United States v. Stewart

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 03-10662
v.
ROBERT D. STEWART, JR., aka  D.C. No.
CR-03-00061-HDM
Robert Wilson Stewart, Bob
OPINION
Stewart,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
December 7, 2004—San Francisco, California
Filed August 23, 2005
Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
11211
UNITED STATES v. STEWART 11215
COUNSEL
Thomas E. Haney, Esq., argued the cause for the appellant.
Patrick Schneider, Esq., Office of the U.S. Attorney, argued
the cause for the appellee; Paul Charlton, Michael T. Mor-
rissey, and Soo C. Song, Office of the U.S. Attorney, were
also on the brief.
OPINION
BEA, Circuit Judge:
We are asked to determine whether certain words, spoken
under certain circumstances, constitute criminal threats of
harm against a federal judge and are not protected by the First
Amendment. We are also asked to determine what quantum
of evidence the Government must present to establish that a
defendant, who solicited another person to murder a federal
judge, had the required criminal intent for the other person to
commit the murder.
FACTS
Robert D. Stewart, Jr. appeals his convictions and sentence
for threatening to murder a federal judge (Count 1), soliciting
the murder of a federal judge (Count 4), and making material
false statements to government agents investigating the
threats and solicitation (Counts 2 and 3).1 At trial, the Govern-
ment elicited the following testimony:
1
Count 1 alleged Stewart threatened to murder U.S. District Judge Ros-
lyn O. Silver, in violation of 18 U.S.C. § 115(a)(1)(B). Counts 2 and 3
11216 UNITED STATES v. STEWART
Informant August Weiss, an inmate at an Arizona federal
prison where Stewart was also incarcerated,2 approached Spe-
cial Investigative Agent Forrest Barton, who was stationed at
the prison. Weiss told Agent Barton “there was an older
inmate named Rob in his unit that was making some plans to
hurt some federal officials.” Agent Barton and Federal Bureau
of Investigation (“FBI”) Special Agent Mike Gallante met
with Weiss; Weiss identified “Rob” as Stewart.
Shortly after Stewart’s arrival at the prison, Stewart stated
to Weiss that “[FBI] agents should be like strung up on light
posts.” Weiss asked him if he was serious, and Stewart
responded, “[W]ell, it would be a nice thing.” Stewart also
asked Weiss if he “knew somebody that could have somebody
done away with.”
Stewart’s statements wavered between targeting FBI agents
or a judge, but then became specific: U.S. District Judge Ros-
lyn O. Silver, who had presided at Stewart’s earlier trial.
Weiss testified Stewart stated “he wanted to string the
motherfucker up and cut her throat, his throat, and make it
like a copycat so that people would do the same thing.”3 Stew-
art offered Weiss weapons and $100,000 as a reward if Weiss
alleged Stewart made material false statements to government agents on
November 13, 2002 and January 10, 2003, respectively, in violation of 18
U.S.C. § 1001(a)(2). Count 4 alleged Stewart solicited another person to
engage in a violent crime, to wit, to murder Judge Silver, in violation of
18 U.S.C. § 373(a).
2
At the time of these events, Stewart was incarcerated pursuant to his
earlier convictions for felony possession of firearms, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and unlawful possession of a machine gun,
in violation of 18 U.S.C. § 922(o). See United States v. Stewart, 348 F.3d
1132, 1134 (9th Cir. 2003), vacated and remanded, 125 S. Ct. 2899
(2005). Those earlier convictions are not at issue here.
3
Weiss understood the “copycat” comment to mean that the killing
“would make other extremists go around and start killing government
agents, judges, you know, all kinds of agents.”
UNITED STATES v. STEWART 11217
could arrange the killing. Stewart claimed the money would
come from the Aryan Brotherhood.
Weiss agreed with Agent Barton and Special Agent Gal-
lante to record secretly a conversation with Stewart, using a
hidden digital recorder provided by the FBI. Weiss met with
Stewart and recorded their conversation.4 During the meeting,
Stewart asked if Weiss “could do it,” meaning whether Weiss
could “do the hit.” Stewart offered weapons to be given as
compensation to Weiss’s brother-in-law to perform the hit
(Weiss had invented a fictitious brother-in-law who would do
the killing), and $100,000 to Weiss as a reward for arranging
the hit. Stewart stated his sister had access to the weapons and
could deliver them to Weiss’s brother-in-law. Stewart stated
the Aryan Brotherhood was also targeting the judge and
would contribute money “to go in on the hit,” and he again
mentioned the “copycat” murder strategy. Stewart then
described the victim as fifty-five years old, with blonde hair,
having the name of “Silver,” and located in Phoenix, Room
624. Weiss asked Stewart how he wanted the killing done,
and Stewart made a cutting motion with his finger across his
throat. After the meeting, Weiss immediately delivered the
recording to Agent Barton and Special Agent Gallante.
Special Agent Gallante then interviewed Stewart twice.
During the first interview, Special Agent Gallante told Stew-
art he had reason to believe Stewart was involved in a con-
spiracy to harm a federal judge. Stewart responded: “I’m not
involved in anything like that, and especially I wouldn’t want
to harm my judge, Judge Silver, because I’m appealing my
case . . . .” Special Agent Gallante asked Stewart whether he
said “anything that could even be misinterpreted as a threat to
a judge.” Stewart denied saying anything, but mentioned he
had overheard the Aryan Brotherhood “wanted to harm Judge
Silver because she had sentenced one of their associates.”
4
During the meeting, Agent Barton and Special Agent Gallante moni-
tored Weiss via the video security system installed in the prison.
11218 UNITED STATES v. STEWART
During the next interview, Special Agent Gallante again
asked Stewart whether he said “anything which could have
been misinterpreted by anyone regarding any threats to a
judge.” Stewart replied no, but stated Weiss had been asking
a lot of questions about his case, and Weiss had said “some-
thing about his brother coming here to do something.” Special
Agent Gallante then played the portion of the recording in
which Stewart identified Judge Silver and gave her physical
description and location. Stewart became “visibly upset” by
the recording. When Special Agent Gallante asked Stewart
what he was referring to in that conversation, Stewart had no
response. Over Stewart’s objection, the recordings were
played to the jury.
Judge Silver also testified for the Government. She pre-
sided over Stewart’s previous criminal trial, in which Stewart
was convicted and sentenced to prison for the federal firearm
offenses. Judge Silver testified that during the previous trial,
Stewart was initially respectful and polite, but as the trial
progressed, his demeanor turned to what Judge Silver
described as anger or “smoldering rage.” She testified Stew-
art’s change in demeanor was precipitated by her not permit-
ting Stewart to pursue a particular line of defense, i.e., that the
federal government had no jurisdiction or authority over
Stewart. Judge Silver stated she never received any threats
directly from Stewart but was so informed by the U.S. Mar-
shals Service and the FBI. She also stated that, at the time
Stewart spoke to Weiss, a reasonable description of her would
be fifty-six years old, female, with blonde hair, and that her
courtroom was on the sixth floor of the Phoenix courthouse,
room number 604 or 624.
Following the Government’s case-in-chief, Stewart brought
a motion for judgment of acquittal on all counts, which the
district court denied. Stewart then testified in his defense and
denied making any threats regarding Judge Silver or soliciting
her murder. Several character witnesses also testified Stewart
had a reputation for truthfulness. The jury then found Stewart
UNITED STATES v. STEWART 11219
guilty on all counts. The district court denied Stewart’s
renewed motion for judgment of acquittal and sentenced
Stewart to 60 months each on Counts 1, 2, and 3, to run con-
currently, and 232 months on Count 4, to run consecutively
to Counts 1, 2, and 3. Stewart timely appealed. We have juris-
diction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
DISCUSSION
Stewart raises multiple challenges to his convictions. We
address each in turn.
I. Multiplicity of the Indictment
As a preliminary matter, Stewart contends Counts 1 and 4
are multiplicitous, and thus that his convictions on both
counts violate the Double Jeopardy Clause. He makes the
same claims as to Counts 2 and 3. The district court rejected
both sets of claims in its denial of Stewart’s motion to dis-
miss.
[1] The claim that an indictment has resulted in multiplicit-
ous convictions is reviewed de novo. United States v. Vargas-
Castillo, 329 F.3d 715, 718-19 (9th Cir. 2003). An indictment
is multiplicitous when it charges multiple counts for a single
offense, producing two penalties for one crime and thus rais-
ing double jeopardy questions. Id. However, two counts
within an indictment are not multiplicitous if “each separately
violated statutory provision requires proof of an additional
fact which the other does not.” Id.; see United States v.
Stearns, 550 F.2d 1167, 1172 (9th Cir. 1977) (“Congress has
the power to establish that a single act constitutes more than
one offense, at least as long as each offense requires proof of
a fact the other does not.”). We turn to the first claim of “mul-
tiplicity.”
11220 UNITED STATES v. STEWART
A. Counts 1 and 4 — Threatening to murder a federal
judge, and soliciting another person to murder a
federal judge
Count 1 alleged Stewart threatened to murder Judge Silver
with the intent to impede, intimidate, or retaliate against her
on account of the performance of her official duties, in viola-
tion of 18 U.S.C. § 115(a)(1)(B). Section 115(a)(1) provides
in pertinent part:
Whoever . . . (B) threatens to assault, kidnap, or
murder . . . a United States judge . . . with intent to
impede, intimidate, or interfere with such . . . judge
. . . while engaged in the performance of official
duties, or with intent to retaliate against such . . .
judge . . . on account of the performance of official
duties, shall be punished . . . .
However, Count 4 alleged Stewart solicited another person
to murder Judge Silver, in violation of 18 U.S.C. § 373(a).
Section 373(a) provides in part:
Whoever, with intent that another person engage in
conduct constituting a felony that has as an element
the use, attempted use, or threatened use of physical
force against property or against the person of
another in violation of the laws of the United States,
and under circumstances strongly corroborative of
that intent, solicits, commands, induces, or otherwise
endeavors to persuade such other person to engage
in such conduct, shall be imprisoned . . . .
[2] Count 1 required proof Stewart threatened to murder
Judge Silver; the participation of Weiss was unnecessary. On
the other hand, Count 4 required proof Stewart solicited
Weiss to murder Judge Silver; proof Stewart made a threat
against her was unnecessary. Thus, both counts required proof
of a fact the other did not. Counts 1 and 4 are not multiplicit-
UNITED STATES v. STEWART 11221
ous; the district court properly denied Stewart’s motion to dis-
miss Count 1 or 4 on such ground.
B. Counts 2 and 3 — Making material false statements
to FBI agents
Stewart also argues Counts 2 and 3 are multiplicitous
because they derive from identical false statements he made
in response to identical questions from Special Agent Gal-
lante. 18 U.S.C. § 1001(a) provides in part: “[W]hoever, in
any matter within the jurisdiction of the executive, legislative,
or judicial branch of the Government of the United States,
knowingly and willfully— (2) makes any materially false, fic-
titious, or fraudulent statement or representation . . . shall be
fined . . . or imprisoned . . . .” Here, Stewart has a point.
[3] We have previously held that, under section 1001(a)(2),
“where identical false statements, in either oral or written
form, are made in response to identical questions, the declar-
ant may be convicted only once.” United States v. Olsowy,
836 F.2d 439, 443 (9th Cir. 1988). This is so because the rep-
etition of a false statement by a declarant does not further
impair the operations of the government beyond the initial
violation, and a contrary rule would permit the government to
pile on multiple convictions by repeatedly asking a declarant
the same question. Id. at 442-43. We later refined the Olsowy
holding into a two-element test. The government may charge
separate violations for identical false statements under section
1001(a)(2) if: (1) the declarant was asked the same question
and gave the same answer; and (2) the later false statement
further impaired the operations of the government. United
States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988).
A comparison of the two cases helps to illuminate our anal-
ysis. In Olsowy, the defendant received a Social Security
check, which was endorsed and cashed. 836 F.2d at 440. The
defendant later claimed he had never received the check. The
same government agent interviewed the defendant twice
11222 UNITED STATES v. STEWART
within a two-week span. The agent asked the defendant dur-
ing the first interview “whether he had received the check,”
and during the second interview, the agent stated he believed
the defendant had endorsed the check and filed a fraudulent
claim. Id. In both instances the defendant denied receiving the
check. Id. The defendant was later convicted of, inter alia,
two counts of making false statements in violation of section
1001(a)(2). Id. We reversed the conviction on one of the
counts, holding the defendant’s identical responses to identi-
cal questions, even though both false, allowed for indictment
on only one count. Id. at 443.
Unlike Olsowy, Salas-Camacho reached the opposite result.
There, the defendant was crossing the United States-Mexico
border. 859 F.2d at 789. He was asked by a primary customs
inspector whether he was bringing anything back with him
from Mexico. Id. The defendant answered “No.” Id. The pri-
mary inspector referred the defendant to a secondary inspector
who asked the defendant what he was bringing back from
Mexico. Id. The defendant replied he had nothing to declare.
Id. Through a computer search, the secondary investigator at
the border learned the defendant earlier had illegally imported
steroids. The defendant then admitted he had illegal steroids
in his truck. The defendant was convicted of, inter alia, two
counts of making false statements in violation of section
1001(a)(2). Id. We held the counts were not multiplicitous
because the defendant’s denial to the secondary inspector fur-
ther impaired the operations of the government. Id. at 791.
We reasoned both inspectors had different duties: the primary
inspector to make a preliminary determination whether an
entrant should be allowed over the border, and the secondary
inspector
to conduct a more searching examination, including,
as in this case, a computer search to determine any
prior violations. Both the primary and the secondary
customs inspectors, in making their respective deter-
minations and discharging their respective duties,
UNITED STATES v. STEWART 11223
rely on information obtained from the entrant.
Where, as here, the entrant makes a false statement
to both inspectors, the ability of both officials to
carry out their respective functions is impaired.
Id.
We agree with Stewart that the facts here are more like
Olsowy than Salas-Camacho. The same FBI agent asked
Stewart twice whether he had threatened a federal judge, and
Stewart made identical denials both times. Although Stewart
mentioned the Aryan Brotherhood during the first interview
and Weiss during the second interview, the FBI already had
that information by virtue of the recording and Weiss’s partic-
ipation.
[4] Special Agent Gallante’s testimony did not establish
any additional impairment to his investigation because of the
second interview. Special Agent Gallante testified that, after
the first interview, the government “had every man on alert”
in an attempt to thwart any attempt to harm Judge Silver.
After the second interview, the government interviewed Stew-
art’s family members to trace the weapons to be used as pay-
ment. But again, at the time of Stewart’s second denial, the
FBI already had the information leading to those areas of
investigation. Thus, it cannot be said Stewart’s second denial
“further impaired the operations of the government.” See id.
Hence, Counts 2 and 3 were indeed multiplicitous, and the
district court erred in not entering an acquittal on either Count
2 or 3. We therefore reverse Stewart’s conviction as to Count
3.
II. Sufficiency of the Evidence
Where a defendant moves for acquittal at the close of the
government’s evidence, we review de novo whether sufficient
evidence exists to support a guilty verdict. United States v.
Carranza, 289 F.3d 634, 641 (9th Cir. 2002). In reviewing for
11224 UNITED STATES v. STEWART
sufficiency of the evidence, we assess the evidence “ ‘in the
light most favorable to the prosecution,’ determining whether
‘any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.’ ” United
States v. Orozco-Santillan, 903 F.2d 1262, 1264 (9th Cir.
1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(emphasis in original). We “must respect the province of the
jury to ascertain the credibility of witnesses, resolve evidenti-
ary conflicts, and draw reasonable inferences from proven
facts, by assuming that the jury resolved all such matters in
a manner which supports the verdict.” Id.
A. Count 1 — Threatening to murder a federal judge
Stewart contends there is insufficient evidence to support
his conviction on Count 1 for threatening to kill Judge Silver.
Because Stewart’s threats were spoken words, he also claims
error through violation of his First Amendment rights.
To resolve Stewart’s claim, we undertake a two-step analy-
sis to assess the sufficiency of the evidence for convictions
regarding threats. First, we determine whether the verdict is
supported by sufficient evidence. See United States v. Hanna,
293 F.3d 1080, 1088 (9th Cir. 2002). If sufficient evidence is
found, we then review de novo “whether the facts as found by
the jury establish the core constitutional fact, in this case, a
‘true threat.’ ” Id.
1. Sufficiency of the evidence on Count 1
[5] Stewart’s conviction under 18 U.S.C. § 115(a)(1)(B)
required the Government to prove: (1) the defendant; (2)
threatened to murder; (3) a U.S. judge; (4) with the intent to
impede, intimidate, interfere with, or retaliate against that
judge; (5) on account of the judge’s performance of her offi-
cial duties. See Orozco-Santillan, 903 F.2d at 1265.
UNITED STATES v. STEWART 11225
[6] Here, there is sufficient evidence to support a rational
jury’s finding of guilt, beyond a reasonable doubt, that Stew-
art violated section 115(a)(1)(B). Stewart stated he wanted to
target a judge and “string the motherfucker up and cut her
throat, his throat, and make it like a copycat so that people
would do the same thing.”5 Stewart later identified Judge Sil-
ver as the target and provided Weiss with her physical
description and location. Stewart stated he would provide
weapons and money to have the deed done. The recording of
Stewart’s meeting with Weiss was played to the jury. It
allowed the jury to evaluate the tone of Stewart’s voice,
whether he was serious or joking, and the emphasis of the
threats.
[7] Further, Judge Silver testified she was a judge in the
federal court system, that she presided over Stewart’s earlier
trial which resulted in Stewart’s conviction for federal firearm
offenses, and that Stewart exhibited anger and “smoldering
rage” toward her during the trial. The anger was precipitated
by Judge Silver not permitting Stewart to pursue a particular
line of defense. Those facts are sufficient to establish the five
elements under section 115(a)(1)(B).
However, Stewart also argues section 115(a)(1)(B) requires
a defendant to communicate the threat directly to the intended
target, which concededly did not occur here. The district court
rejected this argument, finding the statute contained no such
requirement.6
[8] We agree with the district court for several reasons.
5
A threat under section 115(a)(1)(B) is defined as “an expression of an
intention to inflict evil, injury, or damage on another.” Orozco-Santillan,
903 F.2d at 1265. Stewart’s statement clearly constitutes a threat under
that definition.
6
The district court provided jury instructions stating in part: “To be a
threat, it is not necessary that statement be expressly communicated to the
object of the threat.”
11226 UNITED STATES v. STEWART
First, the statutory text of section 115(a)(1)(B) contains no
such requirement. The only criminal act required is for the
defendant to “threaten to assault, kidnap, or murder” one of
the enumerated officials. See 18 U.S.C. § 115(a)(1)(B).
[9] Second, we have previously suggested no such require-
ment is included in the statute. In United States v. Chase, 340
F.3d 978 (9th Cir. 2003) (en banc), we affirmed the defen-
dant’s conviction under section 115(a)(1)(B) for threatening
a federal law enforcement officer. Id. at 993. The defendant
discovered the FBI was about to execute a search warrant at
his home, and he told a telephone operator at his psychiatrist’s
office that “there are FBI Marshals that are on their way out
to get me and if that happens, people are going to die.” Id. at
980. We did not discuss whether section 115(a)(1)(B)
required a direct threat to the proposed target. Yet we favor-
ably cited a portion of the earlier three-judge panel opinion,
id. at 992-93, which had approvingly quoted from the district
court’s jury instruction that “[i]t is not required that the defen-
dant communicate the alleged threats to the objects of the
alleged threats.” United States v. Chase, 301 F.3d 1019, 1030-
31 (9th Cir. 2002) (three-judge panel opinion).
[10] Third, other circuits to have considered this issue also
have not required as an element that the defendant communi-
cate the threat directly to the intended target. See United
States v. Martin, 163 F.3d 1212, 1215-18 (10th Cir. 1998)
(affirming the defendant’s conviction for threatening a law
enforcement officer even though the threats were only heard
by the defendant’s associate (who recorded the threats and
reported them to law enforcement), and holding that the
threats did not have to be directed to the target but only had
to be received by a third party); United States v. Raymer, 876
F.2d 383, 391 (5th Cir. 1989) (affirming the defendant’s con-
viction on two counts of threatening a federal probation offi-
cer even though the officer never directly received the threats,
and holding that actual receipt of the threats by the proposed
target was not required under the statute).
UNITED STATES v. STEWART 11227
[11] We see no reason to insert a requirement into the stat-
ute that Congress did not insert itself. Accordingly, we hold
that, under 18 U.S.C. § 115(a)(1)(B), a defendant need not
communicate the threat directly to the intended target for a
conviction under the statute; receipt of the threat only by a
third party is sufficient, assuming the First Amendment
requirements discussed below are also satisfied.
2. “True threats” for purposes of the First
Amendment
[12] A core purpose of the First Amendment “is to allow
‘free trade in ideas’ — even ideas that the overwhelming
majority of people might find distasteful or discomforting.”
Virginia v. Black, 538 U.S. 343, 358 (2003). Yet the First
Amendment does not provide absolute protection to all types
of expression; notable for our purposes here, the First Amend-
ment does not protect so-called “true threats.” Id. at 359.
[13] In defining a “true threat,” our precedent has generally
called for application of an objective test. That is, a statement
is a “true threat” if “a reasonable person would foresee that
the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of
intent to harm or assault.” Planned Parenthood of the
Columbia/Willamette, Inc. v. American Coalition of Life
Activists, 290 F.3d 1058, 1074 (9th Cir. 2002) (en banc)
(quoting Orozco-Santillan, 903 F.2d at 1265). We have uti-
lized some form of that objective test for over thirty years. See
Roy v. United States, 416 F.2d 874 (9th Cir. 1969) (holding
that for purposes of 18 U.S.C. § 871, which proscribes threats
made against the President, a threat is a “true threat” if “a rea-
sonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the
statement as a serious expression of an intention to inflict
bodily harm upon or to take the life of the President . . . .”).
[14] Yet in United States v. Cassel, 408 F.3d 622 (9th Cir.
2005), our holding suggested the objective “true threat” defi-
11228 UNITED STATES v. STEWART
nition was no longer tenable in light of Black. We observed
that, in Black, the U.S. Supreme Court defined “true threats”
as “those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of indi-
viduals.” Id. at 631 (quoting Black, 538 U.S. at 359-60). We
construed Black’s definition of a “true threat” to “embrace[ ]
not only the requirement that the communication itself be
intentional, but also the requirement that the speaker intend
for his language to threaten the victim.” Id. (emphasis in orig-
inal). We observed Black’s definition was “in tension” with
our earlier holdings applying the objective “true threat” defi-
nition, but concluded Black was irreconcilable with those ear-
lier cases and thus Black’s definition must control. Id. at 633.
Accordingly we held that “speech may be deemed unpro-
tected by the First Amendment as a ‘true threat’ only upon
proof that the speaker subjectively intended the speech as a
threat.” Id.
Cassel stated, however, that it did not address “the question
of what effect our holding has on other specific statutes that
we have previously held do not require the government to
prove subjective intent.” Id. at 633 n.8. 18 U.S.C.
§ 115(a)(1)(B) is such a statute. As noted, in Orozco-
Santillan, we held the objective “true threat” definition
applies in evaluating threats under section 115(a)(1)(B). Yet
we decided Orozco-Santillan in 1990, before the U.S.
Supreme Court’s decision in Black in 2003, which raises the
question whether Black’s subjective “true threat” definition
sub silentio overruled the objective “true threat” definition
used by Orozco-Santillan for purposes of section
115(a)(1)(B). See Cassel, 408 F.3d at 633.
Moreover, by its express language, section 115(a)(1)(B)
contains a specific intent element: it punishes only threats
made regarding enumerated officials with the intent to
impede, intimidate, interfere with, or retaliate against such
officials on account of the officials’ performance of official
UNITED STATES v. STEWART 11229
duties. Thus, a conviction under that statute could only be had
upon proof that the speaker intended the speech to impede,
intimidate, interfere with, or retaliate against the protected
official. Such proof would seem to subsume the subjective
“true threat” definition announced in Black and recognized by
Cassel; one cannot have the intent required under section
115(a)(1)(B) without also intending to make the threat. See id.
at 632 (stating that Black’s holding “thus affirms our own
dictum—not always adhered to in our cases—that ‘the ele-
ment of intent is the determinative factor separating protected
expression from unprotected criminal behavior.’ ” (quoting
United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987))
(internal alteration omitted)).7
[15] Resolution of the issue whether to apply the objective
or subjective “true threat” definition for purposes of section
115(a)(1)(B) is further complicated by our recent decision in
United States v. Romo, No. 04-30131, 2005 WL 1560266 (9th
Cir. July 5, 2005). There, in affirming the defendant’s convic-
tion under 18 U.S.C. § 871(a), we applied an objective defini-
tion to determine whether the defendant’s statement that he
wanted to “put a bullet in the President’s head” was a “true
threat.” Id. at *6. In a footnote, we stated:
The recent decision in United States v. Cassel, 408
F.3d 622 (9th Cir. 2005), does not change our view.
Cassel leaves untouched the reasonable person anal-
ysis for presidential threats because it did not address
whether statutes like 18 U.S.C. § 871(a) require
intent. Because Romo has not raised First Amend-
ment issues and Cassel does not alter the analysis of
7
Indeed, in Cassel, we considered 18 U.S.C. § 1860, which punishes,
inter alia, “[w]hoever, by intimidation . . . hinders, prevents, or attempts
to hinder or prevent, any person from bidding upon or purchasing any tract
of” federal land at public sale. After recognizing that “intent to threaten
is a constitutionally necessary element of a statute punishing threats,” we
construed section 1860 to require such intent to save the statute from
unconstitutionality. Cassel, 408 F.3d at 634-35.
11230 UNITED STATES v. STEWART
presidential threats, we employ the decades-old
approach to analyzing threats under 18 U.S.C.
§ 871(a).
Romo, 2005 WL 1560266, at *6 n.6 (internal citations omit-
ted).
[16] We are not fully convinced that Romo properly distin-
guished Cassel, or that Romo’s continued use of the objective
“true threat” definition is consistent with Black’s subjective
“true threat” definition. Nonetheless, we need not decide
whether the objective or subjective “true threat” definition
should apply here.8 That is because the evidence establishes
that Stewart’s statement was a “true threat” under either defi-
nition and thus is not protected by the First Amendment.
Under the objective definition, Stewart’s statement that he
wanted to target a judge and “string the motherfucker up and
cut her throat, his throat, and make it like a copycat so that
people would do the same thing,” combined with an offer to
provide weapons and money reward, can reasonably be inter-
preted as a serious expression of intent to harm or assault the
target; here, a federal judge. See Orozco-Santillan, 903 F.2d
at 1265-66 (affirming the defendant’s conviction under 18
U.S.C. § 115(a)(1)(B) for threatening a federal agent where,
after the agent arrested the defendant, the defendant stated he
would “kick” the agent’s “fucking ass,” urged the agent to
“box” with him, cursed at the agent, and pushed him); cf.
8
Because Romo’s use of the objective standard was at least partially
based on the defendant’s failure to raise First Amendment issues, its hold-
ing does not imply we should back away from our decision in Cassel.
Although Cassel did not involve 18 U.S.C. § 871(a), it held that proof of
subjective intent would be required to effect a “true threat” where First
Amendment issues were raised. Cassel, 408 F.3d at 633; see Black, 538
U.S. at 359-60. Presumably, a showing of intent would thus be required
under 18 U.S.C. § 871(a) and 18 U.S.C. § 115(a)(1)(B) unless the govern-
ment demonstrated a compelling interest in applying the objective test. See
Cassel, 408 F.3d at 633 n.8.
UNITED STATES v. STEWART 11231
United States v. Schiefen, 139 F.3d 638, 639 (8th Cir. 1998)
(affirming the defendant’s section 115(a)(1)(B) conviction for
mailing to a U.S. district judge a letter stating a judgment of
foreclosure was treasonous, and that “TREASON by law, is
punishable by the DEATH PENALTY”; the court held the
statements were “true threats” because a reasonable person
would perceive the statements as threats). Although Judge Sil-
ver was not initially named as a target of the threat, Stewart
later identified her as the target. Thus, Stewart’s statement
was a “true threat” under the objective definition.
Under the subjective definition—which asks whether “the
speaker subjectively intended the speech as a threat,” Cassel,
408 F.3d at 633—section 115(a)(1)(B) requires that Stewart
have made the statement with the specific intent to impede,
intimidate, interfere with, or retaliate against Judge Silver on
account of the performance of her official duties.9 We deter-
mined supra there was sufficient evidence presented to the
jury to establish the existence of such specific intent, and that
in turn is sufficient to show Stewart “subjectively intended the
speech as a threat.” See id.; id. at 637 n.14 (“The defendant
might, of course, threaten to bring about the injury indirectly
— for example, by having a third party harm the victim.”).
[17] Accordingly, under either the objective or subjective
“true threat” definition, Stewart’s statements were “true
9
It is well-settled that a speaker can subjectively intend the speech as a
threat even if the speaker never actually intended to carry out the threat,
such as where the speaker intends the threat to disrupt a protected offi-
cial’s performance of her official duties through intimidation or threatened
retaliation. See Black, 538 U.S. at 360 (“[A] prohibition on true threats
‘protects individuals from the fear of violence’ and ‘from the disruption
that fear engenders,’ in addition to protecting people ‘from the possibility
that the threatened violence will occur.’ ” (quoting R.A.V. v. City of St.
Paul, 505 U.S. 377, 388 (1992)) (internal alterations omitted)). For this
reason, we reject Stewart’s argument that his statements were not “true
threats” because they were merely “jests to show toughness and to estab-
lish a position among other inmates.”
11232 UNITED STATES v. STEWART
threats” and are not protected by the First Amendment. We
thus affirm Stewart’s conviction on Count 1.
B. Count 2 — Making material false statements to FBI
agents
Stewart also argues there is insufficient evidence to support
his conviction on Count 2 for making material false state-
ments to Special Agent Gallante. We reject this argument.
[18] 18 U.S.C. § 1001(a)(2) punishes any person who, “in
any matter within the jurisdiction of the executive, legislative,
or judicial branch of the Government of the United States,
knowingly and willfully . . . makes any materially false, ficti-
tious, or fraudulent statement or representation . . . .” Special
Agent Gallante asked Stewart whether he said “anything that
could even be misinterpreted as a threat to a judge.” Stewart
falsely denied making any such statements, even though
Stewart had earlier threatened Judge Silver and plotted with
Weiss to order a “hit” on her life. His false statements were
material because they had the capability of influencing a gov-
ernment agency’s operations — as Special Agent Gallante
testified, the FBI “had every man on alert” in an attempt to
thwart any attempt to harm Judge Silver. See Salas-Camacho,
859 F.2d at 791 (explaining that a statement is “materially
false” if it is capable of influencing the government agency’s
operations, and that the statement need not actually influence
the agency). Those facts are sufficient for a rational jury to
find beyond a reasonable doubt that Stewart violated section
1001(a)(2), and thus we affirm Stewart’s conviction on Count
2.10
10
Because we reverse Stewart’s conviction on Count 3, we need not
reach his claim of insufficient evidence as to that count.
UNITED STATES v. STEWART 11233
C. Count 4 — Soliciting another person to murder a
federal judge
Stewart also contends there is insufficient evidence to sup-
port his conviction on Count 4. Specifically, Stewart argues
there was insufficient corroboration of his intent under 18
U.S.C. § 373(a) because Weiss’s testimony was inherently
unreliable in that Weiss is a convicted felon.
18 U.S.C. § 373(a) provides in part:
Whoever, with intent that another person engage in
conduct constituting a felony that has as an element
the use, attempted use, or threatened use of physical
force against property or against the person of
another in violation of the laws of the United States,
and under circumstances strongly corroborative of
that intent, solicits, commands, induces, or otherwise
endeavors to persuade such other person to engage
in such conduct, shall be imprisoned . . . .
We have not before examined the meaning of the term “cir-
cumstances strongly corroborative of that intent.” We review
the construction and interpretation of a statute de novo. United
States v. Ventre, 338 F.3d 1047, 1052 (9th Cir. 2003). We
turn first to the plain meaning of the statute because, if we can
interpret clearly its meaning from the statutory text, resort to
legislative history is unnecessary. Id.
Section 373(a) punishes a person who solicits another per-
son to engage in felonious conduct that includes the use,
attempted use, or threatened use of physical force against
property or against the person of another in violation of fed-
eral law, with the intent the other person engage in the con-
duct. The statute, through the use of the word “and,” also
requires that the solicitation occur “under circumstances
strongly corroborative of that intent.”
11234 UNITED STATES v. STEWART
We are well-acquainted with the terms “corroborative” and
“corroborate.” See Black’s Law Dictionary 596 (8th ed. 2004)
(defining “corroborating evidence” as “[e]vidence that differs
from but strengthens or confirms what other evidence shows
(esp. that which needs support)”). The term “corroborative”
means “serving or tending to corroborate,” Webster’s Third
New Int’l Dictionary 512 (1965), and “corroborate” means
“[t]o strengthen or confirm; to make more certain,” Black’s
Law Dictionary, supra, at 370. See Webster’s Third New Int’l
Dictionary, supra, at 512 (defining “corroborate” as “to pro-
vide evidence of the truth of: make more certain: confirm”).
In addition, “circumstance” means “[a]n accompanying or
accessory fact, event, or condition, such as a piece of evi-
dence that indicates the probability of an event.” Black’s Law
Dictionary, supra, at 259; see Webster’s Third New Int’l Dic-
tionary, supra, at 410 (defining “circumstance” as “a condi-
tion, fact, or event accompanying, conditioning, or
determining another”).
The plain meaning of the phrase “circumstances strongly
corroborative of that intent” thus shows that section 373(a)
requires the government to present evidence of facts accom-
panying the solicitation strongly confirming that the defen-
dant actually intended the solicited person to engage in the
solicited violent crime. See United States v. Korab, 893 F.2d
212, 215 (9th Cir. 1989) (noting section 373(a) is focused
upon punishing persons “who make[ ] a serious effort to
induce another person to commit a crime of violence,” regard-
less of “whether or not the crime of violence is actually com-
mitted”); United States v. Gabriel, 810 F.2d 627, 635 (7th Cir.
1987) (noting a violation of section 373(a) requires “the sur-
rounding circumstances in general must indicate that the
solicitor is serious that the person solicited actually carry out
the crime.”). Such corroborating evidence could consist of
discussions or planning between the defendant and the person
solicited regarding the crime to be committed, offers of pay-
ment, or the providing of information regarding the descrip-
tion or location of the proposed victim.
UNITED STATES v. STEWART 11235
[19] We need not outline the precise limits of section
373(a) because Stewart’s conduct squarely falls within the
range of conduct prohibited by the statute. The Government
presented evidence that: (1) Stewart specifically discussed
with Weiss arranging the murder of Judge Silver;11 (2) those
discussions happened over the course of several meetings; (3)
Stewart offered weapons and money for the murder; (4) Stew-
art provided Weiss with Judge Silver’s description and loca-
tion so Weiss’s fictional brother-in-law could find her; and (5)
Stewart suggested he wanted the murder committed by having
Judge Silver’s throat cut.12 The evidence not only showed that
Stewart solicited Weiss to have Weiss’s fictional brother-in-
law murder Judge Silver, but the circumstances accompany-
ing the solicitation (e.g., the multiple discussions between
Stewart and Weiss, the offer of payment, the information on
the whereabouts of the target, and the method of execution)
strongly corroborated Stewart’s intent to have the murder
committed by Weiss’s fictional brother-in-law. Such evidence
is sufficient to support Stewart’s conviction for a violation of
section 373(a), and thus we affirm the conviction on Count 4.13
11
It is a felony under federal law to kill or attempt to kill “any officer
or employee of the United States . . . while such officer or employee is
engaged in or on account of the performance of official duties.” 18 U.S.C.
§ 1114.
12
Although Stewart argues Weiss is inherently incredible because he is
a convicted felon, much of the evidence corroborating the existence of
Stewart’s intent that Weiss’s brother-in-law commit the murder was cap-
tured on the recording of the meeting between Stewart and Weiss, and this
recording was played to the jury. As noted, in reviewing a conviction for
sufficiency of the evidence, we “must respect the province of the jury to
ascertain the credibility of witnesses,” Orozco-Santillan, 903 F.3d at 1264,
and we see no basis to depart from that principle here.
13
We also reject Stewart’s contention the district court erred by admit-
ting the recording between Weiss and Stewart and by allowing the Gov-
ernment to play the recording for the jury. Stewart contends the recording
was inadmissible because the Government did not preserve the original
digital recording device but instead downloaded the data to disk and
offered a duplicate of the recording at trial. Yet a duplicate recording is
11236 UNITED STATES v. STEWART
III. Sentencing
[20] Because we reverse Stewart’s conviction on Count 3,
we remand to the district court for re-sentencing. See United
States v. Bennett, 363 F.3d 947, 955-56 (9th Cir. 2004)
(“When a defendant is sentenced on multiple counts and one
of them is later vacated on appeal, the sentencing package
comes ‘unbundled.’ The district court then has the authority
to put together a new package reflecting its considered judg-
ment as to the punishment the defendant deserved for the
crimes of which he was still convicted.”) (internal quotation
marks omitted). On remand, the district court should re-
sentence Stewart in light of the new advisory sentencing
guidelines system mandated by United States v. Booker, 125
S. Ct. 738 (2005).14
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
admissible to the same extent as the original “unless (1) a genuine ques-
tion is raised as to the authenticity of the original or (2) in the circum-
stances it would be unfair to admit the duplicate in lieu of the original.”
Fed. R. Evid. 1003. In response to Stewart’s objection at trial, the district
court stated, “Prior to and during trial the Defendant never presented an
expert to suggest that the recording had been altered, the defense had the
recordings well in advance of trial and never suggested that the tape had
been altered or fabricated.” The district court did not abuse its discretion
in admitting the recording because the record shows no evidence present-
ing a “genuine question” the duplicate recording was altered or otherwise
tainted, and Stewart did not show any resulting unfairness from admission
of the duplicate. See United States v. Childs, 5 F.3d 1328, 1335 (9th Cir.
1993).
14
Because we remand to the district court for re-sentencing, we do not
reach Stewart’s arguments that his sentence constituted cruel and unusual
punishment contrary to the Eighth Amendment, or that the district court
erred in enhancing his sentence based upon facts not found by a jury
beyond a reasonable doubt. Stewart’s Motion for Leave to File a Supple-
mental Brief based upon Booker is denied as moot.