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Call them out-of-control activist judges, but a three-member panel of the 9th U.S. Circuit Court of Appeals said Tuesday that there’s no First Amendment right to offer a person money to kill a federal judge. A prisoner’s statement “that he wanted to target a judge and ‘string the motherfucker up and cut her throat, his throat, and make it like a copycat so that people would do the same thing,’ combined with an offer to provide weapons and money reward, can reasonably be interpreted as a serious expression of intent to harm,” wrote Judge Carlos Bea. He was joined by Judge Diarmuid O’Scannlain and Robert Cowen, a senior judge from the 3rd U.S. Circuit Court of Appeals sitting by designation. The opinion stemmed from the case of Robert Stewart Jr., who had been serving a five-year sentence in an Arizona federal prison for charges of possessing a machine gun. Shortly after he arrived in jail in 2002, Stewart purportedly told jailhouse informant August Weiss that he would like to have FBI agents “strung up on light posts,” the opinion said. When Weiss asked if he was serious, Stewart reportedly replied, “Well, it would be nice.” He then said he wanted Judge Roslyn Silver of the U.S. District Court for the District of Arizona to be dealt with similarly, and offered Weiss $100,000 — which Stewart said would be provided by the Aryan Brotherhood — and weapons in exchange for the killing. Stewart repeated the offer in a recorded conversation with Weiss, who offered to have his brother-in-law carry out the crime. The opinion comes five months after Chicago federal Judge Joan Lefkow’s husband and mother were killed by a man whose case she dismissed, and six months before a Los Gatos man accused of taking out a hit contract on Northern District of California Judge William Alsup is set to begin trial. Stewart’s lawyer, Phoenix criminal defense specialist Thomas Haney, doesn’t dispute that the jailhouse conversations occurred. But he says his client was engaging in regular prison banter. “It was jailhouse talk, macho talk among prisoners who want to be tough guys,” Haney said, adding that Weiss had testified against other prisoners in the past. “He was set up by a snitch.” Haney said his client was just trying to establish a tough reputation, and that he had neither the intent nor the money to harm Silver, who presided over Stewart’s gun trial. “He has no funds,” Haney said. “He’s represented by court-appointed counsel. He’s destitute.” Haney’s appeal to the 9th Circuit also argued that the two separate attempted murder charges Stewart was convicted of — threatening to murder a federal judge and soliciting the murder of a federal judge — amounted to double jeopardy. The judges disagreed, but did say that Stewart should only have been tried on one count of making a false statement to FBI agents, rather than two. For this reason, the 9th Circuit remanded the case back to the district court for resentencing. But that’s little consolation, Haney said, since his client was serving those two sentences concurrently, and isn’t set to be released until 2024. Haney said his client would be close to release by now if it weren’t for the snitch — or the idle chatter. “The guys are all behind bars,” he added. “Let them talk.” The opinion is U.S. v. Stewart, 05 C.D.O.S. 7551.

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