By Mark Hamblett, from New York Law Journal
A former commodities trader and hedge fund manager who served time in prison for threatening to kill regulators has prevailed against charges that he violated his supervised release by threatening federal judges.
Eastern District Judge Denis Hurley, who himself has been the target of menacing letters from Vincent McCrudden, found that McCrudden’s comments failed to amount to “true threats” under the law.
In United States v. McCrudden, CR-11-06, Hurley said, “[T]he government has failed to establish that any of the subject’s indisputably vile, inane communications constitutes a violation of federal law.”
McCrudden pleaded guilty on July 18, 2011 to two counts of transmitting threatening communications in interstate or foreign commerce. He admitted to posting in 2010 an “Execution List” with the names of more than 40 current and former officials with the Securities and Exchange Commission and other regulatory agencies and offering a $100,000 reward for personal information about those named on his site as well as “the validation and proof of punishment of these criminals.” He also sent a second threat telling one regulator, “You are going to die a painful death.”
Hurley sentenced him to 28 months in prison, including time served since his arrest, and two years supervised release with the condition that he receive mental health treatment with an anger management component (NYLJ, April 9, 2012).
But McCrudden was arrested in November 2014 and held without bond on charges he violated the terms of his supervised release.
McCrudden, who was the target of several civil lawsuits, including one brought by the Commodity Futures Trading Commission, had asked Hurley to recuse himself from that lawsuit. The judge denied the motion on Oct. 22, 2013.
McCrudden responded by filing a petition for a writ of mandamus with the Second Circuit, saying Hurley was part of a “gang” of judges who couldn’t be fair and should be removed from his case.
In November 2013, he filed a complaint of misconduct against Hurley with the Second Circuit and the Senate Judiciary Committee in which he said, “I have nothing left to lose” and was writing only as a “last resort,” and that Hurley “deserved to have his ass kicked” and be sent to prison.
In December 2013, he wrote a letter to Hurley saying, “I could illegally assault you or my oppressors, but I have seen that even writing words could land you in jail,” and adding, “Be careful what you get back when you send a man to hell. In a way, it is liberating not having anything to lose.”
In April 2014, he sent an obscenity-filled letter to Second Circuit Chief Judge Robert Katzmann accusing the court of corruption, and a second letter in July saying that if he was denied relief, the only way he could achieve justice was through “violence.” Similar letters were sent to Second Circuit judges who denied him mandamus and Southern District judges who denied him other civil relief.
In August, McCrudden sent an ultimatum to the circuit to remove Hurley or face “vigilantism” and violence; a mass mailing to the media attacking Hurley and federal judges, vowing “other methods of justice;” and a letter to one news organization calling for violence to overthrow a corrupt system of government, saying he was waiting to “go hunting” and that “revolution is required.”
In his opinion issued Monday, Hurley said McCrudden’s letters and emails were a strong echo of the conduct that landed him in prison in the first place and there is no sign he has changed for the better.
“Rather, it seems that the mind-set that he had then persists and that he is in the early stages of the same course of escalating conduct that led to his underlying conviction,” Hurley said.
But the judge said McCrudden’s dangerousness did not turn his words into true threats. He said it is the response of the recipient that matters in determining whether a defendant has made a “true threat” and that he did not view the communications that he himself received as a threat.
“Granted, his comments along the lines of having ‘nothing left to lose’ if his grievances remained unresolved suggests the possibility, even the probability, that at some point he will resort to non-legal remedies,” Hurley said. “But what remedies, when, and against whom?”
McCrudden’s rant about what Hurley “deserved” was, “while certainly unsettling, is akin to such unfortunate, but at times uttered political hyperbole as ‘he deserves to be shot,'” the judge said. “The phrases ‘deserves to be’ and “I’m going to’ convey markedly different messages.”
McCrudden’s August 2014 letter to the media, the judge said, “might fall within the ambit of protected political hyperbole rather then true threats” and, in the end, was ambiguous. The letter that included the words “go hunting,” Hurley said, “is a First Amendment constitutionally protected call for revolution by McCrudden.”
Hurley said some of the statements are “right on the cusp of being criminal” under the standard set forth by the Second Circuit in United States v. Turner, 720 F.3d 411 (2d Cir. 2013). And had there been reaction testimony from the recipients in the record, he said there was a probability they would have been criminal and thus violating the terms of his supervised release.
But Hurley said there was an absence of reaction testimony and, given that he himself did not feel truly threatened, he was unable to find a violation based on the limited record before him.
McCrudden was released from custody on Tuesday, according to his attorney, solo practitioner Abigail Field of Cutchogue.
“We thought it was a really well-reasoned decision, and it was clear that Vincent’s statements were not true threats,” Field said Wednesday. “We are thrilled that he is back with his family.”
Assistant U.S. Attorney Christopher Caffarone represented the government.
IMAGE: Vincent McCrudden
For more on this story go to: http://www.newyorklawjournal.com/id=1202720968319/Threats-to-Judges-Didnt-Violate-Release-Terms-Court-Finds#ixzz3UpcwIL53