November 29, 2015

Colorado Supreme Court: Warrantless Seizure of Laptop Computer Satisfied Plain View Exception

The Colorado Supreme Court issued its opinion in People v. Swietlicki on Monday, November 23, 2015.

Warrantless Seizures—Plain View Exception—Fellow Officer Rule.

In this interlocutory appeal, the Supreme Court reversed the trial court’s order  suppressing evidence found on defendant’s laptop computer after police seized the laptop without a warrant. The Court held that the warrantless seizure was justified under the plain view exception to the warrant requirement. In so holding, the Court clarified that the “immediately apparent” requirement of the plain view exception demands only that the seizing officer have probable cause to associate the item with criminal activity without conducting a further search. The Court also determined that the fellow officer rule applies to probable cause determinations in the context of plain view seizures.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Judge’s Ex Parte Communications Violated Defendant’s Constitutional Rights

The Colorado Court of Appeals issued its opinion in People v. Guzman-Rincon on Thursday, November 19, 2015.

Sixth Amendment—Fourteenth Amendment—Jury—Ex Parte Communications.

The victim and her friends were standing across the street from Aurora Central High School when a vehicle drove by, made a U-turn, and drove back toward the group. A passenger from the vehicle then fired a single shot from the car. The bullet struck the victim in the spine, paralyzing her. A jury found him guilty of six counts of attempted extreme indifference murder (crime of violence).

During trial, the prosecutors requested ex parte communications with the judge to inform him that the investigating officer on the case had been contacted by a confidential informant, who warned the prosecutors that defendant or defense counsel had leaked information about witness interviews to defendant’s family and that gang members viewed the interviews. The court determined there were credible threats against the witnesses, investigating officer, prosecutor, and jurors. The court sequestered the jury based on this information; however, the court did not inform defendant’s counsel or the jury that the sequestration was based on a credible threat. During deliberations, the jury questioned the court about their safety, and the court informed the jury of the threat outside the presence of defendant.

On appeal, defendant contended that the court’s ex parte communications with the prosecutors and the jurors violated his Sixth Amendment right to counsel and Fourteenth Amendment right to be present at all critical stages of his trial. Because a defendant is entitled to counsel and to be present at every critical stage of the proceedings, and the court’s discussions with the prosecutors and the jurors constituted critical stages, defendant’s Sixth Amendment right to counsel and his Fourteenth Amendment right to be present were violated. Because the court could not conclude that these errors were harmless beyond a reasonable doubt, reversal was required.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Storm Runoff Correctly Classified as Designated Ground Water

The Colorado Supreme Court issued its opinion in In the Matter of Water Rights as Applied for by Meridian Service Metropolitan District: Meridian Service Metropolitan District v. Ground Water Commission on Monday, November 16, 2015.

Subject Matter Jurisdiction—Designated Ground Water—Claim Preclusion.

Meridian Service Metropolitan District (Meridian) principally asked the Supreme Court to decide whether storm runoff may be classified as “designated ground water” subject to administration and adjudication by the Colorado Ground Water Commission (Commission), or whether such water is in or tributary to a natural stream, vesting jurisdiction in the local water court pursuant to the Water Right Determination and Administration Act of 1969, CRS §§ 37-92-101 to -602. Meridian also made claim preclusion and public policy arguments and asserted that the Colorado Groundwater Management Act, CRS §§ 37-90-101 to -143, is unconstitutional. The Court concluded that because this case presented a question as to whether the water at issue met the statutory definition of “designated ground water,” the Commission had jurisdiction to make the initial determination of the issue presented. The Court further held that the Commission, and the district court on de novo review, correctly found that a portion of the water at issue met the statutory definition of “designated ground water” and was therefore subject to administration by the Commission. The Court concluded that Meridian’s remaining arguments were not supported by the record or applicable law. The district court’s order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Hot Pursuit Applies Only to Immediate, Ongoing Crimes

The Tenth Circuit Court of Appeals issued its opinion in Attocknie v. Smith on Monday, August 24, 2015.

Aaron Palmer was shot dead in his house in Oklahoma on August 25, 2012 by Deputy Sheriff Kenneth Cherry, who was attempting to enforce a warrant against Aaron’s father, Randall Palmer, for failure to appear in drug court. Aaron’s widow, Nicole Attocknie, brought § 1983 claims against Cherry and his supervisor, Sheriff Shannon Smith, on behalf of herself, Aaron’s estate, and their minor child. The suit claimed that Cherry violated Aaron’s Fourth Amendment rights by unlawfully entering the house and using excessive force and that Smith was liable for failure to train and supervise Cherry. Both Cherry and Smith raised qualified immunity defenses, but the district court denied their summary judgment motions. Both appealed.

Cherry argued on appeal that he is entitled to qualified immunity because his entry into Aaron’s house was justified by hot pursuit of Randall, who he thought he had seen at the residence. The Tenth Circuit disagreed, finding that hot pursuit was inapplicable to the facts of the case because Randall’s outstanding warrant was over a year old, Cherry was the only person who thought he saw Randall, Randall was not at the residence, and Cherry shot Aaron about two seconds after entering the residence. The Tenth Circuit noted that Cherry’s belief that he saw Randall was not reasonable, and that “hot pursuit” does not apply to crimes that are not immediately ongoing. The Tenth Circuit held that Cherry’s entry into Aaron’s residence was clearly contrary to well-established law, and he therefore is not entitled to qualified immunity.

Smith also appealed the district court’s denial of qualified immunity, arguing that Cherry’s entry into Aaron’s home did not violate the Constitution and even if it did Smith had no duty to supervise or train Cherry because he was not an employee. The district court found that Cherry was Smith’s employee, and, because Smith raised no argument that he would be entitled to qualified immunity even if Cherry were his employee, the Tenth Circuit affirmed the district court’s denial of qualified immunity.

The district court’s denials of qualified immunity to Smith and Cherry were affirmed.

Colorado Court of Appeals: State and Federal Constitutions Provide Same Protection Regarding Searches

The Colorado Court of Appeals issued its opinion in People v. Parks on Thursday, November 5, 2015.

Vehicle—Inventory Search—Evidence—Suppression—State and Federal Constitutions.

Parks was driving a van when officers pulled him over on suspicion of fictitious license plates after observing expired plates on the van. Parks did not have a valid driver’s license or registration. In preparation to impound the van, the officers searched and inventoried the contents of the van. They seized nine plastic baggies of methamphetamine, two pipes, a digital scale, a scoop, a spoon, an empty pill bottle, two wiretap detection devices, and a receipt listing a credit card allegedly belonging to Parks. The evidence gathered from the inventory search was admitted at trial. Parks was convicted of possession with intent to distribute a controlled substance, driving under suspension, failing to provide insurance, displaying fictitious license plates, driving an unregistered vehicle, and six habitual criminal counts.

On appeal, Parks contended that the trial court erred by declining to suppress the evidence gathered from the inventory search of the cooler found in his van. The state and federal constitutions are coextensive in the context of inventory searches. The Colorado Constitution does not prohibit the opening and inspection of a closed container found during a vehicle inventory search if the search was conducted in accordance with a standardized departmental policy and there is no showing that the police acted in bad faith or for the sole purpose of investigation. Here, the trial court found, with record support, that the officer’s opening of the cooler was authorized by a standardized departmental policy and the officer did not act in bad faith or solely as pretext for investigation. Accordingly, the court’s denial of the motions to suppress was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Search of Cell Phone Exceeded Scope of Warrant

The Colorado Supreme Court issued its opinion in People v. Herrera on Monday, October 26, 2015.

Searches and Seizures—Criminal Law.

The Supreme Court held that neither the warrant permitting the police to search defendant Herrera’s cellphone for indicia of ownership nor the plain  exception to the warrant requirement authorized the police to seize evidence of text messages between Herrera and a juvenile girl named Faith W. The warrant did not permit the police to search every folder in the phone for indicia of ownership because if it did, it would qualify as a general warrant in violation of the Fourth Amendment’s particularity requirement. The warrant authorizing a search for text messages between Herrera and “Stazi” (the name used by an officer posing as a juvenile girl) rendered the police’s initial intrusion into the text messaging application legitimate, and the incriminating nature of the particular folder they searched was immediately apparent under the circumstances. However, the third requirement of the plain view doctrine—that the police have lawful access to that folder’s contents—was not met because there was no objective basis for the police to believe that it would contain messages from “Stazi.” Accordingly, the Court affirmed the trial court’s suppression of the evidence seized from the folder.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Mistake in Jury Instruction Resulted in Constructive Amendment of Charge

The Colorado Court of Appeals issued its opinion in People v. Riley on Thursday, October 22, 2015.

Attempt to Influence a Public Servant—Tampering With Physical Evidence—Second-Degree Forgery—Jury Instructions—Constructive Amendment of Information—Jury Deliberations—Audio Recording.

The People charged defendant with third-degree assault and harassment for allegedly attacking his ex-wife. After the charges were filed, defendant gave his attorney a receipt from a hotel that purportedly showed that defendant was not in Colorado on the dates of the charged offenses. Because the receipt contained fraudulent information based on defendant’s alterations of it, the People charged defendant with attempt to influence a public servant, tampering with physical evidence, and second-degree forgery.

On appeal, defendant argued that the trial court erred when it instructed the jury on the uncharged offense of felony forgery rather than the charged offense of second-degree forgery (a misdemeanor). The trial court’s instruction constituted a constructive amendment of the information because it changed an essential element of the charged offense and allowed the jury to convict defendant of an uncharged crime. Further, second-degree forgery is not a lesser included offense of felony forgery. Because it is constitutionally prohibited to convict a defendant of a charge not contained in the information, defendant’s conviction for second-degree forgery was reversed.

Defendant also argued that because the trial court did not provide the jury with instructions defining the terms “attempt” and “official proceeding,” his convictions for attempt to influence a public servant and tampering with physical evidence must be reversed. The Court of Appeals disagreed. Defendant cited no authority for the proposition that the term “attempt” in CRS § 18-8-306 should be defined by reference to the entirely separate criminal attempt statute. In addition, although “official proceeding” is defined in the statute, any error was harmless because defendant failed to show that this error contributed to his conviction for tampering with physical evidence.

Defendant further argued that the trial court erred in allowing jurors unfettered access to an audio recording between the prosecutor and defendant’s ex-wife about a conversation she had with defendant. When defendant’s ex-wife testified at trial, she denied everything she had initially told the police about the attack and all the statements she had made during the recorded interview with the prosecutor. The audio recording of the interview was admitted as prior inconsistent statements, and the recording was played for the jury during her testimony. Although the trial court failed to exercise its discretion with respect to the jury’s access to the recording during deliberations, such failure did not substantially influence the verdict or affect the fairness of the trial such that reversal of defendant’s convictions was required.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Innocent Explanations Need Not Dissipate Officer’s Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in United States v. Padilla-Esparza on Friday, August 14, 2015.

Daniel Enrique Padilla-Esparza is a citizen of Mexico and a lawful permanent resident of the United States. On February 25, 2013, he was entering the United States from Mexico when a drug-sniffing dog alerted to his truck. Officers searched his truck and found an empty non-factory compartment above the gas tank. The officers released Padilla-Esparza but entered an alert on their communications system regarding Padilla-Esparza and his truck. On September 7, 2013, agents stopped Padilla-Esparza as he was traveling through a border checkpoint on his way to Mexico. CBP Officer Aguilera and his partner interviewed Padilla-Esparza. Their suspicions were raised because Padilla-Esparza had money hidden in a camera case that he had not originally declared, he could not name the last three clients of his landscaping business, he had been through border checkpoints every month for the past six months, and he had receipts for $1,300 in recent clothing purchases. Because of these inconsistencies, Officer Aguilera created a second alert for Padilla-Esparza and updated his license plate information. Officer Aguilera also set up an alert to be sent to his cell phone when Padilla-Esparza returned to the United States.

On September 10, 2013, Officer Aguilera received an alert that Padilla-Esparza had re-entered the United States. He issued a “be on the lookout” alert (BOLO) for Padilla-Esparza and his truck. Three days later, Padilla-Esparza entered the Las Cruces Border Patrol checkpoint, but an officer waved him through the checkpoint due to heavy rain. Another officer monitoring license plates recognized Padilla-Esparza’s and stopped traffic, but soon realized that Padilla-Esparza had already been waved through. Border Patrol agents with a drug-sniffing dog pursued Padilla-Esparza and pulled him over about 15 miles from the border. However, one of the agents mistakenly believed they had the wrong truck and let Padilla-Esparza go. When the agents realized their error, they again pursued Padilla-Esparza and pulled him over again. A drug-sniffing dog alerted to Padilla-Esparza’s truck. Due to the heavy rain, the agents asked him to return to the border patrol checkpoint, and he agreed. At the checkpoint, the agents found 16 kilograms of cocaine in the hidden non-factory compartment.

Padilla-Esparza was indicted on one count of possession with intent to distribute 5 kilograms or more of cocaine. He moved to suppress the evidence seized from his truck. After an evidentiary hearing, the district court denied his motion. He eventually pleaded guilty but reserved the right to appeal the district court’s denial of his motion to suppress. He was sentenced to 78 months in prison followed by two years of supervised release. He appealed.

On appeal, Padilla-Esparza argued the evidence seized from his vehicle should be suppressed because (1) the first stop was unlawful because Officer Aguilera lacked reasonable suspicion to issue the BOLO alert, and (2) the second stop was unlawful because any reasonable suspicion was dissipated after he was released from the first stop. The Tenth Circuit rejected both arguments. Although Padilla-Esparza argued there were innocent reasons for all the reasons Officer Aguilera found suspicious, the Tenth Circuit found that the mere possibility of innocence does not negate reasonable suspicion. As to Padilla-Esparza’s argument that the second stop was unlawful, the Tenth Circuit again disagreed, noting that the officers’ suspicions were not dissipated after the first stop. Rather, they erroneously released the vehicle based on a mistaken belief that it was not the correct vehicle. They did not investigate Padilla-Esparza at all at the first stop, so there was no basis on which their suspicions could have dissipated.

The district court’s order allowing introduction of the evidence from Padilla-Esparza’s vehicle was affirmed.

Tenth Circuit: Sixth Amendment Right to Counsel Attaches Only to Criminal Proceedings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Calhoun on Monday, August 10, 2015.

Michael Calhoun, along with two co-defendants, appeared before the Tenth Circuit seeking to appeal the district court’s denial of his motion to quash a 60-count indictment. At that time, the Tenth Circuit deemed the appeal premature and dismissed it for lack of subject matter jurisdiction. United States v. Tucker, 745 F.3d 1054 (10th Cir. 2014). Defendant then pleaded guilty to one count of conspiracy to commit wire or mail fraud, reserving the right to appeal the denial of his motion to quash. He was sentenced to five years’ probation and again appealed.

On appeal, Defendant argued that he suffered ineffective assistance of counsel at the grand jury, specifically arguing his criminal counsel encouraged him to incriminate himself in order to help the bank overturn a $65 million civil judgment related to Defendant’s scheme, thereby violating his Sixth Amendment right to counsel and requiring suppression of the grand jury testimony and quashing of the indictment. The Tenth Circuit found a fatal flaw in Defendant’s argument—the Sixth Amendment right to counsel does not attach until criminal proceedings have begun, so he had no right to counsel at the grand jury proceeding.

The district court’s denial of the motion to quash was affirmed.

Tenth Circuit: Image on License Plate Conveys Message of Oklahoma’s Native American History

The Tenth Circuit Court of Appeals issued its opinion in Cressman v. Thompson on Tuesday, August 4, 2015.

In 2008, a task force created by the Oklahoma legislature chose a new design for the standard Oklahoma state license plate featuring an image of a Native American shooting an arrow into the sky along with the words “Native America.” The design is based on a sculpture by an acclaimed Oklahoma artist depicting a story in which an Apache warrior fired an arrow blessed by a medicine man into the heavens in order to carry prayers for rain into the spirit world. The license plate design was chosen as a “mobile billboard” to promote tourism in Oklahoma.

Keith Cressman, an Oklahoma resident with conservative Christian beliefs, objected to the standard license plate because he believed it promoted a message of pantheism with which he disagrees. Cressman tried to avoid displaying the message by covering it but was told that covering any part of the license plate is illegal. Cressman objected to having to purchase a specialty plate and asserted that the state should give him a specialty plate at no extra charge. He filed a 42 U.S.C. § 1983 lawsuit in November 2011, alleging that the license plate constituted forced speech in violation of his First Amendment rights and requesting an injunction prohibiting state officials from prosecuting him for covering the image or, alternatively, requiring the Oklahoma Tax Commission to provide him a specialty plate at the same cost as the standard plate.

Defendants filed motions to dismiss based on lack of standing and failure to state a claim. The district court determined that Cressman had standing but dismissed the claim because Cressman had failed to state a plausible claim of compelled speech. Cressman appealed, and the Tenth Circuit determined that he had Article III standing and reversed for further proceedings based on the panel’s conclusion that Cressman’s complaint stated a plausible compelled-speech claim. On remand, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to certain defendants and held a bench trial regarding the remaining claims. The district court ultimately concluded the Native American image did not provide a basis for Cressman’s First Amendment claim. Cressman again appealed.

The Tenth Circuit, engaging in de novo review, first discussed how the law of the case doctrine applied based on its previous ruling, thus precluding the defendants’ preliminary arguments that Cressman lacked standing. The Tenth Circuit also rejected defendants’ argument that because Cressman does not utilize the standard license plate at issue he does not have standing, finding instead that Cressman suffered an injury in fact by being forced to use the license plate, cover it illegally, or purchase a specialty plate at an extra cost. The Tenth Circuit also rejected defendants’ claim that the license plate was government speech, finding that private First Amendment rights could still be implicated because the license plates are “readily associated” with vehicle owners and the cars act as “mobile billboards” for the state.

Turning to the substance of the appeal, the Tenth Circuit characterized Cressman’s sole argument as whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either use the standard license plate with no modifications or purchase a specialty plate at extra cost. The Tenth Circuit found Cressman’s argument failed because he could not demonstrate that the Native American image was in fact the speech to which he objected. The Tenth Circuit found that although a reasonable observer might know the history of the image of the warrior shooting an arrow into the sky, that same reasonable observer would know that the image was chosen to further tourism in Oklahoma based on its history with Native Americans. Although Cressman argued it was “eminently reasonable” for an observer to associate the image with the pantheistic ideals of Native Americans, the Tenth Circuit disagreed. The Tenth Circuit concluded that the image conveyed the precise message intended by the Oklahoma task force — that Oklahoma’s history and culture has been strongly influenced by Native Americans — and found that it qualified as symbolic speech. Because Cressman expressly did not object to any message other than the pantheistic message, and because the message conveyed by the license plate was not that pantheistic message, the Tenth Circuit found he was not compelled to express a view to which he would otherwise object.

The Tenth Circuit affirmed the district court’s judgment in favor of the defendants. Judge McHugh concurred; she would have simplified the analysis pursuant to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).

Colorado Supreme Court: Despite Counsel’s Ineffective Assistance, Defendant Knowingly, Voluntarily, and Intelligently Decided to Testify

The Colorado Supreme Court issued its opinion in People v. Quintero-Amador on Tuesday, October 13, 2015.

CAR 4.1(a)—Fifth Amendment—Sixth Amendment.

In this interlocutory appeal brought by the People pursuant to CAR 4.1(a), the Supreme Court reversed the trial court’s order suppressing at retrial the testimony given by defendant at his first trial. The Court concluded that the trial court erred in suppressing this evidence because defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights when he testified at his first trial. The Court further concluded that trial counsel’s ineffective assistance did not directly affect defendant’s prior testimony, thus precluding a finding that the admission of this testimony would violate defendant’s Sixth Amendment rights.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Question of Whether Letter to Abortion Provider Conveyed “True Threat” Best Decided by Jury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dillard on Tuesday, July 28, 2015.

In January 2011, Angel Dillard delivered a letter to Dr. Mila Means, a family practitioner in Wichita, Kansas, who had recently decided to start providing abortions. In her letter, Dillard warned Dr. Means that she should check under her car every day “because maybe today is the day someone places an explosive under it” and referenced Dr. Means’ friend, Dr. Tiller, who had been killed as he attended church services, warning that “if he could speak from hell” Dr. Tiller would advise her against providing abortions. Dr. Means’ office manager received the letter and immediately notified the police. A copy of the letter was also forwarded to the FBI; they interviewed Defendant but did not take any follow-up actions. Shortly after receiving the letter, a member of Dr. Means’ staff found an Associated Press article on the internet discussing how Defendant had recently befriended Dr. Tiller’s murderer and indicating that Defendant admired the killer for following his convictions and stopping abortions from happening in Wichita.

In April 2011, the government brought this civil enforcement action against Defendant, seeking fines and preliminary and permanent relief. The district court denied the government’s motion for a preliminary injunction. Defendant moved to dismiss, arguing the government lacked standing and could not show a violation of the Freedom of Access to Clinic Entrances Act of 1994 (FACE), which the district court denied. While the discovery process was ongoing, Defendant moved for summary judgment, arguing no reasonable person could have construed her letter as a true threat against Dr. Means because it did not threaten imminent violence or convey a likelihood of execution. The district court agreed and granted summary judgment. The government appealed and Defendant cross-appealed, arguing the district court should have granted her earlier motion to dismiss.

The Tenth Circuit, on de novo review, analyzed the strictures of FACE and its prior case law to determine whether the threat conveyed in Defendant’s letter was a “true threat.” The Tenth Circuit noted that it has consistently found that the fact-intensive inquiry necessary to determine whether a true threat is conveyed is properly determined by a jury. The Tenth Circuit evaluated the district court’s determination that the threat in Defendant’s letter was not a true threat because it was conditional, suggesting a bomb might be placed under Dr. Means’ car only if she did not reconsider her decision to provide abortion services. The Tenth Circuit found that a conditional threat could still qualify as a true threat. The Tenth Circuit likewise rejected the district court’s analysis that because the threat was not imminent it was not a true threat. The Tenth Circuit similarly found that a direct statement of personal intent is unnecessary to convey a true threat, noting “[a] defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence.” The Tenth Circuit determined that a jury could reasonably have found Defendant’s letter to convey a true threat and reversed the district court’s grant of summary judgment.

Defendant argued the Tenth Circuit could affirm on the alternate ground that the government presented no evidence that she subjectively intended to threaten Dr. Means. The Tenth Circuit was unpersuaded, noting frequently the most probative evidence is objective evidence of what actually happened rather than the subjective state of mind of the actor. The Tenth Circuit found the government presented evidence from which a jury could reasonably find Defendant intentionally mailed Dr. Means a letter containing a threat of violence.

The Tenth Circuit turned to Defendant’s cross-appeal, in which she argued the district court erred in denying her motion to dismiss because (1) the government lacked standing, (2) the First Amendment bars the action, (3) FACE violates the Commerce Clause both facially and as applied, and (4) the RFRA prevents this application of FACE. The Tenth Circuit quickly dismissed the first argument, finding the government’s standing is not derivative of the victim’s and the government has standing as long as it has reason to believe someone is, has been, or could be injured by conduct proscribed by the statute. As to the second argument, the Tenth Circuit found the district court correctly held the First Amendment’s definition of “true threat” is coterminous with FACE’s definition of “threat” so any conviction under FACE would necessarily fall outside the First Amendment’s protections. Defendant failed to raise her Commerce Clause and RFRA arguments below, so the Tenth Circuit declined to address them on appeal.

The Tenth Circuit briefly addressed the parties’ motions to seal portions of the record on appeal. These were granted in part and denied in part.

The district court’s grant of summary judgment was reversed and remanded for further proceedings. The district court’s denial of Defendant’s motion to dismiss was affirmed. The record was sealed in part with instructions. Judge Baldock wrote a thoughtful dissent; he would have affirmed the grant of summary judgment because Defendant’s “ill-advised” letter conveyed a threat that was conditional, not imminent, and impersonal.