United States v. Mackey
| Decision Date | 23 January 2023 |
| Docket Number | 21-CR-80 (NGG) |
| Parties | UNITED STATES, v. DOUGLASS MACKEY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
The Government brings a single-count indictment (Dkt. 8) (the “Indictment”) against Defendant Douglass Mackey under 18 U.S.C. § 241. The Indictment relates to Defendant Mackey's alleged participation in an online conspiracy to injure certain Twitter users' right to vote by spreading disinformation during the 2016 Presidential election. Pending before the court is Defendant Mackey's Motion to Dismiss the Indictment for lack of venue, violation of due process, and an “as applied” First Amendment violation. (Mot. (Dkt. 43) see also Gov't Resp. in Opp. (Dkt. 45) (the “Opp.”).) The court held oral argument at the request of the parties on October 26, 2022. (See Oct. 27 2022 Minute Entry.) The court DENIES Defendant Mackey's motion for the following reasons.
The Government alleges in its Complaint that Defendant Mackey, a New York City resident at the time of the events in question, was a prolific far-right Twitter user who established a substantial Twitter following using the pseudonym “Ricky Vaughn.” (See Compl. ¶¶ 4-8.) At the peak of his Twitter fame, Mr. Mackey's account had approximately 58,000 followers.
(Id. at ¶ 11.) MIT Media Lab ranked “Ricky Vaughn” as #107 among top political influencer's-ahead of, e.g., NBC News (#114), Stephen Colbert (#119), and Newt Gingrich (#141). (Id.) Although Defendant Mackey was twice suspended from Twitter, he promptly returned to Twitter under a new Ricky Vaughn profile with a slightly different Twitter handle after each suspension.[1] (Id. at ¶¶ 12-14.)
The Government alleges that Mr. Mackey and his co-conspirators devised “memes[2]” and other social media posts intended to suppress Democratic voters through a coordinated disinformation campaign in the run up to the 2016 presidential election.[3] The scheme, as alleged, was simple enough. He and a group of other Twitter users allegedly work shopped hashtags[4] and images to dissuade “normies” and “shidibs[5]” from voting for a candidate for president and, later, to trick that candidate's supporters into believing they could cast their ballots by sending a text message or posting on Facebook or Twitter. (See generally id.)
Specifically, Mr. Mackey and his co-conspirators are alleged to have participated in private direct message[6] groups on Twitter called “Fed Free Hatechat,” the “War Room,” and “Infowars Madman,” (Id. at ¶¶ 13, 17,) to discuss “how best to influence the Election” and “to create, refine and share memes and hashtags that members of the group would subsequently post and distribute.” (Id. at ¶ 15.) Members of the group messaged about “memes” and Tweets that would “suggest [] that certain voters were hiding their desire to vote for a Presidential candidate from one of the two main political parties,” through “psyops[7]” intended to “make all these shitlibs think they're [sic] friends are secretly voting for” Donald Trump. (Id. at ¶ 16.) Other messages “relat[ed] plans to alter images of various celebrities in a manner that falsely suggested that the celebrities were supporting [Donald Trump's] candidacy” and suggested that if the Democrats were to win the presidency, women would be drafted into the military, with the stated intent of “mak[ing] the shitlib woman vote waver in this election.” (Id. at ¶ 17-18.) In these conversations, one Twitter user also allegedly suggested the group work together on a guide to outline “by step by step, each major aspect of the ideological disruption toolkit.” (Id. at ¶ 19 n.14.) The Complaint alleges that Defendant Mackey maintained “outsized influence” in the group due to his large Twitter following and general influence on the internet. (Id. at ¶ 19.)
With regard to the specific conduct underlying the indictment, the Government alleges that beginning in or around September 2016, Defendant Mackey and his co-conspirators conspired about, “formulated, created and disseminated information over social media that claimed, among other things, that supporters of [Hillary Clinton]... could and should vote for [her] by posting a specific hashtag on Twitter or Facebook, or by texting [her] first name to a specific telephone text code.” (Id. at ¶ 3.)
The Government alleges that Mackey and his co-conspirators took inspiration for this particular Tweet from a similar image used in the United Kingdom to falsely inform voters that they could cast their votes in the June 2016 referendum by posting Vote Remain on their Facebook or Twitter account with the hashtag “EUReferendum.” (Id. at ¶ 21.) One member of Mackey's group, acknowledging the size of Mackey's following, suggested mimicking this format and offered to “take something on [to assist Mackey] if ids helpful.” Mackey responded with agreement that he had “like the most loyal army on Twitter.” (Id. ¶ 19 n.15.)
The scheme, as alleged, aimed to cause Clinton supporters to believe they could cast their ballots by sending a text message or posting on social media and, as a result, fail to cast their vote for [Hillary Clinton] in the Election in a legally valid manner. (Id. at ¶¶ 3, 20, 32-33.)
The Government alleges that the conspirators exchanged several messages back and forth iterating on the best wording, formatting, content, and images to use throughout much of October 2016. (Id. at ¶ 22-27.) One conspirator chimed in with the advice to “make sure to use the [Clinton campaign's] latest color schemes.” (Id. at ¶ 22.) Another expressed concern about Donald Trump voters “thinking this is legit and [staying] home,” and suggested an adjustment to clarify the purported voting procedure pertained only to those voting for Hillary Clinton. (Id. at ¶ 26.)
The Government then alleges that on November 1, 2016, Defendant Mackey tweeted out a deceptive image featuring an ‘African American woman standing in front of an African Americans for [Hillary Clinton]' sign” and text that read ‘Avoid the Line. Vote from Home. Text ‘[Hillary]' to 59925[.] Vote for [Hillary Clinton] and be a part of history.” (Id. at ¶ 32.) The deceptive image also included fine print stating (Id.) Mr. Mackey then tweeted out a similar image, but with text in Spanish (along with the image described in paragraph 32 of the Complaint, the “Deceptive Tweets” or “Deceptive Images”). (Id. at ¶ 33.) That image included “a copy of the logo of Hillary Clinton's campaign, as well as a link to [Hillary Clinton's] campaign website” and made use of her campaign's “distinctive font” and hashtags. (Id.)
According to the Complaint, at least 4,900 people texted the number. (Id. at ¶ 36.) Many of the unique telephone numbers to do so “belong [ed] to individuals located in the Eastern District of New York.” (Id.)
The Complaint provides an explanation for Mackey's alleged intentions through his Tweets: on November 2, the day after he spread the Deceptive Images, he tweeted “Obviously, we can win Pennsylvania.” (Id. at ¶ 31.) “The key is to drive up turnout with non-college whites, and limit black turnout.” (Id.) Finally, on or about November 12, 2016, Defendant Mackey allegedly stated die following in a direct message exchange with another Twitter user: . (Id. ¶ 30.)
On January 22, 2021, an arrest warrant issued for Defendant Mackey pursuant to a 24-page criminal Complaint. (See generally Compl.; Arrest Warrant (Dkt. 2).) Three weeks later, a grand jury returned an indictment charging Mackey with a conspiracy to violate rights under 18 U.S.C. § 241. (See Indictment.) The Indictment reads in full:
Tn or about and between September 2016 and November 2016, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant DOUGJASS MACKEY, also known as “Ricky Vaughn,” together with others, conspired to injure, oppress, threaten and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States, to wit: the right to vote.
(Indictment at 1-2.) Defendant Mackey was arraigned before Magistrate Judge Sanket J. Bulsara on March, 10, 2021. (Mar. 10, 2021 Minute Entry.) The Government provided discovery to the Defendant throughout the summer and fall of 2021. (Dkt. 22.) On January 10, 2022, Defendant Mackey moved for a Bill of Particulars. (BOP Mot. (Dkt. 25).) In a Memorandum and Order dated May 13, 2022, this court denied that motion in part but granted it specifically as to the issue of venue. (May 13, 2022 Mem. & Order (“BOP M&O”) (Dkt. 36).) The Government filed a responsive Bill of Particulars on May 27, 2022. ((BOP) (Dkt. 39).) The instant Motion to Dismiss the Indictment was fully briefed as of September 6, 2022, and the court held oral argument at the request of the parties on October 26, 2022. (See Oct. 27, 2022 Minute Entry.)
Federal Rule of Criminal Procedure 7(c)(1) requires that an indictment contain a “plain, concise, and definite written statement of the essential facts constituting tire offense charged.” Fed. R. Crim. P. 7(c)(1). An indictment satisfies Rule 7(c)(1)-and thus tire requirements of the Fifth and Sixth Amendments-if it ‘“first contains the elements of the offense charged and fairly...
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