United States v. Justin Credico ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1422
_____________
UNITED STATES OF AMERICA
v.
JUSTIN MICHAEL CREDICO
Justin Credico,
Appellant
____________
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
(E.D. Pa. No. 2-14-cr-00118-001)
District Judge: Honorable Cynthia M. Rufe
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 14, 2017
Before: CHAGARES, RESTREPO, and FISHER, Circuit Judges.
(Filed: December 18, 2017)
____________
OPINION
____________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.
Defendant Justin Credico appeals from his conviction after a jury trial for
threatening federal agents and their immediate family members, in violation of 18 U.S.C.
§ 115(a)(1). Credico challenges the District Court’s admission of the cassette tape
recording of his threatening voicemails, the sufficiency of the Government’s evidence
that he violated § 115(a)(1), and the District Court’s jury instructions. Because we
conclude that none of these claims are meritorious, we will affirm.
I.1
Beginning around 2008 and culminating on February 4, 2014, Credico made
hundreds of phone calls to the FBI — and to Special Agent Joseph Milligan in particular
— many of which expressed Credico’s anger at the FBI and at Milligan, who Credico
believed was responsible for his expulsion from West Chester University. Although the
messages were vexatious and often belligerent, no official action was initiated against
Credico until the instant case, which was precipitated by a series of voicemail messages
that Credico left for Milligan on the night of February 4, 2014 and that Milligan listened
to on the morning of February 6, 2014. The content of those messages — which the
Court will not recount in full, but which included graphic threats to murder Milligan and
defile his corpse, murder Special Agent Jim Fitzgerald, rape Milligan’s wife, and anally
rape Fitzgerald’s daughter (whom Credico referenced by name) — was sufficiently
alarming that Milligan reported the calls to his supervisor, discussed the threats with his
1
We write for the parties and so recount only the facts necessary to our decision.
2
family, and even notified the police in the community where he lived. After hearing the
messages, Milligan had Special Agent Kevin Lewis help make a cassette tape recording
of all eight messages that were in Milligan’s voicemail inbox that morning, and Milligan
brought the tape to an Assistant United States Attorney to determine whether Credico had
committed a crime.
On March 11, 2014, Credico was charged with four counts of making threats
against federal agents and their family members, in violation of 18 U.S.C. § 115(a)(1).
As relevant, § 115(a)(1) makes it a felony to “threaten[] to assault, kidnap or murder” a
“Federal law enforcement officer” or “a member of [their] immediate family,” “with
intent to impede, intimidate, or interfere with such . . . law enforcement officer while
engaged in the performance of official duties, or with intent to retaliate against such . . .
law enforcement officer on account of the performance of official duties.” Prior to trial,
Credico challenged the admissibility of the tape recording and requested an evidentiary
hearing pursuant to our decision in United States v. Starks, 515 F.2d 112 (3d Cir. 1975).
After holding an evidentiary hearing — which was twice reopened due to some
inconsistencies in the Government’s evidence — the District Court determined that the
tape was admissible. A jury found Credico guilty of all counts and the District Court
sentenced Credico to 70 months of imprisonment, followed by three years of supervised
release, along with a special assessment and fine. Credico timely appealed.
3
II.2
Credico first argues that the District Court improperly admitted the audio cassette
recordings of his voicemails. We review a District Court’s decision to admit evidence for
abuse of discretion. United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009). In Starks,
we recognized the risks inherent in the use of tape recordings, which are “peculiarly
susceptible of alteration, tampering, and selective editing,” and held therefore that the
Government must “produce clear and convincing evidence of authenticity and accuracy
as a foundation for the admission of such recordings.” United States v. Starks, 515 F.2d
112, 121 (3d Cir. 1975) (quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.
1967)). In so doing, we noted with approval a seven-part test3 for establishing such a
foundation, but were explicit that we did not intend to establish “a uniform standard
equally applicable to all cases.” Id. We instead explained that, within reason, whether
the “proof of facts creat[es] a sufficient foundation for the admission of a tape recording
is a matter to be decided by the trial court.” Id.
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
3
The factors for the court to consider are:
(1) That the recording device was capable of taking the conversation now
offered in evidence. (2) That the operator of the device was competent to
operate the device. (3) That the recording is authentic and correct. (4) That
changes, additions or deletions have not been made in the recording. (5) That
the recording had been preserved in a manner that is shown to the court. (6)
That the speakers are identified. (7) That the conversation elicited was made
voluntarily and in good faith, without any kind of inducement.
Starks, 515 F.2d at 121 n.11 (quoting United States v. McKeever, 169 F. Supp. 426, 430
(S.D.N.Y. 1958)).
4
Credico takes issue with the District Court’s determination that, under the third
Starks factor, the Government adequately showed that the tape was “authentic and
correct,” and further asserts that the Government failed properly to establish the tape’s
chain of custody. At the Starks hearing, Milligan testified that the recordings on the tape
were the same as those that he heard on his voicemail on February 6, 2014, explained
how he and Lewis recorded the voicemail directly onto the cassette and removed the tabs
from the cassette to ensure it could not be recorded over, certified that neither he nor
anyone else altered the voicemails before making the recording, and — pointing to
various markings made contemporaneously on the cassette’s label — identified the tape
as the one he used to make the recording on February 6, 2014.
Credico’s attempts to undermine the tape’s authenticity rely largely on
(1) Milligan’s failure to remember a highly specific comment that Credico made in the
voicemails, which was unrelated to the threats against Milligan or Fitzgerald and
(2) Credico’s expert’s testimony that the method of recording was suboptimal and
precluded him from asserting definitively that the tape was not altered. Neither of these
objections convince us that the District Court abused its discretion in finding the tape
authentic and accordingly admissible under Starks. First, considering the exceedingly
graphic nature of the voicemails, Milligan’s failure to remember otherwise insignificant
details does not undermine his testimony that the tape “is what it is claimed to be.” Fed.
R. Evid. 901(b)(1). Second, Credico’s complaint that Milligan should have used the
FBI’s digital audio storage system rather than a tape recorder is academic. Surely, audio
stored on cassette tapes is not per se inadmissible merely because it is not in a digital
5
form capable of being tested in the manner Credico desired; Starks itself involved such an
antiquated medium. Absent any evidence that the tape was tampered with — a claim
Credico assiduously avoids — the mere fact that a better mode of recording was available
fails to negate the authenticity of the sufficiently corroborated recording.4
Credico’s challenge to the tape’s chain of custody fares no better. Few would
dispute that the cassette’s chain of custody leaves much to be desired, but “[w]e have
long rejected the proposition that evidence may only be admitted if a ‘complete and
exclusive’ chain of custody is established.” United States v. Rawlins, 606 F.3d 73, 82
(3d Cir. 2010) (quoting United States v. DeLarosa, 450 F.2d 1057, 1068 (3d Cir. 1971)).
To admit evidence, a District Court need only find “a reasonable probability that the
evidence has not been altered in any material respect,” United States v. Jackson, 649 F.2d
967, 973 (3d Cir. 1981) (quoting United States v. Luna, 585 F.2d 1, 6 (1st Cir. 1978)),
and such a finding “is afforded great deference,” Rawlins, 606 F.3d at 83. Although not
4
The underlying basis for Credico’s challenge to the tape’s admissibility is his
contention that one of the eight voicemails recorded onto the cassette was from 2012
rather than 2014. Credico Br. 26. We fail to see how this claim casts any doubt on the
tape’s authenticity. Credico does not contend that the cassette was altered so as to
include a voicemail from 2012 that was not in Milligan’s voicemail inbox on the morning
of February 6, 2014. Credico’s challenge, then, appears to focus not on the adequacy or
accuracy of the recording of the contents of the voicemail inbox, but rather the accuracy
of the voicemail inbox itself, in that the inbox allegedly included a message from 2012 in
a list of messages received in 2014. Such a challenge, to the extent believable, goes to
the relevance and persuasiveness of the suspect voicemail to the Government’s case, not
to the authenticity of the recording. It is therefore properly directed to the jury at trial,
rather than to the judge at an evidentiary hearing aimed at determining only whether the
recording faithfully reproduces the evidence it purports to embody.
6
generally dispositive of admissibility, unexplained gaps in the chain are relevant
considerations for the jury when assessing the weight of the evidence. Id.
Here, Milligan testified that immediately after making the recording, he brought
the cassette to the Assistant United States Attorney, but that thereafter he did not know
the tape’s whereabouts. Special Agent Joshua Hubiak — the case agent on the Credico
matter — testified that Special Agent Joseph Carpenter — who was filling in for Hubiak
on February 6, 2014 — later gave him a box containing a manila envelope with the tape
inside, and that the tape thereafter remained in a box at Hubiak’s desk inside the secured
FBI offices. Furthermore, the tape’s tabs had been removed to prevent it from being
recorded over and the tape’s label had the markings that were placed upon it at the time
that Milligan made the recording. Credico does not assert that the tape or label were
tampered with, nor does any evidence in the record suggest it. Credico nonetheless
attempts to raise such an inference through his expert’s inability to certify that the tape
was not tampered with. Although the Government failed to account for the tape’s
whereabouts between when Milligan left it with the prosecutors and Hubiak received it
from Carpenter, in the face of only an innuendo of tampering, the Government met its
burden to show a reasonable probability that the evidence was not altered. Finally, the
District Court properly instructed the jury that they could consider any defects in the
chain of custody when determining the tape’s authenticity and weight. Accordingly, the
District Court did not abuse its discretion by admitting the recordings into evidence.
7
III.
Credico next challenges the sufficiency of the Government’s evidence showing
that he acted with the requisite intent under the statute. Our review is “highly deferential,
and we will overturn a verdict only ‘if no reasonable juror could accept the evidence as
sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.’”
United States v. Caraballo-Rodriguez, 726 F.3d 418, 430–31 (3d Cir. 2013) (en banc)
(quoting United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)). Credico asserts
that he cannot be guilty under § 115(a)(1) because although he was under the impression
that Milligan and the FBI were responsible for his expulsion from West Chester
University, they in reality had no involvement in the matter. Credico thus asserts that he
could not have intended to interfere with or retaliate against the agents’ performance of
their official duties, because they never undertook any. This argument fails. Section
115(a)(1) includes a specific intent requirement focusing on the defendants’ subjective
purpose for making the threats. See, e.g., United States v. Turner, 720 F.3d 411, 420 (2d
Cir. 2013). Credico admitted that he left these messages because he believed that
Milligan, in his capacity as an FBI agent, had been involved in his expulsion. If not for
this belief, Credico would not have made the threats; in other words, the threats were “on
account of” Milligan’s official conduct. The fact that neither Milligan nor anyone at the
FBI ever actually took such action does not negate the driving purpose behind Credico’s
8
conduct.5 And given the deferential standard of review, the evidence was sufficient to
allow a reasonable factfinder to conclude that Credico acted with the intent to retaliate on
account of the agents’ official conduct.
IV.
Credico’s final two challenges concern the correctness of the District Court’s jury
instructions. “We generally exercise plenary review in [determining] ‘whether the jury
instructions stated the proper legal standard,’ and review the refusal to give a particular
instruction or the wording of instructions for abuse of discretion.” Gov’t of the V.I. v.
Mills, 821 F.3d 448, 465 (3d Cir. 2016) (quoting United States v. Flores, 454 F.3d 149,
156 (3d Cir. 2006)). As discussed below, neither of his claims have merit.
A.
First, Credico claims that the District Court erred in refusing his request to instruct
the jury to consider whether the threats were “conditional or whether they specify the
exact time and date for carrying out the supposed threat.” Appendix 639. Credico claims
that his threats were conditional because he prefaced a number of his statements with the
request that the agents “sign a release” form that Credico believed would allow him to
fight and injure the agents without repercussion. As an initial matter, Credico never
prefaced his threats against Milligan’s wife or Fitzgerald’s daughter with any conditions,
5
Nor could the statute plausibly operate this way. If it did, then an individual who
called in a threat to an FBI office he believed was investigating him would not be liable if
the paperwork beginning the investigation had not arrived in the office, but an individual
who undertook the same conduct but whose paperwork fortuitously had arrived would be
liable. Criminal liability cannot turn on such administrative minutiae.
9
and so this argument is inapplicable to his conviction under counts two and four for
threatening the agents’ immediate family members in violation of § 115(a)(1)(A).
But even on the merits, Credico’s argument is unpersuasive. Credico relies on our
decision in United States v. Kosma, 951 F.2d 549 (3d Cir. 1991), to assert that a threat
that does not specify the time and place wherein it will take place is a conditional, rather
than “true,” threat. This argument misreads Kosma and such a rule would be at odds with
common parlance. In Kosma, we noted that to decide whether a statement constitutes a
true threat, courts must view the statement “in context, and regarding the expressly
conditional nature of the statement,” and determined that the threat at issue was not
conditional because, among other things, Kosma “specified the precise date, time and
place” for when the threat would be actualized. Id. at 553–54. We determined that those
factors were sufficient to render the threat “true” rather than conditional, but did not
suggest that they were necessary to finding a true threat. Indeed, we noted just the
opposite: “Even if Kosma’s threats were truly conditional, they could still be considered
true threats.” Id. at 554 n.8. Common parlance also militates against this definition of a
true threat, because even the paradigmatic true threat that any listener would take
seriously – “I will kill you” – would fail for lack of specificity. See, e.g., United States v.
Hoffman, 806 F.2d 703, 711 n.5 (7th Cir. 1986) (considering “I will kill you” an
“unambiguous or direct” threat). Here, Credico’s messages were filled with vivid details
suggesting exactly how he would take his vengeance against the agents and their families,
and the mere inclusion of one arguably conditional clause among multiple serious threats
does not immunize him from liability. See, e.g., Kosma, 951 F.2d at 554 n.8 (citing
10
United States v. Callahan, 702 F.2d 964 (11th Cir. 1983), concluding that the defendant
there made a true threat because “[a]lthough the carrying out of the threat might have
been conditional upon Secret Service aid and agreement, the threat itself was not,” id. at
966). Accordingly, because our caselaw does not support the test for conditional threats
advocated by Credico, and because in any event the nature of his threats belie the claim
that they were conditional, the District Court did not abuse its discretion in refusing to
give the instruction.
B.
Credico’s second claim related to the jury instructions is that the District Court
improperly rejected his contention that, in light of the Supreme Court’s ruling in Elonis v.
United States, 135 S. Ct. 2001 (2015), the definition of “true threat” has been changed
and thus that the District Court was required to instruct the jury not only that a reasonable
person would view the words as a threat, but also that Credico must have subjectively
intended to make the threat or known that the communication would be viewed as a
threat. In Elonis, the Supreme Court held that a different statute using the word threat —
18 U.S.C. § 875(c) — included an unstated scienter requirement that the defendant
subjectively intended to make the threat. Elonis, 135 S. Ct. at 2013. Contrary to
Credico’s claim, it is clear that despite its view that Elonis did not govern § 115(a)(1), the
District Court nonetheless gave a subjective intent instruction. Credico’s complaint is
therefore moot, and we need not address whether the Elonis Court’s ruling concerning
§ 875(c) affects the mens rea requirement of § 115(a)(1).
11
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
12