USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 97-1036
UNITED STATES,
Appellee,
v.
KEVIN WHIFFEN,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
_____________________
Bjorn Lange, Assistant Federal Defender, for appellant.
Jean
B.
Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, and Peter E. Papps, First
Assistant United States Attorney, were on brief for appellee.
____________________
August 29, 1997
____________________
TORRUELLA, Chief Judge. Defendant-appellant Kevin
Whiffen ("Whiffen") was tried and convicted on four counts of
transmitting threatening communications in interstate commerce in
violation of 18 U.S.C. S 875(c). Whiffen now appeals, arguing that
the indictment failed to allege an offense, that the court should
have granted his motion under Rule 29 of the Federal Rules of
Criminal Procedure for a judgment of acquittal on all counts, and
that the court erred in its jury instructions. We affirm.
I. Background
In 1993, Whiffen, a resident of New Hampshire, was
driving a car that was involved in a two-vehicle accident in Rhode
Island. The other car was insured by Allstate Insurance
("Allstate"). Allstate paid a claim to its insured and sought
reimbursement from Whiffen in the amount of approximately $11,000.
The claim was eventually turned over to Universal Fidelity
Corporation ("UFC"), located in Florida, for collection. On
October 11, 1995, UFC sent a letter to Whiffen, informing him that
the New Hampshire Division of Motor Vehicles had been notified of
his failure to pay and warning that if he failed to pay the claim
within thirty days, he risked losing his license.
On October 17, 1995, Whiffen returned a telephone call
from Kelly Terrell ("Terrell"), a UFC collector. During the call,
Whiffen was "very belligerent," and when Terrell stated that she
could have Whiffen's license suspended, Whiffen said that "the
building will go boom." At that point, Terrell disconnected the
line.
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Several minutes later, Whiffen called back. The call was
transferred to Terrell, and Whiffen told her that "the building
will go boom."
Whiffen called back a third time, speaking on this
occasion with Anna Walls ("Walls") of UFC. He asked that a message
be relayed to Terrell that "buildings go boom boom."
On the evening of October 17, 1995, Walls' supervisor,
Mark Gallo ("Gallo"), called Whiffen to confirm the name of his
attorney and to ask him to pay his bill. Gallo asked Whiffen if he
intended to drive to Florida and blow up the building. Whiffen
responded that he had friends in Florida who would "take care of it
for him."
As a result of Whiffen's statements, UFC closed their
file on Whiffen and returned the account to Allstate. On
October 29, 1995, Whiffen telephoned Allstate's Bedford, New
Hampshire office. The call was automatically transferred to Sheryl
Johnson, a manager at Allstate's St. Petersburg, Florida office.
Whiffen told her that "Allstate had better stop messing with me or
else I'm going to blow up their building."
II. The Requisite Intent
Although Whiffen makes several claims on appeal, all of
them turn on the question of whether the threats made by Whiffen
constitute threats to the person of another. In order to resolve
this question, we must determine the intent necessary for
conviction under section 875.
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The centerpiece of Whiffen's appeal is the claim that 18
U.S.C. S 875(c) is a specific intent crime. In other words, in
order to obtain a conviction, the government must prove that the
defendant intended his communication to be received as a threat.
In support of this view, Whiffen cites
United States
v.
Twine, 853
F.2d 676 (9th Cir. 1988). In Twine, the Ninth Circuit concluded
that "the showing of an intent to threaten, required by S 875(c)
. . . is a showing of specific intent." Id. at 680.
Other circuits, however, disagree with
Twine. In United
States v.
DeAndino, 958 F.2d 146 (6th Cir. 1992), for example, the
Sixth Circuit concluded that "S 875(c) does not require specific
intent in regard to the threat element of the offense, but only
general intent." Id. at 150. Under a general intent standard,
whether a communication is a "true threat" is determined
objectively from all the surrounding facts and circumstances,
rather than from the defendant's subjective purpose. A general
intent standard has also been adopted by three other circuits.
See
United
States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997), United
States v. Himelwright, 42 F.2d 777, 782-83 (3d Cir. 1994), United
States v. Darby, 37 F.3d 1059, 1063-66 (4th Cir. 1994), cert.
denied, 514 U.S. 1097 (1995). The test espoused in these cases is
stated in Darby:
Even within the Ninth Circuit there is some question about the
continuing validity of Twine. See United
States v. King, 920 F.
Supp. 1978, 1079-80 (C.D. Cal. 1996) (suggesting that Twine
conflicts with both prior and subsequent Ninth Circuit precedent).
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[T]o establish a violation of section
875(c), the government must establish that
the defendant intended to transmit the
interstate communication and that the
communication contained a true threat.
Whether a communication in fact contains a
true threat is determined by the
interpretation of a reasonable recipient
familiar with the context of the
communication. The government does not
have to prove that the defendant
subjectively intended for this recipient
to understand the communication as a
threat.
Darby, 37 F.3d at 1066. Our sister circuits have also considered
what constitutes a "true threat" under other federal threat
statutes. See United
States v. Fulmer, 108 F.3d 1486, 1491 (1st
Cir. 1997) (collecting cases).
Although the intent requirement of section 875(c) has not
previously been decided by this court, we recently had occasion to
determine the requisite intent under a different threat statute, 18
U.S.C. S 115(a)(1)(B), which criminalizes threats directed at
federal agents.
In determining what constitutes a "true threat," the
Fulmer panel found the governing standard to be "whether [the
defendant] should have reasonably foreseen that the statement he
uttered would be taken as a threat by those to whom it is made."
Fulmer, 108 F.3d at 1491. This test takes into consideration the
context in which the remark was made and avoids the risk that an
otherwise innocuous statement might become a threat if directed at
an unusually sensitive listener. This approach also protects
listeners from statements that are reasonably interpreted as
threats, even if the speaker lacks the subjective, specific intent
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to threaten, or, as would be more common, the government is unable
to prove such specific intent which, by its nature, is difficult to
demonstrate.
For these reasons, we believe that the logic of Fulmer,
which considered 18 U.S.C. S 115(a)(1)(B), applies with full force
to 18 U.S.C. S 875, and we adopt the same standard for the latter
statute. In doing so, we are also aligning ourselves with the
majority view of our sister circuits, as discussed supra. Having
established that section 875(c) requires only a general intent, we
are able to engage each of Whiffen's specific claims.
III. Failure to Allege an Offense
Whiffen's first claim of error relates to his pre-trial
motion, under Rule 12(b)(2) of the Federal Rules of Criminal
Procedure, to dismiss the indictment for failure to allege an
offense. Whiffen was charged with violation of 18 U.S.C. S 875(c)
which prohibits the transmission in interstate commerce of "any
threat to injure the person of another." The indictment alleges
that Whiffen made such a communication when he stated that "[y]our
building will go boom"; "the building will go boom"; "buildings go
boom"; and "Allstate had better stop messing with me or else I'm
going to blow up their building."
On appeal, Whiffen argues that his motion to dismiss
should have been granted on the grounds that the indictment "fails
to allege 'unequivocal, unconditional and specific expressions of
intention immediately to inflict injury' to another person." Brief
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of Appellant at 7 (quoting
United States
v.
Kelner, 534 F.2d 1020,
1027 (2d Cir. 1976)).
Having determined that specific intent is not the
standard under which Whiffen's statements should be judged, it is
clear that the failure to allege specific intent is not grounds for
dismissal. "[A]n indictment is sufficiently particular if it
elucidates the elements of a crime, enlightens a defendant as to
the nature of the charges against which she must defend, and
enables her to plead double jeopardy in bar of future prosecutions
for the same offense." United States v. Sepulveda, 15 F.3d 1161,
1192 (1st Cir. 1993);
see also
Fed. R. Crim. P. 7(c)(1). Although
the four counts contain slightly different wording, we present only
Count I, which is representative of the other counts. Count I
states that:
On or about October 17, 1995, in the
District of New Hampshire, the defendant,
Kevin Whiffen knowingly and willfully
transmitted in interstate commerce between
Farmington, New Hampshire and Tampa,
Florida, a communication containing a
threat to injure Kelly Terrell and other
employees of Universal Fidelity
Corporation, Tampa, Florida, to wit, "Your
building will go boom." All in violation
of Title 18, United States Code, Section
875(c).
It is our view that the indictment states the offense for which
Whiffen has been convicted. The elements of the crime are
elucidated and the indictment is sufficient to plead double
jeopardy should future prosecutions be brought against Whiffen for
the same offense. The indictment basically tracks the language of
section 875(c), which states: "Whoever transmits in interstate or
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foreign commerce any communication containing . . . any threat to
injure the person of another, shall be fined under this title and
imprisoned for not more than five years, or both." 18 U.S.C.
S 875(c). We find the indictment to be sufficient. See
Darby, 37
F.3d at 1063.
Appellant also argues that the indictment is inadequate
because it "alleges threats that a building or buildings would 'go
boom.' . . . It does not allege that any person would be present
or hurt by any such explosion." Brief of Appellant at 6. The
indictment does, however, allege that each of the threats was a
threat to injure the person of another. In Count I, for example,
it is stated that the communication contained "a threat to injure
Kelly Terrell and other employees of Universal Fidelity
Corporation." Whiffen's argument appears to be that threats to
blow up the building are, as a matter of law, not threats against
a person. Like the district court, we are unwilling to conclude
that his words did not contain a threat to injure a person. One
possible interpretation of a threat to blow up a building is that
the building will be blown up with people inside. Such an
interpretation would lead to the conclusion that the threat was a
threat against those who work in the building. Alternatively, such
a threat may be interpreted as a threat to blow up the building
only when it is empty. Under this interpretation, Whiffen's
statement would not constitute a threat against a person. The
proper interpretation of Whiffen's remarks, however, is a question
of fact and, therefore, appropriately left for the jury. We cannot
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conclude that the interpretation preferred by Whiffen is, as a
matter of law, the correct one.
Whiffen argues that we must interpret section 875(c)
narrowly in order to avoid violation of his First Amendment rights.
In support, he cites Watts v. United States, 394 U.S. 705 (1969),
in which the defendant was accused of threatening the President.
The primary concern of the Court in Watts was the protection of
constitutionally protected political speech. See id. at 706-08.
Whiffen does not claim that his statements were a form of political
speech.
In any event, a true threat is not protected by the First
Amendment. See Fulmer, 108 F.3d at 1492-93; United
States v.
Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990). For this
reason, a conviction upon a finding that the statements were true
threats would not violate Whiffen's constitutionally protected
right to speech.
IV. Judgment of Acquittal
Whiffen also appeals the denial of his motion, under Rule
29 of the Federal Rules of Criminal Procedure, for a judgment of
acquittal on all counts. We review the district court's ruling
deferentially, considering the evidence "in the light most
compatible with the verdict, resolv[ing] all credibility disputes
in the verdict's favor, and then reach[ing] a judgment about
whether a rational jury could find guilt beyond a reasonable
doubt." United States
v.
Taylor, 54 F.3d 967, 974 (1st Cir. 1995).
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Whiffen claims that even under this deferential standard,
the evidence "failed to prove a true threat to injure 'the person
of another.'" Brief of Appellant at 8. This argument is,
ultimately, a claim that the words spoken -- on which there is no
dispute -- did not constitute a true threat. Specifically, Whiffen
argues that "any reasonable person familiar with the context of
those statements could not find beyond a reasonable doubt that they
were true threats under S 875(c). They were frustrated,
inarticulate, and empty words." Brief of Appellant at 10.
There is no dispute that Whiffen made the statements,
there is disagreement only with respect to their proper
interpretation. Whether or not Whiffen's statements were true
threats is determined by applying the
Fulmer test discussed above.
At trial, the government presented testimony that Terrell notified
two supervisors about Whiffen's call, and informed Stacie Thompson,
the person responsible for incoming mail, to "be very careful with
any packages coming in from this area because there was a bomb
threat." Tr., April 9, 1996, at 41. Both Terrell and Walls
testified that this was the only bomb threat they had ever received
while working in claims collection. Walls, who has fifteen years
experience in third party collections, testified that by Whiffen's
third call she was afraid. Joseph Suozzo, a claim manager in
Allstate's Bedford, New Hampshire office, testified that, in
reaction to the phone calls from Whiffen, a security guard was
hired for the Bedford office and the claim against Whiffen was not
pursued. This evidence regarding the reaction of the listeners is
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not conclusive, but it does suggest that at least these individuals
perceived the statements to be threats.
Faced with this evidence, as well as the content of the
statements and other contextual information, a reasonable jury
could have found that the defendant should have reasonably foreseen
that the statement he uttered would be taken as a threat by those
to whom it was made. For that reason, we affirm the denial of
Whiffen's motion for judgments of acquittal on all counts.
With respect to count four, Whiffen argues that he was
unaware that his in-state call was re-routed to Florida. His lack
of knowledge, however, does not constitute a defense. "[W]hile the
Government was required to prove that [the defendant]'s phone call
crossed a state line (a fact not in dispute here), the Government
did not need to prove that [the defendant] knew of the interstate
nexus." Darby, 37 F.3d at 1067.
V. Jury Instructions
Finally, Whiffen challenges the jury instructions. He
claims error in the district court's failure to instruct the jury
that violation of section 875(c) is a specific intent crime. In
our discussion of this issue,
supra section II, we determined that
section 875(c) is a general intent crime. The failure to provide
instructions to the effect that it is a specific intent crime,
therefore, cannot be error.
Whiffen makes the additional argument that the jury
instructions failed to meet the requirements of Fulmer. We turn,
therefore, to consider whether the requirements set forth in that
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opinion, which we have determined apply in this case, were
satisfied by the district court.
Fulmer instructs that "the appropriate standard under
which a defendant may be convicted for making a threat is whether
he should have reasonably foreseen that the statement he uttered
would be taken as a threat by those to whom it is made." Fulmer,
108 F.3d at 1491.
The jury instructions actually given in the instant case
were:
To sustain its burden with regard to the
second element the government must prove
beyond a reasonable doubt that the
communication contained a threat. A
threat is a serious statement or
communication expressing an intention to
inflict bodily injury upon another person
which, under the surrounding
circumstances, and in context, would cause
apprehension in a reasonable person that
the person making the threat will act on
it. A criminal threat must be
distinguished from words used as mere idle
or careless talk, hyperbole, exaggeration,
or something said in a joking manner.
Those are not threats within the meaning
of the statute involved in this case. In
other words, the communication must be
unconditional and a true threat or one
properly perceived by a reasonable person
as a real or genuine threat to injure
another. The government has the burden of
proving beyond a reasonable doubt that an
ordinary reasonable person, familiar with
the context and circumstances surrounding
the communication, would interpret the
communication as a genuine threat to
injure another person. . . . The
government is not required to prove that
the defendant subjectively intended the
recipient to understand the communication
was a threat, nor need to prove that the
defendant intended to or was actually able
to carry out the threat made. [T]he
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government must prove that the threat was
an unequivocal and unconditional
expression of intent to cause bodily
injury to another person and would cause a
reasonable person in the recipient's
circumstances to fear that he, she or
another person faced an imminent risk of
bodily injury.
Tr. 9/5/96, at 14-15.
Comparing the instructions given to those required under
the Fulmer analysis, we see that the district court instructions
failed to inform the jury that it must consider whether the
defendant could reasonably have foreseen that the statement would
be taken as a threat. The instructions given indicate that it is
sufficient if the communication would cause apprehension in a
reasonable listener. In light of Fulmer, this focus on the
recipient of the threat rather than the defendant could be viewed
as error, although we note in fairness to the district court that
Fulmer was decided some months after the trial in this case. In
any event, in this case, as in many others, the distinction is
without practical importance.
We do not reverse a conviction based on an error in the
jury instructions if "it is highly probable that the error did not
contribute to the verdict." United States
v.
Cudlitz, 72 F.3d 992,
999 (1st Cir. 1996). An error that is certain to have had no
significant impact on the jury is harmless.
The facts of this case are such that the instructions
required under Fulmer and the instructions actually given in this
case are functionally equivalent. In certain situations, as in
Fulmer, there may be information known to the listener, but not to
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the speaker (or vice versa), that would cause a reasonable listener
to perceive a statement as an expression of an intent to injure
despite the fact that a reasonable speaker would not view it as
such. That is not the case here. It is not possible that the
words spoken by Whiffen were reasonably understood by the employees
of UFC and Allstate as an expression of an intent to injure, and
yet such an outcome would not have been foreseen by a reasonable
speaker in Whiffen's position. This is so because, unlike in
Fulmer, Whiffen did not employ language that held a different
meaning for him than it did for the listeners.
We conclude, therefore, that the imperfection in the jury
instructions could not have affected the verdict. The error was
harmless.
VI. Conclusion
For the reasons stated herein, we
affirm
the judgment of
the district court.
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