Douglass Mackey secures unanimous appellate win, overturning his conviction in high-profile criminal case
Client(s) Mackey, Douglass
Douglass Mackey, an influential political activist represented by Jones Day, successfully challenged his criminal conviction for political election memes. In 2016, Mackey posted on social media as a well-known supporter of then-candidate Donald Trump. In the days leading up to the 2016 presidential election, Mackey shared publicly available and widely circulated memes that sarcastically urged the public to vote by text for Hillary Clinton. More than four years later, but just days after President Biden's inauguration, the government charged Mackey with conspiracy to "injure, oppress, threaten, and intimidate" persons in the exercise of their right to vote, in violation of 18 U.S.C. § 241. The government tried the case, and the jury convicted Mackey (though only after repeatedly informing the court that it had deadlocked).
On appeal, the United States Court of Appeals for the Second Circuit unanimously agreed with Jones Day that the conviction could not stand. Adopting Jones Day's argument, the appellate court found that there was no evidence that Mackey coordinated with anyone to create the memes, solicited them from anyone, or in any other way collaborated on the memes. So the court held that the government failed to prove that Mackey conspired with anyone to break the law, as required for a conviction under Section 241. Because no "rational trier of fact" could have found a conspiracy beyond a reasonable doubt, Mackey carried the "heavy burden" necessary to overturn a jury verdict on sufficiency grounds. The Second Circuit thus reversed Mackey's criminal conviction and remanded the case with instructions to enter a judgment of acquittal.
United States v. Mackey, No. 23-7577 (2d Cir.)
