People v. Burkman

Decision Date02 June 2022
Docket Number356600,356602
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHN MACAULEY BURKMAN, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JACOB ALEXANDER WOHL, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Wayne Circuit Court LC No. 20-004636-01-FH, 20-004637-01-FH

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 granted[2] the trial court's orders denying their motions to quash and 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 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 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 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...

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