United States v. Spruill ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4377
JEFFREY LYNN SPRUILL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-95-86)
Argued: April 10, 1997
Decided: July 1, 1997
Before WILKINS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by published
opinion.
Judge Michael wrote the opinion, in which Judge Wilkins and Senior
Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: David Wayne Bouchard, BOUCHARD & SMITH, Ches-
apeake, Virginia, for Appellant. Arenda L. Wright Allen, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Norfolk, Virginia, for
Appel-
lee.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
During the early morning hours of April 22, 1995, defendant Jef-
frey Lynn Spruill made over two hundred threatening phone calls to
Federal Bureau of Investigation (FBI) and Bureau of Alcohol,
Tobacco and Firearms (ATF) offices in Norfolk, Virginia. Spruill
was
convicted on three counts of making threatening phone calls in
viola-
tion of 18 U.S.C. § 844(e). Section 844(e) is part of Chapter 40 of
the
federal criminal code, which regulates the "Importation,
Manufacture,
Distribution and Storage of Explosive Materials." Spruill argues
that
he can be convicted under § 844(e) only if the threats concerned
the
use of fire or explosives. We agree. Because counts two and three
of
his indictment did not charge this essential element of the
offense, we
vacate Spruill's convictions on those counts. We affirm his
conviction
on count one, rejecting his argument that there was insufficient
evi-
dence of a "true" threat. Accordingly, the case is remanded for
resen-
tencing and other housekeeping details.
I.
Jeffrey Spruill lived alone in a trailer in Chesapeake, Virginia,
when the events in this case took place. As he often did, Spruill
spent
the evening of April 21, 1995, at home by himself watching televi-
sion. The bombing of the Oklahoma City federal building, which
occurred just three days before, dominated television news coverage
that night. Spruill had two or three drinks of vodka as he watched
TV.
He listened as Attorney General Janet Reno appeared and talked
about the Oklahoma City bombing. Spruill felt that Reno was respon-
sible for deaths that occurred at two earlier incidents involving
the
federal government in Waco, Texas, and Ruby Ridge, Idaho. Spruill
became enraged, believing that Reno was hypocritical for saying
that
those responsible for the Oklahoma City bombing would be held
accountable. Spruill's wrath intensified as he watched "Crossfire"
on
CNN because a guest on that program was discussing how the FBI
infiltrates white supremacy groups. Spruill later told the FBI that
he
is a white supremacist.
To vent his anger against the federal government, Spruill decided
to call the FBI and the ATF. At about 12:35 that same night,
Spruill
2
began calling the listed phone numbers for those agencies in
Norfolk,
Virginia. As Spruill explained at trial, "when I heard Mrs. [sic]
Reno,
you know, I just hit the roof. And I -- all my emotions just came
out.
And I just wanted to get it off my chest. I just wanted to get it
off my
chest. They will probably arrest me for harassment, but at least I
got
it off my chest." J.A. 144. From midnight through the rest of the
night
and morning of April 22, 1995, Spruill made over two hundred calls
to the FBI and the ATF. Spruill kept drinking while he called; he
switched from vodka to beer and drank a six-pack.
Susan Buckley, a security complaint assistant for the FBI,
answered Spruill's first calls. Buckley said that during these
calls
Spruill ranted "about how Janet Reno was a murderer and was respon-
sible for all of this, and just rambl[ed]." J.A. 47. Spruill became
pro-
gressively more angry as he called again and again, never spending
more than a minute or two on the line. Spruill's first round of
calls
to the FBI (all answered by Buckley) continued until 6:30 a.m.
During the same period (from about 1:00 a.m. to 7:00 a.m.) Spruill
made several dozen calls to the ATF. The calls were taken by Tracey
Waldron, who works for a telephone answering service. Waldron said
that Spruill was short-tempered as early morning arrived. At about
6:30 a.m. Waldron
picked the line back up and he [Spruill] had started talking
to me again, and that's when he started telling me that --
how would I like to be blown up and that, you know, he
could blow the building up . . . . And that's when I patched
him through to Michael Moore, the agent that was on call.
J.A. 58.
After the call was patched through to ATF Special Agent Michael
Moore at his home, Moore talked to Spruill for about twenty
minutes.
Special Agent Moore recounted the thrust of Spruill's message:
[A]s the conversation progressed, the caller[Spruill] told me
that . . . this was just the beginning, that more buildings
would be blown up, and maybe even the Federal Building
3
here in Norfolk, Virginia. And basically he just[kept] reiter-
ating that the Oklahoma City bombing occurred because of
the Waco, Texas fire . . . that was ordered by Janet Reno and
carried out by the ATF and the FBI.
J.A. 66. When Spruill said, "this was just the beginning," Moore
believed "that this was . . . a warning of things to come, meaning
more buildings would be blown up or more people would be hurt."
J.A. 67-68. Spruill indicated that the federal building in Norfolk
would be an easy target "because it was so accessible to the
general
public, to just drive a car bomb right in and just leave it." J.A.
68.
Spruill ended the conversation by directing his venom at Special
Agent Moore, saying "that he [Spruill] could tell [Moore] was a
nice
little black agent and that [he] would get[his] some day also."
J.A.
72. As soon as Spruill hung up, Moore called the FBI and informed
the agency of a possible bomb threat to the Norfolk federal
building.
In response, authorities searched the building for a bomb,
beginning
around 7:30 a.m.
Meanwhile, Spruill had redirected his calls to the FBI. When FBI
computer specialist Deborah Williams arrived at work around 7:30
a.m., she answered the phone and Spruill was on the line. Using a
"very forceful[ ]" tone, Spruill
started talking about the 17 deaths of the children in Waco,
Texas, and how Janet Reno -- that Oklahoma was a pay-
back for those deaths, and that Janet Reno was a murderer
and those deaths were her responsibility. He further went on
to say that he was a -- that he knew who I was and that he
could find out where all the bureau people lived, the FBI
people lived . . . that he knew where my boss Larry Tor-
rence lived. And he told me that he [Spruill] was a white
supremacist, and that the ATF and the FBI and the Federal
Building should be -- should watch out for the cars.
J.A. 84-85. Spruill gave Deborah Williams his name and address.
Yolanda Williams, another security complaint assistant for the FBI,
came to work at 8:00 a.m. and immediately began to take calls from
Spruill. He called about twenty-five more times between 8:00 a.m.
4
and 12:30 p.m. The FBI began recording Spruill's calls at around
10:00 a.m. because it believed he was making serious threats.
The tape recordings are replete with Spruill's references to the
bombing of the Oklahoma City federal building. At one point Spruill
discussed fertilizer and diesel fuel, the key ingredients used in
Okla-
homa City. He instructed Yolanda Williams to ask Larry Torrence,
Special Agent in charge, whether using two tons or four tons of
fertil-
izer would make a difference in the force of an explosion. Spruill
repeatedly made comments (all recorded) such as"we're in every
city," J.A. 249, "our time to strike is fast .. . approaching,"
J.A. 248,
and "[w]e're gonna [ ] come after you," J.A. 252. A final example
from the recordings underscores the looming nature of Spruill's
threats:
Burnt them up [in Waco]! Hey! Did you -- did you see
what happened in Oklahoma City! I'm telling you it's com-
ing. It's coming. It's coming and tell Larry [Torrence] what-
ever he thinks is totally f---ing irrelevant, and he -- is he
-- we have some of his agents on -- we have their names
and addresses.
J.A. 250.
Later in the morning on April 22, 1995, Yolanda Williams turned
the phone over to Special Agent Kevin Kenneally, who continued to
answer Spruill's calls until he stopped making them around 12:30
p.m. Shortly thereafter, the FBI sent a SWAT team to Spruill's
trailer
where he was arrested.
Spruill was indicted on May 19, 1995. Count one of the indictment
charged that Spruill, during his conversation with Special Agent
Moore, threatened to bomb the federal building in Norfolk. 1 Count
_________________________________________________________________
1 Count one read as follows:
On or about April 22, 1995, at Norfolk, Virginia, in the
East-
ern District of Virginia, JEFFREY LYNN SPRUILL, the defen-
dant, by means and use of an instrument of commerce, that is,
a telephone, willfully threatened, during a conversation with
5
two charged Spruill with threatening Special Agent Larry Torrence,
but it did not allege that the threat concerned the use of fire or
explosives.2
Counts three and four charged Spruill with threatening FBI agents
and
employees during his conversations with Yolanda Williams and Spe-
cial Agent Kenneally, but those counts also failed to allege that
Spruill threatened harm by means of fire or explosives. 3 Spruill
_________________________________________________________________
Special Agent Michael Moore of the Bureau of Alcohol,
Tobacco and Firearms (ATF), to unlawfully damage or destroy
a building, specifically, the Federal Building, in Norfolk,
Vir-
ginia, by means of fire and explosives.
(All in violation of Title 18, United States Code, Section
844(e).)
J.A. 10.
2 Count two read as follows:
On or about April 22, 1995, between approximately 7:30 and
7:45 a.m. in Norfolk, Virginia, in the Eastern District of
Vir-
ginia, JEFFREY LYNN SPRUILL, the defendant, by means and
use of an instrument of commerce, that is a telephone,
willfully
threaten [sic], during a conversation with Computer
Specialist,
Deborah L. Williams, of the Federal Bureau of Investigation
(FBI), to kill, injure, or intimidate an individual,
specifically
identified as Larry Torrence, Special Agent in Charge of the
Norfolk FBI Office, located in Norfolk, Virginia.
(All in violation of Title 18, United States Code, Section
844(e).)
J.A. 11.
3 Count three read as follows:
On or about April 22, 1995, beginning at approximately 10:00
a.m., in Norfolk, Virginia, in the Eastern District of
Virginia,
JEFFREY LYNN SPRUILL, the defendant, by means and use of
an instrument of commerce, that is, a telephone, willfully
threat-
ened, during a conversation that occurred with Security and
Complaint Assistant, Yolanda E. Williams, of the Federal
Bureau of Investigations, to attempt to kill, injure, or
intimidate
certain individuals, specifically: special agents and
employees of
the Norfolk Federal Bureau of Investigations (FBI) Office,
Nor-
folk, Virginia.
6
waived his right to a jury and was tried by the district court. The
court
found him guilty on counts one, two, and three but not guilty on
count
four.
Before sentencing the district court directed that Spruill be
evalu-
ated pursuant to 18 U.S.C. § 4244(a) so the court could decide
whether he suffered from a mental disease or defect that would
affect
his sentence. After a hearing the court found that Spruill was
suffering
from a mental defect and that instead of being sent to prison he
should
be committed for treatment. The court therefore committed Spruill
to
the custody of the Attorney General for five years with the
direction
that he be hospitalized for care and treatment in a suitable
facility. See
18 U.S.C. § 4244(d). Spruill appeals his conviction.
II.
Spruill first argues that 18 U.S.C. § 844(e) only applies to
threats
concerning the use of fire or explosives. As a result, Spruill says
his
convictions on counts two and three must be vacated because those
counts failed to charge an essential element, "by means of fire or
an
explosive." Section 844(e) provides:
Whoever, through the use of the mail, telephone, telegraph,
or other instrument of commerce, willfully makes any
threat, or maliciously conveys false information knowing
the same to be false, concerning an attempt or alleged
attempt being made, or to be made, to kill, injure, or intimi-
date any individual or unlawfully to damage or destroy any
building, vehicle, or other real or personal property by
means of fire or an explosive shall be imprisoned for not
more than five years or fined under this title, or both.
18 U.S.C. § 844(e) (emphasis added).
_________________________________________________________________
(All in violation of Title 18, United States Code, Section
844(e).)
J.A. 12. Count four similarly charged Spruill for his telephone
conversa-
tion with Special Agent Kenneally on April 22, 1995.
7
Spruill argues that § 844(e) describes a single offense with five
ele-
ments: (1) willfully (2) making a threat or conveying false
informa-
tion about an attempt (3) by mail, telephone, telegraph, or other
instrument of commerce (4) to kill, injure, or intimidate an
individual
or damage or destroy property (5) by means of fire or an explosive.
Simply put, Spruill contends that the statute prohibits bomb
threats.
The government argues that § 844(e) prohibits two distinct
offenses, each with four elements. According to the government the
first offense covers threats against individuals: (1) willfully (2)
mak-
ing a threat or conveying false information about an attempt (3) by
mail, telephone, telegraph, or other instrument of commerce (4) to
kill, injure, or intimidate an individual. The second offense
covers
bomb threats against property: (1) willfully (2) making a threat or
conveying false information about an attempt (3) by mail,
telephone,
telegraph, or other instrument of commerce (4) to damage or destroy
property by means of fire or an explosive. Thus, the government
con-
tends that § 844(e) prohibits (1) threats of any kind against
individu-
als and (2) bomb threats against property.
Spruill filed a pretrial motion to dismiss counts two, three, and
four
of the indictment because they did not allege that the threats con-
cerned the use of fire or explosives. The district court denied the
motion, holding that the threatened use of fire or explosives was
an
element of the offense if the defendant threatened to damage or
destroy property, but not if he threatened an individual. Fire and
explosives, the court explained,
are the most obvious ways in which property could be dam-
aged. It's not necessarily going to be damaged in the same
way that an individual would be injured, so it makes sense
that the fire or explosive would apply to the building and
that that would not be a necessary element of a threat to an
individual.
J.A. 30. Spruill renewed the motion at trial before a different
judge,
and it was again denied.
Although § 844(e) has been on the books for more than twenty-five
years, this is the first case to address whether the phrase "by
means
8
of fire or an explosive" is an essential element of every offense
under
that section. We conclude that it is. 4
We begin with the language of the statute to see whether Congress
has spoken clearly. See Norfolk and W. Ry. Co. v. American Train
Disp. Ass'n, 499 U.S. 117, 128 (1991). As we will explain, the lan-
guage of § 844(e) is not entirely clear, but it tends to support
Spruill's
interpretation.
We repeat the nub of the parties' contentions. The government says
that § 844(e), properly read, has two distinct prongs. The "or"
between "intimidate any individual" and "unlawfully to damage or
destroy any building," the government argues, indicates that a
threat
against an individual is a separate and distinct offense. Thus, the
ele-
ment "by means of fire or an explosive," which follows the enumera-
tion of the property types covered by § 844(e), modifies only the
offense of making a threat against property. Spruill, on the other
hand,
argues that the "or" simply indicates that there are two types of
bomb
threats covered by the statute, threats against individuals and
threats
against property. The phrase "by means of fire or an explosive"
modi-
fies both types of threats.
Looking just at the four corners of the section, we think Spruill's
reading makes more sense. It seems unlikely that Congress would put
two distinct offenses--making a threat of any kind against an
individ-
ual and making a bomb threat against property--within the same sec-
tion of the criminal code. We do concede that Spruill's reading is
not
as clear as it could be: if there was a comma before"by means of
fire
or an explosive," the comma would clearly signal that the language
_________________________________________________________________
4 We expect the issue is novel for a simple reason: up to now the
gov-
ernment appears to have used the section only to prosecute bomb
threats.
See, e.g., United States v. Tibbetts, 565 F.2d 867, 869 (4th Cir.
1977)
(telephone bomb threat); United States v. Leaverton, 835 F.2d 254,
257
(10th Cir. 1987) (fake letter bomb); United States v. Candelaria,
704
F.2d 1129, 1132 (9th Cir. 1983) (telephone bomb threat); United
States
v. Hicks, 495 F.2d 137, 137 (D.C. Cir. 1974) (referring to § 844(e)
as
"Bomb Threats Act"; (telephone bomb threat); cf. United States v.
Fears,
450 F. Supp. 249, 253 (E.D. Tenn. 1978) (concluding that bomb
threat
to person's home would be a threat to an individual under §
844(e)).
9
following it made up a separate element that applies to the whole
sec-
tion. To reach the government's reading, however, we would have to
take a much greater leap from the statutory language. The govern-
ment's interpretation would be somewhat more persuasive if there
was a comma before "or unlawfully to damage" to signal the start of
a separate and distinct offense. For the government's reading to
make
real sense, however, "by means of fire or an explosive" should come
between "damage or destroy" and "any building." The relevant lan-
guage would thus read, "damage or destroy by means of fire or an
explosive any building, vehicle, or other real or personal
property."
Congress instead tacked on the language "by means of fire or an
explosive" at the end, where it can be read as applying to the
whole
section. In sum, after studying the language of§ 844(e), we believe
that Spruill's interpretation has more textual support, but we
recog-
nize that there is some degree of ambiguity.
We turn then to the legislative history, which confirms that "by
means of fire or an explosive" is an essential element of the
single
offense addressed in § 844(e), that is, a bomb threat. Section
844(e)
was enacted in 1970 as part of the Organized Crime Control Act of
1970. See Organized Crime Control Act of 1970, H.R. Rep. No. 91-
1549, reprinted in 1970 U.S.C.C.A.N. 4007[hereinafter House
Report]. Title XI of the act (current §§ 841-848) was passed to
"strengthen[ ] the Federal criminal law with respect to the illegal
use,
transportation or possession of explosives." House Report, 1970
U.S.C.C.A.N. at 4011. According to the House Report, section 844
"sets the penalties for violation of the regulatory provisions of
this
chapter and creates certain offenses pertaining to the unlawful use
of
explosives." House Report, 1970 U.S.C.C.A.N. at 4045. In explaining
§ 844(e) the House Report says plainly that the section was only
intended to outlaw threats concerning explosives:
Section 844(e) is a revision of present § 837(d) of title 18,
United States Code. It is designed to deal more specifically
with bomb threats and to increase the penalties applicable to
such threats. The penalty is increased from a maximum of
1 year imprisonment or a fine of $1,000 or both to a maxi-
mum of 5 years imprisonment or a fine of $5,000 or both.
Because of the increased penalty, and because of the par-
ticularly severe problems caused by bomb threats, § 844(e)
10
is confined to information or threats concerning explosives.
The section makes it an offense to threaten, or convey false
information known to be false, about attempts to kill, injure,
or intimidate any person, or unlawfully to damage or destroy
any building or property.
Id. at 4045-46 (emphasis added).5 The legislative history makes it
clear that the phrase "by means of fire or an explosive" applies to
the
whole section, not just to threats to damage property.
The particular location of § 844(e) in the code supports our read-
ing. Section 844(e) is found in Chapter 40 of the federal criminal
code, which regulates the "Importation, Manufacture, Distribution
and Storage of Explosive Materials." Section 842, for example, pro-
hibits certain importation, manufacture, and sale of explosive
materi-
als. Section 844, entitled "Penalties," describes the penalties for
violations under Chapter 40. The provisions immediately before
§ 844(e) (§§ 844(a), (b), (c), and (d)) and those immediately after
(§§ 844(f), (g), (h), (i), and (j)) all deal with violations
concerning
explosives. Yet the government contends that § 844(e), in addition
to
describing another offense concerning explosives, describes a sepa-
rate offense that does not concern explosives. The location of §
844(e)
makes this argument easy to refute. We would not expect to find, in
the midst of a chapter regulating explosives, a section that
prohibits
both bomb threats against property and threats of all kinds against
individuals.
Based on the foregoing analysis, we hold that "by means of fire or
an explosive" is an essential element of a § 844(e) offense.
The indictment here did not allege that Spruill's threats in counts
two and three concerned the use of fire or explosives, although
_________________________________________________________________
5 The legislative history does not mention threats concerning the
use of
fire because § 844(e) prohibited only threats"by means of an
explosive"
when it was enacted in 1970. See Organized Crime Control Act of
1970,
Pub. L. No. 91-452, 84 Stat. 922, 957 (1970). The Anti-Arson Act of
1982 amended § 844(e) to prohibit arson threats as well, changing
the
section to read, "by means of fire or an explosive." Anti-Arson Act
of
1982, Pub. L. No. 97-298, 96 Stat. 1319, 1319 (1982) (emphasis
added).
11
§ 844(e) was cited. We now consider the consequences of this
failure
to charge an essential element of the § 844(e) crime. "``It is
elementary
that every ingredient of crime must be charged in the bill, a
general
reference to the provisions of the statute being insufficient.'"
United
States v. Hooker, 841 F.2d 1225, 1228 (4th Cir. 1988) (quoting Hale
v. United States, 89 F.2d 578, 579 (4th Cir. 1937)). The government
argues that even if the indictment is defective, "the evidence
adduced
at trial clearly established threats by means of explosives in each
count." Brief for Appellee at 13. In other words, the government
argues that the flaw in the indictment was harmless error. It is
well
established, however, that failure to recite an essential element
of the
offense in the indictment is not amenable to harmless error review.
In
Hooker, for example, a jury convicted the defendant on three counts
of conspiracy, including conspiracy to commit a RICO offense. The
count of the indictment charging the RICO conspiracy failed to
allege
that the activities affected interstate commerce, an essential
element
of a RICO offense. See Hooker, 841 F.2d at 1227. Sitting en banc in
Hooker, we concluded that the Fifth Amendment's Grand Jury Clause
precluded the government's harmless error argument, and we vacated
the conviction on the RICO count even though the jury had been
properly instructed on the element requiring an interstate commerce
connection. "Neither instructions nor a petit jury verdict can
satisfy
after the fact the Fifth Amendment right to be tried upon charges
found by a grand jury." Id. at 1232.
Hooker controls here. Only in count one did the grand jury indict
Spruill for the offense proscribed by § 844(e): making a threat
that
concerns the use of fire or explosives. The failure to charge an
essen-
tial element of the crime in counts two and three is not harmless
error.6
_________________________________________________________________
6 Moreover, unlike in Hooker, the trier of fact here did not make
a find-
ing on the element of the offense missing from the indictment. In
this
case the trial judge agreed with the motion judge's earlier ruling
that the
government did not have to prove that the threats charged in counts
two,
three, and four concerned the use of fire or explosives. Therefore,
although the judge found Spruill guilty of making threats, he did
not find
that the threats concerned fire or explosives. See J.A. 135-137;
174
([Counsel for Spruill]: "Now, the other three counts, besides my
old
argument, they got to show that it was by bomb or--"; The Court:
"I'm
ruling against that. Move along on that.").
12
"This court, sitting en banc, has left no room for doubt as to the
law
in this circuit concerning the requirements of a constitutionally
ade-
quate indictment. Every essential element of an offense must be
charged in the body of an indictment, and the inclusion of a
reference
to the statute will not cure the failure to do so." United States
v.
Daniels, 973 F.2d 272, 274 (4th Cir. 1992) (citing Hooker). We
there-
fore vacate Spruill's convictions on counts two and three of the
indictment.
III.
Spruill also appeals his conviction on count one of the indictment,
which charged him with making a threat to damage the Norfolk fed-
eral building "by means of fire and explosives" during his
telephone
conversation with ATF Special Agent Moore. Spruill's argument is
that the evidence is insufficient to establish that his threat to
blow up
the Norfolk federal building was a "true" threat. In reviewing the
suf-
ficiency of the evidence on a criminal conviction, we must sustain
the
verdict "if there is substantial evidence, taking the view most
favor-
able to the Government, to support it." Glasser v. United States,
315
U.S. 60, 80 (1942). This case also requires us to bear in mind that
the
trier of fact, and not the reviewing court, "``resolves any
conflicts in
the evidence presented, and if the evidence supports different,
reason-
able interpretations, the [trier of fact] decides which
interpretation to
believe.'" United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)
(quoting United States v. Murphy, 35 F.3d 143, 148 (4th Cir.
1994)).
As Spruill points out, § 844(e) proscribes only "true" threats.
"The
prosecution must establish a ``true threat,' which means a serious
threat as distinguished from words as mere political argument, idle
talk or jest." United States v. Leaverton, 835 F.2d 254, 256 (10th
Cir.
1987) (quoting Black's Law Dictionary) (internal quotation marks
omitted). Context is important. See Leaverton, 835 F.2d at 256 ("In
determining whether words were uttered as a threat the context in
which they were spoken must be considered."). Spruill argues that
his
"drunken ramblings," when considered in context, "were an expres-
sion of his political and philosophical beliefs[and] not a true
threat."
Brief for Appellant at 11-12.
After reviewing the trial record, we conclude that there was sub-
stantial evidence to establish that Spruill's call to Special Agent
13
Moore (as charged in count one) was a true threat rather than
political
rhetoric, idle talk, or jest. Moore received Spruill's call only
because
Tracey Waldron, who was answering calls for the ATF, felt that the
threat was serious enough to justify patching the call through to
Moore, at home, at six-thirty in the morning. In the midst of his
ram-
blings Spruill warned Moore that "maybe even" the federal building
in Norfolk would be blown up, "simply because it was so accessible
to the general public, to just drive a car bomb in and just leave
it."
J.A. 68 (Moore testimony). Spruill kept repeating that Oklahoma
City
was vengeance for Waco and that more buildings would be blown up.
Finally, Spruill made it hatefully personal, calling Moore a "nice
little
black agent" who "would get [his] some day." J.A. 72. Faced with
these comments, Moore decided to play it safe and report the call
as
a bomb threat. At the end of the bench trial the district court
made a
factual determination that this call to Special Agent Moore was a
true
threat. This finding is a reasonable interpretation of the events,
and it
is supported by the substantial evidence we have just outlined. We
therefore affirm Spruill's conviction on count one of the
indictment.
IV.
We affirm Spruill's conviction on count one of the indictment
because his words were a true threat. We vacate his convictions on
counts two and three because those counts failed to charge an
essen-
tial element of the § 844(e) offense, that the threat concerned the
use
of fire or explosives. Because the conviction on count one remains
in
place, we remand for resentencing on that count. On remand the dis-
trict court is also instructed to dismiss counts two and three of
the
indictment without prejudice so that the government may reindict
and
reprosecute Spruill on those counts if it chooses. See United
States v.
Hooker, 841 F.2d 1225, 1233 (4th Cir. 1988); United States v.
Hayes,
775 F.2d 1279, 1283 (4th Cir. 1985).
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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