USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10082
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO RIVERA-RODRIGUEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cr-00008-CDL-MSH-1
____________________
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 2 of 8
2 Opinion of the Court 21-10082
Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.
PER CURIAM:
Ernesto Rivera-Rodriguez appeals his conviction of trans-
mitting a threat in interstate commerce to injure another person.
He argues for the first time on appeal the evidence was not suffi-
cient to support his conviction because the government did not
prove that his statements were threats or that he acted with the
intent to communicate a threat. He argues for the first time on
appeal that the district court plainly erred in failing to issue a spe-
cific unanimity instruction to the jury. Rivera-Rodriguez also ar-
gues the district court abused its discretion in allowing the prose-
cutor to refer to his statements as “threats” while questioning
witnesses, but not allowing his wife to testify that she did not be-
lieve he was dangerous. Finally, Rivera-Rodriguez argues that his
trial counsel was ineffective for not objecting to the lack of a spe-
cific unanimity instruction, not calling an expert witness on Post
Traumatic Stress Disorder, not objecting to references to his gun
ownership, and not challenging the sufficiency of the indictment.
I.
When the defendant altogether fails to challenge the suffi-
ciency of the government’s evidence via a motion for judgment of
acquittal, we review the sufficiency of the evidence for a manifest
miscarriage of justice, which requires a finding that the evidence
on a key element of the offense is so tenuous that a conviction
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 3 of 8
21-10082 Opinion of the Court 3
would be shocking. United States v. Tagg,
572 F.3d 1320, 1323
(11th Cir. 2009); United States v. Fries,
725 F.3d 1286, 1291 & n.5
(11th Cir. 2013) (noting that, where a defendant fails to preserve
an argument as to the sufficiency of the evidence in the trial
court, the predominant rule in this circuit is to review for mani-
fest miscarriage of justice, not plain error).
“Whoever transmits in interstate or foreign commerce any
communication containing 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.”
18
U.S.C. § 875(c). Although the statute does not have a mens rea
requirement, the Supreme Court has held that some level of men-
tal state is required. Elonis v. United States,
575 U.S. 723, 740
(2015). “[T]he mental state requirement in [s]ection 875(c) is sat-
isfied if the defendant transmits a communication for the purpose
of issuing a threat, or with knowledge that the communication
will be viewed as a threat.”
Id.
Using the framework established in Elonis, there are three
elements that need to be satisfied to secure a conviction under
18
U.S.C. § 875(c). The elements are: (1) a communication be
transmitted in interstate commerce; (2) that communication con-
tains a threat; and (3) the defendant makes the communication for
the purpose of communicating a threat or with knowledge that
the communication will be viewed as a threat. See id. at 732,
740. The term “threat” has not been defined as it relates to
§ 875(c). See
18 U.S.C. § 875(c); Elonis, 575 U.S. at 743 (Alito, J.
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 4 of 8
4 Opinion of the Court 21-10082
concurring). But the Supreme Court has defined a “true threat”
not protected by the First Amendment as “those statements
where the speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a particular in-
dividual or group of individuals.” Virginia v. Black,
538 U.S. 343,
359 (2003).
We conclude that Rivera-Rodriguez’s conviction was not a
manifest miscarriage of justice because the government offered
more than tenuous evidence to prove each element of the crime.
Specifically, the government offered more than tenuous evidence
to prove that Rivera-Rodriguez’s statements over the phone to
Soleil Management were threats that were communicated with
knowledge that they would be viewed as such.
II.
Challenges to jury instructions raised for the first time on
appeal are reviewed for plain error. United States v. Felts,
579
F.3d 1341, 1343 (11th Cir. 2009). To preserve an objection to jury
instructions for appellate review, a party must clearly state the
specific basis for the objection before the jury retires. United
States v. Starke,
62 F.3d 1374, 1380-81 (11th Cir. 1995). To show
plain error, the defendant must show that: (1) an error occurred;
(2) the error was plain; and (3) the error affected his substantial
rights. United States v. Smith,
459 F.3d 1276, 1283 (11th Cir.
2006). An error is not plain unless it is contrary to explicit statuto-
ry provisions or controlling precedent from either the Supreme
Court or our Court. United States v. Schultz,
565 F.3d 1353, 1357
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 5 of 8
21-10082 Opinion of the Court 5
(11th Cir. 2009). “Jury instructions will not be reversed for plain
error unless the charge, considered as a whole, is so clearly erro-
neous as to result in a likelihood of a grave miscarriage of justice,
or the error seriously affects the fairness, integrity, or public repu-
tation of judicial proceedings.” Starke,
62 F.3d at 1381 (quotation
marks omitted). Finally, juries are presumed to follow their in-
structions. United States v. Roy,
855 F.3d 1133, 1187 (11th Cir.
2017) (en banc).
Here, the district court did not plainly err in not giving a
more specific unanimity instruction to the jury because the in-
struction that was given resulted in an instruction that the jurors
unanimously agree which of the alleged threats satisfied the ele-
ments of the crime. Further, even if the district court erred in not
giving a specific unanimity instruction, Rivera-Rodriguez did not
identify any precedent from our Court or the Supreme Court that
dictates a specific unanimity instruction is necessary where multi-
ple acts are charged in a single-count indictment.
III.
We review evidentiary rulings for an abuse of discretion.
United States v. U.S. Infrastructure, Inc.,
576 F.3d 1195, 1208 (11th
Cir. 2009). “An abuse of discretion occurs where the district
court’s decision rests upon a clearly erroneous finding of fact, an
errant conclusion of law, or an improper application of law to
fact.” Adams v. Austal, U.S.A., L.L.C.,
754 F.3d 1240, 1248 (11th
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 6 of 8
6 Opinion of the Court 21-10082
Cir. 2014) (quotation marks omitted). We will “overturn eviden-
tiary rulings only when the moving party has proved a substantial
prejudicial effect.”
Id. (quotation marks omitted). Prosecutors’
statements are not evidence, and improper statements from
counsel can be rectified by a jury instruction that only evidence in
the case should be considered. United States v. Smith,
918 F.2d
1551, 1562 (11th Cir. 1990).
When a defendant offers no argument on an issue on ap-
peal, we consider the issue abandoned. United States v. Cun-
ningham,
161 F.3d 1343, 1344 (11th Cir. 1998). Similarly, terse
statements that make only passing references to issues, or raising
an issue in a perfunctory manner without argument or supporting
authority, cannot save an issue from abandonment. United States
v. King,
751 F.3d 1268, 1277 (11th Cir. 2014).
To the extent Rivera-Rodriguez argues that his wife’s tes-
timony should have been admitted, the district court abused its
discretion by making inconsistent rulings, and the prosecutor’s
statements rose to the level of prosecutorial misconduct, he has
abandoned those claims by failing to argue them in his brief on
appeal. Nor did the district court abuse its discretion in allowing
the prosecutor to refer to Rivera-Rodriguez’s statements as
threats because the prosecutor’s statements are not evidence, and
the jury was instructed not to consider them in deliberations.
IV.
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 7 of 8
21-10082 Opinion of the Court 7
We “will not generally consider claims of ineffective assis-
tance of counsel raised on direct appeal where the district court
did not entertain the claim nor develop a factual record.” United
States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). “If the rec-
ord is sufficiently developed, however, [we] will consider an inef-
fective assistance of counsel claim on direct appeal.”
Id. “The
preferred means for deciding a claim of ineffective assistance of
counsel is through a
28 U.S.C. § 2255 motion even if the record
contains some indication of deficiencies in counsel’s perfor-
mance.” United States v. Patterson,
595 F.3d 1324, 1328 (11th Cir.
2010) (quotation marks omitted).
We review ineffective assistance of counsel claims de novo.
Jones v. Campbell,
436 F.3d 1285, 1292 (11th Cir. 2006) (applied in
28 U.S.C. § 2254 context). The benchmark for judging a claim of
ineffective assistance of counsel is whether counsel’s performance
“so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington,
466 U.S. 668, 686 (1984). The appellant
must show that: (1) counsel’s performance was deficient, and (2)
the deficient performance prejudiced the defense.
Id. at 687.
We decline to review any of Rivera-Rodriguez’s claims of
ineffective assistance of counsel because the district court did not
hear the claims or develop the record below. We cannot properly
determine whether there was deficient performance or prejudice
without understanding why counsel chose not to make the pro-
USCA11 Case: 21-10082 Date Filed: 04/27/2022 Page: 8 of 8
8 Opinion of the Court 21-10082
posed objections and arguments or the likelihood those claims
would have succeeded.
AFFIRMED.
