened Cantwell's then-girlfriend, Fry.
Cantwell discussed his defense theory extensively with the court
throughout trial and was aware of the court's concerns. The court
ultimately decided to give a jury instruction on provocation,
making clear that provocation was not a defense available to
Cantwell on the charges before the jury.
The jury found Cantwell guilty on Count 1, extortionate
interstate communication, and Count 3, threatening to injure
11A defendant cannot bring an affirmative provocation defense
when there is a reasonable opportunity to refrain from engaging in
illegal conduct, as is the case with threat crimes. See United
States v. Bailey, 444 U.S. 394, 410 (1980) (stating that
affirmative justification defenses fail with respect to crimes in
which there is "a reasonable, legal alternative to violating the
law"); United States v. Sovie, 122 F.3d 122, 125-126 (2d Cir. 1997)
(relying on Bailey to note that provocation does not constitute a
legal defense to threat crimes committed under 18 U.S.C. § 857(c));
Kevin F. O'Malley et al., 1A Fed. Jury Prac. & Instr. § 19:02 (6th
ed.) (explaining that defenses such as provocation only apply when
a defendant can show "that she lacked a reasonable opportunity to
escape harm other than by engaging in the illegal activity.").
Cf. Dagley v. Russo, 540 F.3d 8, 12n.2 (1st Cir. 2008) (approving
of jury instructions stating that "mere words, no matter how
insulting or abusive standing alone do not constitute reasonable
provocation").
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property or reputation, on September 28, 2020. Cantwell's
sentencing hearing took place on February 24, 2021. The
presentence report calculated a total offense level of 20 and a
criminal history category of III, which yielded a guideline
sentencing range of 41-51 months of incarceration. The government
argued for a sentence of 51 months, while Cantwell argued for a
downward departure due to Lambert's provocation of the offense
under U.S.S.G. § 5K2.10. The court denied the request for a
downward departure and sentenced Cantwell to 41 months of
incarceration and two years of supervised release. This appeal
followed.
II.
Cantwell raises three arguments on appeal: (1) the
government improperly referred to a statement made by a non-
testifying witness in its closing argument, thereby prejudicing
him, (2) the district court abused its discretion by instructing
the jury that provocation was not a defense, and (3) the district
court abused its discretion when sentencing Cantwell by refusing
to grant a downward departure based on Lambert's provocation of
the offense.
A. The Government's Closing Argument
Cantwell challenges the government's reference to a
statement made by Fry, a non-testifying witness, in its rebuttal.
As already noted, the government argued that Cantwell "t[old Fry]
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about what he meant" in his messages and immediately played an
excerpt of the previously admitted telephone conversation in which
Fry said "you threatened Cheddar Mane." The government then argued
that people in Cantwell's community understood the messages to be
threatening and told the jury "you've heard Ms. Fry's reaction to
[the messages]." Cantwell did not request a limiting instruction
when the evidence was first admitted, nor did he object to the
government's use of Fry's statement in its rebuttal.
1. Standard of Review
When a defendant does not contemporaneously object to a
statement made during closing argument, we review for plain error.
See United States v. Pérez-Vásquez, 6 F.4th 180, 201 (1st Cir.
2021). Under our traditional plain error analysis, an appellant
must show "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
Pérez-Rodríguez, 13 F.4th 1, 16 (1st Cir. 2021) (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
As applied to closing arguments of prosecutors, our
plain error analysis requires us first to ask "whether the
challenged comment [is] obviously improper" and, if so, "whether
the comment 'so poisoned the well that the trial's outcome was
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likely affected.'"12 Pérez-Vásquez, 6 F.4th at 201 (quoting United
States v. Walker-Couvertier, 860 F.3d 1, 10 (1st Cir. 2017)). This
is a high bar, requiring us to weigh the impact of the contested
prosecutorial comment against the strength of the evidence against
the defendant. See id. at 201-2 (finding no plain error in the
government's use of two contested statements during its closing
argument primarily because the statements "[did] not cast doubt on
the conviction" and "[were] unimportant to the outcome");
Walker-Couvertier, 860 F.3d at 10 (finding no plain error primarily
because "the possibility that the . . . [improper] statement
affected the outcome of the trial is miniscule" given the
"overwhelming proof of defendants' guilt"). We have previously
explained that where a defendant alleges improper argument in the
government's closing, "unpreserved claims have to approach a
miscarriage of justice before they warrant reversal." United
States v. Potter, 463 F.3d 9, 25 (1st Cir. 2006).
12 Our caselaw clarifies that there is no substantive
difference between our plain error standard as applied to
prosecutors' closing arguments and our traditional plain error
review. See Walker-Couvertier, 860 F.3d at 10 (equating the first
step in our closing argument review with the first two prongs of
the traditional plain error review); United States v.
Vizcarrondo-Casanova, 763 F.3d 89, 97 (1st Cir. 2014) (applying,
after satisfying the first step of closing argument review, a
standard substantively akin to the third and fourth prongs of our
traditional plain error review).
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2. The Improper Comment
The parties do not contest the hearsay nature of Fry's
statement referred to in the government's rebuttal. Fry was an
out-of-court declarant, and the parties agree that the
government's comment -- "And you've heard Ms. Fry's reaction to
[Cantwell's messages]" -- invited the jury to consider her
statement for its truth, namely, that she understood Cantwell's
message as a threat. See Fed. R. Evid. 801(c) (defining hearsay);
United States v. Pena, 24 F.4th 46, 61 (1st Cir. 2022) ("For an
out-of-court statement to constitute hearsay . . . the statement
must be offered to prove the truth of the matter it asserts.").
Hearsay is generally not admissible unless subject to a defined
exception. See Fed. R. Evid. 802. The parties agree that whether
the government's comment was "obviously improper" therefore turns
on the circumstances under which Fry's statement was admitted.
The government argues that the comment was not improper
because Fry's statement was admitted without limitation. The
government was therefore free to use the statement as it wished,
including for its truth.
Cantwell, on the other hand, argues that the
government's use of Fry's statement in its rebuttal was obviously
improper because the government was precluded from using the
statement for its truth. Cantwell contends that his portion of
the telephone call with Fry was admitted as the statement of a
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party-opponent under Federal Rule of Evidence 801(d)(2)(A) and
that Fry's words were admitted to contextualize his portion of the
call only. Under this theory, the government impermissibly
appealed to the jury to consider the truth of Fry's statement,
which harmed Cantwell in two ways. First, the truth of Fry's
statement supports the government's contention that Cantwell
intended to threaten Lambert. The government's rebuttal proposed
that Cantwell was so close to Fry that he told her what he meant
by his messages and therefore Fry's understanding that Cantwell
threatened Lambert reflected Cantwell's intent. Second, the truth
of Fry's statement bolsters the government's argument that
Cantwell's messages contained a threat -- that is, Fry's belief
supports the assertion that Lambert would reasonably perceive
Cantwell's messages as a threat, particularly since the government
referred to Fry as part of its argument that right-wing community
members, including Lambert and Paul Nehlen, perceived Cantwell's
messages as threatening. Instead, Cantwell argues that the
government was restricted to referring to Fry's statement solely
to contextualize Cantwell's own words, given the limited purpose
for which it was admitted.
Cantwell is correct that Fry's statement was admitted
for a limited purpose. The government introduced Cantwell's
portion of the call with Fry as statements of a party-opponent
under Federal Rule of Evidence 801(d)(2)(A). Rule 801(d)(2)(A)
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classifies a statement of a party-opponent that is offered against
the party-opponent as nonhearsay. Fed. R. Evid. 801(d)(2)(A).
Statements of a party-opponent can thus be offered for their truth.
See United States v. Ruiz, 999 F.3d 742, 748-49 (1st Cir. 2021).
Statements by declarants other than the party-opponent can still
be admitted in the context of 801(d)(2) evidence, where such
statements are offered for a limited purpose -- such as providing
an explanation for the party-opponent's portion of the
conversation -- but are not admitted for their truth. See
Pérez-Vásquez, 6 F.4th at 197 (holding that statements by a non-
testifying witness may be admitted under Rule 801 "only to provide
context for statements made [by the party-opponents] in the
conversation and make them intelligible to the jury, not for their
truth").
The government understood that Cantwell's portion of the
call came in under Rule 801(d)(2)(A) and that Fry's corresponding
statements were admitted for the limited purpose of
contextualization. The government twice stated that it was
introducing the phone call under "Rule 801" and referred to
Cantwell's statements as "party statements," indicating that the
government introduced the call under Rule 801(d)(2)(A). The
government well understood the boundaries and scope of
801(d)(2)(A) evidence -- the prosecutor explained that she knew
that some of the statements in the call were hearsay and stated
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that the government did not intend to use those portions against
Cantwell.13 Since there were only two participants in the call and
Cantwell's statements were nonhearsay, the government clearly
understood that Fry's statement was hearsay if used for its truth
and therefore that it was admitted for contextualization only.14
Hence, the prosecutor's use of Fry's statement beyond its admitted
purpose was obviously improper.
3. Effect of the Comment on the Trial's Outcome
Cantwell's claim nevertheless fails because he cannot
demonstrate that the prosecutor's improper comment "likely
affected" the outcome of the trial. See Pérez-Vásquez, 6 F.4th at
13In a sidebar conference discussing why the government had
excerpted the phone conversation the way it had, the government
recognized that portions of the call were hearsay. The prosecutor
stated: "801 specifically defines something as not hearsay as a
party statement used against that party, and we don't intend to
use [hearsay] portions against Mr. Cantwell."
14 This conclusion does not change in light of the court's
expansion of the excerpt that was ultimately admitted. Cantwell
successfully argued that the court should expand the government's
excerpt of the call under Federal Rule of Evidence 106, which
allows a party to expand an excerpt of a recorded statement
admitted against him to prevent the proponent of the evidence from
cherry-picking damaging excerpts. See Fed. R. Evid. 106; see also
United States v. Altvater, 954 F.3d 45, 49 (1st Cir. 2020) (noting
that Rule 106 "is meant to prevent the jury from being misled by
reading or hearing a statement 'out of context.'" (quoting Fed. R.
Evid. 106 Advisory Committee's Note to 1972 Proposed Rules)).
Cantwell's expansion of the excerpt does not change the evidentiary
theory under which Fry's statement was admitted into evidence
because the statement was part of the original excerpt that the
government sought to introduce and did not come in under Cantwell's
Rule 106 expansion.
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201 (quoting Walker-Couvertier, 860 F.3d at 10). As noted, the
truth of Fry's statement strengthened the government's argument on
two fronts: first, regarding Cantwell's intent to threaten and,
second, regarding Lambert's reasonable perception of Cantwell's
messages as a threat to harm his wife, on Count 1, and as threats
to his reputation, on Count 3. Even without Fry's statement, the
government presented ample evidence on each of these elements from
which a jury could properly conclude that the government had met
its burden.
The exchange between Cantwell and Lambert, which the
jury had in full, gave the jury strong evidence from which to
conclude that Cantwell intended to threaten harm to Lambert's wife.
The entire exchange included multiple, persistent references to
harming Lambert's wife. Cantwell wrote, "your wife is gonna have
trouble sleeping at night," "I bet one of my incel listeners would
love to give her another baby," and he sent photos of her to
Lambert, showing that he knew her identity.
Cantwell's own testimony also provided evidence of his
intent to threaten Lambert. Cantwell testified that he had
previously threatened Lambert with exposing his identity, stating
that in March 2019 he "warned [Lambert] that if he came back around
that I was going to dox him." Cantwell admitted on the stand that
he did, in fact, dox Lambert by posting Lambert's address online,
circulating photos of his family, and reporting Lambert to
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Missouri's Department of Social Services. Further, the jury had
before it Cantwell's email to the FBI reporting the Bowl Patrol's
harassment, in which he said: "I threatened to expose [Lambert's]
identity." In the face of such robust evidence on Cantwell's
intent, we cannot conclude that the government's single improper
comment "so poisoned the well that the trial's outcome was likely
affected." Pérez-Vásquez, 6 F.4th at 201 (quoting Walker-
Couvertier, 860 F.3d at 10).
Nor can Cantwell demonstrate that the government's
improper comment affected his trial's outcome regarding the
threatening nature of his messages. The government presented
extensive evidence that Lambert could reasonably view Cantwell's
messages as threats. Two government witnesses testified about the
messages and their impact. Critically, Lambert himself testified
that he viewed Cantwell's words about "fuck[ing] [his] wife in
front of [his] kids" as a threat, describing that they made him
"angry," "scared," and he "felt as though a line had been crossed."
Another member of the Bowl Patrol, Paul Nehlen, testified that
Cantwell's references to Lambert's wife and children "crossed a
line," even within the context of their extremist community. The
jury had ample evidence from which to conclude that Lambert could
reasonably perceive Cantwell's message as a threat without the
addition of Fry's belief that it was so. Again, the strength of
the government's evidence on Cantwell's threats belies any
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argument that its use of Fry's statement during closing argument
likely affected the outcome of the case.
B. The District Court's Provocation Instruction
Cantwell contends that the district court erred by
instructing the jury that provocation is not a defense to his
charges under 18 U.S.C. §§ 875(b) and (d). Throughout the trial,
Cantwell presented evidence of the Bowl Patrol's harassment of
him, including Lambert's and others' prank calls to his live show,
their defacement of his website, and Lambert's implied threat to
Fry -- "[g]uess that means you d[o]n't care what happens to her.".
Cantwell argues that such evidence was important to undermining
two elements of the offenses with which he was charged -- a
strategy that Cantwell terms his "elements-based defense." At
trial, Cantwell contended that the government could not prove that
he intended to threaten Lambert because his communications were
merely an expression of his frustration at the Bowl Patrol.
Cantwell also argued that the government could not prove that
Lambert reasonably perceived his messages as a threat, given the
routinely vitriolic and antagonistic context of online
interactions in this community.
The district court, however, saw Cantwell's strategy
differently. While acknowledging that evidence about the Bowl
Patrol's harassment provided important context for Cantwell's
messages, and thus was relevant to the jury's interpretation of
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Cantwell's intent and his communications, the court determined
such evidence also impermissibly invited the jury to consider an
affirmative provocation defense. The court therefore gave a jury
instruction on the permissible use of "provocation" evidence,
stating in relevant part:
You have heard evidence that [Lambert] and others
have engaged in behavior that disrupted the
defendant's live call-in radio show. You have also
heard evidence that Vic Mackey or others may have
engaged in behavior that disrupted the defendant's
website. You may consider such evidence for the
purpose of understanding all of the circumstances
surrounding the making of the communications at
issue in this case, including, for example, the
language, specificity and frequency of the
communications, the context surrounding the
communications, the relationship between the
defendant and [Lambert], [Lambert's] response, any
previous communications between the defendant and
[Lambert] and whether you believe the person making
the communication was serious, as distinguished
from mere idle and careless talk, exaggeration or
something said in a joking manner. You may not
consider this evidence for any other purpose. . . .
[E]vidence of provocation, justification or self
defense does not negate the defendant's criminal
culpability with respect to that charge.
Cantwell objected to the instruction, arguing that it tended to
confuse and mislead the jury by raising the topic of an affirmative
provocation defense and negating his elements-based defense.
1. Standard of Review
We review preserved claims of instructional error under
a split standard: we consider de novo whether the instruction
correctly stated the law, while we review for abuse of discretion
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whether the instruction tended to "confuse or mislead the jury on
the controlling issues." See United States v. Cotto-Flores, 970
F.3d 17, 37 (1st Cir. 2020) (quoting United States v. Symonevich,
688 F.3d 12, 24 (1st Cir. 2012)). The instructions here correctly
stated the law and Cantwell does not appear to contend otherwise.
As such, our review of the instruction is for abuse of discretion.
2. The Jury Instruction
Jury instructions are intended to provide jurors with
the proper legal standards to apply in deciding a case. See
Teixeira v. Town of Coventry, 882 F.3d 13, 16 (1st Cir. 2018)
(noting that "[j]ury instructions are intended to furnish a set of
directions composing, in the aggregate, the proper legal standards
to be applied by lay jurors in determining the issues that they
must resolve in a particular case" (quoting United States v.
DeStefano, 59 F.3d 1, 2 (1st Cir. 1995))). This purpose
necessarily includes advising the jury on applicable legal
defenses. See United States v. Florentino-Rosario, 19 F.4th 530,
537 (1st Cir. 2021); cf. United States v. Fera, 616 F.2d 590, 596-
97 (1st Cir. 1980) (upholding a jury instruction that corrected
the defense's misrepresentation of evidence because the
instruction was "properly given to dispel any doubt which the jury
may have had as a result of the defendant's [evidence]").
Far from raising the concept of provocation in a
confusing or misleading manner, the district court's jury
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instruction demonstrated a reasonable and considered response to
Cantwell's presentation of evidence at trial. The court
acknowledged in the charge conference that Cantwell's defense
sought to undermine his intent, but also noted that Cantwell
impliedly argued that he had been baited into making the statements
at issue, thereby drawing heavily on the concept of provocation.
Cantwell's defense elicited testimony from Lambert and Cantwell
about how the Bowl Patrol sought to deliberately antagonize
Cantwell. The defense asked Lambert whether the purpose of
"trolling," a term used in the trial to describe the Bowl Patrol's
harassment of Cantwell, is to "provoke a response from the other
person that you're trolling" and asked if the Bowl Patrol members
"were trying to make Chris angry[.]" Moreover, Cantwell testified
that Lambert's reference to Fry in the June 15-16, 2019 messages
-- "So I am assuming peach took the picture. Guess that means you
d[o]n't care what happens to her" -- was "trying to get a rise out
of [Cantwell]." The court reasonably concluded that the defense
presented such evidence to "invit[e] the jury to find the defendant
not guilty because he was provoked by Mr. Lambert," thereby
effectively mounting an affirmative provocation defense. As
already noted, this affirmative defense was not available to
Cantwell because provocation cannot constitute a legal defense to
threat crimes. See Bailey, 444 U.S. at 410; Sovie, 122 F.3d at
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125-26. The court's jury instruction on the permissible use of
Cantwell's provocation evidence was therefore appropriate.
The court's desire to instruct the jury on the
permissible use of provocation evidence regarding Cantwell's
intent was not surprising to Cantwell. Indeed, the court first
voiced its concerns about Cantwell's strategy on the first day of
the trial, after hearing Cantwell's opening statement. That
statement began by arguing that he had been "pushed, taunted, and
harassed . . . to provoke a bigger and bolder response," leading
the court to tell defense counsel that it may give a clarifying
jury instruction on provocation if it felt this would be necessary.
The court then raised this issue with Cantwell two more times.
While Cantwell rightly notes that "provocation" has a lay meaning,
independent of the criminal defense context, the court's well-
aired concerns that Cantwell's evidence carried the potential for
improperly inviting the jury to consider an affirmative
provocation defense were entirely reasonable.
Moreover, the court accommodated Cantwell's concerns
about the instruction impeding his ability to effectively present
his elements-based defense, particularly regarding the
reasonableness of characterizing Cantwell's communications as
threats. Cantwell's defense extensively documented the tone and
content of his communications with Bowl Patrol members, eliciting
testimony about the misogynistic and racist rhetoric that was
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commonplace in their extremist community and arguing that violent
words were simply part of how this community spoke with each other.
The court explicitly clarified that the jury could consider such
evidence in assessing whether Lambert would reasonably perceive
Cantwell's messages as threats as opposed to other forms of
communication, instructing the jurors:
You may consider such evidence for the purpose
of understanding all of the circumstances
surrounding the making of the communications
at issue in this case, including, for
example the language, specificity and
frequency of the communications, the context
surrounding the communications, the
relationship between the defendant and
[Lambert] . . . [and whether they were] mere
idle and careless talk, exaggeration or
something said in a joking manner.
Contrary to misleading or confusing the jury, the court's
instruction provided jurors with clear parameters on the proper
use of the provocation evidence. The court did not abuse its
discretion in giving that instruction.
C. Cantwell's Sentence
Lastly, Cantwell contends that the district court abused
its discretion in denying his request for a downward departure
under U.S.S.G. § 5K2.10, which allows the court to reduce a
sentence below the guideline range where the victim provoked the
offense. The court sentenced Cantwell to 41 months' incarceration,
at the bottom of the guideline range. We review a district court's
discretionary refusal to depart from the guideline range for
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reasonableness. See United States v. Herman, 848 F.3d 55, 58 (1st
Cir. 2017).
Section 5K2.10 provides that a court may reduce the
sentence below the guideline range where the "victim's wrongful
conduct contributed significantly to provoking the offense
behavior." U.S.S.G. § 5K2.10 (U.S. Sent'g Comm'n 2004). Where
the victim's conduct was nonviolent, such a departure is only
warranted in "unusual circumstances" involving "substantial victim
misconduct." Id. Factors the court considers in determining
whether a departure is warranted include the victim's persistence
and the defendant's efforts to deescalate the confrontation, and
the "proportionality and reasonableness of the defendant's
response to the victim's provocation." Id.
We conclude that the district court did not abuse its
discretion for three reasons. First, the court reasonably
concluded that Lambert had not provoked Cantwell in the months
leading up to the June 15-16, 2018 incident. During the sentencing
hearing, the court recognized that "the members of the Bowl Patrol
were trying to drive [Cantwell] crazy" through their efforts to
disrupt his program and livelihood. While the court determined
that Lambert was a participant in some of the Bowl Patrol's early
harassment, it determined that Lambert did not contribute
significantly to provoking Cantwell's messages because the
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"pattern of harassment had waned by June and in any event did not
involve the victim in this case."
Second, the court reasonably determined that another
provocative act -- the anonymous communication to Fry in the early
hours of June 15, 2019 -- could not be attributed to Lambert. The
sparse discussion of this anonymous message during the sentencing
hearing is replete with ambiguity and the court correctly pointed
out that even Cantwell did not consistently believe that this text
had come from Lambert.
Third, the court reasonably decided that Lambert's
appearance in the Peaceful White Folks chat room did not constitute
provocation justifying a downward departure under 5K2.10.
Although the court recognized that Cantwell was agitated to see
Lambert there, it noted that Lambert's act of appearing in the
group was not in and of itself provocation to justify Cantwell's
response and that Lambert also attempted to deescalate the
situation.
Cantwell challenges the court's reliance on the lack of
immediate provocation when justifying its refusal to grant a
downward departure. The court made two references to immediacy
when sentencing Cantwell, first saying, "I'm not satisfied that
the immediate incident was precipitated by any provocation by the
victim" and moments later stating, "I can't say that you were
provoked in any way in the immediate sense."
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Cantwell is correct that immediacy is not required for
provocation under section 5K2.10. See U.S.S.G. § 5K2.10 (noting
that "an extended course of provocation and harassment" may warrant
a departure); Koon v. United States, 518 U.S. 81, 104 (1996)
(reasoning in relation to section 5K2.10 that "[a] response need
not immediately follow an action in order to be provoked by it.").
The court did not require Cantwell to show immediacy, though.
Rather, the court considered immediacy a factor in strengthening
a provocation argument, reasonably explaining in the sentencing
hearing that "provocation is less compelling as a justification
. . . if the provocative act occurred months in the past." Cf.
United States v. Mussayek, 338 F.3d 245, 256-57 (3d Cir. 2003
(upholding district court's refusal to grant departure under
U.S.S.G. § 5K2.10 in part because the defendant's offensive
conduct was months after the alleged provocation); Koon, 518 U.S.
at 104 (finding that the district court did not abuse its
discretion in departing downward when the defendant's offensive
conduct occurred "within seconds" of provocation, even though "an
immediate response" is not required by § 5K2.10). Moreover, the
record makes clear that the court looked at the months preceding
the offensive conduct when deciding whether to grant Cantwell's
5K2.10 request. The court did not abuse its discretion in its
carefully considered decision to deny the downward departure.
Affirmed.
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