TUCSON, Ariz. (CN) — Of the hundreds of calls Steve Martis made to elected officials between 2018 and 2021, “only a few drew scrutiny,” his attorney told a Ninth Circuit panel Tuesday morning.
“What did he say?” asked U.S. Circuit Judge Michael Hawkins.
“I’m coming to kill you, c-u-n-t,” Michele Moretti, the attorney, replied, spelling out the last word.
“Are you saying that the First Amendment protects this speech?” asked Hawkins, a Bill Clinton appointee.
Martis — a “disabled, wheelchair-bound Vietnam vet,” as described by Moretti — was convicted of using interstate commerce to make threats in November 2021 for two voicemails he left at the office of then-U.S. Speaker of the House Nancy Pelosi, a Democrat from California.
Moretti told the court the content of the first voicemail. “You’re dead, cunt,” Martis said in the second.
The 79-year-old Martis was initially indicted on seven counts of threats, but four were dropped before trial and two were undecided by the jury. He was sentenced to 21 months in prison followed by three years of supervised release. He has 17 months left on release.
The indictment included more voicemails left to Pelosi, as well as some sent to Representative Adam Schiff of California and Senator Charles Schumer of New York, both Democrats. Each contained expletives and death threats, and in one, Martis told Schiff to “suck George Soros’ cock while Obama fucks you in the ass cause we’re going to put a bullet in your head.”
“He is a vile and offensive individual,” U.S. District Judge G. Murray Snow told a crowd of law students at the University of Arizona before the hearing. The George W. Bush-appointed judge presented the facts of each case on the calendar to the students beforehand, and fielded questions for attorneys afterward. Both attorneys and judges seemed unfazed by the atypically large crowd.
Martis argues his trial was unfair because his extreme intoxication at the time of the calls wasn’t considered. His attorney told the panel Martis didn’t remember making any of the calls, but wasn’t allowed to testify to that because of a limiting order by the trial judge that excluded an interview with the FBI in which he told agents he was drunk.
U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, clarified that Martis was welcome to testify to his drunkenness from the stand; the trial judge’s order only barred the government from pulling direct quotes from the FBI interview.
“It would have destroyed his credibility at that point,” Moretti replied. “He would have been seen as a liar.”
Prosecutor Krissa Lanham told the panel that the intoxication question is irrelevant for two reasons. One, Martis had every chance to bring it up in trial, but waited until appeal to do so. Furthermore, she argued, intoxication can’t be used as a defense of this particular crime because Martis still lodged the threats with knowledge of both the situation and the severity of the actions.
All but one of the counts dismissed pretrial pertained to calls Martis made prior to the FBI visiting him in a motel in Bullhead City, Arizona. There, the FBI told him his actions were illegal and warned him to stop making the threats. He didn’t.
Though he was no longer under prosecution for those crimes, prosecutors still used the voicemail recordings in trial, bringing into question Rule of Evidence 404. The rule prohibits the use of evidence pertaining to past crimes or those not subject to prosecution to impeach a defendant’s character. But such evidence can be used to prove motive, intent and knowledge, among other things.
Lanham said the government used those voicemails in court to prove that Martis both understood that the language was threatening based on the FBI visit and “continued to make the calls anyway.”
Prosecutors alerted the court when they dismissed four of the counts that they would still play the recordings for the jury to show knowledge and intent. Martis accepted the dismissal of the counts and never objected to the use of the voicemails as evidence, Lanham told the panel.
Moretti pointed out that two of the three counts that went to trial were undecided by the jury, hoping the judges would consider that the third count was ambiguous as well.
But Hurwitz reasoned that the jury felt bad after seeing her “sympathetic client,” and decided to nab him on just one count rather than three.
U.S. Circuit Judge Roopali Desai, a Joe Biden appointee, rounded out the panel. The judges didn’t indicate when they will rule.
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