United States v. Kyle McDonald

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5150
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KYLE MATTHEW MCDONALD,
Defendant – Appellant,
and
M.J. WOODS,
Party-in-Interest.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cr-00029-JCC-1)
Submitted: August 18, 2011 Decided: August 30, 2011
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James S. Abrenio, Peter D. Greenspun, GREENSPUN, SHAPIRO,
DAVIS & LEARY, P.C., Fairfax, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Morris R. Parker, Jr.,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kyle Matthew McDonald appeals his conviction and
thirty-month sentence for two counts of making threatening
communications in violation of 18 U.S.C. § 875(c) (2006). He
argues on appeal that the district court erred in granting the
Government’s motion to quash certain subpoenas, that
insufficient evidence supported his convictions, that the
district court erred in denying certain proposed jury
instructions, and that the court imposed an unreasonable
sentence. Finding no error, we affirm.
McDonald’s conviction stemmed from telephone
conversations he had with family members while serving a jail
term for repeated violations of a protective order. McDonald,
had been convicted of stalking in Virginia court for his conduct
toward his former girlfriend, Laura Chavez. In recorded phone
calls to his father, mother, and sister, he stated his intent to
harm or kill Chavez. He said, for example, that “[Chavez] is
right now on my death list. . . . The first thing I’m [doing]
when I get out of here is going after her.” He further stated
“I will mow people down. . . . Any one around her is going down
. . . I walk into her party, I’m taking out everyone at the
party.” Later, he told his father “I’m killing the b****. I
have offered so many good solutions and she . . . needs to admit
she did something wrong.” When he was warned by his father that
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he could get fifteen years of prison time for his statements,
McDonald responded, saying “fine, if I get fifteen more years,
when she has eight-year-old kids or nine-year-old kids and I
kill them too. So what.”
A jury convicted McDonald of making interstate threats
and he ultimately received a thirty-month sentence. This appeal
followed.
I. Motion to Quash Subpoenas
Prior to trial, McDonald filed subpoenas duces tecum
commanding Arlington County, Virginia, Detective M.J. Woods to
produce “any and all records, notes, files, memorandum and/or
documents in any form . . . regarding Kyle Mathew McDonald.” He
similarly filed a subpoena seeking the same information from the
Arlington County Witness/Victim Office. The Government moved to
quash both and the court granted the motion.
To compel production, the Supreme Court has required
that subpoenas cover (1) relevant evidentiary materials or
documents; (2) that are not otherwise procurable by exercise of
due diligence; (3) without which the party cannot properly
prepare for trial; and (4) which is not intended as a fishing
expedition. United States v. Nixon, 418 U.S. 683, 699-700
(1974). Stated more simply, Nixon requires that a party seeking
pretrial production of documents demonstrate (1) relevancy, (2)
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admissibility, and (3) specificity with respect to the
documents. In re Martin Marietta Corp., 856 F.2d 619, 621
(4th Cir. 1988). Additionally, Rule 17 subpoenas are not a
substitute for discovery. As the Supreme Court has emphasized,
“[i]t was not intended by Rule 16 to give a limited right of
discovery, and then by Rule 17 to give a right of discovery in
the broadest terms.” Bowman Dairy Co. v. United States, 341
U.S. 214, 220 (1951); see Nixon, 418 U.S. at 698.
We have reviewed the subpoenas in this case, and we
easily conclude that they are overbroad and unspecific. The
district court properly found that McDonald was using the
subpoenas to engage in a fishing expedition, and we find no
error in the court’s granting of the motion to quash.
II. Sufficiency of the Evidence
McDonald next argues that the evidence was not
sufficient to convict him of making true threats. We review de
novo challenges to the sufficiency of the evidence supporting a
jury verdict. United States v. Kelly, 510 F.3d 433, 440
(4th Cir. 2007). “A defendant challenging the sufficiency of
the evidence faces a heavy burden.” United States v. Foster,
507 F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of
the evidence challenge by determining whether, viewing the
evidence in the light most favorable to the government, any
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rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. United States v. Collins, 412
F.3d 515, 519 (4th Cir. 2005). We review both direct and
circumstantial evidence, and accord the government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008). In reviewing for sufficiency of the evidence,
we do not review the credibility of the witnesses, and assume
that the jury resolved all contradictions in the testimony in
favor of the government. Kelly, 510 F.3d at 440. We will
uphold the jury’s verdict if substantial evidence supports it,
and will reverse only in those rare cases of clear failure by
the prosecution. Foster, 507 F.3d at 244-45.
In order to prove a violation of 18 U.S.C. § 875(c),
“the government must establish that the defendant intended to
transmit the interstate communication and that the communication
contained a true threat.” United States v. Darby, 37 F.3d 1059,
1066 (4th Cir. 1994). The government need not show that the
speaker actually intended to carry out the threat. See
Virginia v. Black, 538 U.S. 343, 360 (2003); Darby, 37 F.3d at1064 n.3 (a violation of 18 U.S.C. § 875(c) is not a specific
intent crime and “the government need not prove intent (or
ability) to carry out the threat”).
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To determine whether a communication is a threat, the
communication must be viewed in the context in which it is
received. See Watts v. United States, 394 U.S. 705, 708 (1969)
(a statement that was made in jest in the context of a public
political debate, expressly conditioned on an event that would
never happen, is not a true threat); United States v. Spruill,
118 F.3d 221, 228 (4th Cir. 1997) (when considering whether a
statement is a threat, “[c]ontext is important”). The
expression must be viewed using an objective standard - that is,
whether “an ordinary, reasonable person who is familiar with the
context of the communication would interpret it as a threat of
injury.” United States v. Spring, 305 F.3d 276, 280
(4th Cir. 2002) (internal quotation marks and alterations
omitted); * Darby, 37 F.3d at 1064.
Here, we conclude that the jury properly found the
statements in question to be true threats. The statements were
not made in jest, nor were they communicated to a large
audience, or political in nature, or conditioned on an event
that would never happen. Accordingly, the court properly denied
*
McDonald concedes that a violation of § 875(c) is not a
specific intent crime based on the laws of this circuit.
Nevertheless, he argues that this court should alter its
standard and hold that a conviction under § 875(c) requires a
showing of specific intent. It is axiomatic that a panel of
this court may not overrule the holding of a prior panel. See
United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005).
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McDonald’s motions for judgment of acquittal and for a new
trial.
III. Jury Instructions
Next, McDonald argues that the court should have
granted his proposed jury instructions. He first claims that
the court should have instructed the jury that, if found not
guilty by reason of insanity, he would be committed to a mental
institution for treatment until he could show that he was no
longer a danger to the public. He also argues that the court
should have instructed the jury that making interstate threats
is a specific intent crime.
We review jury instructions in their entirety and as
part of the whole trial to determine whether the district court
adequately instructed the jury on the elements of the offense
and the accused’s defenses. See United States v. Bostian, 59
F.3d 474, 480 (4th Cir. 1995). Both the decision whether to
give a jury instruction and the content of that instruction are
reviewed for abuse of discretion. United States v. Passaro, 577
F.3d 207, 221 (4th Cir. 2009). The denial of a requested jury
instruction is reversible error only if the proposed instruction
“(1) was correct; (2) was not substantially covered by the
court’s charge to the jury; and (3) dealt with some point in the
trial so important, that failure to give the requested
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instruction seriously impaired the defendant’s ability to
conduct his defense.” Id. at 221 (internal quotation marks
omitted).
With respect to the instruction regarding the
consequences of a verdict of not guilty by reason of insanity,
we find no error. This court has never required such an
instruction, and such an instruction “invites [jurors] to ponder
matters that are not within their province, distracts them from
their factfinding responsibilities, and creates a strong
possibility of confusion.” Shannon v. United States, 512 U.S.
573, 579 (1994). Indeed, there was no suggestion in the record
that the jury believed that McDonald would be set free upon a
verdict of not guilty by reason of insanity.
Turning briefly to the instruction that a violation of
§ 875(c) is a specific intent crime, McDonald acknowledges that
his claim lacks support in the law of this circuit. A panel of
this court may not overrule the holding of a prior panel. See
Collins, 415 F.3d at 311. His claim therefore lacks merit.
IV. Sentencing
McDonald claims sentencing error in three respects: he
argues he should have received a downward adjustment for
accepting responsibility; that he should have received a
downward departure for diminished capacity; and that he should
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have received a downward departure because his criminal history
category (IV) substantially over-represents the seriousness of
his criminal history.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory Guideline Range, we must decide whether
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). Properly preserved claims of procedural error are
subject to harmless error review. Lynn, 592 F.3d at 576. If
the sentence is free of significant procedural error, we review
the substantive reasonableness of the sentence. Id. at 575;
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Initially, we conclude McDonald is not eligible for an
adjustment for accepting responsibility. He put the Government
to its burden of proof at trial, and although he claims on
appeal that he acknowledged his “factual” guilt, that claim
lacks support in the record. In addition to pleading insanity,
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McDonald tried to show that his words were merely acts of
frustration, and not truly threats. In other words, he did not
admit his guilt, and the adjustment is inappropriate.
We conclude the same with respect to his requests for
a downward adjustment for diminished capacity. The district
court specifically found that McDonald poses a risk to the
public because the offense involved a serious threat of
violence. We decline to disturb that finding, and in such
circumstances, the Guidelines do not permit a downward
adjustment for diminished capacity. See U.S. Sentencing
Guidelines Manual § 5K2.13 (2009).
Finally, we conclude that the district court did not
err in denying the request for a downward departure on the basis
of McDonald’s criminal history. The court concluded that
McDonald’s convictions were recent and serious. Specifically,
he was convicted of stalking and then had three subsequent
convictions for noncompliance with a restraining order. While
he was serving a term of imprisonment for those offenses, he
committed the instant offense. In these circumstances, we
decline to find error in the district court’s conclusion that
McDonald’s criminal history category did not over-represent the
seriousness of his criminal history.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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