by: Amanda Clark Palmer
Partner Robin Loeb recently wrote about the first COVID-related civil litigation, and now we are seeing some of the first COVID-related criminal prosecutions. You are probably thinking that the feds are going after those who stockpile hand sanitizer or toilet paper and then charge ridiculous markups, or “snake oil salesman” who are hawking things they claim cure the coronavirus. But you’d be wrong. No, the feds are throwing the book at Christopher Perez for posting a threat on Facebook claiming he paid someone to spread the coronavirus at grocery stores in his area to keep people home (and therefore limit the spread of the virus.) To be clear, his Facebook post was completely false. He hadn’t paid anyone, and no one had gone to any grocery stores to “spread” the virus. Christopher may have had laudable goals but incredibly poor judgment when it comes to carrying out his goals. But was it a crime? Should he go to prison?
It’s worth reading the text of his Facebook post for context. His post stated “PSA!! Yo rt GROCERY STOREMERCADO!! My homeboys cousin has covid19 and has licked every thing for the past 2 days cause we paid him too . . . big difference is we told him not to be these fucking idiots who record and post online . . . YOU’VE BEEN WARNED!!! GROCERY STORE on nogalitos next ;)” This post was on Facebook for 16 minutes before he took it down. And FWIW no grocery stores closed or took any action based on the post – they were waiting confirmation of the validity of the threat before planning any response.
The U.S. Attorney’s Office for the Western District of Texas (you were thinking this must have been Florida, weren’t you?) charged Christopher with one count of violating 18 U.S.C. § 1038. What are the elements of this charge? This statute (called “False information and hoaxes”) criminalizes those who “engage in any conduct with the intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of” and then gives several different other statutes. In Christopher’s case, the complaint alleges that his hoax involves “biological agents” as defined under 18 U.S.C. § 175. That statute says it is illegal to develop, produce, stockpile, transfer, acquire, retain, or possess any biological agent, toxin, or delivery system for use as a weapon. The statute further defines “for use as a weapon” as use for other than prophylactic, protective, bona fide research, or other peaceful purposes.
Query then how the government can prove their case against Christopher when his stated purpose for using the virus wasn’t for use “as a weapon”? If one believes Christopher, he actually had a peaceful – albeit hair-brained – purpose behind his post: to save others from being exposed to the virus by scaring them away from the grocery store.
Another problem for the government is the phrase “reasonably be believed.” First of all it is on Facebook, so the method of posting the information itself already leads most people to doubt its reliability. According to a 2019 article from fortune.com, Facebook removed over two billion fake accounts in the first quarter of 2019! How can the government even establish it is his Facebook account and he is the one who posted the content? Well, actually Christopher helped the government with that one – he apparently admitted to agents that it was his Facebook account and he did put up that post. (Bringing to mind one of Ed Garland’s favorite sayings “A fish wouldn’t get caught if he didn’t open his mouth.”) So fine; they can establish it was him who made the post. They still have to prove – beyond a reasonable doubt – that his post would “reasonably be believed.” This is where jury selection is really important; an ideal juror for the defense would be someone who already has an inherent distrust of what she reads online, especially on social media. Then there is the content of the post itself. The claim is so outlandish it is hard to believe anyone would take it seriously at all, no matter where it was posted. The reader would have to believe: 1) that someone would go around a grocery store and be able to surreptitiously lick every item in the store for two days without being noticed, 2) that the same person would be willing to go around and purposefully try and infect other grocery story shoppers because he’s that much of a jerk, and 3) that the same person would be part of a conspiracy with Christopher; that together they hatched this inane plan to infect as many other people as possible by licking grocery store items. How can the government argue this post would reasonably be believed by anyone? Isn’t that belied by the fact that the grocery store itself didn’t take any action upon learning of the content of the post?
And there’s more: How does the First Amendment figure into this? Shouldn’t Christopher be able to exercise his First Amendment right to free speech? Of course he should, but it doesn’t mean his right to free speech is completely unrestricted. The U.S. Supreme Court has held that certain, discrete categories of content-based restrictions do not violate the First Amendment (for example defamation, “fighting words”, yelling ‘fire’ in a crowded theater; child pornography, and fraud just to name a few.) A separate, but similar statute, is 18 U.S.C. § 35, the so-called “bomb hoax” statute. This statute criminalizes conveying false information regarding an attempt to destroy, damage, or disable aircraft. In 2012, the Eighth Circuit Court of Appeals ruled that restrictions on speech in this statute did not violate the First Amendment because this statute criminalized a “true threat” and true threats are exempted from First Amendment protection. It seems likely that a First Amendment challenge to the statute in Christopher’s case would also be viewed as exempt from First Amendment protection.
If the government can overcome their evidentiary burdens and convince a jury that Christopher did in fact violate the law, what’s the likely punishment? The maximum punishment under the statute is five years, but that is rarely a helpful guideline to estimate the likely sentence. Instead, we look to the Sentencing Guidelines. In this case, a violation of 18 U.S.C. § 1038 falls under USSG 2A6.1. The base offense level is 12. There are some aggravating factors that don’t seem to apply in this case (such as, adding 6 levels if the offense involved any conduct evidencing an intent to carry out the threat.) The Guidelines say to decrease the base offense level by 4 if no aggravating factors apply and the offense involved a “single instance evidencing little or no deliberation.” On the few facts that are gleaned from reading the DOJ’s press release and the complaint filed by the investigating officer, this Guideline provision sure seems to apply to Christopher’s case. Meaning he ends up with a Guideline level of 8. If one assumes he is a Criminal History Category I, a Level 8 is in Zone A, with a suggested sentence range of 0-6 months (which could be served on probation or home detention).
It will be interesting to track this case over the next several months to see what the outcome is. Will Christopher plead guilty? Will he be offered pretrial diversion? Will he go to trial? We will check back in with Christopher periodically to see how his case is progressing. In the meantime, here is the DOJ's Criminal Complaint.