United States v. Cody Leveke ( 2022 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 21-1335
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Cody Ray Leveke, also known as Cody Meyer, also known as Cody Ray Meyers
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Central
    ____________
    Submitted: January 14, 2022
    Filed: June 21, 2022
    ____________
    Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
    ____________
    ERICKSON, Circuit Judge.
    Following a series of trial delays due to the COVID-19 pandemic, a jury
    convicted Cody Leveke of two counts of interstate communication of a threat, in
    violation of 
    18 U.S.C. § 875
    (c). The district court1 sentenced him to a term of 60
    months in prison. Leveke appeals and we affirm.
    I.    BACKGROUND
    Leveke, a registered sex offender, spent the better part of a decade trying to
    be removed from the Iowa sex offender registry. In 2009, Iowa State Senator
    Herman Quirmbach agreed to try and help Leveke, who was then residing in
    Arizona. Senator Quirmbach repeatedly introduced bills to amend the law to allow
    out-of-state offenders the same opportunity as in-state offenders to petition for
    removal from the Iowa registry; however, his efforts were unsuccessful.
    On September 3, 2019, Leveke sent Senator Quirmbach two emails with the
    subject line, “Mass Shooting of the Iowa Legislature,” and left a voicemail on the
    senator’s home phone. In his first email, Leveke complained about law enforcement
    unfairly targeting him and an invalid law being “still on the books.” He wrote, “I’m
    angry enough to pull a mass shooting down at the State House.” Leveke asserted
    the legislature was in violation of the Constitution and requested an explanation for
    the “illegal behavior” as well as the names of those responsible for “holding the bill
    up.” He told Senator Quirmbach that those responsible “should live in fear.”
    About an hour later, Senator Quirmbach received an angry voicemail on his
    home phone from Leveke. Among other things, Leveke told Quirmbach that the
    senator could not violate the Constitution and get away with it. Concerned by the
    email and voicemail, Senator Quirmbach immediately notified law enforcement and
    the senate minority leader’s office. Legislative administrative staff member, Debbie
    Kattenhorn, then informed the entire Iowa Legislature and capitol security about
    Leveke’s messages.
    1
    The Honorable John A. Jarvey, then Chief Judge, United States District Court
    for the Southern District of Iowa, now retired.
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    That evening, Senator Quirmbach received a second email from Leveke under
    the same subject line of “Mass Shooting of the Iowa Legislature.” This time, Leveke
    “order[ed]” the “Iowa Legislature to stand down with any attempts to violate the
    civil rights of anyone” and demanded that the existing law be taken off the books.
    He wrote that he believed the Second Amendment exists “so we can kill politicians”
    for not acting in accordance with the law. Leveke further stated that “the legislature
    deserves a violent response at this point.” He also attached an article about a mass
    shooting in Texas that had been reported just hours before.
    Leveke was indicted with two counts of interstate communication of a threat,
    in violation of 
    18 U.S.C. § 875
    (c). The course of the prosecution was impacted by
    the COVID-19 pandemic. Leveke’s trial, originally set for March 30, 2020, in the
    Central Division of the Southern District of Iowa, was cancelled on March 16, 2020,
    when the court issued an administrative order postponing all jury trials in the
    Southern District of Iowa from March 16, 2020, until May 4, 2020, on ends of justice
    grounds related to the pandemic and attendant health risks. See U.S. Dist. Court for
    the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-3-P (Mar. 16, 2020) (citing 
    18 U.S.C. § 3161
    (h)(7)(A)).
    While Leveke made a number of pro se requests to have his case proceed to
    trial, the relief he was seeking was not entirely plain. At one point, he moved for a
    bench trial while reserving his right to a jury trial. During a status conference,
    Leveke demanded a jury trial. Subsequently, he consented to a bench trial but
    conditioned his consent upon certain circumstances and simultaneously insisted on
    preserving his right to a jury trial. A couple months later, Leveke indicated he
    wanted a bench trial but refused to waive his right to a jury trial. Leveke requested
    his case be moved to another division that was conducting jury trials. Ultimately,
    the district court transferred Leveke’s case to the Eastern Division and ordered a jury
    trial to commence on September 29, 2020.
    Leveke’s jury trial took place on September 29, 2020. Pursuant to a series of
    administrative orders, no jury trials were allowed in the Central Division—where
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    Leveke’s case was originally set to take place—until October 12, 2020. See, e.g.,
    U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-19-P (Sept.
    3, 2020). The court, after consulting with the United States Attorney, Federal Public
    Defender, and others, agreed the delay was proper given that “the number of new
    cases of COVID-19 in the Central Division ha[d] risen to the highest levels to date.”
    
    Id.
     Each time the court delayed Leveke’s jury trial, it found the time was excludable
    under the Speedy Trial Act.
    The jury found Leveke guilty, and he was sentenced to a term of 60 months’
    imprisonment. Leveke appealed and the clerk appointed counsel to represent him.
    II.   DISCUSSION
    1.     Sufficiency of the Evidence
    At trial, Senator Quirmbach and Kattenhorn testified that they believed
    Leveke’s messages posed a real and imminent threat. Leveke also testified, claiming
    his statements were hyperbole and he had no intention of killing anyone. He told
    the jury that his messages were meant to get the attention of the Iowa Legislature.
    On appeal, Leveke contends the government did not have sufficient evidence to
    prove he made “true threats” because his statements were ambiguous and/or political
    hyperbole.
    “We review the sufficiency of the evidence de novo, viewing the evidence and
    credibility determinations in the light most favorable to the jury’s verdict and
    reversing only if no reasonable jury could have found the defendant guilty.” United
    States v. Ganter, 
    3 F.4th 1002
    , 1004 (8th Cir. 2021). “A conviction may be based
    on circumstantial as well as direct evidence. The evidence need not exclude every
    reasonable hypothesis except guilt.” United States v. Seals, 
    915 F.3d 1203
    , 1205
    (8th Cir. 2019) (quoting United States v. Tate, 
    633 F.3d 624
    , 628 (8th Cir. 2011))
    (internal quotation marks omitted).
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    This Court has defined a “true threat” as “a statement that a reasonable
    recipient would have interpreted as a serious expression of an intent to harm or cause
    injury to another.” Doe v. Pulaski Cnty. Special Sch. Dist., 
    306 F.3d 616
    , 624 (8th
    Cir. 2002) (en banc). When determining whether a reasonable recipient would have
    found the communication conveyed an intent to cause harm or injury, the factfinder
    may consider:
    1) the reaction of those who heard the alleged threat; 2) whether the
    threat was conditional; 3) whether the person who made the alleged
    threat communicated it directly to the object of the threat; 4) whether
    the speaker had a history of making threats against the person
    purportedly threatened; and 5) whether the recipient had a reason to
    believe that the speaker had a propensity to engage in violence.
    
    Id. at 623
    .
    Our precedent establishes that the speaker does not have to intend to carry out
    the threat in order for the speech to fall outside of the First Amendment’s protections.
    See United States v. Ivers, 
    967 F.3d 709
    , 720 (8th Cir. 2020) (noting whether the
    defendant had any intention of acting on the threat is irrelevant); United States v.
    Mabie, 
    663 F.3d 322
    , 333 (8th Cir. 2011) (“The government need not prove that
    Mabie had a subjective intent to intimidate or threaten in order to establish that his
    communications constituted true threats.”).
    Contrary to Leveke’s argument that his statements were mere political
    hyperbole, a jury could have reasonably concluded that Leveke’s messages
    constituted a true threat of present or future violence and that he intended to
    communicate a threat. Section 875(c) is violated if the government proves the
    defendant communicated a true threat and “transmitted [that] communication for the
    purpose of issuing a threat or with knowledge that the communication would be
    viewed as a threat.” United States v. Dierks, 
    978 F.3d 585
    , 591 (8th Cir. 2020)
    (quoting Elonis v. United States, 
    575 U.S. 723
    , 740 (2015)) (cleaned up). Here,
    Leveke’s statements were neither ambiguous nor ambivalent. Leveke explicitly
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    threatened to conduct a mass shooting of the Iowa Legislature for the lawmakers’
    alleged constitutional violation. He communicated his intent directly to Senator
    Quirmbach. Leveke expressed a belief that the Second Amendment was created so
    politicians (and perhaps others) may be killed for failing to act in accordance with
    the law. Both Senator Quirmbach and Kattenhorn testified that they found Leveke’s
    statements to be threatening and frightening. Leveke testified that he wrote his
    emails to get the Senate’s attention to provoke action. Leveke’s statements were
    objectively threatening, and neither ambiguous nor political hyperbole. The
    evidence is sufficient to satisfy the elements required for convictions under § 875(c).
    2.     Jury Instructions
    Leveke contends the jury instructions were erroneous because (1) they failed
    to define a “true threat” as a statement made by a defendant only when he
    subjectively intends to threaten the victim(s), (2) they did not require the jury to
    consider whether the statements were objectively “true threats,” and (3) the court
    issued a sua sponte instruction regarding the First Amendment.
    Before the district court, Leveke raised only one of these three challenges.
    Because Leveke challenged the subjective intent instruction below and on appeal,
    we review that argument for abuse of discretion. See United States v. Wilkins, 
    25 F.4th 596
    , 600 (8th Cir. 2022). We review Leveke’s other arguments for plain error.
    See United States v. Spencer, 
    998 F.3d 813
    , 818 (8th Cir. 2021). We will reverse
    only if the error was not harmless. Dierks, 978 F.3d at 591.
    At trial, Leveke argued that a statement constitutes a “true threat” only if the
    defendant actually intended to commit unlawful violence against the object of the
    threat. Leveke’s argument misstates the law. See id. at 592 (stating § 875(c)
    requires a subjective finding of intent to send a threat or knowledge that the
    communication could be viewed as a threat plus an objective finding that the
    communication was threatening); see also Ivers, 967 F.3d at 720–21; Mabie, 
    663 F.3d at 333
    . Even assuming the district court erred by not making the objective
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    component of § 875(c) clearer in the instructions, any error is harmless because
    Leveke’s statements were objectively threatening, and a rational jury would have
    found Leveke guilty beyond a reasonable doubt absent the purported error. See
    Dierks, 978 F.3d at 592.
    As to Leveke’s final claim regarding the court’s sua sponte instruction about
    the applicability of the First Amendment, Leveke repeatedly claimed his emails were
    not threats but constitutionally protected political hyperbole. He specifically
    testified: “I can say whatever I want as long as it’s not a true threat, and this ain’t a
    true threat.” In response to the testimony and without objection, the court told the
    jury that it need not concern itself with the First Amendment regardless of whether
    the government proved its case. “We will not find error when the jury instruction
    fairly and adequately submitted the issue to the jury and will only reverse when the
    ailing instruction by itself so infected the entire trial that the resulting conviction
    violates due process.” United States v. Mink, 
    9 F.4th 590
    , 610–11 (8th Cir. 2021)
    (cleaned up). Because we find that, when taken as a whole, the instructions
    sufficiently articulated the elements for the charges and the matters were fairly and
    adequately submitted to the jury, there was no reversible error.
    3.     Sufficiency of the Indictment
    Leveke has submitted a pro se supplemental brief in which he argues the
    indictment failed to state an essential element of his offense: that a statement may
    only be considered a true threat if a reasonable person would interpret that statement
    as a threat. While we generally do not accept pro se briefs when a party is
    represented by counsel, United States v. Parks, 
    902 F.3d 805
    , 815 (8th Cir. 2018),
    we may quickly dispose of Leveke’s argument. “An indictment is legally sufficient
    on its face if it contains all of the essential elements of the offense charged, fairly
    informs the defendant of the charges against which he must defend, and alleges
    sufficient information to allow a defendant to plead a conviction or acquittal as a bar
    to a subsequent prosecution. United States v. Sholley-Gonzalez, 
    996 F.3d 887
    , 893
    (8th Cir. 2021) (cleaned up). The indictment pleaded the essential elements for
    -7-
    § 875(c) offenses. See Elonis, 575 U.S. at 732, 740 (stating elements of 
    18 U.S.C. § 875
    (c) include: (1) a communication transmitted in interstate commerce, (2) that
    contains a threat, and (3) which is transmitted for the purpose of issuing a threat or
    with knowledge the communication will be viewed as a threat).
    4.     Right to a Speedy Trial
    When a defendant brings a speedy trial challenge under both the Speedy Trial
    Act and the Sixth Amendment, we review the claims separately. United States v.
    Johnson, 
    990 F.3d 661
    , 666 (8th Cir. 2021). We review the “district court’s findings
    of fact for clear error and its legal conclusions de novo.” United States v. Flores-
    Lagonas, 
    993 F.3d 550
    , 562–63 (8th Cir. 2021).
    A.     The Speedy Trial Act
    While the Speedy Trial Act provides that the trial of a criminal defendant who
    has pled not guilty must begin within seventy days from the date of the indictment
    or arraignment, whichever is later, the Act excludes certain periods of delay from
    this calculation. 
    18 U.S.C. § 3161
    (c)(1) & 3161(h). One such excludable period is
    when the judge overseeing the trial grants a continuance “on the basis of his findings
    that the ends of justice served by taking such action outweigh the best interest of the
    public and the defendant in a speedy trial.” 
    Id.
     § 3161(h)(7)(A).
    Leveke asserts the district court unlawfully used the “ends of justice”
    provision to postpone all jury trials due to the COVID-19 pandemic without
    consideration as to whether relatively straight-forward trials could be held. He
    argues his jury trial was not especially complex, had limited witnesses, and revolved
    around the interpretation of two emails and thus should have occurred within seventy
    days of his indictment. This Circuit has not yet decided whether the “ends of justice”
    may be properly invoked to delay jury trials due to the COVID-19 pandemic. The
    Ninth Circuit and Sixth Circuit have generally answered this question in the
    affirmative. See United States v. Olsen, 
    21 F.4th 1036
    , 1044–47, 1049 (9th Cir.
    -8-
    2022) (per curiam) (announcing certain factors district courts should consider when
    granting trial continuances due to the COVID-19 pandemic and holding the district
    court erred by dismissing the defendant’s indictment with prejudice); United States
    v. Roush, No. 21-3820, 
    2021 WL 6689969
    , at *2 (6th Cir. Dec. 7, 2021), cert.
    denied, 
    142 S. Ct. 1187
     (2022) (determining the district court did not abuse its
    discretion when it found postponing or limiting jury trials during the COVID-19
    outweighed the defendant’s right to a speedy trial).
    Here, the district court issued numerous administrative orders explaining how
    and why the COVID-19 pandemic was interrupting jury trials in the entire district.
    See, e.g., U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-
    8-P (Apr. 8, 2020) (explaining the continuances were necessary given the severity
    of the risk posed to the public and recommendations from the Centers for Disease
    Control and Prevention, among other reasons). As COVID-19 infection rates in the
    surrounding counties fluctuated, so too did the availability of jury trials. Compare
    U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-14-P (June
    29, 2020) (reopening all divisions other than the Central Division), with Admin.
    Order No. 20-AO-19-P (suspending jury trials in the Central Division due to record-
    high rates of infection and an “extraordinary outbreak” in the Polk County Jail).
    Aside from general administrative orders, the court also made findings relating to
    Leveke’s individual case. While responding to Leveke’s litany of motions, the
    district court elaborated on COVID-19’s disruption to the entire judicial system and
    how Leveke’s jury trial could not have taken place sooner given the safety hazards
    posed by the rising COVID-19 infection rate in Leveke’s area. It is evident the
    district court considered the factors in § 3161(h)(7)(B) and did not err in continuing
    Leveke’s jury trial under § 3161(h)(7)(A).
    While Leveke contends his trial could have been held sooner because he
    requested a bench trial, the record demonstrates Leveke continually waffled on his
    desire to have a bench trial and did not waive his right to a jury trial. During the
    status conference shortly before Leveke’s desired date for a bench trial, the district
    court went through in-detail with Leveke his right to a jury trial and waiver of that
    -9-
    right. The court informed Leveke that a conditional waiver would not be accepted
    since trial was only four days away and withdrawal of a waiver would be unworkable
    for the prosecution and its witnesses, not to mention the difficulty of summoning a
    jury on such short notice. Armed with this information, Leveke refused to
    unconditionally waive his right to a jury trial. Trial commenced a few weeks later.
    On this record, the district court did not abuse its discretion in not accepting Leveke’s
    conditional waiver. See Zemunski v. Kenney, 
    984 F.2d 953
    , 954 (8th Cir. 1993)
    (finding a motion to withdraw a jury waiver may be untimely and properly denied if
    it would “unduly interfere with or delay the proceedings”) (cleaned up).
    Leveke also contends the district court should have granted his initial request
    sooner to move his trial to another division where jury trials had resumed. Criminal
    defendants have no constitutional right to be tried in a particular division within the
    district and state where the alleged crime took place. United States v. Worthey, 
    716 F.3d 1107
    , 1112 (8th Cir. 2013). “The court must set the place of trial within the
    district with due regard for the convenience of the defendant, any victim, and the
    witnesses, and the prompt administration of justice.” Fed. R. Crim. P. 18. Because
    district judges have broad discretion to determine where to hold the trial, a defendant
    must show abuse of that discretion or prejudice. United States v. Stanko, 
    528 F.3d 581
    , 584 (8th Cir. 2008).
    The government resisted Leveke’s request to move the case to another
    division, stating its witnesses were located in the Central Division and Leveke’s
    transportation to another detention facility would potentially spread COVID-19.
    While Leveke repeated his request at a status conference on September 4, 2020, he
    proceeded to make indefinite statements about wanting a jury trial or a bench trial.
    Ultimately, the court granted Leveke’s request to move divisions on September 16,
    2020, ordering that a jury trial would take place in the Eastern Division on September
    29, 2020. The trial took place on that date in that division. We find no abuse of
    discretion in the court’s timing of granting Leveke’s request to change divisions.
    -10-
    Additionally, Leveke has not shown prejudice caused by the delay. While he
    points to a longer period of detention, repossession of his vehicle, increased pretrial
    anxiety, and an in-custody assault, none of these circumstances demonstrate he was
    deprived of an opportunity to properly defend himself at trial. See 
    id.
    B.    The Sixth Amendment
    To show a Sixth Amendment speedy trial violation, the defendant must allege
    the interval between accusation and trial has crossed a line from ordinary to
    presumptively prejudicial delay. United States v. Saguto, 
    929 F.3d 519
    , 523 (8th
    Cir. 2019) (quoting United States v. Aldaco, 
    477 F.3d 1008
    , 1019 (8th Cir. 2007))
    (cleaned up). If the defendant makes that threshold showing, then we proceed to
    analyze the following factors: “[l]ength of delay, the reason for the delay, the
    defendant’s assertion of his right, and prejudice to the defendant.” Flores-Lagonas,
    993 F.3d at 563 (quoting Barker v. Wingo, 
    407 U.S. 514
    , 530 (1972)) (internal
    quotation marks omitted).
    Leveke’s constitutional claim fails because he has not shown that a nine-
    month delay was presumptively prejudicial. See United States v. Walker, 
    840 F.3d 477
    , 485 (8th Cir. 2016) (determining eleven-and-a-half-month delay meets
    threshold for first factor, but barely). Having failed to satisfy the first factor, our
    analysis ends. See United States v. Titlbach, 
    339 F.3d 692
    , 699 (8th Cir. 2003)
    (stating if no presumptively prejudicial delay exists, the court need not examine the
    remaining three Barker factors).
    III.   CONCLUSION
    For the foregoing reasons, we affirm Leveke’s convictions.
    ______________________________
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