ARGUMENT

a. The Pornography Remains in the Case.

When assessing the constitutionality of prosecuting statements as threats, the statements are taken as a whole, in context, not in isolation. U.S. v. Gilbert, 884 F.2d 454, 457 (9th Cir. 1989)(racist threats); U.S. v. Mitchell, 812 F.2d 1250, 1255 (9th Cir. 1987)(threats to president); Shoulberg, 895 F.2d, at 886. See also Cox, 957 F.2d at 266 (threat reasonable in light of other evidence); U.S. v. Maxton, 940 F.2d 103,106 (4th Cir. 1991). The District Court below impaled each count of the indictment one at a time. This was error.

To further narrow this case to the vanishing point, the District Court strenuously attempted to eliminate Baker's pornography from it, Tr. at 29-30, 60-61, and erroneously concluded that this effort had succeeded. 890 F. Supp. at 1380 ("the superceding indictment...refers only to e-mail messages exchanged between Gonda and Baker") and at fn. 6; 890 F. Supp. at 1386 ("all of the language for which Baker is charged was contained in private e-mail messages he sent to Gonda"). But cf. Brief for the United States at 23 n.8.

The Superceding Indictment, at Count V, states that defendant "had written and transmitted numerous stories...over the Internet computer system dealing with the abduction, rape, torture, mutilation and murder of women..." All this pornography thus remains in the case. In addition, some pornography Baker made was sent by e-mail, e.g. (A-17),(A-23),(A-24),(A-30). The pornography Baker posted to alt.sex.stories is repeatedly referred to by Gonda in the e-mail in the Superceding Indictment.).¹⁶ This pornography would clearly be admissible as evidence at trial.

b. Targets of Threats Need Not be Their Intended recipients.

The District Court found the communications at issue not true threats in part because their recipients, who were not their targets, did not find them threatening. 890 F. Supp. at 1385. At oral argument, the District Court further suggested that the targets' families, because they would not have known of the utterances without media coverage, were not reasonable and were biased.¹⁷

As the opinion below concedes, threats need not be communicated to their target to be constitutionally indictable. 890 F. Supp. at 1380. Still the District Court protested that "[i]t is only as a result of this prosecution and the ensuing publicity that the content of the messages has been publicly aired" at 890 F. Supp. at 1386, and then held that "the language of the statement must be considered as it would be interpreted by the foreseeable recipients of the communication containing it." Id. (emphasis added) Gonda, one recipient, clearly knew that action was intended because he intended to participate in it. Although he well knew what was threatened, he likely did not interpret the transmissions as threats, because he expected to enjoy himself actualizing them.

Jake Baker's pornography and e-mail threatened many different women, none of whom was its original or intended recipient. Nothing in the law of threat precludes a reasonable assessment of threat to or by those who are threatened by the statements when they are not the same as the recipients. No First Amendment concern especially protects threats to others because they are communicated from one potential perpetrator to another. The inappropriateness of measuring whether a threat is threatening based on its interpretation by those who will carry it out is transparent. Putting out a contract on someone would presumably be a threat. Indeed, like contract for a killing, the threats at bar are more likely to be acted upon because they are communicated exclusively to those who will carry them out, rather than to their targets, who in turn become more likely to become victims of the acts threatened to the degree they are kept ignorant that these threats against them have been made. As in many threat cases, such as most threats to the President, the targets are threatened whether they are in a position to know it or not. Presumably, Arafat no more tuned in to WPIX at ten than Jane Doe logged in to alt.sex.stories. Under such circumstances, the fact that threats are kept clandestine hardly makes them less threatening, the District Court to the contrary, 890 F. Supp. at 1386, notwithstanding.

It is reasonable to conclude that the targeted women were threatened when these statements were transmitted to their recipients. As this Court has stated, "a threat is not a state of mind in the threatener; it is an appearance to the victim." U.S. v. Cox, 957 F. 2d 264, 266 (6th Cir. 1992). Once made aware of the threats, members of the target population, such as amicus Jane Doe, as well as experts in such targeting, such as amicus NCASA, are in a good position to assess the danger. Their reasonable assessment is that the targeted women were endangered from the moment the materials were transmitted, and, to an extent, remain in danger today.

c. Women are Specifically Targeted by the Transmissions.

Specific individual women, specifically defined groups of women, and women in general are objectively threatened by the pornography and e-mail at bar, taken as a whole. Amicus Jane Doe is targeted by the pornography of her name, identity, image, and address for acts of sexual aggression from Baker and Gonda and also, to differing degrees from other consumers who used the pornography of her by name. Consumers wrote Baker about the pornography of Jane Doe, using her name. (A-83;A-84;A-87;A-90;A-95;A-111) Through identification by her own name, Jane Doe is further targeted for harassment, abuse, stalking, invasion of privacy, and other dangers and disadvantages, violent and nonviolent, by consumers of Baker's pornography of her into the future.

The young woman Melissa was already targeted for potential sexual aggression by her neighbor Jim. Actualizing such aggression becomes more likely as a result of his consumption of Baker's pornography of her. In addition, in the context of searching out the right young woman for them to hurt, Baker and Gonda together target a specific individual young woman neighbor or former neighbor of Baker's from his home residence, who is physically described in the same terms in which Baker presents women in his pornography. (A-13).

It is currently unknown whether the women in Baker's other pornography are particular individuals. In e-mail Gonda referred to "this very very petite and cute, south american girl in one of my classes," telling Baker that he had an orgasm thinking about "how you and I would torture" her. (A-40) Other individual women, including a "Lin-san" in Baker's class (A-15),¹⁸ and a "young hungarian" of Gonda's acquaintence (A-63)(Gonda to Baker:...I have fantasized many times of how we would treat her. In fact, one night she was in the living room with my roommate. My room is situated right above the living room and I could hear her voiece as I was masturbating to her agonizing torture. (A-64)), are mentioned in terms ranging from the racist and objectifying to the ominous.

Specific groups of women targeted include 13- or 14- year old girls who come into proximity to defendants:

Baker to Gonda: I want to do it to a really young girl first, 13 or 14. There innocence makes them so much more fun -- and they'll be easier to control. (A-8).
Gonda to Baker: I would love to do a 13 or 14 year old. I think you are right...not only their innocence but their young bodies would really be fun to hurt. (A-10)

Women students at the University of Michigan who roomed on Baker's hallway were targeted for abduction, rape, and murder. (A-31)

Asian women with whom defendants come into contact are very specifically threatened by their sexualized racism. Baker to Gonda: "In my opinion, Korean girs are the hottest" (A-15); that oriental cunt (A-23); little Asian cunt (A-17); tiny asian bitch (A-18); the Asian whore (A-23) (A-24).

More generally, all women whom defendants encounter, and to whom defendants are sexually attracted for the acts they say they want to do, are potentially threatened by them, as are all women in the proximity of potential perpetrators who use Jake Baker's pornography of rape, torture, and murder on alt.sex.stories.

16

See, e.g., "You seem to have the same tastes I have" Count I; "One of the things I've started doing is going back and re-reading earlier messages of yours. Each time I do, they turn me on more and more. I can't wait to see you in person." Count II; "As far as the asian bitch story, there is only one possible ending..." Count IV Without the pornography, it is impossible to know what their shared tastes are, what is turning Gonda on, what the ending to the story must be and why, such that the specific acts threatened are clear. The pornography also reveals what acts "IT" in Baker's "I need TO DO IT" refers to. The District Court's suggestion, Tr. at 33, that this latter message meant the defendant "needs to engage in a heterosexual experience in order to get his satisfaction" Id. is puzzling on a record replete with stated need for predation and sadism. RETURN

17

Regarding parents of young women in Baker's home neighborhood, the District Judge stated: "Let me ask you, as to all these parents, and I don't want to use this as a pejorative, but anything they testify to would be in the context of the enormous publicity that this case got in the national media; is that a fair statement?...they're not reasonable because they have an interest in the subject matter, and they won't be seeing these messages sort of as a recipient or read to them in...a non-polluted environment...There would be a certain bias, interest..." Tr. at 10-ll. See also 3-4; 7. RETURN

18

Baker to Gonda: Oh, the coolest thing happened. I was sitting in Japanese yesterday, and a police officer walked in. He asked after Lin-San, a very young Korean (in my opinion, Korean girs are the hottest) girl who hasn't been to class in several weeks. No-one knows where she is. It filled me with pleasure to think that someone like us has probably taken her, and raped and mutulated her. She was so pretty, so innocent, I hope he did a good job. No sense wasting woman-meat like that:-) (A-15) RETURN