No. 21-1186

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER CANTWELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for appellant. Anna Z. Krasinski, Assistant United States Attorney, with whom John J. Farley, Acting United States Attorney, and John S. Davis, Assistant United States Attorney, were on brief, for appellee.

April 5, 2023 LIPEZ, Circuit Judge. On the basis of a series of heated online messages, Christopher Cantwell was convicted of extortionate interstate communications under 18 U.S.C. § 875(b) and threatening to injure property or reputation under 18 U.S.C. § 875(d). He appeals his conviction and sentence, arguing that the government improperly relied on statements made by a non- testifying witness in its closing argument, that the district court improperly instructed the jury that provocation was not a defense, and that the district court abused its discretion by refusing to grant a downward departure due to the victim's provocative behavior under U.S.S.G. § 5K2.10. Because Cantwell has not met his burden on any of these claims of error, we affirm.

I. A. Background

Cantwell was a New Hampshire-based media personality who gained popularity in the online white nationalist community. As of late 2017, he hosted a call-in radio show called Radical Agenda, which he described as an intentionally "shocking production" featuring obscene, racist, and homophobic language from Cantwell and his callers. Cantwell also hosted a website related to his radio show content and was active across several social media platforms, including Telegram.1

1 Telegram is an "online instant message platform." Users can send private messages directly to an individual and can also

- 2 - In 2017, Cantwell began communicating online with members of an extremist group called the Bowl Patrol, who were calling into his program. The Bowl Patrol was a white nationalist hate group, whose members subscribed to "accelerationism," or the aggressive advocacy of government collapse.2 The group's primary activity was producing a podcast, the "Bowl Cast," on which they espoused racist, anti-Semitic, homophobic, and misogynistic views.

The Bowl Patrol operated solely online using platforms like Telegram, with its members relying on pseudonyms to maintain anonymity in all their online activities. One of the Bowl Patrol's members was Missouri-based Benjamin Lambert, known online only by his alias, "Cheddar Mane."3 Cantwell, who ran his live radio show, website, and Telegram channels under his own name, was initially on good terms with the Bowl Patrol and was the first guest on the Bowl Cast podcast.

In the fall of 2018, members of the Bowl Patrol began to target Cantwell's platforms after concluding that Cantwell "didn't actually believe what he was saying" and that he was "simply

create "channels," which bring together multiple people who can comment and post messages to a group. 2 The Bowl Patrol was so named in reference to the bowl-cut hairstyle of Dylann Roof, who shot and killed nine Black people in a church in Charleston, South Carolina, in 2015. The Bowl Patrol group revered Roof and his crime. 3 Lambert also used variations on his alias, such as "Cheddar Man," "Cheddy Blac," and "Hombre Cheddar."