ARGUMENT

B. The Materials At Bar Are Not Harmless Fantasies.

Pervading the opinion below is a skepticism that the transmissions show any serious intent to act. The District Court begins with a warning that "there is so much opportunity for magnifying or misunderstanding undefined menaces..." 890 F. Supp. at 1375 (quoting People v. Jones, 62 Mich. 304 (1886). The opinion further offers that, absent intent to harm, "statements expressing musings, considerations of what it would be like to kindap or injure someone, or desires to kidnap or injure someone, however unsavory, are not constitutionally actionable under § 875(c)." 890 F. Supp. at 1385. At argument, the District Court was more direct:

THE COURT: We're going to have to explore each venire person's fantasies, right?...Well, don't you think you would want to know each prospective juror's view of fantasy? View of how they--whether they're prudes or not, whether they're offended by explicit sexual language, or whether they're wholesome, well- adjusted..." Tr. at 38.

The fact that alleged threats are sexual in nature does not deprive them of real-world referent or consequence. This Court should reject any attempt to create a new exempt First Amendment category for sexual threats, including threats through pornography, on the subjective supposition that threats that are sexual or delivered through pornography cannot be true threats because they are inherently unreal. Violent sexual fantasies can indicate proclivity to rape and murder. IIA(1) supra. The sexual materials at bar, some labeled "fantasy" therein by defendants and many labeled reality, capture the defendants in direct motion toward violence against women.

The law of threat does not require a showing of subjective intent. Yet, to be true threats, statements must in some sense be real, not confined to fiction. But see U.S. v. Baudin, 486 F. Supp. 403 (S.D.N.Y. 1980)(sustaining indictment for letter threatening flight through window and landing on desk). The belief that sexual statements, qua sexual, are inherently fantasy rather than reality is factually without basis¹⁹ and should not be permitted to smuggle a subjective intent standard into the law of threat. These defendants, in particular, are very clear on the reality status of their statements which, considered objectively, show them on track toward violence against women.

Baker often labels his pornography "fantasy," as in "(the following is fantasy) The little Asian cunt went the wrong way..." (A-17); (A-23), or "stories." He knows that the events in his pornography have not happened--not yet. The pornography is used for masturbation, which happens in reality, n. 7 supra. Through masturbating to pornography, Baker and his consumers practice, rehearse, sexually experience, and thereby refine what they want and intend to do, which in this case is mayhem and murder.

Gonda to Baker: "...the hedline news here is about the murder and rape of a cute blonde 14 year old. I masturbated while looking at her picture in the paper...she must have been a lot of fun; that is I know I would have had a lot of fun torturing and killing her..."(A-14)(emphasis added).

The two know that the reports of true life crime they swap report reality, not fantasy.Gonda to Baker: "...the real pleasure in reading these books comes from knowing that what you read is true. It actually happened."(A-4) The more real the events are, the more sexually aroused the defendants are.

Gonda knows that when he goes to a hardware store to survey tools for use in sexual torture, the tools are real, as are his plans to use them.

Gonda to Baker: BTW, I had an amazing experience at the hardware store yesterday...you should try it.
Go in when you see an 'eligible' bitch, walk around the aisles look and touch the various tools and think of what can be done with them...I got a major hardon doing that. (A-77)

When he is sexually aroused from touching the tools there, thinking of how he would violate a woman with them, a woman who is there, Gonda knows that the violation is fantasy. The erection is real. He is taking a concrete step toward actualizing their plans, which step is more sexually exciting than fantasizing about using tools of torture at home in his room.

Baker and Gonda know also that when they do what they call "fantasize" about violating particular women, often in these womens actual presence, they are not then having sex with those women in the physical sense. They are trying it out mentally in that physical setting to see how they actually respond sexually. It is a dry run. They have already begun acting on their fantasies.

Baker to Gonda: I know what you mean about all the good looking cunts around. We're giving final project presentations now in 350, and what I like doing is staring at the girls and thinking of how they'd react if I was torturing them- would they scream or fight or what. It really turns me on. (A-30)

The defendants never refer to their plans to get together, and what they will do to women when they meet, as fantasy. Avoiding police detection and blood in the room and buying a car are not in the realm of fantasy, nor for that matter are the Frieze building or highway 23. "Next week...January...summer"(A-44) is real time, not fantasy. Jane Doe's name and address are not apparitions. No transmission in the Superceding Indictment can be termed mere "musings," or "considerations of what it would be like." They mean action just as defendant Depew --who argued that he had only been entertaining "fantasies" when intercepted on FBI wiretap planning to make snuff pornography of an unspecific twelve year old boy -- meant action. U.S. v. Depew, 932 F.2d 324,326 (4th Cir. 1991) (upholding conviction for conspiracy to kidnap; whether words were fantasies or intended action was for jury).

The acts in Baker's pornography, which are the same acts planned in the e-mail, are also not mere fantasy in the sense of being fantastical or beyond the possible. Amicus NCASA hears from survivors every day that such acts were done to them, as does law enforcement. Senate Judiciary Committee, "Violence Against Women: A Week in the Life of America," (October, 1992) (more than 21,000 domestic assaults, rapes and murders reported to police weekly in 1991; every week more than 2,000 women reported raped, estimated 10,000 more unreported; more than 90 women reported murdered every week in 1991, 9 of 10 by men). The acts in the transmissions are not unrealistic or improbable of occurrence.

In this connection, the District Court's ready identification with the accused is chilling:

THE COURT: Well, suppose I saw, walking down the street with Mr.Beraha, and I saw a good-looking woman come by, and I said, Stewart, I would really like to "F" the broad whether she wanted it or not. Would that be a threat, or would that be hallucination on my part, fantasy, expressing my mental, whatever you call them in words..." Tr. at 22.

Beginning under Melugin v. Hames, 38 F.3d at 1484, the legal answer is: would a reasonable person, including here Stewart Beraha, under all the circumstances, see this as a serious statement of intent to rape, perhaps one "not uttered in jest, idle talk, or political argument," U.S. v. Howell, 719 F.2d 1258, 1290 (5th Cir. 1983), or as a legal hypothetical? Presumably, if the judge engaged in further extended discussion of how he and his law clerk will track down, trap, abduct, and sexually assault this woman, with details of the most arousing ways to hurt her and women like her, and made pornography of her by name and address in which he did this to her, with details of how she would respond, a reasonable jury could find the above statement threatening, and a court could find constitutional an indictment under 18 U.S.C. § 875(c) predicated in part on it.

The District Court's subjective dismissal of the transmissions in this case as harmless fantasy is without basis in law or fact and should be rejected.

19

The term "fantasy" is commonly used in prostitution to refer to the sex acts consumers require. That is, the fantasies are acts. RETURN