United States v. Stevens ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 6, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-5044
JEFFREY ALLEN STEVENS,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(No. 4:16-CR-00134-CVE-1)
_________________________________
Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal
Public Defender, and William P. Widell, Jr., Assistant Federal Public Defender, with him
on the briefs), Tulsa, Oklahoma, for Defendant-Appellant.
Leena Alam, Assistant United States Attorney (Loretta F. Radford, Acting United States
Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Jeffrey A. Stevens was indicted on 10 counts of interstate communication with
intent to injure under 18 U.S.C. § 875(c) for posting 10 messages on the Tulsa Police
Department’s (“TPD”) online “Citizen Complaint” form. The messages discussed
committing violence against specific members of the TPD or TPD officers generally.
Mr. Stevens moved to dismiss the indictment on First Amendment grounds, arguing his
messages were not true threats. The district court denied the motion because a reasonable
jury could construe the messages to be true threats. Mr. Stevens pled guilty to five counts
conditioned on his right to appeal the denial of his motion, which he has done here.
The district court properly denied Mr. Stevens’s motion. A reasonable jury could
understand his messages to be true threats. Exercising jurisdiction under 28 U.S.C. §
1291, we affirm.
I. BACKGROUND
A. Factual History
On September 16, 2016, TPD Officer Betty Shelby shot and killed Terence
Crutcher, an African-American. The shooting made national headlines and reignited a
heated debate over law enforcement’s use of force against minorities.
Three days after the shooting, Mr. Stevens, a Connecticut resident, sent the first of
multiple anonymous messages to the TPD via an online form the public could use to
complain about the TPD. This first message read:
[Message No. 1, sent on September 19, 2016, at 6:18 P.M.]
The psychotic pile of s--- who MURDERED the unarmed civilian who
broke down is going to be executed, as are ALL psychotic s---bags you and
other PDs hire across this Nation who murder unarmed civilians. They are
all going to be killed.
2
ROA Vol. 1 at 31. Over the next three days, Mr. Stevens submitted nine more
messages.1
Agents with the Federal Bureau of Investigation traced the messages to Mr.
Stevens’s residence. They interviewed Mr. Stevens, who confessed to sending the
messages.
B. Procedural History
A grand jury indicted Mr. Stevens on 10 counts of interstate communication with
intent to injure in violation of 18 U.S.C. § 875(c). He moved to dismiss the indictment,
alleging the First Amendment protected his statements because they were not true threats.
The district court denied Mr. Stevens’s motion, finding that a reasonable jury could
understand his messages to be true threats. United States v. Stevens, No. 16-CR-0134-
CVE, 2016 WL 7442657, at *2 (N.D. Okla. Dec. 27, 2016).
Mr. Stevens next entered into a plea agreement. He pled guilty to five of the 10
counts, but reserved the right to appeal the district court’s denial of his motion.2
Following the guilty plea, the district court sentenced Mr. Stevens to 12 months in prison,
1
The messages accused the TPD and its officers of corruption and other
misconduct and warned of violent actions that would be taken against them. Some of the
messages conditioned such actions on compliance with certain demands. We reproduce
the 10 messages in the appendix to this opinion.
2
Even though the Government dropped charges for five of the statements in the
plea agreement, we consider all 10 statements because they were all at issue in the motion
to dismiss. Mr. Stevens’s plea agreement reserved his right to appeal the denial of his
motion to dismiss. ROA, Vol. 1 at 62 (“[T]he defendant reserves the right to appeal from
contested sentencing issues and the District Court’s order denying the defendant’s
Motion to Dismiss the Indictment.”).
3
followed by three years of supervised release. He now appeals the district court’s denial
of his motion to dismiss the indictment.
II. DISCUSSION
A. Standard of Review
“[W]e review the . . . denial of a motion to dismiss an indictment for an abuse of
discretion.” United States v. Ambort, 405 F.3d 1109, 1116 (10th Cir. 2005). “An error of
law is per se an abuse of discretion,” United States v. Lopez–Avila, 665 F.3d 1216, 1219
(10th Cir. 2011), and we review legal questions de novo, see United States v. Pauler, 857
F.3d 1073, 1075 (10th Cir. 2017).
Whether a reasonable jury could find Mr. Stevens’s statements to be true threats is
a question of law. “[I]f there is no question that a defendant’s speech is protected by the
First Amendment, the court may dismiss the charge as a matter of law.” United States v.
Wheeler, 776 F.3d 736, 742 (10th Cir. 2015) (quotations and citations omitted). But,
“absent an unusual set of facts, the question whether statements amount to true threats is
a question generally best left to a jury.” Id. (quotations and citations omitted). If the
court determines a “reasonable jury could find that the [] communication[s] constitute[]
. . . true threat[s],” then it may deny the defendant’s motion to dismiss. United States v.
Stock, 728 F.3d 287, 298 (3d Cir. 2013). Because the district court here refused to
dismiss the indictment because a jury could find Mr. Stevens’s messages to be true
threats, we review its ruling de novo.
4
B. Legal Background
1. Elements of a § 875(c) Offense
Mr. Stevens was charged under 18 U.S.C. § 875(c), which provides:
Whoever [1] transmits in interstate or foreign commerce [2] any communication
containing [3] any threat to kidnap any person or any threat to injure the person of
another, shall be fined under this title or imprisoned not more than five years, or
both.
In addition to the elements specified in the statute, the Supreme Court recognized
a fourth element concerning mens rea in Elonis v. United States, 135 S. Ct. 2001 (2015).
The Court said the government must prove the defendant transmitted the communication
for the purpose of issuing a threat or with knowledge the communication would be
viewed as a threat. Id. at 2012.3 The mens rea element calls for proof the speaker
“intended the recipient of the threat to feel threatened.” United States v. Heineman, 767
F.3d 970, 978 (10th Cir. 2014).
In his motion to dismiss the indictment, Mr. Stevens challenged only the threat
element. The district court therefore limited its analysis to whether a reasonable person
would have understood Mr. Stevens’s messages as threats. We similarly limit our review
to that issue and provide further legal background on the threat element.
2. Threat Element
In § 875(c) prosecutions, we have followed the Supreme Court’s definition of a
threat as “a serious expression of an intent to commit an act of unlawful violence to a
3
The Court recognized this element based on the statute. Before Elonis was
decided, this court said the First Amendment requires proof of the defendant’s intent in a
§ 875(c) prosecution. See United States v. Heineman, 767 F.3d 970, 975 (10th Cir.
2014); Wheeler, 776 F.3d at 740.
5
particular individual or group of individuals.” Wheeler, 776 F.3d at 743 (quoting
Virginia v. Black, 538 U.S. 343, 359 (2003)). In Wheeler, we said that § 875(c)
“app[lies] only to ‘true threats,’” which are “outside the protective scope of the First
Amendment.” Id. at 742-43; see also Watts v. United States, 394 U.S. 705, 707 (1969)
(“What is a threat must be distinguished from what is constitutionally protected speech.”)
“Section 875(c), like all threat statutes, must be interpreted with the commands of the
First Amendment clearly in mind.” Wheeler, 776 F.3d at 742.
In line with the First Amendment, § 875(c)’s threat element requires proof that a
reasonable person would understand the communication to be a threat. Id. at 743. Under
the reasonable person standard, “[t]he question is whether those who hear or read the
threat reasonably consider that an actual threat has been made.” United States v. Dillard,
795 F.3d 1191, 1199 (10th Cir. 2015) (quoting United States v. Viefhaus, 168 F.3d 392,
396 (10th Cir. 1999)).
To answer this question, “the language [of the statements and] the context in
which the statements are made . . . are [] relevant.” Wheeler, 776 F.3d at 743 (quoting
Nielander v. Bd. of Cnty. Comm’rs of Cnty. of Republic, Kan., 582 F.3d 1155, 1167–68
(10th Cir. 2009)); see also Dillard, 795 F.3d at 1201 (a statement is a true threat “so long
as a reasonable recipient could conclude, based on the language of the communication
and the context in which it is delivered, that this was in fact a veiled threat of violence by
the defendant”).
As to a message’s language, we have warned against “rigid adherence to the literal
meaning of a communication without regard to its reasonable connotations . . . .”
6
Dillard, 795 F.3d at 1201 (quoting United States v. Turner, 720 F.3d 411, 422 (2d Cir.
2013)). For example, “[a] defendant cannot escape potential liability simply by using the
passive voice or couching a threat in terms of ‘someone’ committing an act of
violence . . . .” Id.
As for context, it may include where a statement was made and how an audience
reacted. See Watts, 394 U.S. at 708 (holding that statements made at political protest and
at which the audience laughed were “political hyperbole” and not true threats); Wheeler,
776 F.3d at 743 (recognizing a recipient’s reaction to a message is relevant).
C. Analysis
The sole issue on appeal is whether the district court erred in concluding that a
rational jury could find Mr. Stevens’s statements to be true threats under the reasonable
person standard. We conclude it did not.
1. A Reasonable Jury Could Find the Statements to be True Threats
The district court examined the language and the context of the statements. It
determined that, because Mr. Stevens’s messages were “targeted at specific people,
groups of people, and their family members,” and because they “repeatedly assert[ed]
that the targets of the messages are going to die unless they comply with [his] wishes,” a
“jury could determine that ‘a reasonable person would interpret the statements to be
threats.’” Stevens, 2016 WL 7442657, at *2 (quoting Wheeler, 776 F.3d at 744).
Mr. Stevens sent messages describing specific acts of violence directed toward
particular individuals or groups of individuals. He targeted particular individuals in five
of his 10 messages—several to Officer Shelby, the TPD Officer who shot Mr. Crutcher.
7
The language and context of these messages mirror the circumstances in United States v.
Martin, 163 F.3d 1212 (10th Cir. 1998), in which we determined a reasonable jury could
construe the statements as true threats. In Martin, the defendant stated in a taped
conversation that he would “unload six bullets into Detective O’Rourke’s brain.” Id. at
1213. Detective O’Rourke was the head of the narcotics unit that had recently
investigated two of the defendant’s friends. Id. Throughout the conversation, the
defendant “repeatedly reaffirmed his plans to shoot Detective O’Rourke” and also stated
his motives for doing so. Id. at 1216. We determined that a “rational jury could have
evaluated the [statements on the] tape . . . to conclude that the threats” were true threats.
Id.
Here, Mr. Stevens sent multiple communications that Officer Shelby would be
“executed” for shooting Mr. Crutcher. ROA, Vol. 1 at 31. In the tenth message, for
example, he wrote: “Betty is not going to get 3 yeas [sic] probation and a pension, she is
getting a bullet through her brain.” Id. at 34.4 From the repeated statements and explicit
motives that were sent to Officer Shelby’s place of work, a reasonable jury, as in Martin,
could conclude that Mr. Stevens’s postings were true threats against Officer Shelby. It
4
In addition to his tenth message, Mr. Stevens sent other violent messages about
Officer Shelby:
 First: “The psychotic pile of s--- who MURDERED the unarmed civilian
. . . is going to be executed.” ROA, Vol. 1 at 31.
 Second: “The psycho c--- who never should have been given a badge . . .
[is] going to be executed.” Id.
8
further could conclude Mr. Stevens’s other messages directed at identified TPD
employees were true threats.5
Mr. Stevens also directed messages at groups, including TPD officers. The
language and context of these messages were similar to a message aimed at Colorado
police officers in Wheeler, 776 F.3d at 736. In that case, the defendant held strong anti-
government views and was angry at police officers in Grand Junction, Colorado, because
of a DUI arrest. Id. at 738. While in Italy, he posted messages on his Facebook account,
one of which urged his “religious followers” to “kill cops. drown [sic] them in the blood
of thier [sic] children, hunt them down and kill their entire bloodlines.” Id. We held that
a “rational juror considering the language and context of these posts could consider them
to be true threats” because they directed “specific, deadly action against a number of
individuals.” Id. at 745.
Similar to the message in Wheeler, Mr. Stevens targeted messages of deadly action
at TPD officers generally. Mr. Stevens’s fifth message, for example, mentioned the
5
In addition to Officer Shelby, Mr. Stevens directed the following violent
messages to the current TPD Chief, the former TPD Chief Ron Palmer, the Tulsa County
District Attorney, and a Tulsa County Magistrate Judge:
 Second: “[U]nless the Prosecuter [sic] & the Judge deny bail, they too will
be executed.” ROA, Vol. 1 at 31.
 Third: “The Tulsa PD Chief is going to be killed.” Id.
 Sixth: “Ron Palmer [the former TPD Chief], who has developed a culture
of corruption and victimizing innocent civilians, along with his family is
going to be burned to death.” Id. at 33.
Mr. Stevens argues that “none of the named targets in the messages were
employed” in the TPD’s Internal Affairs Division, which manages the webpage where he
posted his messages. Aplt. Br. at 19. We think a reasonable jury could still determine
that a message sent to a different division of the TPD could constitute a true threat against
the named individuals in the TPD. The same applies for the message against the Tulsa
County District Attorney and the Tulsa County Magistrate Judge.
9
“right to Life, Liberty & the Pursuit of Happiness” and stated: “If killing every last one
of you [TPD officers] and your families ....... your wives .... your children is what it takes
to drive [that point] home, so be it.” ROA, Vol. 1 at 32.6 Because this message and the
others were sent to the TPD and were “specific, deadly” in nature, Wheeler, 776 F.3d at
745, a reasonable jury could find from their language and context that they were true
threats.7
6
In addition to the fifth message, Mr. Stevens made violent statements against
members of the TPD in the following messages:
 Second: “[A]ll [of Officer Shelby’s] cohorts who patted her on the back
and said ‘Good Shoot’ are going to be executed.” ROA, Vol. 1 at 31.
 Fourth: “Now is the time that EVERYONE on that list is going to start
being killed. Cops, Prosecutors, Judges, family members.” Id. at 32.
 Seventh: The TPD “started out with just under 100 Enforcers going to
Tulsa. It has grown to well over 1000. Cops are going to be killed.” Id. at
33.
 Eighth: “Spill your guts to the Feds, even to questions they don’t ask, or
your kids will start dying.” Id.
 Ninth: “The last words your child will hear are the same words that will be
burned into his or her corpse.” Id. at 34.
 Tenth: “Every corrupt s--- a--hole cop who filed a report stating that
Crutcher was reaching through his CLOSED window is also going to be
killed.” Id.
7
In addition to the TPD officers, Mr. Stevens also directed the following violent
message to Tulsa prosecutors, judges, and their family members:
 Fourth: “Now is the time that EVERYONE on that list is going to start
being killed. Cops, Prosecutors, Judges, family members.” ROA, Vol. 1 at
32.
10
2. Mr. Stevens’s Arguments
On appeal, Mr. Stevens has preserved two arguments that his messages were not
true threats: (1) his messages were political speech, and (2) he did not have the intent or
ability to carry out the threat.8 Neither argument has merit.
First, Mr. Stevens argues his messages “protested improper police conduct in
vehement terms,” and the “threats were a means of expressing the opinion that a police
officer killed a person without justification.” Aplt. Br. at 13-14. The district court found,
however, that even if Mr. Stevens’s messages concerned “an event that garnered national
attention and [was] a part of a larger political debate,” this did “not preclude the
communications from being true threats.” See Stevens, 2016 WL 7442657, at *2. We
agree. As we said in Viefhaus, even if “a specific threat accompanies pure political
speech[, this] does not shield a defendant from culpability.” Viefhaus, 168 F.3d at 396.
Second, Mr. Stevens argues that his “location in Connecticut while sending threats
to Tulsa reflects the absence of intent or ability to carry out any threat.” Aplt. Br. at 19.
Although we may consider the speaker’s apparent intention or ability to carry out the
threat in determining whether the communication was a true threat, Mr. Stevens’s
argument suffers from at least two problems. First, nowhere on the face of the messages
(see the Appendix to this opinion) is there any indication of Mr. Stevens’s being located
8
Mr. Stevens also argues his statements were not true threats because: (1) he did
not send messages to specific identified recipients and (2) his statements contained too
many people to believe they were real threats. See Aplt. Br. at 19-20. Both arguments
were not included in his motion to dismiss the indictment. Because Mr. Stevens has
failed to argue plain error, we consider both arguments waived. See Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).
11
in Connecticut, and nowhere does the record show that any of the recipients knew that
Mr. Stevens was located there. Second, even if a reasonable person in Tulsa who
received these messages knew they came from Connecticut, he or she could reasonably
conclude that Mr. Stevens had the wherewithal to travel to Tulsa and execute the threats.
We therefore affirm the district court’s rejection of this argument. See Stevens, 2016 WL
7442657, at *2.
****
In determining whether Mr. Stevens’s statements were true threats, the district
court examined “the language of the communication and the context in which it is
delivered.” Dillard, 795 F.3d at 1201. It properly concluded that a reasonable jury could
find Mr. Stevens’s messages to be true threats.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Mr. Stevens’s
motion to dismiss the indictment.
12
APPENDIX
Mr. Stevens’s 10 messages are listed in full below:
(1) [September 19, 2016, at 6:18 P.M] The psychotic pile of s--- who MURDERED
the unarmed civilian who broke down is going to be executed, as are ALL
psychotic s---bags you and other PDs hire across this Nation who murder unarmed
civilians. They are all going to be killed. ROA, Vol. 1 at 31.
(2) [September 20, 2016, at 1:02 P.M.] This is the straw. The revolution starts now.
The psycho c--- who never should have been given a badge, as well as all her
cohorts who patted her on the back and said “Good Shoot” are going to be
executed unless you put them behind bars on MURDER charges. Additionally,
unless the Prosecuter [sic] & the Judge deny bail, they too will be executed.
America is NOT a Police State in which any mental defective owning a badge can
murder at will. It’s time for America to make a stand and it will. Do the right
thing or die. There are no other choices. Id.
(3) [September 20, 2016, at 4:28 P.M.] The Tulsa PD Chief is going to be killed. He is
corrupt. Not only has he hired a staff full of psychotic, racist, murderous scum and
refused to put a murderer behind bars, he has also presided over and created an
extortion ring. He must be, and IS GOING TO BE killed. “Justice for All”, right?
You seriously thought you could get away with f---ing people forever? Death is
coming. Justice is coming. Id. at 31-32.
(4) [September 22, 2016, at 9:25 A.M.] The Tulsa PD had a documented history of
planting drugs on travelers. This is something you already know. Way before this
incident, a long list of corrupt s--- in Tulsa who routinely victimize [sic] innocent
people had already been complied [sic]. Now is the time that EVERYONE on that
list is going to start being killed. Cops, Prosecutors, Judges, family members.
Citizens are going to end it, along with your lives. As you know, whoever comes
forward first gets immunity. In this case though, those who do not will not be
prosecuted ........ they will be killed. Id. at 32.
(5) [September 22, 2016, at 9:42 A.M.] The basic right to Life, Liberty & the
Pursuit of Happiness for Citizens is greater than the ego of psychotic, racist
s--- who were mistakenly given a badge & a gun. If killing every last one of
you and your families ....... your wives .... your children is what it takes to
drive that point home, so be it. You ARE NOT GODS. Id. at 32.
(6) [September 22, 2016, at 10:01 A.M.] Ron Palmer, who has developed a
culture of corruption and victimizing innocent civilians, along with his
family is going to be burned to death. Yeah, he’ll be guarded for a while,
13
and then thinking there wasn’t any real threat, when you scum least expect
it .... he will be dead, along with his entire blood line. Then each of you
who didn’t speak up. Tell me, when you & your families are bleeding or
burning to death, will you still believe it was worth it to f--- Americans?
Id. at 33.
(7) [September 22, 2016, at 10:09 A.M.] Is the filling of the pockets of corrupt,
psychotic cops worth more than your freedom? Is it worth more than the
lives of your children? It started out with just under 100 Enforcers going to
Tulsa. It has grown to well over 1000. Cops are going to be killed. Anyone
who covers up corruption is going to be killed. Id.
(8) [September 22, 2016, at 10:15 A.M.] Spill your guts to the Feds, even to
questions they don’t ask, or your kids will start dying. This ends now. Id.
at 15.
(9) [September 22, 2016, at 10:34 A.M.] The last words your child will hear
are the same words that will be burned into his or her corpse: “Your parent
decided a $100 kickback for f---ing an innocent civilian was worth more
than you”. Id. at 34.
(10) [September 22, 2016, at 4:37 P.M.] You think this gets you off the hook? It
was a MURDER, not manslaughter. It was a [sic] execution. Betty is not
going to get 3 yeas [sic] probation and a pension, she is getting a bullet
through her brain. America needs to, and is finally going to make an
example ........ and it won’t stop with her. Every corrupt s--- a--hole cop
who filed a report stating that Crutcher was reaching through his CLOSED
window is also going to be killed. Id.
14