United States v. Hunt

• Decision Date: 18 November 2021
• Docket Number: 21-CR-86 (PKC)
• Parties: UNITED STATES of America, v. Brendan HUNT, Defendant.
• Court: U.S. District Court — Eastern District of New York

573 F.Supp.3d 779

UNITED STATES of America,

v.Brendan HUNT, Defendant.

21-CR-86 (PKC)

United States District Court, E.D. New York.

Signed November 18, 2021

David K. Kessler, Francisco J. Navarro, Ian C. Richardson, Government Attorneys, United States Attorney's Office, Brooklyn, NY, for United States of America.

Leticia Maria Olivera, Public Defender, Jan Alison Rostal, Public Defender, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

On January 18, 2021, Defendant Brendan Hunt was charged by complaint with "threaten[ing], or incit[ing] others, to murder members of Congress who were engaged in the performance of their official duties and in retaliation for such officials’ performance of their official duties." (Complaint and Affidavit in Support of Application for Arrest Warrant ("Compl."), Dkt. 1, ¶ 3.) The Complaint was based on four statements Defendant had made via social media websites between December 6, 2020, and January 12, 2021. Defendant was indicted on February 16, 2021 on one count of threatening to assault and murder members of the United States Congress in violation of 18 U.S.C. § 115(a)(1)(B). (Indictment, Dkt. 6.) On April 28, 2021, after a six-day trial, a jury convicted Defendant on the sole count of the Indictment, based on one of the four statements that had been alleged in the Complaint, and acquitted him with respect to the other three.¹ (Jury Verdict Form, Dkt. 93.)

Before the Court are Defendant's motions for acquittal under Federal Rules of Criminal Procedure 29(b) and (c). (Defendant's Motions for Acquittal ("Def. Mot."), Dkt. 97.) For the reasons below, the Court denies Defendant's motions.

BACKGROUND

I. Underlying Facts

At trial, the jury heard testimony from eight witnesses, including Defendant, who chose to testify in the defense case.² The facts were established as follows:

From 2017 until January 19, 2021, Defendant was employed as an assistant court analyst at the New York State Court System. (Trial Transcript ("Tr.") 155:9–16.) During that time, he maintained a social media presence, with accounts and profiles on Facebook, Youtube, Bitchute, Twitter, and Parler, a social media platform with few regulations. (Tr. 125:4–131:8, 145:5–146:12, 248:13–19.) Defendant also maintained a personal website under the URL BrendanHunt.com. (Tr. 129:10–130:14.) In a text message conversation with a friend on May 12, 2020, Defendant described his expanding audience on Bitchute: "I'm almost caught up to where I was on YouTube and even though I had over 500 [subscribers] there, I'm actually getting more views doing things this way." (Tr. 174:22–24; Government's Exhibit ("GX") 41B.)

The 2020 Presidential election took place on November 3, 2020. (Tr. 387:9–16, 389:8–10.) According to the Government's expert witness at trial,³ members of both political parties "portrayed America's choice in the 2020 election in apocalyptic terms," and as "the potential end of time, unless their candidate won." (Tr. 602:6–8, 602:14–18.) After the states counted the ballots and reported the electoral votes to Congress, Congress was scheduled to certify the winner of the electoral college in a joint session on January 6, 2021, and the winner was to be inaugurated on January 20, 2021. (Tr. 387:21–389:19.)

On December 6, 2020, Defendant posted on his Facebook account a link to a Daily News article entitled "Defiant Staten Island pub owner slams Jeep into sheriff deputy while trying to escape arrest over COVID rules." (Tr. 195:20–196:9.) The article reported that Daniel Presti, the owner of Mac's Pub in Staten Island, had been given several citations for violating COVID-19 restrictions by allowing customers to dine inside. (Tr. 196:22–197:1.) According to the article, police approached Presti after discovering that he was again allowing customers to dine inside the pub, after which Presti "hit the sheriff with his car and continued to drive with the law enforcement officer on the hood of his car for a while before other officers stopped the vehicle." (Tr. 197:2–7.) In his post linking to the article, Defendant wrote:

Fuck the lockdown po-lice! Yeah booiii run those pigs over! Anyone enforcing this lockdown mask vaccine bullshit deserves nothing less than a bullet in their fucking head! Including cops! If you're going to shoot someone tho, go after a high value target like pelosi schumer or AOC. They really need to be put down. These commies will see death before they see us surrender! USA!!

(Tr. 197:11–19; GX 150G.) "[P]elosi" refers to Speaker of the United States House of Representatives, Nancy Pelosi. (Tr. 197:20–25, 902:24–903:1.) "[S]chumer" refers to United States Senator Charles Schumer. (Tr. 198:1–4, 903:5–7.) "AOC" refers to United States Member of Congress Alexandria Ocasio-Cortez. (Tr. 198:5–11, 903:2–4.)

A few minutes after posting the Daily News article on Facebook, Defendant commented on a post from December 6, 2020, writing:

Trump, we want actual revenge on democrats. Meaning, we want you to hold a public execution of pelosi aoc schumer etc. And if you dont do it, the citizenry will. We're not voting in another rigged election. Start up the firing squads, mow down these commies, and lets take america back!

(Tr. 199:1–12; GX 150F.)

On January 6, 2021, the day the United States House of Representatives and Senate were meeting for a joint session of Congress to vote on the certification of Electoral College results of the 2020 presidential election, the Capitol was "stormed by a mob." (Tr. 206:11–24; see also Tr. 387:21–389:4, 389:11–13.) Violence broke out at the Capitol. Several Capitol Police Officers were killed. Further, a woman named Ashli Babbitt was shot by Capitol Police as she tried to enter an area of the Capitol where members of Congress were. (Tr. 206:25–207:8.) In the days following the January 6, 2021 riot at the Capitol, Defendant posted several videos on his Bitchute account, including videos entitled "What the Media Won't Tell You," "Horrific D.C. Cops Shoot Unarmed Patriot Girl Thru Neck In Capitol Building," "REVOLT! Four Dead in DC as Patriots Swarm Capitol," and "CNN: Trump Made Video Only Because He Was Threatened." (Tr. 207:20–25, 208:4–6, 208:21–23.)

At 11:09 p.m. on January 7, 2021, Defendant uploaded on Bitchute—but did not publish—a video entitled "Kill Your Senator," with a thumbnail image of a handgun. (Tr. 217:6–15, 221:3–7, 248:1–8, 287:19–21, 916:14–21; GX 20P.) In the video, he stated:

Hey guys, so we need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers.

What I'm saying is that our government at this point is basically a handful of traitors, so what you need to do is take up arms, get to DC probably the inauguration—so called inauguration—of this uh motherfucking communist Joe Biden. That's probably the best time to do this. Get your guns show up to DC and literally just spray these motherfuckers. Like, you know, that's the only option. They're gonna come after us. They're gonna kill us. So we have to kill them first. So get your guns. Show up to DC; put some bullets in their fucking heads.

If anybody has a gun, give me it. I will go there myself and shoot them and kill them. We have to take out these Senators and then replace them with actual patriots. Basically I would trust anybody over them at this point uh this is a ZOG government um, you know, that that's basically all I have to say. Let's, uh, take up arms against them.

(Tr. 221:17–21; GX 21, 21T.)

Defendant added the hashtags "revolt, revolution, America," and changed the video category from "entertainment" to "news and politics." (Tr. 217:1–24.) Ten hours later, at 8:30 a.m. on January 8, 2020, Defendant deleted the video, having never published it, and at 8:39 a.m., published the same video under the title "Kill Your Senators," with a thumbnail image of a the "Don't tread on me flag," which many rioters had flown at the Capitol two days prior.⁴ (Tr. 217:25–218:7, 219:9–11, 221:12–16, 287:22–288:12, 917:2–4, 918:19–23; GX 21P.) Defendant added the hashtags "MAGA, Second Amendment, ZOG," and the description "Go back to the Capitol on January 20th." (Tr. 218:22–219:8, 219:15–16, 917:5–918:11.) Defendant then changed the video description to "Kill Your Senators," and then to "Slaughter them all." (Tr. 218:9–14, 219:17–19, 220:6–8; 917:11–918:3.) This video was 88-seconds long. (Tr. 221:23–24; GX 21.) Though Defendant published his other Bitchute videos on Youtube as well, he did not post this "Kill Your Senators" video on Youtube. (Tr. 253:11–18.)

Later that day, someone with the username "Deeds not words" wrote on the platform, Parler:

I am tired of this ambiguous bullshit. Our feet are in the fire. If there is a plan tell us it, if not get the hell out of our way. The Republic will not survive lukewarm platitudes and half hearted action. #stopthesteal #millionmilitiamarch.

(Tr. 250:13–25, 355:13–25; GX 151A, 151B.) Defendant responded:

exactly, enough with the "trust the plan" bullshit. lets go, jan 20, bring your guns #millionmilitiamarch

(Tr. 251:1–6; GX 151A, 151B.)

Defendant's January 8, 2021 "Kill Your Senators" Bitchute video received more than 500 views in the first two days it was online. (See GX 109N.)

On January 8, 2021, the FBI's National Threat Operations Center received an anonymous tip about Defendant's Bitchute video (Tr. 47:8–11), which it forwarded to its New York field office (Tr. 49:5–6). The FBI's domestic terrorism squad in New York began its investigation into Defendant, which involved physically surveilling him and his home, obtaining cellphone data regarding his location, and reviewing his social media and video sharing accounts. (Tr. 158:19–159:17.) In the 11 days during which Defendant was being surveilled, FBI agents did not observe him travel to Washington, D.C., enter a gun store, go to...