United States v. W. Harkonen

MEMORANDUM

A jury convicted Defendant W. Scott Harkonen of wire fraud for issuing a fraudulent press release. The district court sentenced Harkonen to three years probation and a $20,000 fine. Harkonen appeals his conviction, and the government cross-appeals Harkonen’s sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Harkonen’s conviction and sentence.

First Amendment Challenge

We review First Amendment challenges to criminal convictions in two steps: (1) deferring to the jury’s findings on historical facts, credibility determinations, and the elements of statutory liability, we ask whether sufficient evidence supports the verdict; and (2) if it does, we determine whether the facts, as found by the jury, establish the core constitutional facts. See United States v. Keyser, 704 F.3d 631 , 638 n. 1 (9th Cir.2012) (citing Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058 , 1070 (9th Cir.2002) (en banc)).

Constitutional facts determine “the core issue of whether the challenged speech is protected by the First Amendment.” United States v. Hanna, 298 F.3d 1080, 1088 (9th Cir.2002). The First Amendment does not…