United States v. Freeman

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1817



                          UNITED STATES,



                            Appellee,



                                v.



                      JEFFREY WAYNE FREEMAN,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]



                       ____________________



                              Before



                      Boudin, Circuit Judge,



                  Magill, Senior Circuit Judge,



                    and Lynch, Circuit Judge.



                      _____________________



    Jeffrey Silverstein, by appointment of the Court, with whom

Billings & Silverstein was on brief, for appellant.

    Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, was on brief, for

appellee.


____________________



                           May 17,1999

                       ____________________         MAGILL, Senior Circuit Judge.  Jeffrey Wayne Freeman

appeals his sentence of thirty months imprisonment imposed after he

pleaded guilty to transmitting a threatening communication in

interstate commerce in violation of 18 U.S.C.  875(c).  He argues

that the district court erred in concluding that his offense did

not "involve[] a single instance evidencing little or no

deliberation."  U.S.S.G.  2A6.1(b)(2) (1995).  We affirm.

                               I. 

         Between the morning of February 24 and the evening of

February 25, 1997, Freeman made a total of eight interstate

telephone calls to Child Find of America, Inc.'s hotline.  This

hotline is dedicated to locating missing children.  During the

first call, Freeman told a hotline operator that he had abducted

and sexually forced himself on his fourteen-year-old stepdaughter. 

During each of the next seven calls, Freeman graphically explained

the way in which he had tortured and sexually assaulted the girl

since his previous call.  During the second call, which lasted

approximately seventy-five minutes, Freeman told the hotline

operator that he could kill the girl and leave her.  During one of

his later calls, he told the hotline operator that he was abusing

the girl and that he might leave her to die.  These phone calls

ranged from a few minutes to seventy-five minutes in length and

were placed from different locations.

         After tracing the calls, the police apprehended Freeman. 

As it turned out, Freeman had not abducted his stepdaughter and, in

fact, did not have a stepdaughter.  Rather, he was playing an

elaborate prank on the hotline operator.  According to Freeman, he

saw a commercial advertising the hotline when he was intoxicated

and decided to place the calls.  Freeman was subsequently indicted

on two counts of transmitting threatening communications in

interstate commerce in violation of 18 U.S.C.  875(c).  Pursuant

to a plea agreement, Freeman entered a plea of guilty to one count

of transmitting a threatening communication in interstate commerce,

and the Government dismissed the second count.

         Based on this plea, the district court determined

Freeman's base offense level to be twelve.  See U.S.S.G.  2A6.1(a)

(1995).  At the sentencing hearing, Freeman requested that his

offense level be reduced by four levels on the ground that his

offense "involved a single instance evidencing little or no

deliberation."  Id.  2A6.1(b)(2).  The court disagreed with

Freeman and sentenced him to thirty months imprisonment.  Freeman

now appeals the district court's refusal to grant the reduction.

                               II.

         The sole issue raised on appeal is whether the district

erred in denying Freeman a reduction under  2A6.1(b)(2).  This

court reviews the district court's legal interpretation of the

Sentencing Guidelines de novo.  See United States v. Nicholas, 133

F.3d 133, 134 (1st Cir. 1998).  We defer to the trial court's

factual findings unless they are clearly erroneous.  See United

States v. Voccola, 99 F.3d 37, 43 (1st Cir. 1996).

         In relevant part,  2A6.1(b)(2) provides that if "the

offense involved a single instance evidencing little or no

deliberation, decrease [the offense level] by 4 levels."  The

departure is applicable, therefore, only if the offense involves a

single instance and that single instance evidences little or no

deliberation.  See United States v. Stevenson, 126 F.3d 662, 665

(5th Cir. 1997) ("[T]he fact that [defendant mailed only one

letter] does not win the day . . . because the [Guideline] does not

state that the fact an act is a single instance in itself lowers

the penalty.").

         A.  Single Instance

         We first consider Freeman's contention that his offense

involved only a single instance.  Although he made eight calls to

the hotline, Freeman maintains that he only communicated a threat

during the seventy-five minute phone call.  The facts, however,

demonstrate that he made at least two threatening communications. 

         The appropriate standard for determining if a defendant's

communication constitutes a "threat" is "'whether [the defendant]

should have reasonably foreseen that the statement he uttered would

be taken as a threat by those to whom it is made.'"  United States

v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997) (quoting United States

v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997)); see also United

States v. Alkhabaz, 104 F.3d 1492, 1495 (6th Cir. 1997) ("[T]o

constitute 'a communication containing a threat' under Section

875(c), a communication must be such that a reasonable person (1)

would take the statement as a serious expression of an intention to

inflict bodily harm . . . and (2) would perceive such expression as

being communicated to effect some change or achieve some goal

through intimidation . . . ."); United States v. Himelwright, 42

F.3d 777, 782 (3d Cir. 1994) (holding that to establish violation

of  875(c), "the government b[ears] only the burden of proving

that [the defendant] acted knowingly and willfully when he placed

the threatening phone calls and that those calls were reasonably

perceived as threatening bodily injury").  Freeman made a total of

eight telephone calls.  In his first call, he told the hotline

operator that he had abducted his stepdaughter and sexually

assaulted her.  During his second phone call, which lasted seventy-

five minutes, he graphically described the ways in which he had

sexually tortured the girl since his first phone call and added

that he "can kill her and leave where she is now."  Spiro Aff. at

1.  Freeman concedes that this phone call constitutes a threatening

communication.  In each of Freeman's subsequent calls, he described

in explicit detail the way in which he had supposedly tortured and

sexually assaulted the girl since the immediately preceding phone

call.  In one of these later phone calls, he told the operator that

"he was abusing her and . . . may just leave her to die in the

basement."  Id. at 2.  Freeman should have reasonably foreseen that

this call would also be taken as a threat.  Indeed, Freeman should

have reasonably foreseen that the hotline operator would take each

of his calls "updating" the hotline operator about the ongoing

sexual torture as at least an implicit threat to continue torturing

the girl for an indefinite period of time and to later call again

and describe the continuing torture.  The district court thus did

not err in concluding that Freeman's conduct involved the

transmission of more than one threatening communication.  See

United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996)

(holding that defendant's conduct involved more than a single

instance, notwithstanding fact that defendant pleaded guilty to

only one count of making a threatening communication, when evidence

showed that he made two threatening communications).

         Perhaps recognizing that his conduct included more than

one threatening communication, Freeman contends that the term

"single instance" should be defined as "single episode of

threatening conduct" rather than as "single threat."  See United

States v. Sanders, 41 F.3d 480, 484 (9th Cir. 1994) (holding that

"conduct involving several threats may constitute a single instance

or episode within the meaning of  2A6.1(b)(2)").  Even if we were

inclined to agree, we believe that the phrase "'[s]ingle instance'

connotes [both] a temporal relationship [and] a 'single purpose' or

'single scheme.'"  Id.  Although Freeman may have had the

ostensible "single purpose" or engaged in the "single scheme" of

making a hotline operator believe that he was sexually assaulting

a girl, would continue to do so for the indefinite future, and

might eventually kill her, the district court did not err in

concluding that Freeman's eight telephone calls to the hotline over

the course of two days constituted more than a "single instance." 

See id. (explaining that reduction "might not apply where the

defendant made a number of similar threats over an extended period

of time"); United States v. Bellrichard, 801 F. Supp. 263, 266 (D.

Minn. 1992) ("[G]iven the volume and nature of defendant's written

communications, the conduct . . . could hardly be viewed as a

'single instance' under the guidelines."), aff'd, 994 F.2d 1318

(8th Cir. 1993); cf. Edgin, 92 F.3d at 1047 & n.3 (affirming no

reduction where conduct involved threats made eleven days apart);

United States v. Pacione, 950 F.2d 1348, 1356 (7th Cir. 1991)

(noting in passing that district court granted reduction where

conduct involved threats made over the period of a few hours or

less).         B.  Little Or No Deliberation

         Furthermore, even if we were to assume that Freeman's

conduct involved only a "single instance," we find no error in the

district court's finding that Freeman's conduct evidenced more than

"little or no deliberation."  Freeman first obtained the telephone

number to the hotline.  He then called the hotline eight different

times during the course of two days.  For each call, he had to

remember the phone number (or look it up), dial the number, speak

to the operator, remember the contents of the previous call, and

fabricate new details concerning the way in which he was supposedly

torturing his stepdaughter.  See Sanders, 41 F.3d at 485 (asserting

that deliberation is shown where defendant tailored his statements

for particular victims); United States v. Fann, 41 F.3d 1218, 1219

(8th Cir. 1994) (per curiam) (stating that deliberation is shown

when defendant "added and subtracted details as he issued his

various statements"); cf. Stevenson, 126 F.3d at 665 (holding that

defendant's actions in connection with mailing single letter showed

deliberation where they "involved the deliberate securing of

stationery and postage, the composition of a letter, the search for

an address, and the act of taking the letter to be mailed").  He

placed these phone calls from at least two different locations. 

During two separate calls, in addition to giving graphic depictions

of the manner in which he had tortured the girl, he intimated that

he could kill her or leave her to die.  With respect to each phone

call, and certainly the multitude of phone calls in aggregate,

"[t]here were many steps along the way in which he could have

stopped himself, but he didn't."  Stevenson, 126 F.3d at 665.  The

mere fact that he was supposedly drunk when placing each of the

calls does not require a finding of little or no deliberation.  See

Sanders, 41 F.3d at 482, 485.

                               III.

         For the foregoing reasons, we affirm the district court.