People of Michigan v. John MacAuley Burkman ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
June 2, 2022
Plaintiff-Appellee, 9:10 a.m.
v No. 356600
Wayne Circuit Court
JOHN MACAULEY BURKMAN, LC No. 20-004636-01-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 356602
Wayne Circuit Court
JACOB ALEXANDER WOHL, LC No. 20-004637-01-FH
Defendant-Appellant.
Before: LETICA, P.J., and REDFORD and RICK, JJ.
LETICA, P.J.
In these consolidated appeals,1 defendants, John Macauley Burkman and Jacob Alexander
Wohl, appeal as on leave granted2 the trial court’s orders denying their motions to quash and
1
People v Burkman, unpublished order of the Court of Appeals, entered November 9, 2021
(Docket Nos. 356600 and 356602).
2
This Court denied defendants’ applications for leave to appeal, People v Burkman, unpublished
order of the Court of Appeals, entered May 6, 2021 (Docket No. 356600), People v Wohl,
unpublished order of the Court of Appeals, entered May 6, 2021 (Docket No. 356602), but the
Supreme Court remanded to this Court for consideration as on leave granted, People v Burkman,
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dismiss. Defendants were both charged with attempting to influence, deter, or interrupt electors,
MCL 168.932(a), conspiracy to commit that offense, MCL 750.157a, and two counts of using a
computer to commit a crime, MCL 752.796.
Defendants contend that the charges should have been dismissed because their
dissemination of a robocall regarding possible repercussions of mail-in voting did not constitute a
menace or use of other corrupt means or device under MCL 168.932(a). We conclude the robocall
did involve menace and could also be construed as a corrupt means or device. Defendants further
contend that MCL 168.932(a) is unconstitutional both on its face and as applied in this case.
However, the phrase “other corrupt means or device” is not unconstitutionally vague. Concerning
defendants’ First Amendment arguments, the robocall message was not a “true threat,” but is still
not subject to First Amendment protections because it was speech integral to criminal conduct.
Accordingly, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Derrick Thomas was a retired firefighter, resident of the city of Detroit, and registered
voter. As a regular voter, Thomas received “robocalls;” a prerecorded phone message
disseminated to a large group of people via a computer or robot. Thomas had telephone service
through both a landline at his home and a cell phone. Thomas had placed himself on a do-not-call
list several times, but it did not stop unsolicited calls to his home.3 His landline phone had a (313)
area code, a caller identification feature, and the ability to simultaneously record a message and
play it aloud as it was recorded. On August 26, 2020, at 11:16 a.m., Thomas did not answer a
phone call to his landline from phone number (703) 795-5364, a number he did not recognize.
Still, he heard the message that was left as it was recorded:
Hi, this is Tamika Taylor from Project 1599,[4] a civil rights organization founded
by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know
___ Mich ___ (2021) (Docket No. 163164), People v Wohl, ___ Mich ___ (2021) (Docket
No. 163165). We refer to “defendants” to reflect collective action, but refer to each defendant by
his last name where appropriate to reflect individual activity.
3
According to the FCC, “Political campaign-related autodialed or prerecorded voice calls,
including autodialed live calls, autodialed texts, and prerecorded voice messages, are prohibited to
cell phones, pagers, or other mobile devices without the called party’s prior express consent.”
However, “[p]olitical campaign-related autodialed or prerecorded voice calls are permitted when
made to landline telephones, even without prior express consent.” FCC, Rules for Political
Campaign Calls and Texts
(accessed May 31, 2022).
4
According to the Federal Communications Commission (FCC), Project-1599 is not a registered
legal entity, but a branding name used to describe the activities conducted by defendants and J.M.
Burkman & Associates, LLC, an entity providing registered lobbying services.
(accessed
May 31, 2022). Although the FCC proposed a forfeiture of $5,134,500 against defendants and the
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that if you vote by mail your personal information will be part of a public database
that will be used by police departments to track down old warrants and be used by
credit card companies to collect outstanding debts? The [Center for Disease
Control and Prevention (CDC)] is even pushing to use records from mail-in voting
to track people for mandatory vaccines. Don’t be finessed into giving your private
information to the man. Stay safe and beware of vote by mail.
The message upset Thomas as he believed it was designed to act as “a deterrent from mail-in
voting.” Although Thomas did not believe that his direct physical safety was threatened,
indirectly, he felt concerned about his safety because politics were polarizing. Thomas found the
message offensive because it indicated that voting information would be used to allow the police
to determine if an individual had any bench warrants, allow credit card companies to learn if an
individual had any outstanding debts, and allow the CDC to force an individual to get vaccinated.
Thomas felt appalled more than threatened by the message because it deterred mail-in voting
during a pandemic and voting in-person was not as safe.
Thomas tried to notify the Detroit Election Commission about the phone call and message,
but was unable to speak to a person. Thomas then called a local news radio station, and he was
interviewed for a story. He played the recorded message for the station employee and gave consent
to have the radio station record the message.
As a result of the radio interview, Thomas was contacted by the Department of Attorney
General. Thomas did not have firsthand knowledge about any truth to the contents of the message.
He did not allow himself to be affected by the message and voted by mail.
The Department assigned Jeffrey Campbell the task of investigating the robocall.
Campbell learned that the robocall was sent by a company called Message Communications
operated by Robert Mahanian. Additionally, the investigation determined that defendants paid to
have the robocall sent by Mahanian’s company and were responsible for the robocall’s content.
Through search warrants, Campbell obtained e-mail exchanges between defendants, and because
of the volume of the e-mails, Campbell had not yet reviewed all of them. In the e-mails Campbell
had read, defendants discussed how to “hijack” this “boring” election. On August 19, 2020,
Burkman wrote to Mahanian and copied Wohl that the checks were sent in a “two[-]day pouch”
and “then we attack.” On August 22, 2020, defendants communicated to Mahanian that they were
ready to begin the robocalls and that the payment had been mailed.
On August 25, 2020, Wohl e-mailed Burkman that the audio file of the robocall was
attached. Wohl further suggested that the robocall be sent “to black neighborhoods in Milwaukee,
Detroit, Philadelphia, Charlotte, Richmond, Atlanta, and Cleveland.” In response, Burkman
suggested that the robocall be sent to “Cleveland, Philadelphia, Minnesota, Chicago, New York
lobbying entity, the basis of the fine was the unlawful robocalls to wireless numbers without
subscribers’ prior express consent. For this reason, the content of the robocall was irrelevant to
the proposed forfeiture. Id. at 1-2 n 10.
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City, and Detroit.” It was determined that the robocalls would be sent in “two waves” consisting
of 267,000 calls in each wave.
On August 26, 2020, Mahanian notified defendants that their “campaign is currently
running and recording.” Defendants exchanged e-mails that the robocalls were being discussed
on the Twitter platform. On August 26, 2020, at 12:36 p.m., Burkman wrote to Wohl to comment
on the success of the robocalls, stating, “I love these robo[]calls getting angry black call backs,
win or lose, the black robo[]calls was [sic] a great idea.”
On August 27, 2020, Wohl seemingly wrote Burkman that they should deny sending the
robocalls because it would generate more written discussion. Indeed, in response to a writer from
a political news and opinion website, Burkman wrote, “[W]e have no connection to those
robo[]calls.” A short time later, Burkman addressed the same writer, stating:
[C]ouple points, one, no one in their right mind would put their cell [phone number]
on [the] robo[]call. I bet a [George] Soros Group is trying to embarrass us. Thirdly,
we have been asked by the Trump Campaign to do robo[]calls and politely declined.
We don’t do that stuff.
Additionally, a member of the Associated Press wrote Burkman and asked if defendants were
involved in the robocall. Burkman wrote back, “[N]o sir, not at all.” However, on October 26,
2020, Burkman presented at a federal court hearing in New York and acknowledged that
defendants prepared and caused the robocall message to be sent. At the same hearing, Wohl
affirmed the statement made by Burkman.5
Campbell was asked by Burkman’s counsel whether there was other evidence his client
desired to deter mail-in voting. Although Campbell had not completed his review of the e-mails,
he responded there were “e[-]mails between [defendants] discussing other plans to influence the
election by creating false schemes, hiring actors to create false allegations and so forth.” When
asked to provide an opinion regarding the nature of the e-mail between defendants, Campbell
responded, “one of their intentions [was] to influence the election unfairly” and to deter mail-in
voting. He acknowledged that the e-mails did not reference in-person voting.
During Campbell’s investigation, he learned that defendants uploaded the content of the
robocall. Furthermore, defendants, not Mahanian, chose the zip codes where the robocall was
deployed. Campbell had no evidence that Mahanian altered the content of the robocall presented
by defendants, and Mahanian kept detailed records addressing client involvement and content
history.
Khyla Craine, an attorney, served as the second in command of the legal services
administration, which included the bureau of elections, within the Secretary of State and provided
legal and policy consultations. Craine also was the chief privacy officer and addressed data-related
5
During the preliminary examination, counsel for both defendants inquired whether Campbell
interviewed their clients. Campbell testified that he asked to conduct interviews after the charges
were issued, but his request was denied.
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questions. Craine described a robocall as “[a]n automated [message] dialed to a group of residents
that will encourage them to do something, usually tied to election, but it could be for any
purpose[.]” Craine was made aware of this particular robocall in late August or early September
2020. There was an accusation “that it would be voter suppression type of robo[]call targeted
African American citizens in the City of Detroit.” Craine heard the robocall in October 2020.
Craine testified that information related to elections was part of a public record. However,
there were search limitations on the record. She opined that the robocall’s content addressing law
enforcement, credit card agencies, or use by the CDC was false. A state election file contained the
voter’s name, address, participation in an election, and type of vote cast, mail-in or in-person. This
information could be shared publicly. However, state law prohibits the voter’s phone number or
e-mail address from being shared. Because the qualified voter file contained limited data that did
not include contact information, it did not make sense that law enforcement or credit card agencies
would use this compiled material. Moreover, there were other compiled databases that law
enforcement and credit card agencies used that contained information they required for their work.
For example, the driver information file provided companies more details than the qualified voter
file. The Law Enforcement Information Network system was the database used by police agencies
to achieve their objectives. Craine was unaware of any voting information requested by or given
to the CDC, and she was unaware of any mandated vaccinations as stated on the robocall. Even
Craine did not have access to the qualified voter files, the access was given on a need-to-know
basis, and the recipients that received these files were vetted by the bureau of elections. Thus,
Craine opined that law enforcement did not have access to the qualified voter file unless there was
an investigation into an elections related offense. Further, it was not used by credit card companies
to collect outstanding debts. Thousands of entities request information from the driver files, not
the qualified voter files. Craine opined that voters had no reason to be concerned about mail-in
voting. And she “would have a concern if [voters] listened to this robo[]call and got
misinformation and whether or not . . . they would feel that mail[-]in voting was safe.”
On cross-examination, Craine opined that an individual’s qualified voter file could not be
accessed, but a request for a specific jurisdiction or for every voter could be obtained.
Furthermore, if debt collection was the goal, other databases provided more suitable information.
Craine affirmed that she was offended by the robocall to the extent the state had the
“responsibility . . . to ensure that all of our voters are able to vote without any type of issue and
that they’re not intimidated or given misinformation about the accuracy or security of their ballot.”
Also, on cross-examination, Craine again opined that the information contained in the robocall
was false. Although Craine did not call the CDC to determine if it would seek to access voter files,
there were no mandated vaccinations at that time.
Craine also never sought out defendants to inquire about their reason for the robocall. But,
if motivated by concern over mail-in ballots, Craine found it curious that defendants only directed
the robocall to Detroit residents rather than cautioning citizens across the State of Michigan about
mail-in voting. In Craine’s experience addressing voter suppression, the robocall fit into the
pattern of misinformation directed to select individuals in a particular jurisdiction. When it was
proffered that defendants’ purchase of information pertaining to the (313) area code of Wayne
County included suburban communities that were “highly Caucasian,” Craine maintained that
Wayne County remained “disproportionately African-American.” Again, Craine testified
defendants appeared to target a particular group of people, not just general voters, in light of the
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dissemination of the robocall to a limited area and not the entire state. Further, she opined that the
use of phrases such as “mandatory vaccinations” and “the man” was verbiage directed to a
particular group of people. Because the robocall attempted to deter mail-in voting and COVID-
19 had disproportionately affected African-Americans in Detroit, Craine concluded that
suppression of the vote was the logical determination in light of the combination of factors. In the
18 months that Craine worked in her position, police, credit card agencies, and the CDC had never
used the qualified voter files.
At the conclusion of this testimony, defendants opposed the bindover, alleging that the
statute did not govern the message at issue or did not clearly define the conduct it governed and
that the message at issue contained speech that was protected by the First Amendment. The
prosecution asserted that it presented sufficient information to support the elements and the speech
at issue was not protected.
The district court concluded that the crimes alleged were committed in the city of Detroit
and that there was probable cause to believe that defendants committed them. The district court
noted Craine’s testimony that law enforcement, credit card companies, and the CDC did not access
the qualified voter files to contact people or to execute their duties. It was also noted that
defendants disseminated the call to a particular group of people in light of defendants’ “very strong
political views,” and the appropriate inquiry was not the effect of the message on the recipient, but
defendants’ intent. The district court also stated that the message was directed to a community
that was 85% African-American and this community equated the term “the man” to “the white
man.”
In the circuit court, defendants moved to quash the bindover. First, defendants argued that
MCL 168.932(a) did not criminalize their conduct because they did not engage in acts of physical
harm. Second, defendants submitted that MCL 168.932(a) was unconstitutional on its face and as
applied and protected by the First Amendment. The prosecution opposed the motion, alleging that
defendants’ actions were criminal and in violation of MCL 168.932(a) because they sent a
threatening message designed to deter individuals from voting, and the threat need not be physical.
It was further alleged that the message was not protected by the First Amendment because it was
a true threat and there was a need to protect the right to vote.
After hearing oral argument, the trial court rejected defendants’ arguments. The trial court
concluded that the district court did not abuse its discretion in binding defendants over in light of
the content of the message, the e-mails exchanged between defendants regarding their desire to
“hijack” the election, the community to which the message was directed, and the circumstances
surrounding the pandemic as residents were encouraged to stay home. The trial court also rejected
the contention that the prosecution violated defendants’ First Amendment rights, noting that the
state had a compelling interest in protecting the right to vote and narrowly tailored MCL 168.932
to prevent any attempt to influence the vote or deter a vote. Moreover, the trial court characterized
the message as not expressing an opinion, but presenting misleading and possibly false
information. From this decision, defendants appeal.
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II. STANDARDS OF REVIEW
A trial court’s ruling regarding a motion to quash the information is reviewed for an abuse
of discretion. People v Zitka, 325 Mich App 38, 43; 922 NW2d 696 (2018). An abuse of discretion
occurs when a trial court’s decision falls outside the range of reasonable and principled outcomes.
People v Burger, 331 Mich App 504, 510; 953 NW2d 424 (2020) (citation and quotation omitted).
A trial court necessarily abuses its discretion when it commits an error of law. Id. The bindover
decision is reviewed de novo to determine whether the district court abused its discretion without
any deference to the circuit court decision. People v Hawkins, ___ Mich App ___, ___; ___ NW2d
___ (2022) (Docket No. 357068), slip op at 8. Similarly, the denial of a defendant’s motion to
dismiss charges is reviewed for an abuse of discretion. People v Korkigian, 334 Mich App 481,
489; 965 NW2d 222 (2020). To determine whether dismissal is appropriate for the failure to
demonstrate the defendant’s intent, the facts and circumstances or context of where and when
defendant’s conduct took place may be considered. People v Gerhard, ___ Mich App ___, ___;
___ NW2d ___ (2021) (Docket No. 354369), slip op at p 7; People v Byczek, ___ Mich App ___,
___; ___ NW2d ___ (2021) (Docket No. 350341), slip op at p 8.
Issues involving statutory interpretation are reviewed de novo. People v Lydic, 335 Mich
App 486, 490; 967 NW2d 847 (2021). The lower court’s determination that a defendant’s conduct
falls within the scope of a penal statute is reviewed de novo. Korkigian, 334 Mich App at 489.
Further, application of the facts to the law is reviewed de novo. Lydic, 335 Mich App at 490. A
challenge to the constitutionality of a statute presents a question of law reviewed de novo on
appeal. People v GR, 331 Mich App 58, 68; 951 NW2d 76 (2020).
III. APPLICATION OF MCL 168.932
Defendants first assert that their conduct does not constitute a violation of the voter
suppression statute. We disagree.
When interpreting a statute, the primary goal is to ascertain and give effect to the intent of
the Legislature. People v Morrison, 328 Mich App 647, 651; 939 NW2d 728 (2019). If the
statutory language is plain and unambiguous, the legislative intent is clearly expressed, and judicial
construction is neither permitted nor required. People v Costner, 309 Mich App 220, 224; 870
NW2d 582 (2015). When interpreting a statute, the appellate court must give effect to every word,
phrase and clause and not render any part of the statute surplusage or nugatory. People v Rea, 500
Mich 422, 427-428; 902 NW2d 362 (2017). “When a word or phrase is not defined by the statute
in question, it is appropriate to consult dictionary definitions to determine the plain and ordinary
meaning of the word or phrase.” Id. at 428. “In construing a legislative enactment we are not at
liberty to choose a construction that implements any rational purpose but, rather, must choose the
construction which implements the legislative purpose perceived from the language and the
context in which it is used.” People v TJD, 329 Mich App 671, 688; 944 NW2d 180 (2019)
(citation omitted).
A. MENACE
MCL 168.932 provides, in pertinent part:
A person who violates 1 or more of the following subdivisions is guilty of a felony:
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(a) A person shall not attempt, by means of bribery, menace, or other corrupt means
or device, either directly or indirectly, to influence an elector in giving his or her
vote, or to deter the elector from, or interrupt the elector in giving his or her vote at
any election held in this state.
Defendants contend that the robocall was not menacing because it did not involve a threat of
physical assault. Because the term “menace” is not defined in MCL 168.932, we may consult a
dictionary definition to determine the plain and ordinary meaning of the word. Rea, 500 Mich at
428. “Menace” is defined as “a show of intention to inflict harm”; “one that represents a threat”;
“to make a show of intention to harm”; or “to represent or pose a threat to.” Merriam Webster’s
Collegiate Dictionary (11th ed). The term “menace” as defined in the dictionary does not require
an accompanying physical component, but may be established through a threat. Indeed, the plain
language of MCL 168.932(a) does not require that the menace be achieved through physical
contact as reflected by the Legislature’s further qualification that a person shall not attempt by
menace, either directly or indirectly, to deter the elector from giving his vote. Thus, the behavior
equated with menace may occur either directly or indirectly. The term “directly” is defined as “in
a direct manner”; “in immediate physical contact”; and “in the manner of direct variation.” Id.
Further, the term “indirectly” is defined as “deviating from a direct line or course”; “not
straightforward and open”; and “not directly aimed at or achieved.” Id. By the Legislature’s
allowance for the menace to occur in a direct or indirect manner, the menace may be achieved with
or without physical contact. This challenge is without merit.
Nonetheless, defendants posit that the term “menace” has acquired a peculiar meaning in
the law requiring physical harm, and because the robocall did not threaten physical harm, the
motion to quash should be granted. Defendants’ citation to criminal cases involving an assault are
not persuasive.6 There is no indication that the Legislature intended to limit the term “menace” as
applied in cases charging criminal assault to this election statute. Further, the interpretation urged
by defendants is contrary to the rules governing statutory construction. We are to apply the term
“menace” according to the legislative intent as expressed by the statutory language of the election
law statute. Costner, 309 Mich App at 225. Thus, the term must be examined in the context in
which it is used in election law to implement the legislative purpose as expressed by the plain
language. TJD, 329 Mich App at 688. MCL 168.932(a) criminalized the interference with the
exercise of the right to vote as well as a breach of the integrity of the process through interference,
i.e., the interruption of the elector in giving his vote. The requirement of a physical component
underlying the term “menace” in MCL 168.932(a) when the menace may occur directly or
indirectly is contrary to the legislative purpose and intent as expressed in the statute’s plain
language. Accordingly, we decline defendants’ invitation to read a physical component into the
voter suppression statute, MCL 168.932(a).
6
Moreover, the cases cited by defendants did not examine the precise meaning of menace. See
People v Johnson, 407 Mich 196, 241; 284 NW2d 718 (1979) (LEVIN, J., dissenting); People v
Doud, 223 Mich 120, 123; 193 NW 884 (1923); Hamlin v Mack, 33 Mich 103, 106 (1875); People
v Plumsted, 2 Mich 465, 466 (1853).
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B. CORRUPT MEANS OR DEVICE
Alternatively, defendants assert that the robocall message did not constitute a “corrupt
means or device” because it was not intrinsically unlawful like bribery or menace.7 We disagree.
Specifically, invoking the statutory canon of construction noscitur a sociis, a doctrine that
“stands for the principle that a word or phrase is given meaning by its context or setting,” People
v Morris, 314 Mich App 399, 410; 886 NW2d 910 (2016), defendants submit that “corrupt means
or device” must be interpreted by reference to bribery and menace. Indeed, words in a statute
should not be examined in a void, but should be read as a whole to harmonize the meaning and
give effect to the whole act. People v Hill, 486 Mich 658, 668; 786 NW2d 601 (2010) (citation
omitted). Applying noscitur a sociis, words and clauses are not detached from those which precede
and those that follow. Id. Although the meaning of grouped words should be given a related
meaning, that does not require that the terms be subsumed or contrived to fall within the same
definition. Rather, “it is clear that what a court should do in construing a term in a criminal statute
for which there are a variety of potential definitions is to determine from among those definitions
which the Legislature most reasonably intended by the specific context in which the term is found.”
Id.We decline the request to apply noscitur a sociis in order to achieve defendants’ goal of
equating “corrupt means or device” with menace or bribery. To do so, we would fail to give effect
to every word, phrase and clause in MCL 168.932(a) and render “corrupt means or device”
surplusage or nugatory. Rea, 500 Mich at 427-428. Further, there is no need to resort to such legal
maxims, as this Court has previously explained in the context of misconduct in office that “corrupt
behavior” refers to “intentional, purposeful, deliberate, and knowing wrongful behavior.” People
v Waterstone, 296 Mich App 121, 138; 818 NW2d 432 (2012). Our Supreme Court has likewise
described “corrupt intent” as a “sense of depravity, perversion or taint.” People v Perkins, 468
Mich 448, 456; 662 NW2d 727 (2003). Additionally, both lay and legal dictionaries provide
similar definitions of corrupt. See Merriam Webster’s Collegiate Dictionary (11th ed) (“morally
degenerate and perverted,” “characterized by improper conduct (as bribery or the selling of
favors)”; Black’s Law Dictionary (11th ed) (“[h]aving unlawful or depraved motives; given to
dishonest practices, such as bribery”) (emphasis added).
The evidence at the preliminary examination was sufficient to bind over defendants
premised on “other corrupt means or device.” The prosecution introduced e-mails exchanged
between defendants in which they discussed “hi-jack[ing] this boring election.” In order to achieve
this goal, defendants composed a robocall message stating that mail-in voting “will” allow
personal information to become part of a public database. It was then concluded that this database
“will be used by police departments to track down old warrants and be used by credit card
companies to collect outstanding debts?” Further, the robocall posited that the CDC was “pushing”
7
In the discussion of this issue addressing the statute’s terms, defendants raise a number of
hypothetical circumstances. Because these hypotheticals were raised in the context of a statutory
construction challenge and not First Amendment freedoms, we must focus on the specifics of the
case at hand. People v Lockett, 295 Mich App 165, 176; 814 NW2d 295 (2012).
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to use mail-in voting records to “track people for mandatory vaccines.” Defendants then arranged
to send the robocall message to predominantly African-American metropolitan neighborhoods8
and expressed pleasure when they received “angry black call backs.” When defendants were
contacted about their participation in the robocall, they initially denied any involvement. Months
later, during a separate court proceeding in another state, defendants admitted they were
responsible for disseminating the robocall message. Craine opined that the robocall statements
were false because the qualified voter files had never been used in the manner suggested by the
robocall, nor would it be practical for law enforcement, creditors, or the CDC to use qualified voter
files when other publicly available databases provided more personal details. Further, she noted
that the vaccinations were not mandatory at the time of the robocall. Thomas, a voter who received
the robocall, construed it as trying to deter listeners from mail-in voting and opined that many
people may not want to vote at all if they felt in-person voting during the COVID-19 pandemic
was their only option. In light of the content of the robocall and the pandemic, a voter, contingent
on his or her circumstances, may deem it ill-advised or unsafe to exercise the right to vote either
through mail-in or in-person voting. A fact-finder could conclude from this evidence that
defendants intentionally disseminated a dishonest message with the depraved motive of deterring
voting. Gerhard, ___ Mich App at ___, slip op at p 7; Byczek, ___ Mich App at ___; slip op at p
8. Consequently, the trial court did not abuse its discretion by denying defendants’ motion to
quash because there was probable cause to believe that defendants used a corrupt means or device
to deter voting, MCL 168.932(a), in light of all the facts and circumstances. Zitka, 325 Mich App
at 43.
Defendants also argue that the bindover should have been quashed because
MCL 168.932(a) prohibits influencing, deterring, or interrupting an elector from “giving his or her
vote,” and the robocall message only deterred one specific method of voting—mail-in voting—
without discouraging traditional in-person voting. But as the prosecution points out in response,
the timing of the robocall was significant. Our nation was in the midst of the COVID-19 pandemic,
such that in-person voting carried with it a serious risk to a voter’s health. The message could also
deter all voting by robocall recipients who were entirely unable to vote in-person for reasons other
than the risk of contracting or spreading COVID-19. Thus, whether defendants influenced,
deterred, or interrupted electors from giving their votes under these circumstances is a question of
fact. Gerhard, ___ Mich App at ___, slip op at p 7; Byczek, ___ Mich App at ___; slip op at p 8.9
8
Campbell testified that he learned the robocall was disseminated by zip code, but did not specify
the zip codes on the record. Thomas testified that he received the robocall to his landline in his
Detroit residence which was a (313) area code. During the questioning of Craine, defense counsel
referenced that defendants purchased information pertinent to the (313) area code in Wayne
County. From the record, it is unclear if defendants purchased the qualified voter files of metro
Detroiters or some other database and then directed the robocall to specific zip codes premised on
race or other factors in light of the data purchased.
9
Defendants also contend that there was no evidence that a voter was dissuaded from voting as a
result of the robocall. Indeed, Thomas testified that he was appalled by the robocall’s message,
but it did not deter him from voting. The clear and plainly expressed language of MCL 168.932(a),
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Defendants contend that the robocall message cannot lead to criminal liability under
MCL 168.932(a) because the message asserted opinion, plausibly true facts, or untrue facts
defendants did not know to be false. As noted, MCL 168.932 provides, in pertinent part:
A person who violates 1 or more of the following subdivisions is guilty of a felony:
(a) A person shall not attempt, by means of bribery, menace, or other corrupt means
or device, either directly or indirectly, to influence an elector in giving his or her
vote, or to deter the elector from, or interrupt the elector in giving his or her vote at
any election held in this state.
Defendant’s arguments address the intent required by MCL 168.932(a). As noted, for the robocall
to be deemed a corrupt means or device, it must be established that defendants deliberately used a
wrongful method with a depraved intent to interfere with voting. Regardless of whether the
message was worded in the form of an opinion, possibly true,10 or unknowingly false, if defendants
intended to influence, deter, or interrupt an elector in giving his or her vote, MCL 168.932(a) is
satisfied. The prosecution presented sufficient evidence to establish probable cause that
defendants had the requisite intent, and the trial court did not abuse its discretion by denying
defendants’ motion to quash the bindover.
Lastly, defendants submit that this Court should apply the rule of lenity because the
definition of “other corrupt means or device” is ambiguous. “The rule of lenity provides that courts
should mitigate punishment when the punishment in a criminal statute is unclear.” People v
Johnson, 302 Mich App 450, 462; 838 NW2d 889 (2013) (quotation marks and citation omitted).
Stated otherwise, “[t]he rule of lenity stands for the proposition that penal laws are to be strictly
construed with all doubts resolved in a defendant’s favor[,]” and “[t]he rule applies only when the
statutory text is ambiguous[.]” People v Arnold, ___ Mich ___, ___; ___ NW2d ___ (2021)
(Docket No. 160046), slip op at p 19 n 51 (citations omitted). Because MCL 168.932(a) is not
Costner, 309 Mich App at 224, prohibits the “attempt, by means of . . . menace, or other corrupt
means or device, either directly or indirectly, to influence . . . or deter . . . or interrupt the elector
in giving his or her vote at any election held in this state.” (Emphasis added). Thus, the plain
language punishes, as a felony, the attempt and there is no further requirement that the attempt be
successful to punish the conduct.
10
Defendants contend that the content of the robocall was plausibly true because law enforcement
and credit card agencies use other databases in the course of their work. However, the robocall’s
message did not convey that other databases afforded those entities the information created by
mail-in voting or that qualified voter files were subject to dissemination. Rather, defendants’
robocall message correlated mail-in voting to the creation of information leading to the possible
execution of a bench warrant, adverse consequences from a credit card debtor, and possible
mandated vaccination. The implication being, that by mail-in voting, the voter would cause
unintended or unwanted consequences. That is, by mail-in voting, the voter would essentially
cause their undoing. The message, its truth or falsity, and its implications as applied to
MCL 168.932(a) present a question for resolution by the trier of fact.
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ambiguous and the Legislature’s intent is clear from the statutory language, the rule of lenity has
no application here. Id.
IV. FIRST AMENDMENT
Defendants contend that MCL 168.932(a) is unconstitutional on its face and as applied to
defendants. We disagree. Rather, we conclude that MCL 168.932(a) is not void for vagueness,
nor is it unconstitutional as applied to defendants because it criminalizes speech integral to
criminal conduct.
A challenge to the constitutionality of a statute presents a question of law reviewed de novo
on appeal. GR, 331 Mich App at 68. The statute is presumed to be constitutional unless its
unconstitutionality is plainly apparent, and when possible, the statute is to be construed as
constitutional. Id. “The burden is on the party challenging the statute’s constitutionality to prove
its invalidity.” Id.
“Congress shall make no law . . . abridging the freedom of speech.” US Const, Am I. The
First Amendment, US Const, Am I, applies to the states through the Fourteenth Amendment, US
Const, XIV. J & J Constr Co v Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 729; 664
NW2d 728 (2003). The Michigan Constitution provides the same protection. Under Const 1963,
art 1, § 5, “[e]very person may freely speak, write, express and publish his views on all subjects,
being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the
liberty of speech.” “The rights of free speech under the Michigan and federal constitutions are
coterminous.” In re Contempt of Dudzinski, 257 Mich App 96, 100; 667 NW2d 68 (2003).
“The void for vagueness doctrine is derived from the constitutional guarantee that the state
may not deprive a person of life, liberty, or property, without due process of law.” People v
Lawhorn, 320 Mich App 194, 198; 907 NW2d 832 (2017) (quotation marks and citation omitted).
A statute may be deemed unconstitutionally vague for three reasons: “(1) it is overbroad and
impinges on First Amendment freedoms; (2) it does not provide fair notice of the conduct
proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier
of fact to determine whether an offense has been committed.” Id. at 199 (quotation marks and
citation omitted). Defendants submit that MCL 168.932(a) is void for vagueness because it does
not adequately define “other corrupt means or devices.”
“A statute provides fair notice when it give[s] a person of ordinary intelligence a reasonable
opportunity to know what is prohibited.” People v Miller, 326 Mich App 719, 738; 929 NW2d
821 (2019) (quotation marks and citation omitted; alteration in original). “Fair notice exists when
the statute’s meaning can be determined by referring to judicial interpretations, common law,
dictionaries, treatises, or the common meaning of words.” Id. As explained earlier, the key term
in the challenged phrase—corrupt—has been interpreted by judicial opinions. “Corrupt behavior”
refers to “intentional, purposeful, deliberate, and knowing wrongful behavior,” Waterstone, 296
Mich App at 138, while “corrupt intent” means a “sense of depravity, perversion or taint,” Perkins,
468 Mich at 456. A person of reasonable intelligence should therefore understand that he or she
violates MCL 168.932(a) by using any intentional, purposeful, deliberate, and knowingly wrongful
method with the depraved intent to interfere with voting.
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Defendants also contend that the phrase “corrupt means or device” makes the statute
overbroad because it criminalizes protected speech in a manner that is not narrowly tailored to fit
a compelling governmental interest. Defendants characterize this argument as a facial challenge,
but only present arguments regarding the breadth of the statute as applied specifically to the
robocall message. “A facial challenge attacks the statute itself, and requires the challenger to
establish that no set of circumstances exist under which the act would be valid. The fact that
the . . . [a]ct might operate unconstitutionally under some conceivable set of circumstances is
insufficient.” People v Johnson, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket
No. 351308); slip op at 2 (quotation marks and citation omitted; alteration in original). “An as-
applied challenge alleges a present infringement or denial of a specific right or of a particular
injury in process of actual execution of government action.” Id. (quotation marks and citation
omitted). Because defendants focus on specific application of the statute to the facts at hand, we
treat this issue as an as-applied challenge.
In United States v Stevens, 559 US 460, 470; 130 S Ct 1577; 176 L Ed 2d 435 (2010), the
United States Supreme Court explained:
The First Amendment’s guarantee of free speech does not extend only to categories
of speech that survive an ad hoc balancing of relative social costs and benefits. The
First Amendment itself reflects a judgment by the American people that the benefits
of its restrictions on the Government outweigh the costs. Our Constitution
forecloses any attempt to revise that judgment simply on the basis that some speech
is not worth it.
Consequently, the government may not ordinarily restrict speech on the basis of its content, except
in a number of well-recognized areas. United States v Alvarez, 567 US 709, 716; 132 S Ct 2537;
183 L Ed 2d 574 (2012). “Among these categories are advocacy intended, and likely, to cite
imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called
‘fighting words’; child pornography; fraud; true threats; and speech presenting some grave and
imminent threat the government has the power to prevent . . . .” Id. at 717 (citations omitted). The
parties here disagree as to whether the prohibition against using corrupt means or devices to
interfere with voting falls within the exceptions for true threats or speech integral to criminal
conduct.
We agree with defendants that MCL 168.932(a) operates in this case to bar speech beyond
the scope of the true threat exception because it extends to threats of nonviolent harm.
“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. The speaker need not
actually intend to carry out the threat. Rather, a prohibition on true threats
“protect[s] individuals from the fear of violence” and “from the disruption that fear
engenders,” in addition to protecting people “from the possibility that the
threatened violence will occur.” Intimidation in the constitutionally proscribable
sense of the word is a type of true threat, where a speaker directs a threat to a person
or group of persons with the intent of placing the victim in fear of bodily harm or
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death. [Virginia v Black, 538 US 343, 359-360; 123 S Ct 1536; 155 L Ed 2d 535(2003) (citations omitted; alteration in original).]
Relying on the Supreme Court’s articulation of a true threat in Black, this Court has likewise stated
that true threats involve threats of unlawful violence. TM v MZ, 326 Mich App 227, 239; 926
NW2d 900 (2018). The message disseminated by defendants warned of harm to the listener’s
freedom, financial security, and bodily autonomy, but did not involve a “serious expression of an
intent to commit an act of unlawful violence . . . .” Black, 538 US at 359. MCL 168.932(a),
therefore, cannot avoid constitutional scrutiny in this case under the true threat exception.11
However, we conclude that First Amendment protection exception for “speech integral to
criminal conduct” is applicable. Giboney v Empire Storage & Ice Co, 336 US 490; 69 S Ct 684;
93 L Ed 2d 834 (1949), the authority commonly cited for this exception, involved an injunction
against peaceful picketing at an ice distribution facility by members of an ice peddlers union. Id.
at 491-492. The union members’ goal was to compel the ice distributor to stop selling to nonunion
peddlers, contrary to a state statute prohibiting participation in any “pool, trust, agreement,
combination, confederation or understanding with any person or persons in restraint of trade or
11
In reaching this conclusion we are mindful of the decisions rendered in United States v Nguyen,
673 F3d 1259 (CA 9, 2012), and Nat’l Coalition on Black Civic Participation v Wohl, 498 F Supp
3d 457 (SD NY, 2020). In Nguyen, the defendant, a Republican candidate for a seat in the United
States House of Representatives, mailed a Spanish-language letter to registered voters with
Hispanic surnames who were registered as Democrats or “decline[d] to state[].” He challenged
his conviction for obstruction of justice for failing to disclose the full extent of his knowledge
regarding the mailing of the letter that was designed to act as an attempt at voter intimidation.
Nguyen, 673 F3d at 1261-1262. In addition to challenging the probable cause to issue a search
warrant, defendant alleged that his letter was political speech entitled to First Amendment
protection. The Nguyen Court rejected the First Amendment challenge, citing Black, 538 US at
360, and concluding that “[i]ntimidation in the constitutionally proscribable sense of the word is a
type of true threat.” However, the Nguyen Court never examined the additional aspect of Black
that the statement communicate an intent to commit an act of unlawful violence to a particular
individual or group. Id. at 1266. In Nat’l Coalition, the plaintiffs sued defendants, among others,
for sending the same robocall at issue in the present case to minority populations in New York
City in violation of the Voting Rights Act, 52 USC 10307(b), and requested injunctive relief. 498
F Supp 3d at 463-466. The Nat’l Coalition Court recognized the Nguyen decision as well as the
Black Court’s requirement that a threat to commit a violent act accompany a true threat. The Nat’l
Coalition Court nonetheless granted the request for injunctive relief despite a First Amendment
challenge noting that a nonviolent or illegal per se act may still constitute interference, intimidation
or coercion for purposes of the Voting Rights Act. Id. at 477-485. Because Michigan has applied
the threat of violence to the true threat exception to First Amendment protections, TM, 326 Mich
App at 239, we do not conclude that Nguyen and Nat’l Coalition are dispositive. See
MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow the rule of law established by a
prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not
been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as
provided in this rule.”).
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competition . . . .” Id. at 491 n 2, 492. Had the distributor agreed to stop selling ice to nonunion
members, it too would have been in violation of the state antitrade restraint law. Id. at 493. The
union peddlers argued, in part, that the injunction violated the First Amendment freedom of speech
because they were merely publicizing truthful facts in a peaceful manner. Id. at 497-498. But the
Supreme Court disagreed, reasoning that the “sole immediate object of the publicizing adjacent to
the premises of [the distributor] . . . was to compel [the distributor] to agree to stop selling ice to
nonunion peddlers,” contrary to state law. Id. at 498. The Court concluded that freedom of speech
did not “extend[] its immunity to speech or writing used as an integral part of conduct in violation
of a valid criminal statute.” Id. “[I]t has never been deemed an abridgement of freedom of speech
or press to make a course of conduct illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language, either spoken, written, or printed.” Id. at 502.
Here, the purpose of MCL 168.932(a) is to preserve and protect the right to vote, a
compelling state interest. See Burson v Freeman, 504 US 191, 198-199; 112 S Ct 1846; 119 L Ed
2d 5 (1992) (recognizing protection of right to vote freely as compelling state interest); Mich
Alliance for Retired Americans v Secretary of State, 334 Mich App 238, 257; 964 NW2d 816
(2020) (noting the state’s compelling interest in preserving the integrity of elections). The statute
carries out this goal by prohibiting influencing, deterring, or interrupting an elector from giving
his or her vote by way of bribery, menace, or other corrupt means or device. To the extent a fact-
finder agrees with the prosecution’s theory that defendants spread a dishonest message with the
depraved intent to discourage voting, defendants’ dissemination of the message deterred voting
through corrupt means. Like the picketing in Giboney, the speech was an integral part of conduct
criminalized by MCL 168.932(a) and should not be constitutionally protected merely because the
conduct was “carried out by means of language.” Id.Affirmed.
/s/ Anica Letica
/s/ Michelle M. Rick
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