United States v. Frazer, David ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4351
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID FRAZER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-30051-001—Jeanne E. Scott, Judge.
____________
ARGUED SEPTEMBER 20, 2004—DECIDED DECEMBER 7, 2004
____________
Before POSNER, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This case concerns an upward
adjustment under the federal sentencing guidelines that is
unaffected by the uncertainty created in the wake of Blakely
v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), and
United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert.
granted, 125 S. Ct. 11 (Aug. 2, 2004).
David Frazer pled guilty to a single-count indictment
charging him with using a telephone to make threatening
communications in violation of 18 U.S.C. § 844(e). The
indictment charged that Frazer made two bomb threats, but
2 No. 03-4351
at sentencing the district judge determined that the
undisputed evidence demonstrated that he made three sep-
arate threats, so he applied U.S.S.G. §2A6.1(b)(2), which pro-
vides for a 2-level upward adjustment if the offense involved
“more than two threats.” Frazer challenges this increase on
a legal, not a factual basis, so, undeterred by Blakely/
Booker, we proceed to resolve his appeal.
Frazer, in March of 2003, was 34 years old and living with
his second wife, Teresa Day, in Mt. Pleasant, Iowa. Ms. Day
was divorced from her first husband and, for a time, had
custody of her two daughters from that marriage. She lost
a custody battle over the children, however, and they went
to live a few hundred miles away with Day’s ex-husband in
Pana, Illinois. Frazer, apparently with some help from Day,
tried several schemes to get the children back.
At one time, Day and Frazer discussed kidnapping the
children. Frazer even went so far as to cause an obituary
announcing his own death to be placed in a local newspaper
to assist Day in reclaiming the children on the fraudulent
basis that he was no longer around. Frazer also urged the
children to run away accuse their father of abuse, and tell
school authorities that they were unhappy in Pana and
longed to return to their mother in Iowa. On top of all this,
Frazer, claiming to be an Illinois social worker, wrote a
letter to a state court judge expressing concerns about Day’s
ex-husband being a bad influence on the children.
Against this backdrop, Frazer hatched a harebrained plot
that somehow or other was, in his mind, going to help Day
get her children back. He prepared a tape-recorded message
announcing that bombs were planted in two Pana schools
and on a school bus in the district where the children were
enrolled as students. On March 10, 2003, at around 9 a.m.,
Frazer called the office of the district’s superintendent from
his home in Iowa. When a secretary answered the phone, he
played the recording. The message gave staff about 15
No. 03-4351 3
minutes to evacuate the buildings. Frazer then called the
Pana Junior High School, where one of the children at-
tended. The secretary who answered the telephone heard
only part of the recorded message, but what she heard was
enough to alert her to the nature of the call: “If you don’t
want any of the students to get hurt, you need to evacuate
the buildings. The bombs are set to go off at 9:15.” Frazer
does not dispute the secretary’s assertion that he hung up
when she tried to transfer the call to the school’s principal.
He also acknowledges that he called back immediately,
reached the same secretary, and replayed the entire
recorded bomb-planted message.
Fourteen hundred students and staff were evacuated from
four schools in the district in response to Frazer’s calls.
Police later identified Frazer as the culprit by tracing the
calling card number used in making the calls. When officers
confronted him, he admitted making the recording but
denied making the calls. Frazer was subsequently charged
in a single-count indictment with making “two separate
bomb threats” to the Pana Community School District. The
indictment does not identify which of the three calls gave
rise to the charge or explain why only two threats were
alleged. We cannot tell if the government’s theory of the
case was ever clarified because there is no written plea
agreement, and no transcript of the plea colloquy has been
prepared.
The probation officer recommended in the presentence
report that Frazer be given a 4-level upward adjustment
under U.S.S.G. §2A6.1(b)(4) because he caused a “substan-
tial disruption of public functions and services” and an in-
crease of 2 levels under §2A6.1(b)(2) because the offense
involved “more than two threats.” The probation officer jus-
tified the latter adjustment on the alternative bases that
there were “three phone calls and threats of three bombs.”
Frazer filed an objection to the 2-level adjustment, assert-
ing that his third call was a de minimis “addition” to the
4 No. 03-4351
second because disruption was already underway. He also
argued that under §2A6.1(b)(2) several threats might merge
and be counted as one if made as part of a “single instance
or episode.”
At sentencing, Frazer pressed both themes: the second
and third calls (and possibly even the first) should be viewed
as composing “a single thoughtless action” involving “one
single threat,” and, alternatively, that the second and third
calls constituted a “single attempt to make a threatening
communication.” Either way, according to Frazer, there
were at most two threats. The government responded that
all three of Frazer’s telephone calls were understood by
the listeners as threatening and thus should be counted
separately.
Neither party addressed the probation officer’s assumption
that §2A6.1(b)(2) applied even if Frazer had telephoned just
once, given that his recording warned that bombs were
planted in three different locations. The district court, how-
ever, was persuaded. The court reasoned that equating the
number of threats with the number of “locations threatened”
better linked the offensive conduct to its actual consequences.
The court also noted that the dictionary definition of “threat”
is “an expression of intention to inflict evil, injury, or dam-
age” and concluded that counting telephone calls was an
inadequate way of measuring Frazer’s intentions. The court
rejected the parties’ shared contention that §2A6.1(b)(2)
focuses on the number of “threatening communications”; the
court observed that this expression is used in the Commen-
tary to §2A6.1(b)(2) but not in the text and decided that the
use of different expressions must imply a different meaning.
Our review of this question of guideline interpretation is de
novo. See United States v. Alvarenga-Silva, 324 F.3d 884,
886 (7th Cir. 2003); United States v. Stokes, 347 F.3d 103,
105 (4th Cir. 2003).
Frazer argues that the district court should have counted
the number of “threatening acts” (or “threatening commun-
No. 03-4351 5
ications” or “phone calls”) rather than the “number of vic-
tims” threatened. His argument centers on Application Note
3(B) to §2A6.1(b)(2), which allows for an upward departure
“[i]f the offense involved substantially more than two
threatening communications to the same victim or a
prolonged period of making harassing communications to
the same victim, or if the offense involved multiple victims[.]”
Frazer contrasts the upward adjustment under §2A6.1(b)(2),
which provides for a 2-level increase if the offense involved
“more than two threats” but does not contain any reference
to “victims,” with Application Note 3(B), which does. Because
Application Note 3(B) takes the victim or victims into account,
he concludes that the Sentencing Commission did not
envision §2A6.1(b)(2) as doing so.
We agree with this analysis, although we think the in-
ferences Frazer draws from it are flawed. For one thing, he
sets up an artificial dichotomy. The fact that the number of
threats is not determined by the number of victims does not
by itself compel us to find that the number is determined by
the number of communications, and Frazer gives us no
other reason to read “threats” and “threatening communica-
tions” as equivalent. He also mischaracterizes the district
court’s position by ignoring the logical distinction between
the terms the district court chose to embody its definition of
threat—“locations”and “areas”—and the expression “number
of victims,” which the court never used. It is true that if the
court focused on locations partly out of concern that more
places means more potential victims, then its interpretation
of §2A6.1(b)(2) might intrude into Application Note 3(B)’s
reliance on upward departure to address offenses involving
multiple victims. But this is hardly a necessary reading. In
any case, we know that the district court was not counting
individual “victims” because it found only three threats
when more than 1400 students, faculty, and staff in the
school district were affected.
6 No. 03-4351
Still, we think Frazer’s basic proposition that “threats”
means “threatening communications” is correct. We are not
persuaded by the district court’s view that Application Note
3(B) would be redundant if it used “threatening communica-
tions” to mean the same thing that the word “threats” does
in the text of §2A6.1(b)(2). The only overlap between the
guideline and the note is where there are multiple threats
targeting the same victim, and in that circumstance the rules
have complementary functions. Section §2A6.1(b)(2) alone
governs if the number of threats is more than two but not
“substantially more.” When the number is “substantially
more than two,” Application Note 3(B) enables the court to
impose a further penalty by upward departure.
But more importantly, existing authority associates the
number of threats for purposes of §2A6.1(b)(2) with the num-
ber of communications made. In United States v. Spring,
305 F.3d 276, 280 (4th Cir. 2002), the Fourth Circuit held
that the word “threat” has the same meaning in subsec-
tion (b)(2) that it has in the underlying federal statutes that
criminalize threats, e.g., 18 U.S.C. § 844(e), 18 U.S.C. § 875(c),
and 18 U.S.C. § 876(c). Under these statutes, the unit of
prosecution is the telephone call or letter; each call or letter
is indictable separately as a different “threat.” See United
States v. Corum, 362 F.3d 489 (8th Cir. 2004) (three counts
for three telephoned bomb threats under § 844(e)); United
States v. Nedd, 262 F.3d 85, 88 (1st Cir. 2001) (“four counts
of interstate threats” based on four violent telephone mes-
sages under § 875(c)); United States v. Thomas, 155 F.3d 833
(7th Cir. 1998) (counting five letters as “five death threats”
under § 876). We ourselves have assumed that “threats”
and “threatening communications” have the same meaning.
See United States v. Bohanon, 290 F.3d 869, 876 (7th Cir.
2002). See also United States v. Goynes, 175 F.3d 350, 355
(5th Cir. 1999) (equating “multiple threatening letters” with
“multiple threats” in applying §2A6.1(b)(2)); United States
v. Newell, 309 F.3d 396, 403 (6th Cir. 2002) (assuming that
No. 03-4351 7
“the Sentencing Commission accounted for the number of
communications by imposing an enhancement under
U.S.S.G. § 2A6.1(b)(2)”). And one of our sister circuits has
explicitly defined “threats” as “threatening communications”
for purposes of §2A6.1(b)(2). See United States v. Stokes,
347 F.3d 103, 106 (4th Cir. 2003) (holding that “the phrase
‘more than two threats,’ as used in § 2A6.1(b)(2), refers to
the number of threatening communications”).
The district court’s proposal to distinguish separate threats
on the basis of location is not wholly incompatible with this
authority. The Stokes court in particular left open the pos-
sibility of counting multiple threats from a single call or
letter if the threats “are so distinct in nature and purpose
that they should not be treated as a single threat for pur-
poses of § 2A6.1(b)(2).” See Stokes, 347 F.3d at 106 n.2. But
we are reluctant to endorse this perspective. On the facts
before us, we see no reason to expand or complicate what
appears to be the accepted understanding that §2A6.1(b)(2)
measures the number of threatening communications. Threats
to multiple locations implicate more victims and create
greater disruption, but the guidelines already provide for
both of these concerns. Application Note 3(B), of course, pro-
vides for departure where there are multiple victims, and
§2A6.1(b)(4)—which the district court also applied and which
Frazer does not challenge—provides for an increase of 4
levels if there is a “substantial disruption of public, gov-
ernmental, or business functions or services.” Moreover, the
district court’s view does not find an advocate even in the
government. The government defends the application of the
“more than two threats” adjustment on the basis that
Frazer made three telephone calls and responds to the
district court’s position only by insisting that we need not
decide its validity.
For now, though, we do not decide whether in an appro-
priate case the number of threats might turn on more than
the number of communications. It is undisputed that there
8 No. 03-4351
were three telephone calls, each containing a recorded mes-
sage threatening that a bomb was planted. To prevail even
under his interpretation of §2A6.1(b)(2), Frazer must show
that at least one of the calls was not a “communication,” or
for some other reason does not qualify as a threat, and he
is unable to do so.
Frazer argues that cases interpreting an “earlier version
of U.S.S.G. §2A6.1(b)(2)” support the idea that several
threats may be combined in a “single instance or episode.”
He relies heavily on United States v. Sanders, 41 F.3d 480,
484 (9th Cir. 1994), which concluded that a downward ad-
justment under the former §2A6.1(b)(2) applies when threats
may be regarded as “the product of a single impulse” or “a
single thoughtless response to a particular event.” However,
the only connection between the former and the current ver-
sions of §2A6.1(b)(2) is the section number. The 1997
amendment giving rise to the current §2A6.1(b)(2) substan-
tially revised the guideline, and the new version is entirely
different from that of the provision interpreted in Sanders,
41 F.3d at 484. It is clear that the “more than two threats”
language does not represent an attempt to replace or clarify
the old provision, because the old provision remains. It has
simply been moved elsewhere—it is now located at
§2A6.1(b)(5). Even if Frazer is correct that the second and
third calls would qualify as a single instance under
Sanders, that tells us nothing about how they would be
treated in the context of the new §2A6.1(b)(2).
Ultimately, the question comes down to whether the sec-
ond or third calls can properly be said to be de minimis.
Frazer adduces no legal authority for this proposition, and
we have been unable to find a single case in which a federal
court found any threat of violence to be de minimis. Further-
more, there is no question that all three calls were “true
threats” under the test of United States v. Khorrami, 895
F.2d 1186 (7th Cir. 1990). The calls conveyed a message
that a reasonable person would foresee a recipient interpret-
No. 03-4351 9
ing as an expression of intent to cause serious harm. Id. at
1192. By insisting that the third call was a continuation of
the second, Frazer is really arguing that what matters is the
number of communications he intended to make. But the
test we apply is an objective one. United States v. Schnei-
der, 910 F.2d 1569, 1570 (7th Cir. 1990). By that measure
there were three threats.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-04