United States v. William White , 810 F.3d 212 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4375
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM A. WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:13-cr-00013-JCT-1)
Argued: October 29, 2015 Decided: January 7, 2016
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Motz and Judge King joined.
ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Laura Day Rottenborn, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
ON BRIEF: Anthony P. Giorno, United States Attorney, Roanoke,
Virginia, Jennifer R. Bockhorst, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.
THACKER, Circuit Judge:
William White (“Appellant”) believed his ex-wife
(“MW”) owed him money. When she refused to pay, he sent her a
series of e-mails, four of which threatened violence if MW did
not meet his demands. MW reported the threats to the
authorities, and Appellant was eventually charged in a four-
count indictment with violating 18 U.S.C. § 875(b), which makes
it a felony to transmit threats in interstate commerce with the
intent to extort. After trial, a jury convicted him of three of
the charged § 875(b) counts, and one count of the lesser-
included offense of transmitting a threat (without the intent to
extort), in violation of § 875(c). The district court sentenced
Appellant to a 92–month term of imprisonment.
Appellant now asks us to reverse his conviction and
vacate his sentence, assigning a number of errors. He maintains
he could not have intended to extort MW because she owed him a
legitimate debt and alleges more generally that the district
court misinstructed the jury on the mens rea requirements for
conviction pursuant to § 875(b) and (c). He also complains that
the use of an anonymous jury at his trial was improper; asserts
that the district court erroneously admitted hearsay evidence;
challenges the sufficiency of the evidence presented against
him; and disputes both the procedural and substantive
reasonableness of his sentence. We are not persuaded that any
2
of Appellant’s arguments undermine the jury’s verdict or the
district court’s sentence. We therefore affirm the district
court’s judgment for the reasons that follow.
I.
A.
This is not Appellant’s first brush with the law for
making threats, and his prior misadventures set the stage for
this case. In 2010, he was charged in the Western District of
Virginia for making a threatening telephone call to a university
administrator and sending intimidating letters to several
tenants in Roanoke who had filed a fair housing complaint
against their landlord. A jury convicted him, and the district
court imposed a 30-month term of imprisonment.
While he was incarcerated, Appellant’s relationship
with his now-ex-wife, MW, deteriorated. They eventually
separated and MW agreed 1 to pay alimony to Appellant. She made
the first two payments in March and April of 2012. Around the
same time, in March 2012, we upheld Appellant’s conviction on
appeal, but remanded the case for resentencing. See United
States v. White, 670 F.3d 498, 502-03, 515-16 (4th Cir. 2012).
1
MW claims the agreement was informal and never actually
finalized. But whether Appellant and MW formed a valid
separation agreement is immaterial to our analysis.
3
Appellant was out of prison and on supervised release
by that time, so the district court set a resentencing hearing
for May 14, 2012. Appellant didn’t show. Instead, he fled,
absconding to Mexico with an acquaintance named Sabrina Gnos.
When MW learned Appellant was on the lam, she stopped making the
alimony payments, at least in part because she feared that doing
so would amount to aiding a fugitive. Appellant’s subsequent
attempts to persuade MW to resume making the payments form the
basis of the indictment in this case.
Appellant sent MW the following messages, which form
Counts I, II, and III of the indictment at issue here, between
May 27th and May 29th:
May 27, 2012 (Count I): I’ve had an offer
from a loan shark in Roanoke to split the
money you owe me 50/50. He will send
someone to beat your ass if you don’t pay,
and I will give him half for that service.
I would rather we found some way to
peacefully work things out so I had
continuing contact with my daughter and you
faced up to your obligations to me. If I
don’t hear from you soon, I will just let
the guy know you owe me $500 and let him
take care of it. If you won’t face up to
what you’ve done, someone has to hold you
accountable.
May 28, 2012 (Count II): If I were to allow
myself to be arrested, you have proven that
you will take [our daughter] from me forever
and that the federal government will assist
you with this. So, rather than be arrested,
I will remain free, and if you attempt you
are going to have the living shit beat out
of you -- to start with. You don’t seem to
4
have any sense of right or wrong and only
seem to respond to the threat of legal or
physical force. The things you do upset a
lot of people, and I have a lot of friends
who think nothing of taking out on you the
things you have done to me.
May 29, 2012 (Count III): Later on someone
will be in touch with you. You owe me two
alimony payments and $85 in fees, which is
being called $500. I would strongly
recommend you have the $500 when you are
contacted -- or you will probably be
hospitalized.
J.A. 17-18. 2
Appellant also asked Gnos for help finding someone in
Virginia to pressure MW into making the payments. On June 2,
2012, Gnos, who was by that time cooperating with the Federal
Bureau of Investigation (“FBI”), recorded the following
conversation:
GNOS: Ah, you said you wanted, you wanted
to start off with a phone call and see how
that works. Are you . . .
APPELLANT: I think that’s probably best,
um, I mean, that’s easiest. You said you
didn’t know anybody that would actually go
there and just tell her to give them the
fucking money.
J.A. 730. The following day brought more of the same:
APPELLANT: I assume you’re still, ah,
working on the deal with my ex-wife up
there.
2 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
5
GNOS: Yeah, it’s not that easy.
APPELLANT: Honestly, it is really easy.
Right now you just need to find someone to
get on the phone and pick up, pick up a
throw phone and call her up and say you’re
gonna pay the fucking money or I’m gonna
fuck you up.
Id. at 733. Appellant followed up again on June 4th:
APPELLANT: So, anyways, but, yeah, ah,
well, I just thought I’d, ah, check in with
you. Have you got any solution for getting
some money out of my ex-wife?
GNOS: No I’ve been sick. I haven’t been
talking to anybody on the phone.
APPELLANT: All right, well, it’s kind of
important. . . . I’m not kidding. You can
probably pay somebody ten bucks to just
scream some fucking obscenities into the
phone and get what she, get five hundred
bucks out of her. But I do need somebody to
lean on her and get that money, so, if you
can’t do it, I got to talk to somebody else
up there.
Id. at 737.
Finally, on June 7, 2012, after Gnos failed to find a
solution, the indictment alleges Appellant sent MW a final
warning, charged in Count IV:
June 7, 2012 (Count IV): I would very much
like to avoid an incident in which something
violent potentially happens to you around
the baby. Will you make some agreement to
settle the issues with the money and with my
access to my daughter? If I don’t hear from
you within 24 hours, then what follows will
be on you -I’ve done everything I can to
work this out peacefully.
6
J.A. 18.
The following day, June 8, 2012, Appellant was
arrested in Mexico and eventually deported to the United States.
On February 7, 2013, he was indicted in the Western District of
Virginia and charged with four counts of violating 18 U.S.C.
§ 875(b) on the basis of the e-mails set forth above. As
relevant here, the statute penalizes “[w]hoever, with intent to
extort from any person . . . any money . . ., transmits in . . .
foreign commerce any communication containing any threat to
. . . injure the person of another[.]” 18 U.S.C. § 875(b).
B.
Before trial, Appellant moved to dismiss the
indictment, arguing that it failed as a matter of law because he
had a legal right to the alimony payments he demanded. The
district court denied the motion. At the Government’s request,
and over Appellant’s objection, the case proceeded to trial
before an anonymous jury.
At trial, Gnos testified in detail about Appellant’s
activities during his escape to Mexico. She noted that
Appellant frequently used a Toshiba laptop during the trip and
that Appellant explained he was using software to disguise the
computer’s Internet Protocol (“IP”) address. Gnos also
testified that, after she returned to Virginia, she continued to
7
communicate with Appellant, check his mail, and wire him money.
At her father’s urging, Gnos explained, she eventually contacted
authorities and agreed to record her telephone conversations
with Appellant. The Government played several of those
recordings for the jury, including the clips from early June,
described above, in which Appellant repeatedly asked Gnos to
find someone to lean on MW so that she would resume making the
disputed alimony payments. The court also received into
evidence a handwritten note Gnos made of a call with Appellant,
which had not been recorded. According to Gnos’s note, the
tenor of the call was much like the others; Appellant told her,
“OK - if phone call dont [sic] work - we will have to have
someone fuck her up!” J.A. 727.
Other testimony implicated Appellant as the author of
the e-mails charged in the indictment. FBI Agent David Church
testified that the e-mails to MW originated from an e-mail
address, dhyphen@yahoo.com, that Appellant had previously used.
Church also explained that Appellant bragged on his Facebook
account of using an IP anonymizer much like the technology Gnos
testified Appellant had described to her. And Church testified
that Appellant’s Facebook account registered activity very near
in time to the moments when threatening e-mails were sent to MW,
and that both the Facebook activity and e-mails originated from
the same (albeit anonymized) IP address.
8
MW testified that the e-mails made her fearful for her
safety and the safety of her daughter. For example, she
testified that, after receiving the May 27, 2012 e-mail, she
went to the local police station to ask for a protective order.
She also shared the e-mails with the United States Marshals
Service and the FBI, and took care not to travel alone whenever
possible until Appellant had been captured.
Appellant took the stand in his own defense. He
testified he did not send MW any of the e-mails identified in
the indictment, suggesting instead that Gnos was responsible.
The jury deliberated for just over three hours, but ultimately
rejected Appellant’s version of events, finding him guilty of
violating § 875(b) when he sent the May 27th, May 29th, and June
7th e-mails; the jury also convicted Appellant of the lesser-
included-offense of violating § 875(c) on the basis of the May
28th e-mail.
The Probation Department thereafter prepared a
Presentence Report (“PSR”) that recommended a sentence of 92-115
months, based on a total offense level of 26 and a criminal
history category of IV. Appellant’s offense level was enhanced
by two points for obstruction of justice as a result of his
trial testimony, and the PSR opined that Appellant’s counts of
conviction were not subject to grouping pursuant to § 3D1.2(d)
of the United States Sentencing Guidelines (“Guidelines”).
9
Appellant objected to the enhancement and also requested a
downward departure from the recommended Guidelines sentence.
The district court denied Appellant’s objection and sentenced
him to a 92-month term of imprisonment, at the low end of the
Guidelines range.
II.
Appellant raises several issues on appeal, attacking
each stage of his prosecution. The heart of his appeal,
however, concerns the legal requirements for conviction pursuant
to § 875(b) and (c). Appellant claims the indictment against
him was legally deficient (and therefore should have been
dismissed) because he could not have intended to “extort”
alimony payments to which he was legally entitled. He also
maintains the jury was improperly instructed on the intent
elements of § 875(b) and (c). We review both issues de novo.
See United States v. Said, 798 F.3d 182, 193 (4th Cir. 2015)
(“We review de novo a district court’s denial of a motion to
dismiss an indictment where the denial depends solely on
questions of law.”); United States v. Jefferson, 674 F.3d 332,
351 (4th Cir. 2012) (“We review de novo the claim that a jury
instruction failed to correctly state the applicable law.”).
Sections 875(b) and 875(c) both prohibit transmitting
“in interstate or foreign commerce any communication containing
any threat to kidnap any person or any threat to injure the
10
person of another.” 18 U.S.C. § 875(b) and (c). The
distinction between the two is that § 875(b) is violated only
when such a threat is transmitted with the specific intent to
extort something of value, whereas § 875(c) says nothing about
the speaker’s intent. Appellant’s challenges to his § 875(b)
convictions turn on the meaning of “intent to extort.” His
appeal of his § 875(c) conviction, which we consider first,
depends on the application of the Supreme Court’s recent
decision in Elonis v. United States, 135 S. Ct. 2001 (2015).
A.
Section 875(c)
1.
We have previously held § 875(c) is violated if (1)
the defendant knowingly communicates a statement in interstate
commerce that (2) contains a “true threat” that is not protected
by the First Amendment. See United States v. White, 670 F.3d
498, 508-10 (4th Cir. 2012) (discussing our prior cases and
collecting those of other circuits). And we have explained that
a “true threat” in the constitutional sense is one that a
reasonable recipient who is familiar with the circumstances
would interpret as a serious expression of an intent to do harm.
See id. But because the text of § 875(c) does not articulate
any additional intent requirements, we have repeatedly held that
neither the statute nor the Constitution requires the Government
11
to prove that a defendant subjectively intended the recipient of
the communication to understand it as threatening. See, e.g.,
United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994);
White, 670 F.3d at 509-11. That is how the district court
instructed the jury in this case. Appellant maintains that to
do so was error in light of the Supreme Court’s decision in
Elonis.
In Elonis the Supreme Court asked “whether [§ 875(c)]
. . . requires that the defendant be aware of the threatening
nature of the communication, and -- if not -- whether the First
Amendment requires such a showing.” Elonis, 135 S. Ct. at 2004.
The Court began by explaining that the text of § 875(c)
“requires that a communication be transmitted and that the
communication contain a threat,” but acknowledged, as we have
previously observed, that no “mental state with respect to
th[ose] elements” is otherwise specified. Id. at 2008. The
Court nevertheless explained that the “‘mere omission from a
criminal enactment of any mention of criminal intent’ should not
be read ‘as dispensing with it.’” Id. at 2009 (quoting
Morissette v. United States, 342 U.S. 246, 250 (1952)).
Instead, because courts “generally interpret[] criminal statutes
to include broadly applicable scienter requirements, even where
the statute by its terms does not contain them,” id. (internal
quotation marks and citations omitted; alteration in original),
12
the Court found it appropriate to “read into the statute only
that mens rea which is necessary to separate wrongful conduct
from otherwise innocent conduct,” id. at 2010 (internal
quotation marks omitted).
Turning to § 875(c), the Court emphasized “the crucial
element separating legal innocence from wrongful conduct is the
threatening nature of the communication.” See Elonis, 135 S.
Ct. at 2011 (internal quotation marks omitted). As a result,
the Court concluded, a defendant may not be convicted of
violating § 875(c) based “solely on how his [words] would be
understood by a reasonable person,” because doing so would
impermissibly allow “criminal liability” to “turn solely on the
results of an act without considering the defendant’s mental
state.” See id. at 2011-12. Instead, the Court held that to
violate § 875(c), a defendant must transmit “a communication for
the purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat,” or, possibly, with
reckless disregard for the likelihood that the communication
would be perceived as a threat. Id. But, importantly, the
Court’s holding in Elonis was purely statutory; and, having
resolved the question on statutory grounds, the Court declined
to address whether a similar subjective intent to threaten is a
necessary component of a “true threat” for purposes of the First
13
Amendment. See id. at 2012 (“Given our disposition, it is not
necessary to consider any First Amendment issues.”).
Thus, Elonis abrogates our prior holding that
liability under § 875(c) can turn solely on how a recipient
would interpret a statement, without regard to whether the
speaker intended it as a threat. Contra White, 670 F.3d at 508(“[B]ecause the threat element is not part of the mens rea, it
becomes an element of the crime that must be established without
consideration of the defendant’s intent.”). But Elonis does not
affect our constitutional rule that a “true threat” is one that
a reasonable recipient familiar with the context would interpret
as a serious expression of an intent to do harm. See White, 670
F.3d at 508-10.
What that means, in this circuit after Elonis, is that
a conviction pursuant to § 875(c) now entails “what the [statute
requires] (a subjectively intended threat) and [also] what
constitutional avoidance principles demand (an objectively real
threat).” See United States v. Jeffries, 692 F.3d 473, 485 (6th
Cir. 2012) (Sutton, J., dubitante). That is: (1) that the
defendant knowingly transmitted a communication in interstate or
foreign commerce; (2) that the defendant subjectively intended
the communication as a threat; and (3) that the content of the
communication contained a “true threat” to kidnap or injure. To
prove the second element, the Government, consistent with
14
Elonis, must establish that the defendant transmitted the
communication “for the purpose of issuing a threat, or with
knowledge that the communication will be viewed as a threat,”
or, perhaps, with reckless disregard for the likelihood that the
communication will be viewed as a threat. See Elonis, 135 S.
Ct. at 2012-13. And to establish the third element, in keeping
with our prior cases, the prosecution must show that an
ordinary, reasonable recipient who is familiar with the context
in which the statement is made would interpret it as a serious
expression of an intent to do harm. See White, 670 F.3d at 508-
10.
Here, by contrast, the district court (which did not
have the benefit of the Court’s decision in Elonis) instructed
the jury that it could convict Appellant pursuant to § 875(c) if
he transmitted a true threat in interstate commerce, without
regard to his subjective intent. In light of Elonis, that
instruction was erroneous. See United States v. Houston, 792
F.3d 663, 667 (6th Cir. 2015).
2.
The Government nevertheless maintains the error was
harmless. We agree.
The Supreme Court has “often applied harmless-error
analysis to cases involving improper instructions,” Neder v.
United States, 527 U.S. 1, 9, (1999), as have we, see United
15
States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000). “[O]ur task
is to determine whether the guilty verdict actually rendered
[at] trial was surely unattributable to the error.” Brown, 202
F.3d at 699 (internal quotation marks omitted). To do so, we
ask whether it is “clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the
error[.]” Neder, 527 U.S. at 18.
Where, as here, the district court declines to give an
instruction “not required under precedent that the Supreme Court
later supersede[s],” United States v. Ramos-Cruz, 667 F.3d 487,
496 (4th Cir. 2012), we engage in two specific inquiries to test
the harmlessness of the omission. Under the first, we will find
an erroneous instruction harmless if we “conclude[] beyond a
reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence.” Neder, 527 U.S. at 17.
Under the second, in cases where the defendant has contested the
omitted element, we ask “whether the record contains evidence
that could rationally lead to a contrary finding with respect to
that omitted element. If not, then the error was harmless. If
so, however, reversal is necessary.” Ramos-Cruz, 667 F.3d at
496 (internal quotation marks and citations omitted).
The omitted issue in this case is whether Appellant
sent the e-mail charged in Count II of the indictment for the
purpose of issuing a threat, with the knowledge that the
16
communication would be viewed as a threat, or (perhaps) with
reckless disregard that the e-mail would be perceived as
threatening. 3 Appellant did not suggest that he sent any of the
e-mails in question as a joke, nor did he testify that he was
simply blowing off steam. Instead, he contested the issue of
intent, at best and if at all, only implicitly -- by denying
that he sent the e-mails. The jury, however, resoundingly
rejected that theory. Thus, the jury having concluded beyond a
reasonable doubt that Appellant sent the e-mails, we are left to
consider only whether the contents of the Count II e-mail, in
the absence of any alternative explanation from Appellant, would
permit a jury to rationally find that Appellant did not intend
the message as a threat or know it would be received as a
threat. We think no rational jury could reach that conclusion.
We acknowledge that appellate courts are ill-equipped
to “evaluate states of mind based on a cold record.” See
Houston, 792 F.3d at 669. And we appreciate that, in many
threat cases, the question of intent will be far from clear,
even where it is undisputed that the defendant transmitted the
communication and the message itself contains harsh and
3
The Supreme Court in Elonis declined to decide whether
§ 875(c) requires a defendant to act with purpose, knowledge, or
recklessness. We similarly need not reach the issue because,
for the reasons that follow, we believe no jury could reasonably
conclude that Appellant’s conduct was anything but purposeful.
17
inflammatory language. In Elonis, for example, the defendant
posted threatening language on his own Facebook page with
disclaimers that the posts were rap lyrics, suggesting that they
may have been created for personal, therapeutic, rather than
malevolent, reasons. See 135 S. Ct. at 2004-05. Similarly, the
Sixth Circuit recently declined to find harmless error in a
§ 875(c) prosecution where a defendant threatened his lawyer in
a call to a relative, rather than to the lawyer himself, because
the circumstances of the call made it plausible that the
defendant was simply “venting his frustration to a trusted
confidante rather than issuing a public death threat to
another.” See Houston, 792 F.3d at 667-68.
But this case, and the message at issue, give rise to
no comparably reasonable competing inferences. The jury found
that Appellant sent the e-mail constituting Count II directly to
MW, the intended recipient. And the language used -- “you are
going to have the living shit beat out of you -- to start with”
-- was direct and declarative, not circumspect or hypothetical.
Appellant offered no other explanation for the message. And in
his contemporaneous conversations with Gnos, he explained his
desire to scare MW into resuming the alimony payments.
“In many cases, the predicate facts conclusively
establish intent, so that no rational jury could find that the
defendant committed the relevant criminal act but did not intend
18
to cause injury.” Pope v. Illinois, 481 U.S. 497, 503 (1987)
(internal quotation marks omitted). That holds true here.
Accordingly, because the record contains no evidence that could
rationally lead a jury to conclude that the sender of the Count
II e-mail intended to do anything other than threaten the
recipient, and because the jury concluded beyond a reasonable
doubt that Appellant was indeed the sender, the district court’s
instructional error was harmless.
B.
Section 875(b)
We now turn to Appellant’s three § 875(b) convictions.
Like § 875(c), that statute prohibits the transmission in
interstate or foreign commerce of threats to kidnap or injure.
But, as noted, § 875(b) also requires the threatening
communication to be sent “with intent to extort from any person,
firm, association, or corporation, any money or other thing of
value[.]” 18 U.S.C. § 875(b). Appellant maintains the district
court erred by failing to instruct the jury, consistent with
Elonis, that he intended the e-mails charged in Counts I, III,
and IV as extortionate threats, or knew or recklessly
disregarded that those e-mails would be perceived as
extortionate threats. He also claims the indictment should have
been dismissed because he could not have intended to “extort”
from MW alimony payments to which he was legally entitled. The
19
meaning of “intent to extort,” however, forecloses both
arguments.
1.
Section 875 does not define “intent to extort” or even
the term “extortion.” See United States v. Coss, 677 F.3d 278,
283-84 (6th Cir. 2012) (“The precise meaning of ‘extort’ . . .
in the context of 18 U.S.C. § 875(d) is an issue of first
impression in the Sixth Circuit.”); United States v. Jackson,
180 F.3d 55, 65 (2d Cir. 1999) (noting that § 875(d) “does not
define the terms ‘extort’ or ‘intent to extort’”). However, two
of our sister circuits have persuasively reasoned, and we agree,
that § 875 employs “the traditional concept of extortion, which
includes an element of wrongfulness.” Jackson, 180 F.3d 55, 70-
71 (2d Cir. 1999); Coss, 677 F.3d 278, 285 (6th Cir. 2012)
(importing into § 875 “the broader concept of extortion, which
carries with it the use of a wrongful threat to procure
something of value” (emphasis in original)).
Incorporating this understanding, we hold that the
intent to extort for purposes of § 875(b) is the intent to
procure something of value through the use of a wrongful threat
to kidnap or injure the person of another. Such a threat is
wrongful when delivered intentionally. Cf. Elonis, 135 S. Ct.
at 2012-13. But this helps Appellant not at all, because it
would be passing strange, indeed impossible, for a defendant to
20
intend to obtain something by communicating such a threat
without also intending, understanding, or, possibly, recklessly
disregarding that the communication would be perceived as
threatening, as Elonis requires. The reason is straightforward:
Extortion only works if the recipient of the communication fears
that not paying will invite an unsavory result. Thus, to intend
to extort one must necessarily intend to instill fear of harm
(for purposes of § 875(b), in the form of kidnapping or physical
injury). Cf., e.g., United States v. Marsh, 26 F.3d 1496, 1500-
01 (9th Cir. 1994) (“For attempted extortion, . . . the victim’s
state of mind is not important. What is important is that the
defendant attempted to instill fear in the victim.”) (internal
quotation marks omitted)); United States v. Frazier, 560 F.2d
884, 887 (8th Cir. 1977) (“Proof of an attempt to arouse fear is
sufficient proof of an attempted extortion under the Hobbs
Act.”). In other words, the intent to carry out an unlawful act
by use of a threat necessarily subsumes the intent to threaten.
The Ninth Circuit’s decision in United States v.
Stewart, 420 F.3d 1007 (2005), illustrates well the principle we
have just articulated. There the court considered whether 18
U.S.C. § 115(a)(1)(B) -- which makes it a crime to threaten
certain federal officials with the intent to impede, intimidate,
interfere with, or retaliate against the official in the
performance of his or her duties -- requires proof that the
21
defendant subjectively intended his words to be threatening. As
the court explained, “proof that the speaker intended the speech
to impede, intimidate, interfere with, or retaliate against the
protected official” necessarily includes the subjective intent
to threaten, because “one cannot have the intent” to impede,
intimidate, interfere, or retaliate through the use of a threat
“without also intending to make the threat.” See id. at 1017,
1019. Likewise, here, we conclude that one cannot have the
intent to scare someone into relinquishing property or something
of value by communicating a wrongful threat to kidnap or injure
without also intending the communication to be threatening.
The district court’s instruction sufficiently captured
this concept. As the court explained, to convict Appellant
pursuant to § 875(b), the jury was required to find that he
acted “with intent to . . . wrongfully induce someone to pay
money or something of value by threatening to injure that person
if such payment is not made.” J.A. 1076. Accordingly, because
the charge required the jury to find that Appellant intended to
threaten MW to induce her to pay the disputed alimony, we find
no error in the instruction.
2.
Appellant’s remaining argument -- that he could not
have intended to extort MW because he had a “claim of right” to
the alimony payments -- is similarly unavailing. As we have now
22
said, the question is whether Appellant intended to procure
something of value from MW through the use of a wrongful threat
to kidnap or injure. The key word is “wrongful.”
Appellant’s argument is that it is not wrongful to
demand money one is rightfully owed. There are situations where
that may well be true. In extortion cases under the Hobbs Act,
for example, courts have held “a defendant cannot be found
guilty of wrongfully obtaining property through the use of a
legitimate economic threat if he has a claim of right to the
property.” See, e.g., United States v. Sturm, 870 F.2d 769, 773
(1st Cir. 1989) (emphasis supplied). Instead, “the use of
legitimate economic threats to obtain property is wrongful only
if the defendant has no claim of right to that property.” Id.(footnote omitted).
But this case involves threats of violence, not
“legitimate economic threats.” And, outside the context of
labor relations, 4 the “claim of right” defense is inapplicable in
4
In United States v. Enmons, 410 U.S. 396, 401-08 (1973),
the Supreme Court held that the Hobbs Act does not prohibit the
use of force (specifically, strike violence) to achieve
legitimate goals in labor negotiations. But courts have
uniformly limited Enmons to the labor context. See, e.g.,
Levitt v. Yelp! Inc., 765 F.3d 1123, 1131 (9th Cir. 2014) (“As
to violent threats, we have declined to extend Enmons beyond the
context of a labor dispute[.]” (internal quotation marks
omitted)); Rennell v. Rowe, 635 F.3d 1008, 1012 (7th Cir. 2011)
(“We have understood Enmons to be limited to the context of
organized labor.”); United States v. Markle, 628 F.3d 58, 62 (2d
(Continued)
23
Hobbs Act cases involving the use or threatened use of violence.
See, e.g., United States v. Villalobos, 748 F.3d 953, 956 (9th
Cir. 2014) (“[T]he claim of right defense . . . is unavailable
in cases involving physical violence . . . because such violence
is inherently wrongful.”). This is so, courts have explained,
because “Congress meant to punish as extortion” under the Hobbs
Act “any effort to obtain property by inherently wrongful means,
such as force or threats of force . . ., regardless of the
defendant’s claim of right to the property.” United States v.
Zappola, 677 F.2d 264, 268-69 (2d Cir. 1982) (emphasis
supplied).
It makes some sense, then, that the small number of
courts to incorporate the “claim of right” defense into their
understanding of § 875 have done so in the context of § 875(d),
which prohibits the transmission of extortionate threats to the
property or reputation of the recipient, rather than threats to
kidnap or injure. See 18 U.S.C. § 875(d). As with the Hobbs
Act cases, the defense has been limited in the § 875(d) context
to a narrow category of threats to reputation deemed not
“inherently wrongful.” In United States v. Jackson, for
example, the Second Circuit opined that it would not be wrongful
Cir. 2010) (“In this Circuit, we have declined to extend the
Enmons defense to non-labor cases.”).
24
for a club to threaten to publish the names of members with
delinquent accounts if the dues were indeed owing, or for a
consumer to register a public complaint about the quality of a
seller’s product if the product was actually defective. See 180
F.3d at 70-71 (“[I]f the club posts a list of members with
unpaid dues and its list is accurate, the dues generally will be
paid; if the consumer lodges her complaint and is right, she is
likely to receive her refund; and both matters are thereby
concluded.”). On the other hand, the Jackson court expressly
distinguished “extortionate threats to kidnap or to injure a
person,” explaining that such “conduct . . . plainly is
inherently wrongful.” Id. at 67; see also Coss, 677 F.3d at 284(quoting Jackson, 180 F.3d at 67). And no court has suggested,
as Appellant does, that such threats of physical violence would
cease to be wrongful simply because a legitimate debt is at
issue.
In sum, just as “you cannot beat someone up to collect
a debt, even if you believe he owes it to you,” United States v.
Castor, 937 F.2d 293, 299 (7th Cir. 1991) (internal quotation
marks omitted), it follows that a defendant may not threaten to
injure or kidnap a person to collect a debt, even one
legitimately due and owing. The indictment in this case alleged
that Appellant threatened to have MW beaten, hospitalized, or
subjected to some less specific violence. Accordingly, even
25
assuming MW owed Appellant the alimony payments he sought,
Appellant was not entitled to have the indictment against him
dismissed on the basis of his “claim of right” theory.
III.
Having resolved the legal framework, we now consider,
and reject, Appellant’s remaining objections to the proceedings
below.
A.
The Anonymous Jury
Appellant claims the district court erred by
empaneling an anonymous jury, a decision which we review for
abuse of discretion. See United States v. Hager, 721 F.3d 167,
186 (4th Cir. 2013).
A district court should rarely empanel an anonymous
jury, but may do so if “(1) there is strong reason to conclude
that the jury needs protection from interference or harm, or
that the integrity of the jury’s function will be compromised
absent anonymity; and (2) reasonable safeguards have been
adopted to minimize the risk that the rights of the accused will
be infringed.” Hager, 721 F.3d at 186 (4th Cir. 2013) (quoting
United States v. Dinkins, 691 F.3d 358, 372 (4th Cir. 2012)).
In assessing the need to protect the jury and its
functions, a district court should consider several factors,
including: whether the defendant is involved in organized crime
26
or a member of some other group with the capacity to harm
jurors; whether he has previously attempted to interfere with
the judicial process; whether he is facing a lengthy sentence or
substantial fine; and whether extensive publicity makes it more
likely that the jury will be subjected to intimidation or
harassment. See Hager, 721 F.3d at 187. As is often true of
multi-factor tests, however, the list is not exhaustive and the
presence or absence of any of those is not dispositive. See id.
Here, the district court found Appellant’s criminal
history weighed heavily in favor of jury anonymity. As the
district court carefully explained, Appellant’s previous
convictions each “reflect his willingness to use threats or
personal information to intimidate persons involved in judicial
proceedings.” J.A. 145. For example, his 2010 conviction in
the Western District of Virginia involved threats intended to
influence, delay, or prevent the testimony of tenants involved
in an ongoing housing discrimination complaint. See United
States v. White, 670 F.3d 498, 501, 503-04 (4th Cir. 2012).
And, as the district court further observed, Appellant
had also previously been convicted in the Northern District of
Illinois “of soliciting the commission of a violent federal
offense” against a juror “in violation of 18 U.S.C. § 373.”
J.A. 146 (citing United States v. White, 698 F.3d 1005 (7th Cir.
2012)). In that case, Appellant authored an Internet post in
27
which he disclosed personal information about a juror who,
according to Appellant, “played a key role in convicting Matt
Hale,” a white supremacist. See United States v. White, 698
F.3d 1005, 1009-10 (7th Cir. 2012). The posting included a
picture of the juror and the juror’s address and telephone
numbers. See id. As the district court explained, Appellant
elsewhere on the same website expressed his view that
“[e]veryone associated with the Matt Hale trial has deserved
assassination for a long time[.]” J.A. 146 (internal quotation
marks and citation omitted).
We agree with the district court that Appellant’s
prior history of interfering with witnesses and a juror, and in
particular his use of the Internet to publicize a juror’s
personal information, strongly favored the use of an anonymous
jury. Appellant complains that the district court erred by
affording “dispositive weight” to this factor, but the district
court did not rest its decision solely on Appellant’s prior
history. As the district judge explained, he also found that
the possibility of a lengthy sentence under § 875(b) and the
considerable press attention to Appellant’s trial provided
additional support for the decision to empanel an anonymous
jury. We perceive no abuse of discretion in that decision.
Indeed, the Seventh Circuit upheld the use of an anonymous jury
in a case against Appellant based on the mere allegation that he
28
had posted the personal information of a juror on the Internet
and the existence of “some publicity” around the trial. See
United States v. White, 698 F.3d 1005, 1017 (7th Cir. 2012)
(emphasizing that Appellant was on trial for posting “the
personal contact information [] of a juror”).
The district court also satisfied its obligation to
adopt reasonable safeguards to protect Appellant’s right to a
fair trial. Most significantly, the district court told the
jurors they were being empaneled anonymously to prevent the
press from communicating with them during trial:
We’re not using this process to be
disrespectful to any of you. Instead, we
want to ensure that you will remain
anonymous so that you will not be contacted
by anyone in the media, and to ensure that
no outside information is communicated to
any juror throughout the jury selection
process and the trial. This is so that each
side can have a fair and impartial trial.
The fact that we are identifying you by
number should have no impact at all on the
presumption of innocence that the defendant
is entitled to, or any impact in any other
way as you consider and decide the case if
you were selected to serve on the jury.
J.A. 155. We have previously endorsed precisely such a
safeguard, and we find it appropriate here as well. See Hager,
721 F.3d at 188-89 (observing that a very similar explanation to
the jury was a sufficient “neutral non-prejudicial reason for
empaneling an anonymous jury”); see also United States v. White,
29
698 F.3d 1005, 1017 (7th Cir. 2012) (noting that any harm from
empaneling an anonymous jury would be rendered harmless where
the jury was told the measure was adopted “to ensure a fair and
impartial trial” and the court “did not mention security as a
reason”). Accordingly, the district court’s use of an anonymous
jury was not error.
B.
The Gnos Notes
Appellant also argues it was reversible error to admit
Gnos’s handwritten notes into evidence. We review evidentiary
rulings for an abuse of discretion, affording substantial
deference to the district court. See United States v. Medford,
661 F.3d 746, 751 (4th Cir. 2011).
The relevant portions of the notes, which were
admitted during Gnos’s direct examination by the prosecution,
read as follows:
OK- if Phone Call dont [sic] work – we will
have to have someone fuck her up!
***
find someone to talk to wife on [sic] go and
collect money –
J.A. 727-28. The Government concedes the notes are prior out-
of-court statements, but argues they were admissible under
Federal Rule of Evidence 803(1)’s exception for present-sense-
impressions. Appellant aptly points out that the Government
30
failed to offer that rationale for the notes’ admissibility at
trial. But we need not resolve the issue because, even assuming
the notes are inadmissible hearsay, we agree with the
Government’s alternative contention that any error in admitting
them was ultimately harmless.
“A nonconstitutional error ceases to be harmless if it
had a substantial and injurious effect or influence in
determining the jury’s verdict.” United States v. Briley, 770
F.3d 267, 276 (4th Cir. 2014) (internal quotation marks
omitted). “We do not reverse evidentiary rulings for
inconsequential technicalities. Rather, reversal is reserved
for more serious errors that affect substantial rights or that
directly affect the outcome of a case.” Id. (internal quotation
marks omitted).
In this case, the notes, if believed by the jury,
could have informed the jury’s consideration of two important
issues: whether Appellant authored the e-mails and whether
Appellant intended to extort money from MW. But the Government
properly introduced several audio recordings of Appellant making
nearly identical comments to Gnos on several occasions. And
those recordings demonstrated, in far more vibrant detail than
Gnos’s notes, that Appellant was preoccupied with finding
someone in Virginia willing to intimidate MW.
31
Appellant maintains that the strength of the
Government’s additional evidence is not dispositive. Fair
enough. But the closeness of the case, which will frequently
turn on the weight of the evidence, is clearly relevant to the
harmless error analysis. See Kotteakos v. United States, 328
U.S. 750, 763 (1946) (“Errors of this sort in criminal causes
conceivably may be altogether harmless in the face of other
clear evidence, although the same error might turn scales
otherwise level, as constantly appears in the application of the
policy . . . to questions of the admission of cumulative
evidence.”). And we have in the past held evidentiary errors
harmless where the Government’s case is strongly corroborated by
other admissible evidence. See Briley, 770 F.3d at 277-78
(observing that a “plethora of testimony established” the
elements of the charged offense and concluding the admission of
improper character evidence was harmless).
Ultimately, the question is whether we can say “with
fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the
[jurors’] judgment was not substantially swayed by the error.”
Kotteakos, 328 U.S. at 765. In this case, because the substance
of Gnos’s notes was repeatedly corroborated by Appellant’s own
later-recorded statements, we are confident any error in
admitting the notes did not affect the outcome of the case. See
32
United States v. Mazza, 792 F.2d 1210, 1216-22 (1st Cir. 1986)
(Breyer, J.) (holding hearsay admission harmless where recorded
conversations largely corroborated out-of-court statements).
C.
The Sufficiency of the Evidence
We next turn to Appellant’s claim that he was entitled
to a judgment of acquittal, a question which we review de novo.
See United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014).
The question is whether, “viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). Under that standard, we think a rational trier of fact
could easily have found that Appellant sent MW true threats of
bodily harm through foreign commerce with the intent to extort.
The district court therefore properly denied the motion.
1.
Respecting the “true threat” requirement, the question
-- which remains unchanged following Elonis -- is whether “a
reasonable recipient familiar with the context” would consider
the communicated statement “a serious expression of an intent to
do harm.” United States v. White, 670 F.3d 498, 509 (4th Cir.
2012) (internal quotation marks and emphasis omitted).
33
In the case at hand, we have an estranged wife on the
outs with her fugitive husband with whom she was engaged in a
dispute over money. The e-mails comprising Counts I, III, and
IV explained (either explicitly or implicitly) that the sender
had been in contact with a loan shark who lived near the
recipient, and advised the recipient to be ready to remit
payment or risk, respectively, having someone “beat [her] ass,”
“probably be[ing] hospitalized,” or having “something violent
potentially happen[] to [her] around [her] baby.” J.A. 717-25.
As for the e-mail constituting Count II, it similarly warned the
recipient that she would “have the living shit beat out of
[her]-- to start with,” and that the sender had “a lot of
friends who think nothing of taking out on [her] the things” she
allegedly did to the sender. J.A. 721. By any measure, a
reasonable person would have interpreted those messages as a
serious expression of an intent to do harm. See White, 670 F.3d
at 513 (holding that a caller’s message that recipient would be
“hunted down and shot” was a true threat).
2.
Whether Appellant sent the e-mails and whether they
traveled in foreign commerce are overlapping questions. There
is no dispute Appellant was in Mexico and MW in Virginia when
the e-mails were sent; if he sent them, the foreign commerce
element is clearly satisfied. And the jury heard more than
34
enough evidence to find, beyond a reasonable doubt, that
Appellant was indeed the author of each charged e-mail. To
begin with, the e-mails originated from an e-mail address long
associated with Appellant. They were also sent from an IP
address that had been masked through the use of an anonymizer,
technology which Appellant bragged to Gnos and on Facebook about
using. Moreover, the e-mails were sent around the same time
that someone using the same IP address was updating Appellant’s
Facebook page. Appellant flatly denied sending the e-mails,
but, given the evidence just discussed, a rational trier of fact
would have been justified in discounting his testimony. See
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc) (We “remain cognizant . . . that the [j]ury, not the
reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented.” (internal
quotation marks omitted)).
3.
Finally, to demonstrate that Appellant sent each e-
mail with the intent to extort, the Government was obliged to
show Appellant intended to induce MW to pay him by wrongfully
threatening her with bodily injury if she did not. The jury
heard Appellant repeatedly emphasize to Gnos the importance of
finding someone to lean on MW. And each of the e-mails
comprising Counts I, III, and IV specifically demands money from
35
the recipient, and threatens violence if the money is not paid.
A rational jury could easily have found that the sender of those
messages intended to express exactly what those words mean --
the quintessential extortionate demand: “pay up, or else.” That
Appellant also contemporaneously discussed his plans to
intimidate MW into paying the alimony only crystalized his
evident intent to extort her. Accordingly, the district court
did not err in denying Appellant’s motion for judgment of
acquittal. 5
5Whether the district court erred in denying the motion for
judgment of acquittal as to Count II is almost nearly moot
inasmuch as the jury implicitly acquitted Appellant of violating
§ 875(b) on that count, finding him guilty only of violating
§ 875(c). And, even assuming the jury reached the correct
verdict on Count II, Appellant was not entitled to a judgment of
acquittal on the lesser-included offense because, as discussed
above, a rational trier of fact could have found each of the
elements of a § 875(c) offense, as it existed prior to Elonis,
satisfied beyond a reasonable doubt. See United States v. Wood,
207 F.3d 1222, 1229 (10th Cir. 2000) (“When ruling on a motion
for judgment of acquittal, a district court should consider not
only whether the evidence would be sufficient to sustain a
conviction of the offense charged, but also whether it would be
sufficient to sustain a conviction on a lesser included
offense.”); see also United States v. Ellyson, 326 F.3d 522,
532-33 (4th Cir. 2003) (declining to issue judgment of acquittal
in case involving erroneous jury instructions because, “[u]nder
circuit law at the time of trial, the Government presented more
than sufficient evidence to support a guilty verdict”); United
States v. Houston, 792 F.3d 663, 670-71 (6th Cir. 2015) (“Do we
measure the sufficiency of the evidence to convict . . . under
the wrong instruction (what was given) or the right one (what
would otherwise be given on remand)? Oddly enough, it is the
wrong instruction, at least when the instructions omit or
inaccurately describe an element of the offense.”).
36
D.
The Reasonableness of the Sentence
Finally, we consider Appellant’s three challenges to
his sentence. “We review the reasonableness of a sentencing
decision under an abuse of discretion standard.” United States
v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).
1.
Appellant first asserts the district court erred in
applying the two-level enhancement for obstruction of justice,
rendering his sentence procedurally unreasonable. “There are
three elements necessary to impose a two-level enhancement for
obstruction of justice based on the defendant’s perjurious
testimony: the sentencing court must find that the defendant (1)
gave false testimony; (2) concerning a material matter; (3) with
willful intent to deceive.” United States v. Perez, 661 F.3d
189, 192 (4th Cir. 2011) (internal quotation marks omitted).
“[I]t is preferable for a district court to address each element
of the alleged perjury in a separate and clear finding. It is
enough, however, if the court makes a finding of an obstruction
of, or impediment to, justice that encompasses all of the
factual predicates for a finding of perjury.” Id. at 193(internal quotation marks and citation omitted).
Appellant testified at trial that he did not send the
threatening e-mails to MW and suggested instead that Gnos was
37
the responsible party. The jury, inasmuch as it found him
guilty, clearly rejected Appellant’s alternative theory of the
crime. At sentencing the district court denied Appellant’s
objection to the two-level enhancement. The court explained:
Well, I have heard the evidence before a
jury. I think there was ample evidence for
the jury to have found like it did. I think
when you took the stand and testified, I
can’t imagine you not knowing what you had
done. I think that was to obstruct justice;
maybe get the jury to think that someone
else other than you did it.
J.A. 1139. Although not as explicit as ideal, the district
court provided a sufficient basis for imposing the two-level
enhancement. The observation that the jury rejected Appellant’s
testimony, and the court’s comment that it could “not imagine”
Appellant was unaware of sending the e-mails when he testified,
established falsity and willfulness. See J.A. 1139. And the
issue of who authored the e-mails, which Appellant attempted to
muddy by falsely implicating Gnos, was plainly material.
Accordingly, the district court did not err in applying the two-
level enhancement.
2.
Next, Appellant claims his sentence is substantively
unreasonable because the district court improperly considered
his political views. “Any sentence that is within or below a
properly calculated Guidelines range is presumptively
38
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014). Appellant bears the burden of convincing us that
his sentence was instead greater than necessary to provide just
punishment, promote respect for the law, reflect the seriousness
of the offense, adequately deter similar criminal conduct,
protect the public, and provide necessary rehabilitation. See
18 U.S.C. § 3553(a); see also Louthian, 756 F.3d at 306
(observing that the presumption that a within-Guidelines
sentence is reasonable “can be rebutted only by showing that the
sentence is unreasonable when measured against the . . .
§ 3553(a) factors.”).
Here, the district court imposed a 92-month sentence
at the bottom of the Guidelines range. Appellant argues the
sentence was nevertheless “greater than necessary” because it
was improperly based on his unpopular political views. He
relies on two statements from the bench during the sentencing
hearing. In the first, the district court noted its concern
that “the Government [wa]s trying to punish [Appellant] for
[his] beliefs,” or “largely because of [his] beliefs.” J.A.
1140-41. In the second, the district court observed that it was
“bothered . . . a little bit” that the Guidelines range was “a
little high because of [Appellant’s] beliefs,” but ultimately
denied Appellant’s request for a downward departure because his
offense was “serious,” and because MW “would have been very
39
apprehensive about” receiving the threats Appellant was
convicted of sending. See id. at 1145.
Appellant reads too much into these remarks. The
district court immediately rebuked the Government when the
prosecutor attempted to argue that some of Appellant’s
politically controversial writings showed a lack of respect for
the law. The court explained that Appellant “has a
constitutional right to believe what he believes,” and reminded
the Government that it “[c]an’t punish him for that.” J.A.
1136-37.
In sum, we think the most that can be inferred from
the sentencing transcript is that the district court was
concerned by the potential that Appellant had been singled out
for prosecution and so selected a sentence at the bottom of the
Guidelines range. But the district court also acknowledged that
Appellant’s words nevertheless constituted serious threats that
negatively impacted MW, making departure below the Guidelines
range inappropriate. We find no error in this approach.
3.
Finally, Appellant contends that the district court
erred by failing to group his counts of conviction under § 3D1.2
of the Guidelines. Because he did not raise the grouping issue
until his reply brief in this court, he acknowledges that plain
error review is appropriate. “To satisfy plain error review,
40
the defendant must establish that: (1) there is a sentencing
error; (2) the error is plain; and (3) the error affects his
substantial rights.” United States v. Aplicano-Oyuela, 792 F.3d
416, 422 (4th Cir. 2015). “If the three-part plain error test
is satisfied, we must decide whether to cure the error, and
should not do so unless the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted).
Appellant’s PSR stated that his convictions were not
subject to grouping pursuant to § 3D1.2(d) of the Guidelines.
That is a correct statement of § 3D1.2(d). But Appellant
maintains it was nevertheless plain error not to group his
offenses under § 3D1.2(a) or (b) and that the probation officer
and district court (along with the parties’ counsel) plainly
misinterpreted Subsection (d) as a blanket or overriding bar
against grouping under Subsection (a) or (b).
Several courts have made clear that offenses excluded
from grouping under Subsection (d) may nevertheless be grouped
pursuant to Subsection (a) or (b). See, e.g., United States v.
Lopez-Urbina, 434 F.3d 750, 764 (5th Cir. 2005); United States
v. Tank, 200 F.3d 627, 632 (9th Cir. 2000). But there is no
evidence in the sentencing transcript suggesting the court
interpreted Subsection (d) to absolutely bar grouping under any
41
circumstances. Nor was it plainly erroneous for the district
court to decline to group Appellant’s offenses pursuant
Subsection (a) or (b). In fact, though we need not definitively
resolve the question, the Application Notes to those Subsections
could be plausibly read to suggest Appellant’s offenses were not
subject to grouping. For example, respecting Subsection (a),
Comment 3 states:
(5) The defendant is convicted of three
counts of unlawfully bringing aliens into
the United States, all counts arising out of
a single incident. The three counts are to
be grouped together. But: (6) The defendant
is convicted of two counts of assault on a
federal officer for shooting at the officer
on two separate days. The counts are not to
be grouped together.
See U.S.S.G. § 3D1.2 cmt. 3. The commentary and explanations
explicating Subsection (b) contain a similar distinction:
(2) The defendant is convicted of two counts
of mail fraud and one count of wire fraud,
each in furtherance of a single fraudulent
scheme. The counts are to be grouped
together, even if the mailings and telephone
call occurred on different days. . . . .
But: (5) The defendant is convicted of two
counts of rape for raping the same person on
different days. The counts are not to be
grouped together.
See id. § 3D1.2 cmt. 4. And the Application Notes further
provide that Subsection (b) “does not authorize the grouping of
offenses that cannot be considered to represent essentially one
composite harm (e.g., robbery of the same victim on different
42
occasions involves multiple, separate instances of fear and risk
of harm, not one composite harm).” Id. Given that each of
Appellant’s threats against MW involved “separate instances of
fear and risk of harm,” the district court did not plainly err
by categorizing “[e]ach message []as a separate offense,” J.A.
1132, and declining to group them.
In support of his argument, Appellant points to United
States v. Thomas, 155 F.3d 833, 840 (7th Cir. 1998), in which
the court remanded for consideration of the grouping question
with respect to multiple § 876 convictions. But in doing so the
Thomas court relied on Application Note 3 of § 2A6.1 of the
Guidelines, which specifically provides that “multiple counts
involving making a threatening or harassing communication to the
same victim are grouped together under [sect] 3D1.2[.]”
U.S.S.G. § 2A6.1 cmt. 3 (emphasis supplied). By contrast,
Appellant’s § 875(b) offenses fall under Guideline § 2B3.2 which
says nothing about grouping; only his lone § 875(c) conviction
is covered by § 2A6.1. Accordingly, given that the Application
Notes to § 3D1.2 do not unambiguously direct grouping of
§ 875(b) offenses pursuant to Subsection (a) or (b), the
district court did not plainly err by failing to do so.
IV.
A defendant is entitled to a fair trial, not a perfect
one. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
43
Here, Appellant received a fair trial, and we find no reason to
disturb the jury’s verdict or the district court’s sentence.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
44