United States v. Justin Credico

• Court: Court of Appeals for the Third Circuit
• Decided: December 18, 2017
• Docket: 17-1422
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-1422 _____________

UNITED STATES OF AMERICA

v.

JUSTIN MICHAEL CREDICO

Justin Credico, Appellant ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-14-cr-00118-001) District Judge: Honorable Cynthia M. Rufe

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 14, 2017

Before: CHAGARES, RESTREPO, and FISHER, Circuit Judges.

(Filed: December 18, 2017) ____________

OPINION ____________

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.

Defendant Justin Credico appeals from his conviction after a jury trial for

threatening federal agents and their immediate family members, in violation of 18 U.S.C.

§ 115(a)(1). Credico challenges the District Court’s admission of the cassette tape

recording of his threatening voicemails, the sufficiency of the Government’s evidence

that he violated § 115(a)(1), and the District Court’s jury instructions. Because we

conclude that none of these claims are meritorious, we will affirm.

I.1

Beginning around 2008 and culminating on February 4, 2014, Credico made

hundreds of phone calls to the FBI — and to Special Agent Joseph Milligan in particular

— many of which expressed Credico’s anger at the FBI and at Milligan, who Credico

believed was responsible for his expulsion from West Chester University. Although the

messages were vexatious and often belligerent, no official action was initiated against

Credico until the instant case, which was precipitated by a series of voicemail messages

that Credico left for Milligan on the night of February 4, 2014 and that Milligan listened

to on the morning of February 6, 2014. The content of those messages — which the

Court will not recount in full, but which included graphic threats to murder Milligan and

defile his corpse, murder Special Agent Jim Fitzgerald, rape Milligan’s wife, and anally

rape Fitzgerald’s daughter (whom Credico referenced by name) — was sufficiently

alarming that Milligan reported the calls to his supervisor, discussed the threats with his

1 We write for the parties and so recount only the facts necessary to our decision. 2 family, and even notified the police in the community where he lived. After hearing the

messages, Milligan had Special Agent Kevin Lewis help make a cassette tape recording

of all eight messages that were in Milligan’s voicemail inbox that morning, and Milligan

brought the tape to an Assistant United States Attorney to determine whether Credico had

committed a crime.

On March 11, 2014, Credico was charged with four counts of making threats

against federal agents and their family members, in violation of 18 U.S.C. § 115(a)(1).

As relevant, § 115(a)(1) makes it a felony to “threaten[] to assault, kidnap or murder” a

“Federal law enforcement officer” or “a member of [their] immediate family,” “with

intent to impede, intimidate, or interfere with such . . . law enforcement officer while

engaged in the performance of official duties, or with intent to retaliate against such . . .

law enforcement officer on account of the performance of official duties.” Prior to trial,

Credico challenged the admissibility of the tape recording and requested an evidentiary

hearing pursuant to our decision in United States v. Starks, 515 F.2d 112 (3d Cir. 1975).

After holding an evidentiary hearing — which was twice reopened due to some

inconsistencies in the Government’s evidence — the District Court determined that the

tape was admissible. A jury found Credico guilty of all counts and the District Court

sentenced Credico to 70 months of imprisonment, followed by three years of supervised

release, along with a special assessment and fine. Credico timely appealed.

3 II.2

Credico first argues that the District Court improperly admitted the audio cassette

recordings of his voicemails. We review a District Court’s decision to admit evidence for

abuse of discretion. United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009). In Starks,

we recognized the risks inherent in the use of tape recordings, which are “peculiarly

susceptible of alteration, tampering, and selective editing,” and held therefore that the

Government must “produce clear and convincing evidence of authenticity and accuracy

as a foundation for the admission of such recordings.” United States v. Starks, 515 F.2d

112, 121 (3d Cir. 1975) (quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir.

1967)). In so doing, we noted with approval a seven-part test3 for establishing such a

foundation, but were explicit that we did not intend to establish “a uniform standard

equally applicable to all cases.” Id. We instead explained that, within reason, whether

the “proof of facts creat[es] a sufficient foundation for the admission of a tape recording

is a matter to be decided by the trial court.” Id.

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. 3 The factors for the court to consider are:

(1) That the recording device was capable of taking the conversation now offered in evidence. (2) That the operator of the device was competent to operate the device. (3) That the recording is authentic and correct. (4) That changes, additions or deletions have not been made in the recording. (5) That the recording had been preserved in a manner that is shown to the court. (6) That the speakers are identified. (7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

Starks, 515 F.2d at 121 n.11 (quoting United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y. 1958)). 4 Credico takes issue with the District Court’s determination that, under the third

Starks factor, the Government adequately showed that the tape was “authentic and

correct,” and further asserts that the Government failed properly to establish the tape’s

chain of custody. At the Starks hearing, Milligan testified that the recordings on the tape

were the same as those that he heard on his voicemail on February 6, 2014, explained

how he and Lewis recorded the voicemail directly onto the cassette and removed the tabs

from the cassette to ensure it could not be recorded over, certified that neither he nor

anyone else altered the voicemails before making the recording, and — pointing to

various markings made contemporaneously on the cassette’s label — identified the tape

as the one he used to make the recording on February 6, 2014.

Credico’s attempts to undermine the tape’s authenticity rely largely on

(1) Milligan’s failure to remember a highly specific comment that Credico made in the

voicemails, which was unrelated to the threats against Milligan or Fitzgerald and

(2) Credico’s expert’s testimony that the method of recording was suboptimal and

precluded him from asserting definitively that the tape was not altered. Neither of these

objections convince us that the District Court abused its discretion in finding the tape

authentic and accordingly admissible under Starks. First, considering the exceedingly

graphic nature of the voicemails, Milligan’s failure to remember otherwise insignificant

details does not undermine his testimony that the tape “is what it is claimed to be.” Fed.

R. Evid. 901(b)(1). Second, Credico’s complaint that Milligan should have used the

FBI’s digital audio storage system rather than a tape recorder is academic. Surely, audio

stored on cassette tapes is not per se inadmissible merely because it is not in a digital

5 form capable of being tested in the manner Credico desired; Starks itself involved such an

antiquated medium. Absent any evidence that the tape was tampered with — a claim

Credico assiduously avoids — the mere fact that a better mode of recording was available

fails to negate the authenticity of the sufficiently corroborated recording.4

Credico’s challenge to the tape’s chain of custody fares no better. Few would

dispute that the cassette’s chain of custody leaves much to be desired, but “[w]e have

long rejected the proposition that evidence may only be admitted if a ‘complete and

exclusive’ chain of custody is established.” United States v. Rawlins, 606 F.3d 73, 82

(3d Cir. 2010) (quoting United States v. DeLarosa, 450 F.2d 1057, 1068 (3d Cir. 1971)).

To admit evidence, a District Court need only find “a reasonable probability that the

evidence has not been altered in any material respect,” United States v. Jackson, 649 F.2d

967, 973 (3d Cir. 1981) (quoting United States v. Luna, 585 F.2d 1, 6 (1st Cir. 1978)),

and such a finding “is afforded great deference,” Rawlins, 606 F.3d at 83. Although not

4 The underlying basis for Credico’s challenge to the tape’s admissibility is his contention that one of the eight voicemails recorded onto the cassette was from 2012 rather than 2014. Credico Br. 26. We fail to see how this claim casts any doubt on the tape’s authenticity. Credico does not contend that the cassette was altered so as to include a voicemail from 2012 that was not in Milligan’s voicemail inbox on the morning of February 6, 2014. Credico’s challenge, then, appears to focus not on the adequacy or accuracy of the recording of the contents of the voicemail inbox, but rather the accuracy of the voicemail inbox itself, in that the inbox allegedly included a message from 2012 in a list of messages received in 2014. Such a challenge, to the extent believable, goes to the relevance and persuasiveness of the suspect voicemail to the Government’s case, not to the authenticity of the recording. It is therefore properly directed to the jury at trial, rather than to the judge at an evidentiary hearing aimed at determining only whether the recording faithfully reproduces the evidence it purports to embody. 6 generally dispositive of admissibility, unexplained gaps in the chain are relevant

considerations for the jury when assessing the weight of the evidence. Id.

Here, Milligan testified that immediately after making the recording, he brought

the cassette to the Assistant United States Attorney, but that thereafter he did not know

the tape’s whereabouts. Special Agent Joshua Hubiak — the case agent on the Credico

matter — testified that Special Agent Joseph Carpenter — who was filling in for Hubiak

on February 6, 2014 — later gave him a box containing a manila envelope with the tape

inside, and that the tape thereafter remained in a box at Hubiak’s desk inside the secured

FBI offices. Furthermore, the tape’s tabs had been removed to prevent it from being

recorded over and the tape’s label had the markings that were placed upon it at the time

that Milligan made the recording. Credico does not assert that the tape or label were

tampered with, nor does any evidence in the record suggest it. Credico nonetheless

attempts to raise such an inference through his expert’s inability to certify that the tape

was not tampered with. Although the Government failed to account for the tape’s

whereabouts between when Milligan left it with the prosecutors and Hubiak received it

from Carpenter, in the face of only an innuendo of tampering, the Government met its

burden to show a reasonable probability that the evidence was not altered. Finally, the

District Court properly instructed the jury that they could consider any defects in the

chain of custody when determining the tape’s authenticity and weight. Accordingly, the

District Court did not abuse its discretion by admitting the recordings into evidence.

7 III.

Credico next challenges the sufficiency of the Government’s evidence showing

that he acted with the requisite intent under the statute. Our review is “highly deferential,

and we will overturn a verdict only ‘if no reasonable juror could accept the evidence as

sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.’”

United States v. Caraballo-Rodriguez, 726 F.3d 418, 430–31 (3d Cir. 2013) (en banc)

(quoting United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)). Credico asserts

that he cannot be guilty under § 115(a)(1) because although he was under the impression

that Milligan and the FBI were responsible for his expulsion from West Chester

University, they in reality had no involvement in the matter. Credico thus asserts that he

could not have intended to interfere with or retaliate against the agents’ performance of

their official duties, because they never undertook any. This argument fails. Section

115(a)(1) includes a specific intent requirement focusing on the defendants’ subjective

purpose for making the threats. See, e.g., United States v. Turner, 720 F.3d 411, 420 (2d

Cir. 2013). Credico admitted that he left these messages because he believed that

Milligan, in his capacity as an FBI agent, had been involved in his expulsion. If not for

this belief, Credico would not have made the threats; in other words, the threats were “on

account of” Milligan’s official conduct. The fact that neither Milligan nor anyone at the

FBI ever actually took such action does not negate the driving purpose behind Credico’s

8 conduct.5 And given the deferential standard of review, the evidence was sufficient to

allow a reasonable factfinder to conclude that Credico acted with the intent to retaliate on

account of the agents’ official conduct.

IV.

Credico’s final two challenges concern the correctness of the District Court’s jury

instructions. “We generally exercise plenary review in [determining] ‘whether the jury

instructions stated the proper legal standard,’ and review the refusal to give a particular

instruction or the wording of instructions for abuse of discretion.” Gov’t of the V.I. v.

Mills, 821 F.3d 448, 465 (3d Cir. 2016) (quoting United States v. Flores, 454 F.3d 149,

156 (3d Cir. 2006)). As discussed below, neither of his claims have merit.

A.

First, Credico claims that the District Court erred in refusing his request to instruct

the jury to consider whether the threats were “conditional or whether they specify the

exact time and date for carrying out the supposed threat.” Appendix 639. Credico claims

that his threats were conditional because he prefaced a number of his statements with the

request that the agents “sign a release” form that Credico believed would allow him to

fight and injure the agents without repercussion. As an initial matter, Credico never

prefaced his threats against Milligan’s wife or Fitzgerald’s daughter with any conditions,

5 Nor could the statute plausibly operate this way. If it did, then an individual who called in a threat to an FBI office he believed was investigating him would not be liable if the paperwork beginning the investigation had not arrived in the office, but an individual who undertook the same conduct but whose paperwork fortuitously had arrived would be liable. Criminal liability cannot turn on such administrative minutiae. 9 and so this argument is inapplicable to his conviction under counts two and four for

threatening the agents’ immediate family members in violation of § 115(a)(1)(A).

But even on the merits, Credico’s argument is unpersuasive. Credico relies on our

decision in United States v. Kosma, 951 F.2d 549 (3d Cir. 1991), to assert that a threat

that does not specify the time and place wherein it will take place is a conditional, rather

than “true,” threat. This argument misreads Kosma and such a rule would be at odds with

common parlance. In Kosma, we noted that to decide whether a statement constitutes a

true threat, courts must view the statement “in context, and regarding the expressly

conditional nature of the statement,” and determined that the threat at issue was not

conditional because, among other things, Kosma “specified the precise date, time and

place” for when the threat would be actualized. Id. at 553–54. We determined that those

factors were sufficient to render the threat “true” rather than conditional, but did not

suggest that they were necessary to finding a true threat. Indeed, we noted just the

opposite: “Even if Kosma’s threats were truly conditional, they could still be considered

true threats.” Id. at 554 n.8. Common parlance also militates against this definition of a

true threat, because even the paradigmatic true threat that any listener would take

seriously – “I will kill you” – would fail for lack of specificity. See, e.g., United States v.

Hoffman, 806 F.2d 703, 711 n.5 (7th Cir. 1986) (considering “I will kill you” an

“unambiguous or direct” threat). Here, Credico’s messages were filled with vivid details

suggesting exactly how he would take his vengeance against the agents and their families,

and the mere inclusion of one arguably conditional clause among multiple serious threats

does not immunize him from liability. See, e.g., Kosma, 951 F.2d at 554 n.8 (citing

10 United States v. Callahan, 702 F.2d 964 (11th Cir. 1983), concluding that the defendant

there made a true threat because “[a]lthough the carrying out of the threat might have

been conditional upon Secret Service aid and agreement, the threat itself was not,” id. at

966). Accordingly, because our caselaw does not support the test for conditional threats

advocated by Credico, and because in any event the nature of his threats belie the claim

that they were conditional, the District Court did not abuse its discretion in refusing to

give the instruction.

B.

Credico’s second claim related to the jury instructions is that the District Court

improperly rejected his contention that, in light of the Supreme Court’s ruling in Elonis v.

United States, 135 S. Ct. 2001 (2015), the definition of “true threat” has been changed

and thus that the District Court was required to instruct the jury not only that a reasonable

person would view the words as a threat, but also that Credico must have subjectively

intended to make the threat or known that the communication would be viewed as a

threat. In Elonis, the Supreme Court held that a different statute using the word threat —

18 U.S.C. § 875(c) — included an unstated scienter requirement that the defendant

subjectively intended to make the threat. Elonis, 135 S. Ct. at 2013. Contrary to

Credico’s claim, it is clear that despite its view that Elonis did not govern § 115(a)(1), the

District Court nonetheless gave a subjective intent instruction. Credico’s complaint is

therefore moot, and we need not address whether the Elonis Court’s ruling concerning

§ 875(c) affects the mens rea requirement of § 115(a)(1).

11 V.

For the foregoing reasons, we will affirm the judgment of the District Court.