United States v. Cantwell

64 F.4th 396

• Court: Court of Appeals for the First Circuit
• Decided: April 5, 2023
• Docket: 21-1186
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1186

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER CANTWELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for appellant. Anna Z. Krasinski, Assistant United States Attorney, with whom John J. Farley, Acting United States Attorney, and John S. Davis, Assistant United States Attorney, were on brief, for appellee.

April 5, 2023 LIPEZ, Circuit Judge. On the basis of a series of heated

online messages, Christopher Cantwell was convicted of

extortionate interstate communications under 18 U.S.C. § 875(b)

and threatening to injure property or reputation under 18 U.S.C.

§ 875(d). He appeals his conviction and sentence, arguing that

the government improperly relied on statements made by a non-

testifying witness in its closing argument, that the district court

improperly instructed the jury that provocation was not a defense,

and that the district court abused its discretion by refusing to

grant a downward departure due to the victim's provocative behavior

under U.S.S.G. § 5K2.10. Because Cantwell has not met his burden

on any of these claims of error, we affirm.

I.

A. Background

Cantwell was a New Hampshire-based media personality who

gained popularity in the online white nationalist community. As

of late 2017, he hosted a call-in radio show called Radical Agenda,

which he described as an intentionally "shocking production"

featuring obscene, racist, and homophobic language from Cantwell

and his callers. Cantwell also hosted a website related to his

radio show content and was active across several social media

platforms, including Telegram.1

1 Telegram is an "online instant message platform." Users can send private messages directly to an individual and can also

- 2 - In 2017, Cantwell began communicating online with

members of an extremist group called the Bowl Patrol, who were

calling into his program. The Bowl Patrol was a white nationalist

hate group, whose members subscribed to "accelerationism," or the

aggressive advocacy of government collapse.2 The group's primary

activity was producing a podcast, the "Bowl Cast," on which they

espoused racist, anti-Semitic, homophobic, and misogynistic views.

The Bowl Patrol operated solely online using platforms

like Telegram, with its members relying on pseudonyms to maintain

anonymity in all their online activities. One of the Bowl Patrol's

members was Missouri-based Benjamin Lambert, known online only by

his alias, "Cheddar Mane."3 Cantwell, who ran his live radio show,

website, and Telegram channels under his own name, was initially

on good terms with the Bowl Patrol and was the first guest on the

Bowl Cast podcast.

In the fall of 2018, members of the Bowl Patrol began to

target Cantwell's platforms after concluding that Cantwell "didn't

actually believe what he was saying" and that he was "simply

create "channels," which bring together multiple people who can comment and post messages to a group. 2 The Bowl Patrol was so named in reference to the bowl-cut hairstyle of Dylann Roof, who shot and killed nine Black people in a church in Charleston, South Carolina, in 2015. The Bowl Patrol group revered Roof and his crime. 3 Lambert also used variations on his alias, such as "Cheddar Man," "Cheddy Blac," and "Hombre Cheddar."

- 3 - [trying] to make money." Members of the Bowl Patrol, including

Lambert, began to make a series of prank calls to Cantwell's

Radical Agenda show. The prank callers filled Cantwell's phone

lines with unintelligible sounds, imitations of fictional

characters, and generally disruptive noise. These activities

continued through the first months of 2019, and Lambert himself

made 10-15 prank calls to Cantwell's live show between fall 2018

and the end of February 2019. In February 2019, the Bowl Patrol's

harassment campaign escalated when members of the group posted

pornography and other obscene content to Cantwell's website.

Cantwell believed this incident to be the work of the Bowl Patrol's

leader, known by the alias "Vic Mackey." Cantwell reported the

calls and website defacement to the FBI and the local police on

February 11, 2019, but they declined to investigate Cantwell's

claims.

In March 2019, Cantwell decided to take further action.

He wrote to Lambert on Telegram telling him to stay "away from me

and my platforms or I'll dox4 your stupid ass." Cantwell also told

Lambert that he did not want him "or [his] faggot ass friends

anywhere near" Cantwell's platforms. Lambert was one of the only

members of the Bowl Patrol whose identity Cantwell knew, and whose

4"Doxing" refers to the practice of revealing an individual's private information online, especially as a form of revenge. See Dox, The Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/dox (last visited Mar. 31, 2023).

- 4 - personal information he could therefore reveal. Despite the

precautions that Lambert took to maintain anonymity online, he had

met someone in Cantwell's entourage in person: Cantwell's then-

girlfriend, Katelyn Fry, alias "Peach." In November 2018, Fry had

visited Lambert at his home in Missouri and therefore had Lambert's

home address, as well as photos of Lambert and his wife and

children. After Cantwell threatened to dox him, Lambert did not

make any more prank calls to Cantwell's show and encouraged other

members of the Bowl Patrol to stop harassing Cantwell.

B. Cantwell's June 15-16, 2019 Texts to Lambert

Lambert and Cantwell next interacted on June 15, 2019,

following two incidents that prompted Cantwell to contact Lambert.

Shortly after midnight on June 15, 2019, Fry received a Telegram

message from an unknown sender reading, "So why did you take

pictures of those kids? . . . Do you think we're going to forget?"

Fry forwarded the message to Cantwell and asked if "Cheddar" had

sent it. Cantwell initially told Fry that he did not think that

Lambert had sent the anonymous message but later decided that it

must have come from him.

Later that same day, Lambert clicked on a link in the

Bowl Patrol group chat which took him to a private Telegram channel

called "Peaceful White Folk." Peaceful White Folk was Cantwell's

private, invitation-only channel, though Lambert maintains that he

- 5 - did not know this when he clicked the link.5 When Cantwell noticed

Lambert in his private channel, he removed him from the chat.

Moments later, Lambert received a direct message from Cantwell,

and a series of messages between Cantwell and Lambert followed.

The precise language of Cantwell's messages became the basis for

the criminal charges against him. We therefore reproduce key parts

of the exchange in full (the statements quoted in the indictment

are bolded):

6/15/19

9:00pm (EDT) - Cantwell

I guess you forgot the lesson which kept you away for a short

while, do you need to be reminded?

9:29pm - Cantwell

[Sends the name of the street where Lambert lives]

11:24pm - Lambert

What are you talking about

. . .

11:56pm - Lambert

Let's think about this. Every time someone you think is in

[Bowl Patrol] talks shit about you -- a public figure -- you

threaten to dox me? Say you did. What then?

5 Cantwell testified that Peaceful White Folk was an invitation-only group, meaning that a person could only join if they had the invitation link, but that the invitation link had been widely shared.

- 6 - 6/16/19

12:21am - Lambert

I honestly don't know what I even did

I followed a link into a group I didn't even know you were in

3:56am - Cantwell

Get a fucking life or I will ruin the one you have

3:57am - Cantwell

Don't bother anyone, then you won't have to worry about

crossing me

2:13pm - Lambert

I haven't given you any thought and it was an honest mistake.

Didn't even know you were in there or I'd have thought better

of it. Other than that, all I can do is just leave you the

fuck alone and tell other people to do the same -- which I

have done.

4:15pm - Cantwell

You're a fucking liar. You came here with your loser fucking

pals . . . and because of that fact, you are going to lose

everything you have.

4:45pm - Cantwell

- 7 - Next time I post that photo,6 the faces won't be blurred, and

then you're going to start getting unexpected visitors

And I don't care if it's you causing the trouble, you're the

one who's gonna suffer cause you're the one who I can get

4:47pm - Cantwell

If you wanna dox Vic, he's a better target, but if you give

me fake info then your wife is gonna have trouble sleeping at

night

6:39pm - Lambert

So I am assuming peach took the picture. Guess that means

you d[o]n't care what happens to her either

6:41pm - Cantwell

As a matter of fact, I don't. So if you don't want me to

come and fuck your wife in front of your kids, then you should

make yourself scarce

7:10pm - Cantwell

Give me Vic, it's your only out

8:17pm - Cantwell

I guess I'm going to have to prove my seriousness

8:21pm - Lambert

Show me the picture you have

6 It is unclear to which photo Cantwell is referring at this point in the exchange.

- 8 - 8:23pm - Cantwell

No

8:27pm - Cantwell

[Sends a photo of Lambert's wife and three small children]

More where that came from

8:28pm - Cantwell

I bet one of my incel7 listeners would love to give her another

baby

Cantwell then told Lambert that he was going to call the FBI and

tell them that Lambert was a drug user, and that he would send

information about Lambert's activities with the Bowl Patrol to

Missouri's Child Protective Services. Finally, Cantwell

reiterated to Lambert that he wanted Vic Mackey's information:

"Tell Vic that if he gives himself up, he can save your family."

Cantwell was true to his word. On June 17, 2019 -- the

day after the above exchange concluded -- Cantwell posted photos

of Lambert, his wife, and his children to Cantwell's public

Telegram channel. That same day, Cantwell called the Child Abuse

and Neglect Hotline of the Missouri Department of Social Services

7 "Incel" is a shorthand term for "involuntary celibate," a term used to refer to individuals (usually men) who desire a sexual partner but cannot find one. Incels typically express extreme resentment and hostility to women for denying them sex. See Incel, The Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/incel (last visited Mar. 31, 2023).

- 9 - to make a report against Lambert. Cantwell claimed that Lambert

was putting his children in danger because he used drugs and was

involved in a right-wing extremist group.8

C. The Charges

Cantwell was charged with four counts relating to his

conversation with Lambert on June 15-16, 2019. Count 1 charged

extortionate interstate communications in violation of 18 U.S.C.

§ 875(b), based on Cantwell's messages about having sex with

Lambert's wife in front of their children and asking for Vic

Mackey's identifying information. Count 2 charged threatening

interstate communications in violation of 18 U.S.C. § 875(c),

based on the same messages. Count 3 charged Cantwell with

threatening to injure property or reputation in violation of 18

U.S.C. § 875(d), based on his messages about Lambert's family,

calling the FBI, and calling child protective services. Finally,

Count 4 charged Cantwell with cyberstalking in violation of 18

U.S.C. § 2261, based on the same messages. The government

dismissed Count 2 shortly before trial and the jury ultimately

acquitted Cantwell on Count 4.

Under 18 U.S.C. § 875(b), the basis for Count 1, the

government had to show (1) that the defendant transmitted a

communication in interstate commerce; (2) that the communication

8 The Department of Social Services determined that the call did not warrant further action and so did not follow up.

- 10 - contained a threat to injure the person of another; and (3) that

the defendant transmitted the communication with the intent to

extort something of value from another. Similarly, under 18 U.S.C.

§ 875(d), the basis for Count 3,9 the government had to establish

(1) that the defendant transmitted a communication in interstate

commerce; (2) that the communication contained a threat to injure

the reputation of another or to accuse another person of a crime;

and (3) that the defendant transmitted the communication with the

intent to extort something of value from another. Because the

mental state that the government had to prove is relevant to the

errors Cantwell claims on appeal, we will briefly contextualize

the parties' presentation of these issues by outlining the legal

framework on which they rely.

The parties did not dispute below that the mental state

required under sections 875(b) and (d) could be proved by an intent

to extort by threat. They did dispute, however, how the government

could prove an intent to extort by threat. Cantwell argued that

to prove the requisite intent, the government needed to establish

both that he intended to extract something of value from another

and that he intended to make a threat -- that is, that he made a

communication "for the purpose of issuing a threat" and with "the

9 This count became Count 2 under the superseding indictment, once the government dismissed its original Count 2. For ease of reference, we will continue to refer to the count charging Cantwell under 18 U.S.C. § 875(d) as Count 3.

- 11 - knowledge that the communication would be viewed as a threat."

The government disagreed initially and argued that it could prove

an intent to extort by threat by showing only that Cantwell was

reckless as to whether the communication would be viewed as a

threat.

The district court rejected the government's position

and appears to have adopted Cantwell's understanding of the mens

rea element. The court's jury instruction laying out the mental

state that the government had to prove stated:

To act with intent to extort means to act with the intent to obtain something of value from another person with that person's consent but induced by wrongful use of threatened force, threatened violence or fear. An intent to extort by threat also requires that the defendant act with an intent to threaten.

The parties proceed on appeal with this understanding of the

required mental state. Indeed, Cantwell's challenges focus solely

on the latter portion of this inquiry -- that he "act[ed] with an

intent to threaten" -- though neither he nor the government offer

any gloss on their understanding of what an "intent to threaten"

requires. Nonetheless, we assume, favorably to the defendant,

that to prove an intent to extort by threat, the government had to

prove that Cantwell made a communication "for the purpose of

issuing a threat" and with "the knowledge that the communication

would be viewed as a threat." We analyze the parties' appellate

- 12 - arguments accordingly while drawing no conclusions going forward

that the intent to extort under 875(b) and (d) should be understood

in our circuit to require such proof. We also choose this course

as a matter of prudence as there was not adequate briefing on this

issue below or on appeal.

Finally, we must also address the question of what

constitutes a "threat," a separate element of the offenses under

sections 875(b) and (d) and one that is also critical to the

parties' arguments on appeal. In keeping with our prior law

interpreting this element of 18 U.S.C. § 875(b), a threat is a

communication that a reasonable recipient familiar with the

context of the communication would find threatening. See United

States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003) (holding

that a "threat is one that a reasonable recipient familiar with

the context of the communication would find threatening"); cf.

United States v. Oliver, 19 F.4th 512, 517-18 (1st Cir. 2021)

(reasoning that a jury could reasonably find that a communication

was, indeed, a threat under 18 U.S.C. § 876(c) because the victim

perceived the communication as a threat).

D. Cantwell's Trial and Sentencing

The government sought to prove its case on Count 1 by

presenting evidence that Cantwell intended to extort a thing of

value from Lambert, namely Vic Mackey's identifying information,

by intentionally threatening harm to Lambert's wife through

- 13 - messages that would reasonably cause Lambert to fear such harm.

The government's case on Count 1 solely concerned Cantwell's

message "[s]o if you don't want me to come and fuck your wife in

front of your kids, then you should make yourself scarce[.] Give

me Vic, it's your only out."

On Count 3, the government sought to prove that Cantwell

intended to extort Vic Mackey's identifying information by

intending to threaten harm to Lambert's reputation and accusing

him of a crime, through messages that would reasonably cause

Lambert to fear such harm. The core of the government's argument

relied on these messages: "you are going to lose everything you

have," "you're the one who's gonna suffer because you're the one

who I can get," "tell Vic that if he gives himself up, he can save

your family," and Cantwell's messages saying he would report

Lambert to the FBI and Missouri Child Protective Services.

The government's main witness at trial was Lambert, who

testified about the Bowl Patrol's activities, his interactions

with Cantwell, and how Katelyn Fry -- Cantwell's former girlfriend

-- had acquired photos of the Lambert family. On direct

examination, Lambert said that Cantwell's messages about his wife

and children made him "scared," "angry," and that he "didn't sleep

that night" because the messages so unsettled him. Lambert also

testified that when he received Cantwell's messages about his wife

and children, he "felt as though a line had been crossed." He

- 14 - stated that he began to worry for his wife's safety, though he did

not tell her about the messages. The government elicited testimony

from a second member of the Bowl Patrol community, Paul Nehlen,

who testified that he had never seen one member of the community

threaten another's wife and children, and that such a message was

"over the line."

The government also introduced a recorded telephone

conversation between Cantwell and Fry from December 2019 in which

Cantwell discussed the fallout from his messages to Lambert. The

admitted call contained statements by both Fry ("KF") and Cantwell

("CC"), including the following exchange:

CC: The only choices that I have are to go to law enforcement

or to . . . commit a crime myself.

[Lambert and the Bowl Patrol] broke the law and the only

remedy I have is law enforcement.

KF: Okay, but you threatened Cheddar Mane and said you are

going to come and rape his wife.

CC: I didn't say I was going to rape his wife, ok? I left

that out there, okay?

Later, in its rebuttal closing argument, the government

returned to this telephone call. The prosecutor discussed how

Cantwell himself characterized his interactions with Lambert as

- 15 - "form[s] of violence."10 The prosecutor then stated that Cantwell

"confide[d] in" Fry and said, "he tells her about what he meant,

and we're going to play a portion of [that call]." The government

then played an excerpt of the call, beginning with Fry's statement,

"[o]kay, but you threatened Cheddar Mane." The government went on

to argue that Fry and other members of Cantwell's community thought

that Cantwell's messages "crossed a line," stating, "you've heard

Ms. Fry's reaction to [the messages]." The parties did not mention

the phone call any further.

Cantwell, for his part, hoped to persuade the jury that

he did not intend to threaten by drawing attention to the context

of his messages. Cantwell's defense elicited testimony from

Lambert, Paul Nehlen, and Cantwell about the extreme and derogatory

rhetoric that members of the Bowl Patrol routinely used. The

defense questioned Lambert about his appearances on the Bowl

Patrol's podcast, during which he had "made jokes about rape" and

other forms of violence. Cantwell also testified about the Bowl

Patrol's defacement of his website with sexually explicit and

10 Cantwell testified on cross-examination that he viewed doxing -- and, therefore, his exchange with Lambert about doxing him -- as a "form of violence." The prosecutor's rebuttal referred to this when she stated: "And as you're thinking about whether or not [Cantwell] intended []his statement [about Lambert's wife] to reflect violence, think about his previous statements on doxing, that it's helpful to think of doxing as a form of violence. Do you really think that he intended his threat to dox, to convey some sort of form of violence, but he didn't intend for this statement to convey a form of violence?"

- 16 - violent material, which Cantwell characterized as "terrorist

propaganda." Cantwell argued that the extremist online space in

which he and Lambert communicated was therefore dominated by

insults, violent language, and antagonizing communications, and

that, in this context, his messages did not evince an intent to

threaten Lambert.

The defense also suggested that Cantwell had been baited

into making the statements at issue in this case. Cantwell's

cross-examination of Lambert sought to highlight Lambert's

participation in the Bowl Patrol's harassment of Cantwell,

including his "mocking and taunting [of Cantwell]" through fall

2018 and into 2019. Cantwell himself testified that the prank

calls to his show felt like a "campaign of nonstop torment" and

that his statements about harming Lambert's wife were a response

to Lambert's "ominous statement about [Fry]" -- that is, Lambert's

message to Cantwell stating "guess that means you d[o]n't care

what happens to [Fry]." Marshalling this testimony, Cantwell

claimed that his messages to Lambert were a reaction to

longstanding harassment, arguing from the trial's very outset that

"[Cantwell] had been pushed, taunted, and harassed for months to

make him angry, to wind him up, to provoke a bigger and bolder

response."

The court voiced its concern on at least three occasions

before the charging conference that Cantwell's strategy veered

- 17 - close to implicitly presenting an affirmative provocation defense,

which is not a defense to crimes committed under 18 U.S.C.

§§ 875(b) and (d).11 The court noted that Cantwell's defense

strategy regarding his mental state had "a potential for an

improper purpose" because it suggested that Lambert provoked

Cantwell's outburst when he participated in the Bowl Patrol's prank

calls and impliedly threatened Cantwell's then-girlfriend, Fry.

Cantwell discussed his defense theory extensively with the court

throughout trial and was aware of the court's concerns. The court

ultimately decided to give a jury instruction on provocation,

making clear that provocation was not a defense available to

Cantwell on the charges before the jury.

The jury found Cantwell guilty on Count 1, extortionate

interstate communication, and Count 3, threatening to injure

11A defendant cannot bring an affirmative provocation defense when there is a reasonable opportunity to refrain from engaging in illegal conduct, as is the case with threat crimes. See United States v. Bailey, 444 U.S. 394, 410 (1980) (stating that affirmative justification defenses fail with respect to crimes in which there is "a reasonable, legal alternative to violating the law"); United States v. Sovie, 122 F.3d 122, 125-126 (2d Cir. 1997) (relying on Bailey to note that provocation does not constitute a legal defense to threat crimes committed under 18 U.S.C. § 857(c)); Kevin F. O'Malley et al., 1A Fed. Jury Prac. & Instr. § 19:02 (6th ed.) (explaining that defenses such as provocation only apply when a defendant can show "that she lacked a reasonable opportunity to escape harm other than by engaging in the illegal activity."). Cf. Dagley v. Russo, 540 F.3d 8, 12n.2 (1st Cir. 2008) (approving of jury instructions stating that "mere words, no matter how insulting or abusive standing alone do not constitute reasonable provocation").

- 18 - property or reputation, on September 28, 2020. Cantwell's

sentencing hearing took place on February 24, 2021. The

presentence report calculated a total offense level of 20 and a

criminal history category of III, which yielded a guideline

sentencing range of 41-51 months of incarceration. The government

argued for a sentence of 51 months, while Cantwell argued for a

downward departure due to Lambert's provocation of the offense

under U.S.S.G. § 5K2.10. The court denied the request for a

downward departure and sentenced Cantwell to 41 months of

incarceration and two years of supervised release. This appeal

followed.

II.

Cantwell raises three arguments on appeal: (1) the

government improperly referred to a statement made by a non-

testifying witness in its closing argument, thereby prejudicing

him, (2) the district court abused its discretion by instructing

the jury that provocation was not a defense, and (3) the district

court abused its discretion when sentencing Cantwell by refusing

to grant a downward departure based on Lambert's provocation of

the offense.

A. The Government's Closing Argument

Cantwell challenges the government's reference to a

statement made by Fry, a non-testifying witness, in its rebuttal.

As already noted, the government argued that Cantwell "t[old Fry]

- 19 - about what he meant" in his messages and immediately played an

excerpt of the previously admitted telephone conversation in which

Fry said "you threatened Cheddar Mane." The government then argued

that people in Cantwell's community understood the messages to be

threatening and told the jury "you've heard Ms. Fry's reaction to

[the messages]." Cantwell did not request a limiting instruction

when the evidence was first admitted, nor did he object to the

government's use of Fry's statement in its rebuttal.

1. Standard of Review

When a defendant does not contemporaneously object to a

statement made during closing argument, we review for plain error.

See United States v. Pérez-Vásquez, 6 F.4th 180, 201 (1st Cir.

2021). Under our traditional plain error analysis, an appellant

must show "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings." United States v.

Pérez-Rodríguez, 13 F.4th 1, 16 (1st Cir. 2021) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

As applied to closing arguments of prosecutors, our

plain error analysis requires us first to ask "whether the

challenged comment [is] obviously improper" and, if so, "whether

the comment 'so poisoned the well that the trial's outcome was

- 20 - likely affected.'"12 Pérez-Vásquez, 6 F.4th at 201 (quoting United

States v. Walker-Couvertier, 860 F.3d 1, 10 (1st Cir. 2017)). This

is a high bar, requiring us to weigh the impact of the contested

prosecutorial comment against the strength of the evidence against

the defendant. See id. at 201-2 (finding no plain error in the

government's use of two contested statements during its closing

argument primarily because the statements "[did] not cast doubt on

the conviction" and "[were] unimportant to the outcome");

Walker-Couvertier, 860 F.3d at 10 (finding no plain error primarily

because "the possibility that the . . . [improper] statement

affected the outcome of the trial is miniscule" given the

"overwhelming proof of defendants' guilt"). We have previously

explained that where a defendant alleges improper argument in the

government's closing, "unpreserved claims have to approach a

miscarriage of justice before they warrant reversal." United

States v. Potter, 463 F.3d 9, 25 (1st Cir. 2006).

12 Our caselaw clarifies that there is no substantive difference between our plain error standard as applied to prosecutors' closing arguments and our traditional plain error review. See Walker-Couvertier, 860 F.3d at 10 (equating the first step in our closing argument review with the first two prongs of the traditional plain error review); United States v. Vizcarrondo-Casanova, 763 F.3d 89, 97 (1st Cir. 2014) (applying, after satisfying the first step of closing argument review, a standard substantively akin to the third and fourth prongs of our traditional plain error review).

- 21 - 2. The Improper Comment

The parties do not contest the hearsay nature of Fry's

statement referred to in the government's rebuttal. Fry was an

out-of-court declarant, and the parties agree that the

government's comment -- "And you've heard Ms. Fry's reaction to

[Cantwell's messages]" -- invited the jury to consider her

statement for its truth, namely, that she understood Cantwell's

message as a threat. See Fed. R. Evid. 801(c) (defining hearsay);

United States v. Pena, 24 F.4th 46, 61 (1st Cir. 2022) ("For an

out-of-court statement to constitute hearsay . . . the statement

must be offered to prove the truth of the matter it asserts.").

Hearsay is generally not admissible unless subject to a defined

exception. See Fed. R. Evid. 802. The parties agree that whether

the government's comment was "obviously improper" therefore turns

on the circumstances under which Fry's statement was admitted.

The government argues that the comment was not improper

because Fry's statement was admitted without limitation. The

government was therefore free to use the statement as it wished,

including for its truth.

Cantwell, on the other hand, argues that the

government's use of Fry's statement in its rebuttal was obviously

improper because the government was precluded from using the

statement for its truth. Cantwell contends that his portion of

the telephone call with Fry was admitted as the statement of a

- 22 - party-opponent under Federal Rule of Evidence 801(d)(2)(A) and

that Fry's words were admitted to contextualize his portion of the

call only. Under this theory, the government impermissibly

appealed to the jury to consider the truth of Fry's statement,

which harmed Cantwell in two ways. First, the truth of Fry's

statement supports the government's contention that Cantwell

intended to threaten Lambert. The government's rebuttal proposed

that Cantwell was so close to Fry that he told her what he meant

by his messages and therefore Fry's understanding that Cantwell

threatened Lambert reflected Cantwell's intent. Second, the truth

of Fry's statement bolsters the government's argument that

Cantwell's messages contained a threat -- that is, Fry's belief

supports the assertion that Lambert would reasonably perceive

Cantwell's messages as a threat, particularly since the government

referred to Fry as part of its argument that right-wing community

members, including Lambert and Paul Nehlen, perceived Cantwell's

messages as threatening. Instead, Cantwell argues that the

government was restricted to referring to Fry's statement solely

to contextualize Cantwell's own words, given the limited purpose

for which it was admitted.

Cantwell is correct that Fry's statement was admitted

for a limited purpose. The government introduced Cantwell's

portion of the call with Fry as statements of a party-opponent

under Federal Rule of Evidence 801(d)(2)(A). Rule 801(d)(2)(A)

- 23 - classifies a statement of a party-opponent that is offered against

the party-opponent as nonhearsay. Fed. R. Evid. 801(d)(2)(A).

Statements of a party-opponent can thus be offered for their truth.

See United States v. Ruiz, 999 F.3d 742, 748-49 (1st Cir. 2021).

Statements by declarants other than the party-opponent can still

be admitted in the context of 801(d)(2) evidence, where such

statements are offered for a limited purpose -- such as providing

an explanation for the party-opponent's portion of the

conversation -- but are not admitted for their truth. See

Pérez-Vásquez, 6 F.4th at 197 (holding that statements by a non-

testifying witness may be admitted under Rule 801 "only to provide

context for statements made [by the party-opponents] in the

conversation and make them intelligible to the jury, not for their

truth").

The government understood that Cantwell's portion of the

call came in under Rule 801(d)(2)(A) and that Fry's corresponding

statements were admitted for the limited purpose of

contextualization. The government twice stated that it was

introducing the phone call under "Rule 801" and referred to

Cantwell's statements as "party statements," indicating that the

government introduced the call under Rule 801(d)(2)(A). The

government well understood the boundaries and scope of

801(d)(2)(A) evidence -- the prosecutor explained that she knew

that some of the statements in the call were hearsay and stated

- 24 - that the government did not intend to use those portions against

Cantwell.13 Since there were only two participants in the call and

Cantwell's statements were nonhearsay, the government clearly

understood that Fry's statement was hearsay if used for its truth

and therefore that it was admitted for contextualization only.14

Hence, the prosecutor's use of Fry's statement beyond its admitted

purpose was obviously improper.

3. Effect of the Comment on the Trial's Outcome

Cantwell's claim nevertheless fails because he cannot

demonstrate that the prosecutor's improper comment "likely

affected" the outcome of the trial. See Pérez-Vásquez, 6 F.4th at

13In a sidebar conference discussing why the government had excerpted the phone conversation the way it had, the government recognized that portions of the call were hearsay. The prosecutor stated: "801 specifically defines something as not hearsay as a party statement used against that party, and we don't intend to use [hearsay] portions against Mr. Cantwell." 14 This conclusion does not change in light of the court's expansion of the excerpt that was ultimately admitted. Cantwell successfully argued that the court should expand the government's excerpt of the call under Federal Rule of Evidence 106, which allows a party to expand an excerpt of a recorded statement admitted against him to prevent the proponent of the evidence from cherry-picking damaging excerpts. See Fed. R. Evid. 106; see also United States v. Altvater, 954 F.3d 45, 49 (1st Cir. 2020) (noting that Rule 106 "is meant to prevent the jury from being misled by reading or hearing a statement 'out of context.'" (quoting Fed. R. Evid. 106 Advisory Committee's Note to 1972 Proposed Rules)). Cantwell's expansion of the excerpt does not change the evidentiary theory under which Fry's statement was admitted into evidence because the statement was part of the original excerpt that the government sought to introduce and did not come in under Cantwell's Rule 106 expansion.

- 25 - 201 (quoting Walker-Couvertier, 860 F.3d at 10). As noted, the

truth of Fry's statement strengthened the government's argument on

two fronts: first, regarding Cantwell's intent to threaten and,

second, regarding Lambert's reasonable perception of Cantwell's

messages as a threat to harm his wife, on Count 1, and as threats

to his reputation, on Count 3. Even without Fry's statement, the

government presented ample evidence on each of these elements from

which a jury could properly conclude that the government had met

its burden.

The exchange between Cantwell and Lambert, which the

jury had in full, gave the jury strong evidence from which to

conclude that Cantwell intended to threaten harm to Lambert's wife.

The entire exchange included multiple, persistent references to

harming Lambert's wife. Cantwell wrote, "your wife is gonna have

trouble sleeping at night," "I bet one of my incel listeners would

love to give her another baby," and he sent photos of her to

Lambert, showing that he knew her identity.

Cantwell's own testimony also provided evidence of his

intent to threaten Lambert. Cantwell testified that he had

previously threatened Lambert with exposing his identity, stating

that in March 2019 he "warned [Lambert] that if he came back around

that I was going to dox him." Cantwell admitted on the stand that

he did, in fact, dox Lambert by posting Lambert's address online,

circulating photos of his family, and reporting Lambert to

- 26 - Missouri's Department of Social Services. Further, the jury had

before it Cantwell's email to the FBI reporting the Bowl Patrol's

harassment, in which he said: "I threatened to expose [Lambert's]

identity." In the face of such robust evidence on Cantwell's

intent, we cannot conclude that the government's single improper

comment "so poisoned the well that the trial's outcome was likely

affected." Pérez-Vásquez, 6 F.4th at 201 (quoting Walker-

Couvertier, 860 F.3d at 10).

Nor can Cantwell demonstrate that the government's

improper comment affected his trial's outcome regarding the

threatening nature of his messages. The government presented

extensive evidence that Lambert could reasonably view Cantwell's

messages as threats. Two government witnesses testified about the

messages and their impact. Critically, Lambert himself testified

that he viewed Cantwell's words about "fuck[ing] [his] wife in

front of [his] kids" as a threat, describing that they made him

"angry," "scared," and he "felt as though a line had been crossed."

Another member of the Bowl Patrol, Paul Nehlen, testified that

Cantwell's references to Lambert's wife and children "crossed a

line," even within the context of their extremist community. The

jury had ample evidence from which to conclude that Lambert could

reasonably perceive Cantwell's message as a threat without the

addition of Fry's belief that it was so. Again, the strength of

the government's evidence on Cantwell's threats belies any

- 27 - argument that its use of Fry's statement during closing argument

likely affected the outcome of the case.

B. The District Court's Provocation Instruction

Cantwell contends that the district court erred by

instructing the jury that provocation is not a defense to his

charges under 18 U.S.C. §§ 875(b) and (d). Throughout the trial,

Cantwell presented evidence of the Bowl Patrol's harassment of

him, including Lambert's and others' prank calls to his live show,

their defacement of his website, and Lambert's implied threat to

Fry -- "[g]uess that means you d[o]n't care what happens to her.".

Cantwell argues that such evidence was important to undermining

two elements of the offenses with which he was charged -- a

strategy that Cantwell terms his "elements-based defense." At

trial, Cantwell contended that the government could not prove that

he intended to threaten Lambert because his communications were

merely an expression of his frustration at the Bowl Patrol.

Cantwell also argued that the government could not prove that

Lambert reasonably perceived his messages as a threat, given the

routinely vitriolic and antagonistic context of online

interactions in this community.

The district court, however, saw Cantwell's strategy

differently. While acknowledging that evidence about the Bowl

Patrol's harassment provided important context for Cantwell's

messages, and thus was relevant to the jury's interpretation of

- 28 - Cantwell's intent and his communications, the court determined

such evidence also impermissibly invited the jury to consider an

affirmative provocation defense. The court therefore gave a jury

instruction on the permissible use of "provocation" evidence,

stating in relevant part:

You have heard evidence that [Lambert] and others have engaged in behavior that disrupted the defendant's live call-in radio show. You have also heard evidence that Vic Mackey or others may have engaged in behavior that disrupted the defendant's website. You may consider such evidence for the purpose of understanding all of the circumstances surrounding the making of the communications at issue in this case, including, for example, the language, specificity and frequency of the communications, the context surrounding the communications, the relationship between the defendant and [Lambert], [Lambert's] response, any previous communications between the defendant and [Lambert] and whether you believe the person making the communication was serious, as distinguished from mere idle and careless talk, exaggeration or something said in a joking manner. You may not consider this evidence for any other purpose. . . . [E]vidence of provocation, justification or self defense does not negate the defendant's criminal culpability with respect to that charge.

Cantwell objected to the instruction, arguing that it tended to

confuse and mislead the jury by raising the topic of an affirmative

provocation defense and negating his elements-based defense.

We review preserved claims of instructional error under

a split standard: we consider de novo whether the instruction

correctly stated the law, while we review for abuse of discretion

- 29 - whether the instruction tended to "confuse or mislead the jury on

the controlling issues." See United States v. Cotto-Flores, 970

F.3d 17, 37 (1st Cir. 2020) (quoting United States v. Symonevich,

688 F.3d 12, 24 (1st Cir. 2012)). The instructions here correctly

stated the law and Cantwell does not appear to contend otherwise.

As such, our review of the instruction is for abuse of discretion.

2. The Jury Instruction

Jury instructions are intended to provide jurors with

the proper legal standards to apply in deciding a case. See

Teixeira v. Town of Coventry, 882 F.3d 13, 16 (1st Cir. 2018)

(noting that "[j]ury instructions are intended to furnish a set of

directions composing, in the aggregate, the proper legal standards

to be applied by lay jurors in determining the issues that they

must resolve in a particular case" (quoting United States v.

DeStefano, 59 F.3d 1, 2 (1st Cir. 1995))). This purpose

necessarily includes advising the jury on applicable legal

defenses. See United States v. Florentino-Rosario, 19 F.4th 530,

537 (1st Cir. 2021); cf. United States v. Fera, 616 F.2d 590, 596-

97 (1st Cir. 1980) (upholding a jury instruction that corrected

the defense's misrepresentation of evidence because the

instruction was "properly given to dispel any doubt which the jury

may have had as a result of the defendant's [evidence]").

Far from raising the concept of provocation in a

confusing or misleading manner, the district court's jury

- 30 - instruction demonstrated a reasonable and considered response to

Cantwell's presentation of evidence at trial. The court

acknowledged in the charge conference that Cantwell's defense

sought to undermine his intent, but also noted that Cantwell

impliedly argued that he had been baited into making the statements

at issue, thereby drawing heavily on the concept of provocation.

Cantwell's defense elicited testimony from Lambert and Cantwell

about how the Bowl Patrol sought to deliberately antagonize

Cantwell. The defense asked Lambert whether the purpose of

"trolling," a term used in the trial to describe the Bowl Patrol's

harassment of Cantwell, is to "provoke a response from the other

person that you're trolling" and asked if the Bowl Patrol members

"were trying to make Chris angry[.]" Moreover, Cantwell testified

that Lambert's reference to Fry in the June 15-16, 2019 messages

-- "So I am assuming peach took the picture. Guess that means you

d[o]n't care what happens to her" -- was "trying to get a rise out

of [Cantwell]." The court reasonably concluded that the defense

presented such evidence to "invit[e] the jury to find the defendant

not guilty because he was provoked by Mr. Lambert," thereby

effectively mounting an affirmative provocation defense. As

already noted, this affirmative defense was not available to

Cantwell because provocation cannot constitute a legal defense to

threat crimes. See Bailey, 444 U.S. at 410; Sovie, 122 F.3d at

- 31 - 125-26. The court's jury instruction on the permissible use of

Cantwell's provocation evidence was therefore appropriate.

The court's desire to instruct the jury on the

permissible use of provocation evidence regarding Cantwell's

intent was not surprising to Cantwell. Indeed, the court first

voiced its concerns about Cantwell's strategy on the first day of

the trial, after hearing Cantwell's opening statement. That

statement began by arguing that he had been "pushed, taunted, and

harassed . . . to provoke a bigger and bolder response," leading

the court to tell defense counsel that it may give a clarifying

jury instruction on provocation if it felt this would be necessary.

The court then raised this issue with Cantwell two more times.

While Cantwell rightly notes that "provocation" has a lay meaning,

independent of the criminal defense context, the court's well-

aired concerns that Cantwell's evidence carried the potential for

improperly inviting the jury to consider an affirmative

provocation defense were entirely reasonable.

Moreover, the court accommodated Cantwell's concerns

about the instruction impeding his ability to effectively present

his elements-based defense, particularly regarding the

reasonableness of characterizing Cantwell's communications as

threats. Cantwell's defense extensively documented the tone and

content of his communications with Bowl Patrol members, eliciting

testimony about the misogynistic and racist rhetoric that was

- 32 - commonplace in their extremist community and arguing that violent

words were simply part of how this community spoke with each other.

The court explicitly clarified that the jury could consider such

evidence in assessing whether Lambert would reasonably perceive

Cantwell's messages as threats as opposed to other forms of

communication, instructing the jurors:

You may consider such evidence for the purpose of understanding all of the circumstances surrounding the making of the communications at issue in this case, including, for example the language, specificity and frequency of the communications, the context surrounding the communications, the relationship between the defendant and [Lambert] . . . [and whether they were] mere idle and careless talk, exaggeration or something said in a joking manner.

Contrary to misleading or confusing the jury, the court's

instruction provided jurors with clear parameters on the proper

use of the provocation evidence. The court did not abuse its

discretion in giving that instruction.

C. Cantwell's Sentence

Lastly, Cantwell contends that the district court abused

its discretion in denying his request for a downward departure

under U.S.S.G. § 5K2.10, which allows the court to reduce a

sentence below the guideline range where the victim provoked the

offense. The court sentenced Cantwell to 41 months' incarceration,

at the bottom of the guideline range. We review a district court's

discretionary refusal to depart from the guideline range for

- 33 - reasonableness. See United States v. Herman, 848 F.3d 55, 58 (1st

Cir. 2017).

Section 5K2.10 provides that a court may reduce the

sentence below the guideline range where the "victim's wrongful

conduct contributed significantly to provoking the offense

behavior." U.S.S.G. § 5K2.10 (U.S. Sent'g Comm'n 2004). Where

the victim's conduct was nonviolent, such a departure is only

warranted in "unusual circumstances" involving "substantial victim

misconduct." Id. Factors the court considers in determining

whether a departure is warranted include the victim's persistence

and the defendant's efforts to deescalate the confrontation, and

the "proportionality and reasonableness of the defendant's

response to the victim's provocation." Id.

We conclude that the district court did not abuse its

discretion for three reasons. First, the court reasonably

concluded that Lambert had not provoked Cantwell in the months

leading up to the June 15-16, 2018 incident. During the sentencing

hearing, the court recognized that "the members of the Bowl Patrol

were trying to drive [Cantwell] crazy" through their efforts to

disrupt his program and livelihood. While the court determined

that Lambert was a participant in some of the Bowl Patrol's early

harassment, it determined that Lambert did not contribute

significantly to provoking Cantwell's messages because the

- 34 - "pattern of harassment had waned by June and in any event did not

involve the victim in this case."

Second, the court reasonably determined that another

provocative act -- the anonymous communication to Fry in the early

hours of June 15, 2019 -- could not be attributed to Lambert. The

sparse discussion of this anonymous message during the sentencing

hearing is replete with ambiguity and the court correctly pointed

out that even Cantwell did not consistently believe that this text

had come from Lambert.

Third, the court reasonably decided that Lambert's

appearance in the Peaceful White Folks chat room did not constitute

provocation justifying a downward departure under 5K2.10.

Although the court recognized that Cantwell was agitated to see

Lambert there, it noted that Lambert's act of appearing in the

group was not in and of itself provocation to justify Cantwell's

response and that Lambert also attempted to deescalate the

situation.

Cantwell challenges the court's reliance on the lack of

immediate provocation when justifying its refusal to grant a

downward departure. The court made two references to immediacy

when sentencing Cantwell, first saying, "I'm not satisfied that

the immediate incident was precipitated by any provocation by the

victim" and moments later stating, "I can't say that you were

provoked in any way in the immediate sense."

- 35 - Cantwell is correct that immediacy is not required for

provocation under section 5K2.10. See U.S.S.G. § 5K2.10 (noting

that "an extended course of provocation and harassment" may warrant

a departure); Koon v. United States, 518 U.S. 81, 104 (1996)

(reasoning in relation to section 5K2.10 that "[a] response need

not immediately follow an action in order to be provoked by it.").

The court did not require Cantwell to show immediacy, though.

Rather, the court considered immediacy a factor in strengthening

a provocation argument, reasonably explaining in the sentencing

hearing that "provocation is less compelling as a justification

. . . if the provocative act occurred months in the past." Cf.

United States v. Mussayek, 338 F.3d 245, 256-57 (3d Cir. 2003

(upholding district court's refusal to grant departure under

U.S.S.G. § 5K2.10 in part because the defendant's offensive

conduct was months after the alleged provocation); Koon, 518 U.S.

at 104 (finding that the district court did not abuse its

discretion in departing downward when the defendant's offensive

conduct occurred "within seconds" of provocation, even though "an

immediate response" is not required by § 5K2.10). Moreover, the

record makes clear that the court looked at the months preceding

the offensive conduct when deciding whether to grant Cantwell's

5K2.10 request. The court did not abuse its discretion in its

carefully considered decision to deny the downward departure.

Affirmed.

- 36 -