Mackey Appeal Filing Updated

Case 1:21-cr-00080-AMD Document 135 Filed 05/12/23 Page 1 of 36 PageID #: 2654
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA
-v- Criminal Case No. 21-0080 (AMD)
DOUGLASS MACKEY, ORAL ARGUMENT REQUESTED
Defendant.
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REDACTED
MEMORANDUM OF LAW IN SUPPORT OF DOUGLASS MACKEY’S
MOTION TO DISMISS THE INDICTMENT AND FOR ALTERNATE RELIEF
Andrew J. Frisch
The Law Offices of Andrew J. Frisch, PLLC
40 Fulton Street, 17th Floor
New York, New York 10038
(917) 826-4668
afrisch@andrewfrisch.com
Attorney for Douglass Mackey
May 12, 2023

TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Government’s Willful Omissions to Judge Garaufis . . . . . . . 8

about Mr. Microchip, a Witness Indispensable to Prove
Guilt and to Admit Evidence Under Rule 801(d)(2)(E)
B. The Government’s Evidence Was Contradicted by Interviews . . . . . . 15

It Failed Timely to Disclose and to Which it Refused to Stipulate
C. The Evidence of Conspiracy was Legally Insufficient . . . . . . . . 26
D. Acquittal or a New Trial Is Required Because the Evidence . . . . . . 29

Did Not Show a “Clearly Established” Violation of Section 241
E. The Conviction Must Be Vacated Because . . . . . . . . . . . 31

Venue Was Not Proper in This District
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 36
2
Introduction
No view of the evidence at trial, let alone a rational one, supports the jury’s
verdict convicting Mr. Mackey of conspiracy, in violation of Title 18, United States Code,
Section 241, which followed multiple notes reporting an apparent deadlock, an instruction over
objection pursuant to Allen v. United States, 164 U.S. 492 (1896), and the Court’s pocket denial
of a mistrial upon pervasive media coverage beginning the eve of the verdict about the
unprecedented indictment of former President Trump [see Docket No. 118 at 3], in whose full-
throated support Mr. Mackey engaged in the alleged conduct.
Mr. Mackey was not present in chats when purported co-conspirators discussed
and formulated the memes in question [GX 200-124 to 200-132 (GX 200-P-0001 to 200-Q-
0005); GX 410-5 to 410-22; GX 430-44 to 430-64; see T 857 (the government conceding that
“the defendant is not actually present when that conversation is happening”)]; he never had any
contact whatsoever with any of the purported co-conspirators outside of chats; and he neither
directed the creation of the memes nor created any himself. To the contrary, Mr. Mackey shared
two memes on November 1, 2016, different from those formulated in the chats, which he found
on 4chan, an Internet forum on which memes containing misinformation about voting had been
appearing for months [see, e.g., T 647, 825 (Stipulation, DX BB)]; and he re-tweeted a third,
automatically forwarded to him by operation of Twitter on November 1, 2016, because the tweet
mentioned his avatar, Ricky Vaughn. See T 686-87. The government’s fanciful inference of
conspiracy from these indisputable facts was obliterated by the reality established by the
government’s own evidence that Mr. Mackey shared the memes as part of constant daily
“shitposting” in 2016: the constant tweeting of provocative content meant to call attention to
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himself, get under the skin of the Clinton Campaign, and distract from the main political
conversation. See, e.g., GX 200-E at 14 (“I am a higher ranked shitposter than the Democratic
Party’s official shitposting account, according to MIT.”); GX 200-D at 13 (“[I]’ve sacrificed an
entire slice of my life to shitposting.”); GX 200-D at 27 (November 4, 2016: “my fans are very
dedicated and they want to hear my voice and laugh at my trolls”); GX 200-O at 8 (November 4,
2016: “[that feeling when] you haphazardly post a /pol/ meme and it winds up on CNN”); GX
200-36 (“MIT-certified best po[]ster . . . I should put that in my bio.”). Even apart from whether
Mr. Mackey participated in a conspiracy, the government acknowledged the implausibility that
any registered voter could truly believe that a vote for President could be cast by anonymous text
[see, e.g., T 484, 905], underscoring the defense of a pervasive shitposter that he could not
plausibly have intended to trick voters, even if he acted alone.
The government attempted to fill its evidentiary void by interpolating earlier
photo-shopped memes - - as well as discussions of demographics and turnout, the sine qua non
of political campaigns - - all acknowledged by the government to be legal. See, e.g., T 855-56.
Such conduct, however, could not help establish Mr. Mackey’s participation in a conspiracy in
violation of Section 241, which he never joined. See United States v. Martinez, 54 F.3d 1040,
1043 (2d Cir. 1995) (even if incriminating inferences are permissible, they are legally insufficient
if the evidence gives equal or nearly equal circumstantial support to theories of guilt and
innocence); United States v. Tyler, 758 F.2d 66, 68-70 (2d Cir. 1985) (despite the defendant's
involvement in a drug sale, there was insufficient evidence of an agreement between the
defendant and the dealer); United States v. Nusraty, 867 F.2d 759, 763-64 (2d Cir. 1989).
Apart from the government’s manufacture of an unsupportable theory of
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conspiracy, this case was grounded in prosecutorial cheating, which appears willful and
deliberate. The government presented incomplete information to Judge Garaufis in securing
permission for Mr. Microchip to testify anonymously, as demonstrated herein, violating the letter
and spirit of Federal Rule of Criminal Procedure 5(f) and Brady v. Maryland, 373 U.S. 83
(1963). Mr. Microchip’s consequent testimony was indisputably indispensable to (1) the
government’s purported proof of conspiracy [see, e.g., T 845 (Government’s summation: “You
know all this because Micro told you.”)]; and (2) the government’s purported proof of conspiracy
independent of chats proffered pursuant to Rule of Evidence 801(d)(2)(E); United States v.
Margiotta, 688 F.2d 108, 136 37 (2d Cir. 1982).
The government otherwise played cat-and-mouse with due process, noticing the
testimony of Jess Morales Rocketto as a representative of Hillary Clinton’s 2016 Campaign for
President (the “Clinton Campaign”) at literally the eleventh hour (the Friday before jury
selection), while simultaneously hiding reports of interviews of other representatives of the
Clinton Campaign from the preceding two years who contradicted Ms. Rocketto - - and
corroborated Mr. Mackey’s defense.1 After trial began, when defense counsel inadvertently
stumbled onto the trail of the government’s willfully suppressed interviews, the government
begrudgingly doled them out [see T 226-36], as if creating a record of prosecutorial candor. But
the Government produced the remainder of the reports only thereafter upon defense counsel’s
express demand [see T 408; Docket No. 106], evincing the type of Brady gamesmanship that has
become untenably too common. See Bennett L. Gershman, Litigating Brady v. Maryland:
1
Attached as Exhibit B is the government’s email first noticing Ms. Rocketto as a
witness on March 10, 2023, without disclosure of any of the reports of the government’s
interviews of other representatives of the Campaign between March 2021 and January 2023.
5
Games Prosecutors Play, 57 Case W. Res. L. Rev. 531, 565 (2007) (“since there is virtually no
accountability, liability, or punishment for Brady violations, prosecutors are encouraged to play
the game with impunity . . . . [Many] prosecutors “think about games to avoid compliance with
Brady, because there is nothing tangible to stop them.”). No prosecutors complying with their
constitutional duty on the facts of this case, especially with such distinctly meticulous command
of the evidence, could have missed that the most senior officials of the Clinton Campaign
contradicted Ms. Rocketto and otherwise understood distinctions between criminal
misinformation and shitposting.
Rather than indulge prosecutorial rationalizations for dereliction of fundamental
constitutional duty, this Court should honor Rule 5(f) [see, e.g., United States v. Triumph Capital
Group, Inc., 549 F.3d 149 (2d Cir. 2008) (Gleeson, U.S.D.J., sitting by designation); United
States v. Mahaffy, 693 F.2d 113 (2d Cir. 2012); United States v. Nejad, 521 F. Supp. 3d 438
(S.D.N.Y. 2021) (then District Judge Nathan)] and vacate the conviction and dismiss the
indictment based on the government’s misconduct and the insufficiency of its evidence. We
know with certainty that no other remedy will protect the right to due process because Mr.
Mackey could not have been convicted without the government’s mischief, and none of the
legion of judicial pronouncements on this issue over decades - - and the United States Attorney’s
and Department of Justice’s own internal admonitions - - inhibited the conduct here. See Nejad,
521 F. Supp. 3d at 450 (“It is imperative that prosecutors fulfill their constitutional and ethical
obligations with the same zeal with which they pursue convictions - - not reluctantly, not only
after prodding, and not with measured half truths.”).
Prosecutors in this Circuit need to be reminded with more than (at worst) an
6
occasional judicial frown or finger-wag - - ineffectual and tolerable costs of business as usual - -
that bad decisions made in secret about Rule 5(f), if later fortuitously revealed, will be resolved
with consequences about which Rule 5(f) expressly warns. See United States v. Alvarez, 86 F.3d
901, 905 (9th Cir. 1996) (“the government’s failure to turn over exculpatory evidence in its
possession is unlikely to be discovered and thus largely unreviewable”); United States v Oxman, 740
F.2d 1298, 1310 (3d Cir. 1984); Elizabeth Napier Dewar, A Fair Trial Remedy for Brady Violations,
115 Yale L.J. 1450, 1455 (2006) (“Defendants only rarely unearth suppressions.”). It is precisely
the reluctance of judges to enforce Brady with meaningful remedies - - and an institutional
tendency to circle wagons around prosecutors and not the presumptively-innocent people in their
crosshairs - - that encourages and perpetuates the gamesmanship that Rule 5(f) was enacted to
stop. The government’s misconduct is especially unforgivable in this case where, charitably
speaking, the government’s theory hung by a thread even without it - - as the jury’s apparent
deadlock (before an Allen charge) serves to confirm.
If the Court declines to dismiss this case in the face of the government’s game-
playing, it should at least make a full record for the Circuit and require each of the three
prosecutors to provide “declarations under penalty of perjury” [see Nejad, 521 F. Supp. 3d at
442] about their roles in the untimely disclosures discussed herein. This issue is too important to
be treated as just another claim of error for the government to attempt to explain away. See id. at
443 (“public confidence in the administration of justice depends also on public accountability.”).
If a violation of Rule 5(f) and Brady is ever tolerable, the government’s envelope-pushing theory
of criminal liability on the facts of this case was far too tenuous to withstand it.
7
A. The Government’s Willful Omissions to Judge Garaufis about Mr. Microchip, a

Witness Indispensable to Prove Guilt and to Admit Evidence Under Rule 801(d)(2)(E)
On February 24, 2023, before trial, the government moved Judge Garaufis to
permit Mr. Microchip to testify anonymously and for related relief. Docket No. 66. Three days
later, on February 27, 2023, the government began making its disclosures pursuant to the Jencks
Act. See Exhibit C (the government’s email of February 27, 2023, advising that disclosures were
about to begin on a “rolling basis”). The government did not make its disclosures pursuant to the
Jencks Act for Mr. Microchip, however, until March 10, 2023 [see Exhibit D (the government’s
email)], two days after Judge Garaufis, on March 8, 2023, granted the government’s application
on Mr. Microchip’s behalf. See Docket No. 82 (Memorandum & Order). While the coincidental
timing of the government’s disclosures was not eyebrow-raising at the time, an inference of
prosecutorial dereliction of constitutional duty is now inescapable.
The government’s motion on behalf of Mr. Microchip was principally predicated
on the following representations:
1. Mr. Microchip “was a coconspirator of the defendant . . . [and] had communications

with the defendant . . . including communications discussing the creation and
dissemination of deceptive images concerning the time, place, and manner by which
voters could cast a vote in the 2016 presidential election” [Docket No. 66 at 2-3];
2. Mr. Microchip “is presently involved in multiple, ongoing investigations and other
activities in which he or she is using assumed internet names and “handles” that do not
reveal his or her true identity” [Docket No. 66 at 2]; and
3. Mr. Microchip’s true identity has never been publicly associated with any of his online
monikers “notwithstanding the efforts of investigative journalists who have attempted to
learn [his] identity.” Docket No. 66 at 2.
By order dated March 8, 2023, Judge Garaufis granted the government’s
application, finding the requested relief necessary under the circumstances, and specifically
8
noting the government’s express representation that it had complied with its constitutional
obligations under Brady and Giglio v. United States, 405 U.S. 150 (1972). Docket No. 82 at 10.
Two days after Judge Garaufis granted the government’s application on behalf of
Mr. Microchip, the government disclosed its reports of interview of Mr. Microchip. As
confirmed by Mr. Microchip when he testified at trial, the government’s reports established the
following facts which the government had not disclosed to Judge Garaufis, which would have
put the government’s application in a far different light:
1. Mr. Microchip admitted to using heroin, methamphetamines, mushrooms,

powdered cocaine, a testosterone steroid called Testogel, and had been addicted to
painkillers, but testified that he used all of these substances during a “short period” in
about 2002 or 2003, and that then FBI case-agent Meagan Rees was “incorrect” if her
report of interview (attended by two of the three trial prosecutors (Messrs. Gullotta and
Paulsen), GX 3500-M-13, filed as Exhibit E under seal), said that Mr. Microchip told the
government that he “had previously used drugs from approximately 2002 or 2003 to
2014” [T 575-77];
2. Mr. Microchip had debts to the Internal Revenue Service and in bankruptcy [T
564];
3. Mr. Microchip feared that his self-employment as a mobile application developer

would be jeopardized if his real name were ever publicly disclosed [T 479, 565; see also
T 532-33];
4. Mr. Microchip approached the FBI in 2018 to work for free and sought to
continue to do so because the FBI provided him a “structure” that he deemed “valuable”
[T 563-64];
5. Mr. Microchip was not questioned about the conspiracy to which he pled guilty
until April 2021, at least the fourth substantive discussion between the government and
him or his lawyer, three months after Mr. Mackey’s publicized arrest, and said:
• there was not any “grand plan” to stop people from voting;
• the participants in the chats were not as organized as many people believed;
• the focus was not on one message, it was pushing out as much content as possible; and
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• it had not been his intent to put specific groups of people in a box and stop that group
from voting.
T 538-45. In addition, contrary to the government’s representation that Mr. Microchip “had
communications with the defendant . . . discussing the creation and dissemination of deceptive
images concerning the time, place, and manner by which voters could cast a vote in the 2016
presidential election” [Docket No. 66 at 2-3]; there were no such communications.
Nor was Judge Garaufis aware that Mr. Microchip, knowing that the government
was about to make its application on his behalf (T 571-72), announced online two days before the
government’s application - - using the moniker “Microchip” (followed by a superscript “TM”
apparently to signify his identify as the true Microchip) - - that he would no longer tweet as
Microchip:
Good night, I’m not coming back, this is my final tweet. It’s been fun. I hope you have a
good lives [sic], I wish we could’ve been more than e-friends, but this is the Internet after
all.
DX P (February 22, 2023); T 572. Within the weeks immediately preceding the government’s
application to Judge Garaufis, Mr. Microchip had posted the following tweets:
3,109 crazy tweets over two weeks. What can I say? I’m insane, on pills, don’t shower,
can barely take care of myself, hear voices, talk to the walls, and can predict the future.
DX X; T 588-89.
I have the crazy . . . .
DX U; T 588.
I’m now 36 hours into my Adderall . . . . marathon . . . .
DX R; T 577-78.
I drink black rifle coffee, wear a fishnet trucker hat, have a Jesus tattoo, and inject
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testosterone.
DX S; T 579.
My IQ is so high right now, you have no idea.
DX T 587. Mr. Microchip also re-tweeted a meme of him holding a bottle of Adderall. DX Q, T
573-74. Not one of these tweets was ever disclosed by the government to Mr. Mackey, even as
part of compliance with the Jencks Act; the defense fortuitously found them (and others) a day
or so before Mr. Microchip testified.
If the government did not actually know of these tweets, it should have. See
Gershman, Litigating Brady v. Maryland at 552 (“[there] are contexts in which a prosecutor,
even if he lacks actual knowledge of the evidence, ‘should have known’ of the evidence.”) The
government represented to Judge Garaufis that Mr. Microchip was “involved in multiple,
ongoing investigations and other activities in which he . . . is using assumed internet names and
“handles” that do not reveal his . . . true identity.” Docket No. 66 at 2. Apart from the
coincidence of the online nature of Mr. Microchip’s volunteer work for the government and the
means used by Mr. Microchip to disseminate the above-quoted tweets, the government
interviewed Mr. Microchip repeatedly and exhaustively, questioning him about every
conceivable kind of potentially discoverable conduct. See. e.g., GX 3500-M-13 at 6-12 (filed as
Exhibit E under seal). Even if the government was in the dark about these tweets, its motion to
Judge Garaufis was made for Mr. Microchip’s benefit, and the government is responsible for a
cooperator’s non-disclosures if not also under the principle of respondeat superior for
cooperators, as here, in their actual employ. See generally Carroll v. Trump, 49 F.4th 759 (2d
Cir. 2022).
11
But an inference of the government’s actual knowledge of the tweets was amply
warranted and drawn by the Court. At a sidebar to hear the government’s objections to one of
the above-quoted tweets, the Court said, “I’m sure they’ve seen it.” T 587. Defense counsel
(giving the prosecutors too much credit) disagreed with the Court, surmising that these
prosecutors could not have known of these tweets and suppressed them. See T 587. With the
benefit of reflection, however, especially in the context of the willfully suppressed reports of
interviews of the Clinton Campaign, it seems unlikely that the tweet-compulsive and addictive
Mr. Microchip, on his own, would have stopped tweeting on February 22, 2023, unless the
government directed him to do so in advance of filing its motion on February 24, 2023. If the
prosecutors directed Mr. Microchip not to tweet two days before the government filed its
application, they necessarily knew he was tweeting - - and should have assured that Judge
Garaufis had the full picture.
The government’s objection to DX R (“I’m now 36 hours into my Adderall . . .
marathon”), the first of the above-quoted tweets offered, was curious. When asked by the Court
if the government objected to admission of DX R when defense counsel offered it, one of the
prosecutors said, “I don’t see its relevance just from reading the tweet.” T 577 (emphasis added).
Apart from the oddity of a prosecutor claiming to see no relevance in his cooperator’s apparent
admission to an addiction just weeks before trial, the words “just from reading the tweet” could
be interpreted as the words of a prosecutor attempting to coverup a willful non-disclosure by
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pretending to be seeing the undisclosed item for the first time.
But whether “declarations under penalty of perjury” from the prosecutors [see
Nejad, 521 F. Supp. 3d at 442] establish that their conduct was deliberate or careless, they did
not tell Judge Garaufis (and did not disclose reports of Mr. Microchip’s interviews until after
Judge Garaufis granted the government’s application) that there was (at least) reason to believe
that Mr. Microchip was an addict [T 575-77]; was saddled with tax and bankruptcy debts [T
564]; volunteered to work for the government without pay because the FBI provided him a
“structure” that he deemed “valuable” [T 563-64]; sought anonymity because he feared that his
self-employment as a mobile application developer would be jeopardized if his identity were ever
publicly disclosed [T 479, 565; see also T 532-33]; denied the government’s claims of
conspiracy and criminal intent [T 538-45] before the government reminded him [see T 595], and
never discussed the alleged scheme to trick voters with Mr. Mackey. The sweep of these non-
disclosures undermines the credibility of Mr. Microchip’s testimony elicited by the government
on re-direct examination that he would have testified even if required to disclose his name. T
597. But even if true and not contrived to meet the exigencies of trial, the government failed to
confirm even that morsel to Judge Garaufis.
Rule 5(f) and the principles of Brady require that favorable information be
disclosed in time for its effective use. United States v. Gil, 297 F.3d 93, 106 (2d Cir. 2002);
United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001); Leka v. Portuondo, 257 F.3d 89, 101
(2d Cir. 2001); Model Rules of Prof’l Conduct R. 3.8(d) (2004) (requiring prosecutor to make
timely disclosure); ABA Standards Relating to the Administration of Criminal Justice, Standard
3-13.11(a) (1992) (requiring disclosure “at the earliest feasible opportunity”). Evidence is
13
favorable if it is either exculpatory of impeaching. Mahaffy, 693 F.3d at 27 (citing Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). The above-quoted tweets and admissions made by Mr.
Microchip demonstrate that the government’s motion for his anonymity was entirely or
principally pretextual and hid Mr. Microchip’s (and the government’s) true agenda.
Had the government faithfully complied with its constitutional obligation, Mr.
Mackey could have marshaled all the relevant facts in opposition to Mr. Microchip’s anonymity,
permitting Judge Garaufis, for example, to demand that Mr. Microchip appear for an in camera
hearing or otherwise requiring the government to answer questions. Instead, the government
unfairly - - and unconstitutionally - - achieved the strategic benefit of securing its requested relief
and putting it on Mr. Mackey to spot and untangle the mischief. And without Mr. Microchip, the
government would not have been able to press its curious claim of a “silent agreement” between
strangers on the Internet [see T 510, 885] and would not have had any independent evidence of
conspiracy on which to admit evidence pursuant to Rule 801(d)(2)(E), let alone the expansive
basis used by the Court. See T 788-89 (admitting “all of the statements offered in evidence,”
even if by “unidentified individuals who communicated with the defendant or with those
individuals in relation to the charged conspiracy on Twitter, 4chan, or other messaging
platform.”). See United States v. Palermo, 410 F.2d 468, 473 (7th Cir. 1969) (reversing in part
because relevant information was not disclosed to the trial judge); United States v. Lawler, 413
F.2d 622, 627 n.4 (7th Cir. 1969) (“plac[ing] no special reliance on the unsubstantiated reference
to the possible danger to the witness's safety”); United States v. Gutierrez de Lopez, 761 F.3d
1123, 1145 (10th Cir. 2014) (the judge abused discretion in finding the need for secrecy).
The prejudice to Mr. Mackey is manifest. The sweep of the government’s willful
14
non-disclosures to Judge Garaufis is itself compelling evidence of the government’s perceived
necessity to secure Mr. Microchip’s anonymity. While the government’s delayed compliance
with the Jencks Act permitted Mr. Mackey to cross-examine Mr. Microchip effectively, its non-
disclosures resulted in Mr. Microchip’s anonymity, his consequent testimony about a “silent
agreement” with a stranger on the Internet to establish a legally sufficient case against Mr.
Mackey, and the government’s predicate for admission of chats pursuant to Rule 801(d)(2)(E).
“The burden of persuasion is on the government, meaning that if ‘the matter is so
evenly balanced that [the judge] feels himself in virtual equipoise as to the harmlessness of the
error,’ the petitioner should prevail.” Lainfiesta v. Artuz, 253 F.3d 151, 158 (2d Cir.2001)
(quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995); see also Cotto v. Herbert, 331 F.3d
217, 253 (2d Cir. 2003). But if vacatur of the conviction or dismissal is deemed too drastic a
remedy even for the government’s deliberate or careless misleading of Judge Garaufis - - and
considered in the context of the government’s suppression of its interviews of the Clinton
Campaign, discussed below, the Court’s broad discretion to fashion a meaningful remedy
includes striking Mr. Microchip’s testimony and assessing the sufficiency of the evidence of
conspiracy on this motion and the admissibility of co-conspirator statements without it.
B. The Government’s Evidence Was Contradicted by Interviews

It Failed Timely to Disclose and to Which it Refused to Stipulate
Before trial, the government knew from its own evidence that Mr. Mackey in
2016 was a self-proclaimed shitposter. See, e.g., GX 200-E at 14 (“I am a higher ranked
shitposter than the Democratic Party’s official shitposting account, according to MIT.”); GX 200-
D at 13 (“[I]’ve sacrificed an entire slice of my life to shitposting.”); GX 200-D at 27 (November
15
4, 2016: “my fans are very dedicated and they want to hear my voice and laugh at my trolls”);
GX 200-O at 8 (November 4, 2016: “[that feeling when] you haphazardly post a /pol/ meme and
it winds up on CNN”); Exhibit A2 (November 8, 2016: “2016 was the Shitposting Election. It’s
been such a pleasure to be with you all.”); GX 200-36 (“MIT-certified best po[]ster . . . I should
put that in my bio”); see also T 30-31, 33, 667. Despite the reports on interview of the Clinton
Campaign, it did not disclose them.
If the prosecutors’ exhaustive investigation of this case still left it confused about
the import of its interviews of the Clinton Campaign, Mr. Mackey’s counsel spelled it out. Mr.
Mackey gave pretrial notice [Docket No. 60, February 15, 2023] and supplemental pretrial notice
[Docket No. 72, March 2, 2023] of an expert in online media strategies of political conservatives,
Associate Professor George Hawley of the University of Alabama’s Department of Political
Science, who would testify in substance
My opinion is that a substantial number of political conservatives over at least the

last ten years have used online media strategies to use social media as a means of
provoking ideological opponents, exploiting natural fissures in opposition coalitions, and
creating apparent controversies to generate coverage by mainstream journalists. Whether
or not such strategies prove successful, proponents of these strategies use such strategies
to advance their political ideology by online tactics such as provocation, derision,
distraction, and creation of apparent disputes to get the attention of mainstream
journalists. These political conservatives attempt to create sideshows to dominate social
media and mainstream coverage to create their own narratives and divert coverage from
stories that might favor their opponents.
Docket No. 72; see Docket No. 60. Despite this notice of Mr. Mackey’s defense, the government
still made no disclosure of its reports of previously-conducted interviews of the Clinton
2
The government was aware of Mr. Mackey’s tweet dated November 8, 2016, appended
hereto as Exhibit A, because it was produced as part of discovery. Mr. Mackey and his counsel
did not realize until preparing this motion that the government did not offer it at trial.
16
Campaign conducted from March 2021 to January 2023.
Mr. Mackey’s defense was again spelled out in opening statement when his
counsel told the jury that Mr. Mackey would testify, in sum, that (1) through his Twitter avatar
Ricky Vaughn, he shared hundreds of tweets, messages and memes everyday in 2016 during the
presidential campaign as part of “shitposting” [T 30-31, 33]; (2) was not present during chats in
which alleged coconspirators discussed voting by text; and (3) shared vote-by-text memes
different from those formulated in those chats. T 32-33. Still no disclosures.
The government’s first witness, Robert McNees, a tweet-savvy professor of
physics at Loyola University, testified that, upon affirmatively seeking out tweets by Ricky
Vaughn on about November 1, 2016, he found the two memes (that Mr. Mackey had found on
4chan, T 647) and was concerned by their “virtually similar” replication of Clinton graphics. He
also testified that the use of the hashtag on the memes, “#imwithher,” served to steer the memes
to Clinton’s supporters. T 45-48, 50-53, 62. As the ostensibly authoritative professor was
testifying about his alarm upon finding the memes, the government continued to sit on reports of
interviews from the Clinton Campaign that it was aware of pervasive shitposting (sometimes
using that term) that had contaminated the very hashtag which alarmed Professor McNees and
did not consider memes replicating Clinton graphics to be of sufficient concern to take decisive
action. Yet the government still disclosed none of the reports.
The government’s second witness was Ms. Rocketto. On March 10, 2023, the
Friday before the start of jury selection, the government first identified Ms. Rocketto as a
witness. Exhibit B (email from the government to defense counsel). Ms. Rocketto testified that
she was the Clinton Campaign’s digital organizing director; learned of vote-by-text memes using
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fake graphics during the final days of the campaign; found the memes’ misappropriation of the
Clinton Campaign’s graphics and hashtag “#imwithher” to be such a “big deal” and so “jarring”
that “you have to make a decision about what to do about something like this.” T 76, 78, 84-85,
90-92. Ms. Rocketto’s enthusiasm for testifying was noted by the Court: “If you can avoid
asking like terribly open-ended questions to this witness . . . . she has a lot to say, which is fine,
but we’re never going to finish.” T 86, 79-80.
On defense counsel’s subsequent cross-examination of Lloyd Cotler (a
representative of the Clinton Campaign called principally to testify to steps to remediate the
memes’ reference to a short code for texting), defense counsel confirmed an unelaborated
statement in the government’s report of Mr. Cotler’s interview that a Clinton Campaign worker
named Amy Karr monitored social media, including 4chan [T 103], on which Mr. Mackey had
seen the memes that he then shared. See T 647.
Only the following morning did the government provide defense counsel with
reports, but just of two interviews of one employee of the Clinton Campaign (“Employee One”)
[see T 226-31], filed under seal herewith. Contrary to the government’s claim during colloquy at
trial, it did not turn over the reports of its interviews of representatives of the Clinton Campaign
after defense counsel’s opening “because it seemed like he was interested in that,” T 629, but
made limited disclosure of its two interviews of just Employee One after defense counsel’s cross-
examination of Mr. Cotler without disclosing its reports of interviews of other representatives of
the Clinton Campaign. The government’s doling out of the reports of just Employee One
suggests the government’s concern about fallout if defense counsel reached out to Employee One
and learned that s/he had been interviewed, not good faith compliance with Rule 5(f) and Brady.
18
Upon reviewing the reports of Employee One’s interviews, defense counsel at that
day’s lunch recess requested that the government provide reports of any other interviews of
representatives of the Clinton Campaign. The subsequently-disclosed reports underscored Mr.
Mackey’s defense in multiple ways. They contradicted Professor McNees and Ms. Rocketto;
they helped prove Mackey’s defense that memes of this sort were understood even by the Clinton
Campaign to be part of ongoing shitposting, not the result of anyone’s conspiracy to trick Clinton
voters; and they supported the view that even senior officials of the Clinton Campaign did not
take such memes seriously or at least sufficiently seriously to take action. See T 484 (The
government questioning Mr. Microchip: “State the obvious, did you think this was a valid way
of voting?”) (emphasis added).
The Court responded to Mr. Mackey’s complaints about the government’s failure
timely to produce all of this material by suggesting remedies short of a mistrial including a
stipulation [T 630-31, but those remedies were either rejected by the government, impractical or
inadequate. As counsel advised the Court by letter just before summations [Docket No. 108], the
government declined to call any additional witnesses on its case even if requested. Mr. Mackey
declined to call them himself or request that any witness be recalled: the government’s delayed
disclosure irreparably corrupted the trial, impaired counsel’s ability to frame Mr. Mackey’s
defense in opening statement armed with the information, and undermined the effectiveness of
questioning any witnesses who would by then be specifically prepared for counsel’s questioning.
With due respect, the government had two years to prepare for trial; forcing
defense counsel to come to the government’s rescue in a rush midway through a short trial
rewards prosecutors for treating Brady as an obstacle to be navigated around, not a constitutional
19
imperative. It is not incumbent on a defendant to save the government from the consequences of
its misconduct. These reports of interview should have been disclosed beginning in March 2021
when the first of the Clinton Campaign witnesses was interviewed, but certainly no later than the
day before jury selection when the government first noticed its intent to call Ms. Rocketto in lieu
of the earlier interviewed Campaign witnesses. The government began sitting on these reports
two years before trial when it interviewed the first of the non-disclosed representatives of the
Clinton Campaign and continued to keep them a secret notwithstanding evidence in its own
discovery about shitposting, Mr. Mackey’s two pretrial notices of Professor Hawley’s
prospective testimony, and defense counsel’s opening statement. It is unseemly and
constitutionally offensive for the government to attempt to shift blame for its mess to Mr.
Mackey or put it on him to clean it up. See Leka, 257 F.3d at 101 (the longer a prosecutor
withholds evidence, and the closer to trial the disclosure is made, the less opportunity there is for
effective use).
Meanwhile, two meaningful remedies proposed by Mr Mackey were rejected:
(1) he be permitted to re-open to the jury and admit excerpts of the reports into evidence,
accompanied by an instruction that re-opening was a consequence of the government’s belated
disclosures [Docket No. 106]; and (2) responding to the Court’s suggestion, a stipulation
proposed by defense counsel [Exhibit F, filed under seal] which captured some exculpatory
highlights of the reports, which are all incorporated by reference herein in full and filed under
seal pursuant to the Court’s order. Exhibit G.
The government was not required to accept the proposed stipulation even if it might
have been a prudent way to fashion a remedy for its misconduct. But the government then argued
20
inferences to the jury at odds with the very information it failed timely to disclose. For example, the
government argued that Ms. Rocketto and others “frankly ensured [t]hat the scheme didn‘t get off the
ground, that it was foiled as it began” [T 838] by “getting in touch with the right people, and they
were in a position to do something when it was necessary” [T 839]; “we know the campaign worried
that people would be fooled by these . . . [Ms. Rocketto] took these to her supervisors because there
were important to her” [T 905]; and “the fire department was on the scene putting out the fires when
the defendant lit his match, but that doesn’t excuse what he did.” T 913.
In addition, despite evidence corroborated by the Clinton Campaign supporting the
reality that shitposting was a defining feature of the 2016 Presidential Election (as Mr. Mackey
himself said in Exhibit A hereto), the government argued repeatedly that “none of this makes sense
without a conspiracy.” T 866, 844, 848. The government relied on Ms. Rocketto’s testimony about
the “#imwithher” hashtag, ignoring evidence of the hashtag’s contamination from shitposting [T
836-38], and pressing inferences of alarm about dissemination of Clinton graphics [see, e.g, T 836,
838], which did not alarm Ms. Rocketto’s colleagues for them to take decisive action.
The Court’s reasoning in denying Mr. Mackey’s mid-trial motion for a mistrial [T
631-35] rewards and encourages prosecutorial gamesmanship. Delayed disclosure, especially in
a tenuous case as here, can be considered the equivalent of suppression, where the “belated
disclosures may inflict [harm] not only on the ability of a defendant to receive a fair trial but also
on the defendant’s ability to effectively prepare for trial . . . [and] for a responsible lawyer to use
the information with some degree of calculation and forethought.” Gershman, Litigating Brady
v. Maryland at 561-62.
The Court’s reasoning is also at odds with this Circuit’s vigilance in policing
Brady violations. In Mahaffy, for example, as here, a judge denied relief on analogous facts. The
21
defendants were convicted at a retrial of one count of conspiracy on the theory that they acted
together to misappropriate their employers’ confidential information. After an adverse verdict
following a retrial, the defendants fortuitously found multiple exculpating depositions attended
by a member of the prosecution team. The defendants argued, as described by the district judge
in that case, that the depositions helped to undermine a basic premise of the government’s case,
that the information was confidential. Similar to this Court’s reasoning, the judge in Mahaffy
found the new information to be much ado about nothing: immaterial, not exculpatory when
considered in context, and insufficient to negate evidence of criminal intent. United States v.
Mahaffy, et al., 1:05-cr-00613 (JG) (E.D.N.Y. July 21, 2010) Docket No. 901.
The Circuit reversed, holding in substance that the district judge’s reasoning
misapprehended the value of the non-disclosed information. A conviction must be vacated
“upon a showing that the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.” Mahaffy, 693 F.3d at 127
(quoting Youngblood v. West Virginia, 547 U.S. 867, 870 (2006). Even “[w]here suppressed
evidence is inculpatory as well as exculpatory, and “its exculpatory character harmonizes with
the theory of the defense case,” a Brady violation has occurred. Mahaffy, 693 F.3d at 130
(quoting Triumph Capital, 544 F.3d at 164). If suppressed evidence is itself inadmissible, it is
favorable if it “could lead to admissible evidence” [Mahaffy, 693 F.3d at 132 (quoting United
States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002)], or “would be an effective tool in disciplining
witnesses during cross-examination.” Id. “Brady violations obscure a trial’s truth-seeking
function and, in so doing, place criminal defendants at an unfair disadvantage. When the
government impermissibly withholds Brady material, its case is much stronger, and the defense
22
case much weaker, than the full facts would suggest.” Mahaffy, 693 F.3d at 134 (quoting Kyles
v. Whitley, 514 U.S. 419, 429 (1995) (internal quotation marks and punctuation omitted). See
Gershman, Litigating Brady v. Maryland at 549 (quoting Giles v. Maryland, 386 U.S. 66, 100
(1967) (Fortas, J., concurring) (“The rogue prosecutor who wants to ‘outwit and entrap [his]
quarry’ will almost always deliberately suppress Brady material, believing that it will probably
never be discovered, but even if it is discovered . . . it is unlikely to be found material. Even the
ethical prosecutor knows he cannot lose this game and following her adversarial instincts, might
reasonably determine not to disclose evidence that is obviously favorable to the defense.”).
While the government will endeavor to distinguish the facts of Mahaffy, it cannot
distinguish application of its principles to this case. Before Mr. Mackey’s trial, the term
“shitposting” appeared in a few tweets produced by the government. See, e.g., GX 200-E at 14;
GX 200-D at 13. The suppressed reports of interviews so corroborated and underscored Mr.
Mackey’s defense that it is a fair inference that the government might not have called Professor
McNees or Ms. Rocketto in the first place had it timely disclosed the reports. The government’s
chosen vessel for its selective slice of reality that misappropriation of the Clinton Campaign’s
graphics and hashtag “#imwithher” was such a “big deal” and so “jarring” to the Clinton
Campaign that “you have to make a decision about what to do about something like this” [T 76,
78, 84-85, 90-92] was a witness so passionate about her position that the Court sua sponte sought
to reign her in. See T 79-80, 86. The suppressed interviews showed that shitposting was
understood by the media-expert Clinton Campaign to be such a hallmark of the election cycle of
2016 that the “#imwithher” hashtag was contaminated.
The reports served to put the prosecution in a different light in contradicting the
23
enthusiastic Mr. Rocketto and in otherwise establishing that constant and random shitposting was
a defining hallmark of the campaign, as Mr. Mackey himself tweeted on November 8, 2016, a
week after he shared the memes on November 1, 2016. Exhibit A (November 8, 2016: “2016
was the Shitposting Election. It’s been such a pleasure to be with you all.”). The Clinton
Campaign recognized that vote-by-text memes were pervasive on multiple places online for
months before November 1, 2016; understood that they were not orchestrated by just one person
or group but multiple layers of people; did not consider them a “big deal” (to use Ms. Rocketto’s
very words); people were “mocked” for taking them seriously; unlike the ostensibly authoritative
Professor McNees, the Campaign did not deem it necessary to report such memes to Twitter (or
the Department of Justice); and many senior officials (including the Campaign’s chair who
previously worked as Chief of Staff to a President, senior advisor to three Presidents, and a
Professor of Law at Georgetown University) through their words and inactions contradicted Mr.
Rocketto that “you have to make a decision about what to do about something like this.”
The Court’s mid-trial view that the non-disclosure could be remedied short of a
mistrial, most respectfully, missed the point. Apart from the unfairness of forcing a defendant to
re-calibrate his defense midway through a four-day trial in March 2023 after the government sat
on reports of interview conducted between March 2021 and January 2023 - - and thereby
affording the government the strategic advantage of a defense forced to scramble, the reports
make reference to multiple memorializations of apparently relevant material which Mr. Mackey
could have subpoenaed or staffers’ observations about which he could have otherwise
investigated, any of which might have led to even more relevant material or testimony. The
reports did not necessarily represent the universe of potentially exculpating material, but a
24
window into that universe, which included daily reports on platforms including 4chan and
Twitter, compilations of screenshots specifically from 4chan apparently including vote-by-text
memes; daily PowerPoint presentations about online trends apparently including purport voter
misinformation; records and recollections of the Campaign’s “Rapid Response Team,” which
monitored online misinformation, its “Audience Development Team,” and dozens of researchers
that tracked online trends. See Exhibit G.
In upholding the verdicts in Mahaffy, the judge scolded the government:
Even if the prosecutors are not sufficiently motivated, as they should be, by the
defendants’ interest in a fair trial, one would think the government’s selfish interest in the
integrity and durability of the convictions it obtains would induce it to consider its
disclosure obligations on an ongoing basis . . . .
United States v. Mahaffy, et al., Docket No. 901 at 12. Mahaffy was tried in this District twice
more than a decade ago before the defendants in that case fortuitously discovered suppressed
material. It is not a mystery to the defense bar why we are still wrangling about issues of this sort
in 2023, literally sixty years to the day (May 13, 1963) that Brady was decided. See Gershman,
Litigating Brady v. Maryland at 565 (“since there is virtually no accountability, liability, or
punishment for Brady violations, prosecutors are encouraged to play the game with impunity . . .
. [T]he odds of not getting caught are stacked so heavily in the prosecutor’s favor . . . . “).
The governments misconduct (potentially) created a win-win situation. Either the
trial would proceed and the suppressed reports would never be discovered, or, as here, defense
counsel might inadvertently stumble onto them, and the government would secure the strategic
advantage of making the defense scramble mid-trial and thereby lose the effectiveness of its
presentation in opening, its confrontation of witnesses, and an opportunity to use the material for
25
further investigation and pretrial subpoenas. With due respect, any indulgence by the Court of
the government’s blame-the-defense arguments is precisely on what the government is counting
and why we are still forced to clarify Brady sixty years after the Supreme Court ruled. See
Gershman, Litigating Brady v. Maryland at 563 (“A prosecutor’s attempt to defeat a post-
conviction Brady claim by arguing lack of prejudice simply duplicates the prosecutor’s
gamesmanship in concealing evidence from the defendant in the first place.”); id. at 550 (citing
DiSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006) (prosecutors who “play the odds” that their
suppression of important evidence will be viewed in retrospect as immaterial run the risk that
judges may “check-mate” them if the evidence comes to light during trial).
We urge the Court to consider the government’s untimely disclosure of the reports
of its interviews of the Clinton Campaign in the context of its non-disclosures to Judge Garaufis
about Mr. Microchip, all in the context of the insufficiency of the government’s evidence,
discussed herein. Mr. Mackey fortuitously found the suppressed information here, but most
Brady violations live on in secret, undiscovered. See United States v. Starusko, 729 F.2d 256,
265 (3d Cir. 1984) (“The ‘game’ will go on, but justice will suffer.”). This Court should
capitalize on the fortuitous discovery of the exculpatory material in this case and act for Mr.
Mackey, but far more, for the fair administration of justice in this Circuit.
C. The Evidence of Conspiracy was Legally Insufficient
Before, during, and after the charged period of the conspiracy, Mr. Mackey
boasted about his online leadership role, used tweets and memes to advocate openly for former
President Trump and critique Secretary Clinton, and openly discussed (often in provocative
language) everything from voter demographics and turnout to his suspensions from Twitter. See,
26
e.g., GX 200-0008 (January 9, 2016: “But still, I don’t chicken out and hide my views”); GX
420-0014 (April 20, 2016: “[I] really like this idea [Lana Del Rey in a MAGA cap] . . . . we have
to outmeme the bernie generation”); GX 421-0007 (April 22, 2016: “btw, I have an Iggy Azalea
with a MAGA hat”); GX 430-0007 (May 7, 2016: “Can you remake it with the stats of when they
didn’t include Trump’s name”); GX 430-0017 (May 12, 2016: “please help me to trend a new
hashtag #inTrumpsAmerica”); GX 430-0021 (July 23, 2016: (Please contribute to tweet to
#KaineAndUnable 2016, maybe we can trend it.”).
Notwithstanding Mr. Mackey’s explicit tweeting, he inexplicably turned to
telepathy to participate in a conspiracy with strangers on the Internet to violate Section 241.
Thus, for example, though the government conceded that Mr. Mackey did not participate in the
chats in which Mr. Microchip and others discussed and formulated the memes in question [T
857; see GX 200-124 to 200-132 (GX 200-P-0001 to 200-Q-0005); GX 410-5 to 410-22; GX
430-44 to 430-64], it argued [T 835] that he idiosyncratically “selected” different memes from
4chan (where memes of this type had been posted for months, T 825, DX BB) to further the
“silent” agreement [T 886] which had been discussed in his absence. The government similarly
argued that, when “Nia4_trump” mentioned Ricky Vaughn in a tweet containing a vote-by-text
meme [GX 722], they both telepathically understood that it would be forwarded to Mr. Mackey
by operation of Twitter [see T 686-87], and both telepathically understood that Mr. Mackey
would then further the conspiracy by re-tweeting the meme.
Thus, even if the defendant intended to trick voters despite all the evidence of
shitposting and how “obvious” it was to the government that voters cannot cast votes for
President via text [see T 484, 905], evidence of Mr. Mackey’s participation in a conspiracy to
27
violate Section 241 did not exist. See Tyler, 758 F.2d at 68-70. But even if the government’s
hypothesizing is worthy of discussion, it qualified at most as an inference equal or nearly equal to
Mr. Mackey’s shitposting. See Martinez, 54 F.3d at 1043 (2d Cir. 1995).
“[T]o be guilty of conspiracy the defendant must at least have had knowledge that
a common endeavor existed.” Nusraty, 867 F.2d at 763. “[T]here must "be some evidence from
which it can reasonably be inferred that the person charged with conspiracy knew of the
existence of the scheme alleged in the indictment and knowingly joined and participated in it."
United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984) (citing United States v. Soto, 716 F.2d
989, 991 (2d Cir. 1983)). “Suspicious circumstances . . . are not enough to sustain a conviction
for conspiracy.” Nusraty, 867 F.2d at 763; United States v. Young, 745 F.2d 733, 764 (2d Cir.
1984) (rifle hidden in apartment and suspicious wealth and dealings showed only that the
defendant "was aware of the conspiracy and associated with some of its members, . . . [not] that
she was a knowing participant in it"); Gaviria, 740 F.2d at 183-84 (presence of cocaine in car
driven by defendant and her contact with co-conspirators were insufficient evidence of a knowing
agreement with the requisite specific intent).
The government mixed apples and oranges in relying on Mr. Mackey’s advocacy
for former President Trump and association with others, which it acknowledged was legal [see,
e.g, 867, 914], to infer criminal conduct. While it may be permissible to rely on legal acts to
prove illegal ones, there was insufficient evidence that Mr. Mackey knew of the existence of the
scheme and knowingly joined it [United States v. Gaviria, 740 F.2d at 183], engaged in sustained
criminal conduct warranting an inference of conspiracy [United States v. Calbas, 821 F.2d 887,
892 (2d Cir. 1987)], or associated with others otherwise implicated in unlawful conduct
28
sufficient to prove knowing involvement. See, e.g., United States v. Rios, 856 F.2d 493, 496 (2d
Cir. 1988); Young, 745 F.2d at 764. Deference to the government’s evidence does not attach
where a rational jury could not find guilt beyond a reasonable doubt. See United States v.
Yannotti, 541 F.3d 112, 120 (2d Cir 2008) (articulating standard of review).
D. Acquittal or a New Trial Is Required Because the Evidence

Did Not Show a “Clearly Established” Violation of Section 241
The Court should grant a judgment of acquittal, or at minimum a new trial,
because the evidence did not show a violation of Section 241. On this issue, Mr. Mackey
respectfully incorporates by reference his prior arguments regarding the scope of Section 241 (see
Docket No. 43-1, at 13-28; Docket No. 50, at 6-14) and adds the following points.
The Supreme Court has “limited” the “coverage” of Section 241 “to rights fairly
warned of,” meaning those that were “clearly established” at the time of the conduct. United
States v. Lanier, 520 U.S. 259, 267, 270-71 (1997). This is the same standard that governs
qualified immunity in civil suits. Id. A judgment of acquittal is required because the evidence
did not show a violation of Section 241 - - let alone a “clearly established” one.
Over its 150 year history, Section 241 has been applied in the voting context to
prohibit only two categories of conduct: coercive acts (e.g., violence or threats), and ballot-box
fraud (e.g., destroying votes or stuffing boxes). It has never been applied to political
misinformation - - deceptive speech that is intended to influence or impede voting. Yet such
misinformation is all the government sought to prove here. That alone is grounds to conclude
that Mr. Mackey’s conduct did not violate “clearly established” law.
Moreover, expanding Section 241 to cover deceit would run afoul of every major
29
tool of statutory interpretation. First, the statutory word “injure,” particularly in conjunction with
the other verbs in the statute, does not naturally mean “deceive.” See United States v. Acosta,
470 F.3d 132, 136 (2d Cir. 2006). Instead, Congress consistently uses other words (e.g., deceive,
defraud, trick) when it wishes to capture such conduct. See, e.g., 17 Stat. 323 (1872) (Mail
Fraud: “That if any person having devised or intending to devise any scheme or artifice to
defraud…”). Second, the history of the statute, as explained by the Supreme Court in United
States v. Bathgate, affirms that Congress did not intend § 241 to reach everything “supposed[ly]
injurious[] to … [the] freedom, honesty, or integrity of an election.” 246 U.S. 220, 226 (1918).
Third, reading the statute to cover political misinformation or other allegedly deceptive speech
would vastly expand the statute’s reach, criminalizing an enormous range of activity and routine
political conduct - - all in the teeth of numerous canons of construction. See, e.g., Skilling v.
United States, 561 U.S. 358, 410 (2010) (lenity); Kelly v. United States, 140 S. Ct. 1565, 1574
(2020) (federalism); W. Virginia v. EPA, 142 Ct. 2587, 2608 (major questions).
In addition, reading Section 241 to criminalize misinformation would render it
obviously overbroad under the First Amendment. See United States v. Williams, 553 U.S. 285,
292 (2008). The government’s case rests upon construing Section 241 to include anything that
impedes voting, including speech that deceives or discourages the exercise of that right. But this
construction would sweep well beyond the facts of this case, and cover any deceptive speech that
is intended to cause someone not to vote, or to vote differently: a senator accusing a presidential
candidate of failing to pay taxes, a congressman running for office on a fake resume, or a man at
a bar just spinning tales about a politician he dislikes. Courts have struck down far narrower
30
statutes seeking to criminalize false speech.3 This is an overbreadth argument, because it is
theoretically possible that a carefully drafted law that narrowly targets knowingly false speech
about the time, place, and manner of elections could survive constitutional scrutiny. But that is
not Section 241 - - not on its face, and not on the government’s view. And the Court cannot save
this prosecution by inventing limits found nowhere in statute, or reasoning that this fact-pattern
could be constitutionally proscribed under some narrower law - - indeed, that is the whole point
of the overbreadth doctrine.
For all these reasons, Mr. Mackey lacked “fair warning” that Section 241
criminalized his conduct. Lanier, 520 U.S. at 265. Put together, it was not “reasonably clear at
the relevant time” that tweeting deceptive memes would make someone a “criminal” under
federal law. Id. at 267. The Court should therefore order acquittal. At minimum, the Court
should order a new trial because the jury instructions erroneously adopted the government’s
overbroad reading of Section 241, defining its scope to forbid anything that may “hamper,”
“frustrate,” “slow,” or “prevent” (among other things) one’s full ability to vote. Docket No. 114,
at 40-41. Here too, Mr. Mackey incorporates by reference his arguments as to the jury
instructions. See, e.g., Docket No. 96, at 2.
E. The Conviction Must Be Vacated Because Venue Was Not Proper in This District
At the motion-to-dismiss stage, the Court rejected Mr. Mackey’s arguments that
venue was not proper, reasoning that the allegations in the indictment, accepted as true,
3
See, e.g., United States v. Alvarez, 567 U.S. 709, 723 (2012) (Stolen Valor Act); Susan
B. Anthony List v. Driehaus, 814 F.3d 466, 476 (6th Cir. 2016) (law barring knowing
dissemination of “false information” about candidates); 281 Care Comm. v. Arneson, 766 F.3d
774, 785 (8th Cir. 2014) (same); Comm. v. Lucas, 34 N.E.3d 1242, 1257 (Mass. 2015) (same);
Rickert v. State Pub. Disclosure Comm’n, 168 P.3d 826, 829-31 (Wash. 2007) (same).
31
supported several theories of venue. Docket No. 54 at 8, 17. The Court noted, however, that the
government still “need[ed] to prove venue” at trial. Id. at 11. Mr. Mackey now incorporates his
prior arguments regarding venue, see, e.g., Docket No. 43-1, at 6-12; Docket No. 50, at 1-6, and
adds the following arguments reinforcing that venue was not proved.
To establish that venue was proper, the government was required to prove that
(1) “acts constituting the offense - - the crime’s ‘essential conduct elements’ - - took place” in
this district and (2) “the criminal acts in question bear ‘substantial contacts’ with” this district.
United States v. Ramirez, 420 F.3d 134, 138-39 (2d Cir. 2005). The government failed to make
either showing.
First, the evidence did not show that any “essential conduct elements” took place
in this district. It is indisputable that Mr. Mackey and any co-conspirators did not commit
essential conduct in this district; they did not, for instance, live in this district or post Mr.
Mackey’s November 2016 tweets from this district. See, e.g., Tr. 653:2-9. Rather than proving
such conduct, the government advanced the theory that venue was proper because the relevant
posts were tweeted “into” this district, “viewed in” this district, or “passed through” this district
en route to “Twitter’s servers and beyond.” See Docket No. 114 at 29-30. But that theory cannot
justify venue.
As an initial matter, the evidence did not show that the tweets Mr. Mackey posted
in November 2016 were sent “into” and “viewed in” this district. At most, the evidence
indicated that two Clinton Campaign staffers viewed text-to-vote graphics comparable to Mr.
Mackey’s prior to the election, but, especially given the strict standard for jurisdictional issues
like venue, the government did not show that they viewed the memes in this district, let alone
32
that they viewed Mr. Mackey’s particular tweets. See T 100:24-101:1, 101:7-10, 102:22-24 (Mr.
Cotler viewed “text-to-vote graphics,” contacted a software vendor about them in October 2016,
and “d[idn’t] remember exactly” where he viewed them); T 84:13-25 (Ms. Rocketto saw
“graphics” and “images” at the end of the “GOTV period”). And even if the staffers had viewed
Mr. Mackey’s tweets in this district, they did not commit any essential conduct because such
viewing was not an “overt act” in furtherance of the conspiracy. See Docket No. 114 at 29-30;
United States v. Kirk Tang Yuk, 885 F.3d 57, 70 (2d Cir. 2018).
Moreover, venue cannot be justified on the sweeping theory that Mr. Mackey’s
Twitter posts were tweeted “into,” “passed through,” or were “viewed in” this district. To ensure
compliance with the Sixth Amendment, the Supreme Court has long held that venue provisions
“should not be so freely construed as to give the Government the choice of a tribunal favorable to
it.” United States v. Brennan, 183 F.3d 139, 147 (2d Cir. 1999) (quoting Travis v. United States,
364 U.S. 631, 635 (1961)). That rule is even more critical today, because the “ever-increasing
ubiquity of the Internet” amplifies the “‘danger’” that the government will charge “cybercrimes”
in any district it chooses. United States v. Auernheimer, 748 F.3d 525, 541 (3d Cir. 2014).
Indeed, here the venue rules were construed “‘so freely’” that the government could have
prosecuted Mr. Mackey in any district with access to Twitter - - which is to say, every district in
the country. See Brennan, 183 F.3d at 147. When someone posts a non-private tweet on Twitter,
the post is viewable by both followers and non-followers alike in every district with access to the
Internet [see T 176:12-21], and thus the government could readily present evidence that such
posts are tweeted “into,” “pass[] through,” or are “viewed in” every district in the country, see
Docket No. 114 at 29-30; e.g., T 140:2-5 (tweets “pretty accessible” to anyone “online”), 176:12-
33
21 (tweets pass through Twitter servers in Atlanta and Sacramento). The “[un]restrained” theory
employed here thus impermissibly “‘g[a]ve the Government the choice of a[ny] tribunal.’”
Brennan, 183 F.3d at 147; see United States v. Ramirez, 420 F.3d 134, 146 (2d Cir. 2005).
Authority in related contexts confirms that venue was not proper. In particular,
the inquiry into specific personal jurisdiction is similar to the analysis of criminal venue, and
courts regularly hold that they may not exercise specific personal jurisdiction over individuals
whose social-media posts or other website publications were “accessible” in the forum but were
uploaded outside the forum. Lyons v. Rienzi & Sons, Inc., 856 F. Supp. 2d 501, 510 (E.D.N.Y.
2012) (Facebook); see, e.g., Gilbert v. Indeed, Inc., 513 F. Supp. 3d 374, 413 15 (S.D.N.Y.
2021) (LinkedIn); Blessing v. Chandrasekhar, 988 F.3d 889, 906 (6th Cir. 2021) (Twitter); Saah
v. Levine, No. 3:20-CV-01682, 2021 WL 3679305, at *6 (D. Conn. Aug. 19, 2021) (collecting
similar cases involving “online social media posts”); Johnson v. TheHuffingtonPost.com, Inc., 21
F.4th 314, 318-19 (5th Cir. 2021) (website).
The cases the Court cited in declining to dismiss for lack of venue, see Docket
No. 54 at 8-21, do not establish that essential conduct occurred in this district nor justify an
unrestricted approach to venue. None of the cases involved social-media posts or other website
publications accessible nationwide. Instead, the cases involved direct point-to-point
communications like phone calls, text messages, wire transfers, and emails.4 Unlike here, those
4
See United States v. Rommy, 506 F.3d 108, 122-23 (2d Cir. 2007) (phone calls); United
States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994) (phone calls); United States v. Kirk Tang Yuk,
885 F.3d 57, 71, 74 (2d Cir. 2018) (phone calls and text messages); United States v. Lange, 834
F.3d 58, 72-74 (2d Cir. 2016) (phone calls and emails); United States v. Royer, 549 F.3d 886,
894-96 (2d Cir. 2008) (electronic messages); United States v. Rowe, 414 F.3d 271, 273-74, 279-
80 (2d Cir. 2005) (chatroom messages and transmissions between directly “linked” computers);
United States v. Brown, 293 F. App’x 826, 829 (2d Cir. 2008) (unpublished) (wire transfer);
34
cases involved targeting of specific districts, and so did not present the danger of licensing the
government to select any district it wished.
Second, in all events, venue was not proper because the evidence did not satisfy
the “substantial contacts” test established in United States v. Reed, 773 F.2d 477, 481 (2d Cir.
1985). The evidence did not show that venue was warranted in this district based on “the site of
the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal
conduct, and the suitability of each district for accurate factfinding.” United States v. Tzolov, 642
F.3d 314, 321 (2d Cir. 2011). After all, this district was not the “site” of any acts committed by
Mr. Mackey or any co-conspirators, nor the “locus” of the charged conspiracy, see id., which
allegedly aimed to distribute memes “everywhere,” T 17:9-10, 834:12. The evidence thus did
not show “substantial contacts,” let alone any “sense” that Mr. Mackey “chose[]” this forum.
United States v. Davis, 689 F.3d 179, 186 (2d Cir. 2012).
Contrary to the Court’s suggestion at the motion-to-dismiss stage, the “substantial
contacts” test may not be ignored here on the ground that “‘an overt act in furtherance of [the]
criminal conspiracy has been committed in the district.’” See Docket No. 54 at 16-17, 21
(quoting Kirk Tang Yuk, 885 F.3d at 70). Even if that were the law (and it is not), the evidence
did not show that Mr. Mackey or any co-conspirator (or non-conspirator) committed an overt act
in this district. In sum, because venue was not proper, the conviction must be vacated and the
indictment dismissed. See United States v. Purcell, 967 F.3d 159, 188, 198 (2d Cir. 2020).
United States v. Kim, 246 F.3d 186, 191 (2d Cir. 2001) (wire transfers and faxes); United States
v. Kenner, No. 13-CR-607, 2019 WL 6498699, at *5, *7-9 (E.D.N.Y. Dec. 3, 2019) (wire
transfers and phone calls); United States v. Ng Chong Hwa, No. 18-CR-538 (E.D.N.Y. Sept 10,
2021), Docket No. 84-1 at 46-47 (wire transfers and telecommunications).
35
At minimum, the jury instructions regarding venue were erroneous, and that
warrants a new trial. First, the instructions embodied the government’s overbroad theory by, for
example, instructing without qualification that “[v]enue lies in any district where electronic
communications are sent or received and any district through which electronic communications
are routed.” Docket No. 114 at 29; see also id at 28-30. That is too sweeping, as explained
above; it also failed to explain that such transmissions sent or received by non-conspirators
supports venue only if the non-conspirators’ actions foreseeably and materially further the
conspiracy, see United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003); Lange, 834 F.3d at
70. Second, the jury was never even instructed on the substantial contacts test. See Docket No.
114 at 27-30; Docket No. 115. For both reasons, the instructions prejudicially “‘misle[d] the jury
as to the correct legal standard or d[id] not adequately inform the jury on the law.’” Kirk Tang
Yuk, 885 F.3d at 70. That too requires vacatur. See Murray v. UBS Sec., LLC, 43 F.4th 254,
262-63 (2d Cir. 2022).
Conclusion
For all of these reasons, this case should be dismissed with prejudice or,
alternatively, the conviction vacated.
/s/ Andrew J. Frisch

The Law Offices of Andrew J. Frisch, PLLC
40 Fulton Street, 17th Floor
New York, New York 10038
(917) 826-4668
afrisch@andrewfrisch.com
Attorneys for Douglass Mackey
36

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Case 1:21-cr-00080-AMD Document 135 Filed 05/12/23 Page 1 of 36 PageID #: 2654

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

-v- Criminal Case No. 21-0080 (AMD)

DOUGLASS MACKEY, ORAL ARGUMENT REQUESTED

Attorney for Douglass Mackey

May 12, 2023

A. The Government’s Willful Omissions to Judge Garaufis . . . . . . . 8

B. The Government’s Evidence Was Contradicted by Interviews . . . . . . 15

C. The Evidence of Conspiracy was Legally Insufficient . . . . . . . . 26

D. Acquittal or a New Trial Is Required Because the Evidence . . . . . . 29

E. The Conviction Must Be Vacated Because . . . . . . . . . . . 31

throated support Mr. Mackey engaged in the alleged conduct.

Party’s official shitposting account, according to MIT.”); GX 200-D at 13 (“[I]’ve sacrificed an

plausibly have intended to trick voters, even if he acted alone.

The government attempted to fill its evidentiary void by interpolating earlier

Apart from the government’s manufacture of an unsupportable theory of

deliberate. The government presented incomplete information to Judge Garaufis in securing

independent of chats proffered pursuant to Rule of Evidence 801(d)(2)(E); United States v.

Margiotta, 688 F.2d 108, 136 37 (2d Cir. 1982).

selection), while simultaneously hiding reports of interviews of other representatives of the

contradicted Ms. Rocketto and otherwise understood distinctions between criminal

misinformation and shitposting.

Rather than indulge prosecutorial rationalizations for dereliction of fundamental

after prodding, and not with measured half truths.”).

deadlock (before an Allen charge) serves to confirm.

A. The Government’s Willful Omissions to Judge Garaufis about Mr. Microchip, a

prosecutorial dereliction of constitutional duty is now inescapable.

The government’s motion on behalf of Mr. Microchip was principally predicated

on the following representations:

1. Mr. Microchip “was a coconspirator of the defendant . . . [and] had communications

By order dated March 8, 2023, Judge Garaufis granted the government’s

put the government’s application in a far different light:

1. Mr. Microchip admitted to using heroin, methamphetamines, mushrooms,

3. Mr. Microchip feared that his self-employment as a mobile application developer

presidential election” [Docket No. 66 at 2-3]; there were no such communications.

government’s application - - using the moniker “Microchip” (followed by a superscript “TM”

I have the crazy . . . .

I’m now 36 hours into my Adderall . . . . marathon . . . .

My IQ is so high right now, you have no idea.

or so before Mr. Microchip testified.

Garaufis had the full picture.

The government’s objection to DX R (“I’m now 36 hours into my Adderall . . .

be interpreted as the words of a prosecutor attempting to coverup a willful non-disclosure by

pretending to be seeing the undisclosed item for the first time.

confirm even that morsel to Judge Garaufis.

favorable if it is either exculpatory of impeaching. Mahaffy, 693 F.3d at 27 (citing Strickler v.

individuals in relation to the charged conspiracy on Twitter, 4chan, or other messaging

non-disclosures to Judge Garaufis is itself compelling evidence of the government’s perceived

“The burden of persuasion is on the government, meaning that if ‘the matter is so

B. The Government’s Evidence Was Contradicted by Interviews

D at 13 (“[I]’ve sacrificed an entire slice of my life to shitposting.”); GX 200-D at 27 (November

Campaign, it did not disclose them.

Associate Professor George Hawley of the University of Alabama’s Department of Political

Science, who would testify in substance

My opinion is that a substantial number of political conservatives over at least the

still made no disclosure of its reports of previously-conducted interviews of the Clinton

Campaign conducted from March 2021 to January 2023.

different from those formulated in those chats. T 32-33. Still no disclosures.

The government’s first witness, Robert McNees, a tweet-savvy professor of

action. Yet the government still disclosed none of the reports.

but we’re never going to finish.” T 86, 79-80.

On defense counsel’s subsequent cross-examination of Lloyd Cotler (a