United States v. Whiffen

• Court: Court of Appeals for the First Circuit
• Decided: September 3, 1997
• Docket: 97-1036
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________


          No. 97-1036


                                   UNITED STATES,


                                      Appellee,


                                         v.


                                   KEVIN WHIFFEN,


                               Defendant - Appellant.


                                ____________________


                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF NEW HAMPSHIRE


                   [Hon. Steven J. McAuliffe, U.S. District Judge]


                                ____________________


                                       Before


                               Torruella, Chief Judge,


                             Cyr, Senior Circuit Judge,


                             and Boudin, Circuit Judge.


                                _____________________


               Bjorn Lange, Assistant Federal Defender, for appellant.

               Jean 
                    B. 
                       Weld, Assistant United States Attorney, with whom

          Paul M. Gagnon, United States Attorney, and Peter E. Papps, First

          Assistant United States Attorney, were on brief for appellee.


____________________


                                  August 29, 1997

                                ____________________



TORRUELLA,  Chief  Judge. Defendant-appellant Kevin


          Whiffen ("Whiffen") was tried and convicted on four counts of


          transmitting threatening communications in interstate commerce in


          violation of 18 U.S.C. S 875(c). Whiffen now appeals, arguing that


          the indictment failed to allege an offense, that the court should


          have granted his motion under Rule 29 of the Federal Rules of


          Criminal Procedure for a judgment of acquittal on all counts, and


          that the court erred in its jury instructions. We affirm.


                                   I. Background


                    In 1993, Whiffen, a resident of New Hampshire, was


          driving a car that was involved in a two-vehicle accident in Rhode


          Island. The other car was insured by Allstate Insurance


          ("Allstate"). Allstate paid a claim to its insured and sought


          reimbursement from Whiffen in the amount of approximately $11,000.


          The claim was eventually turned over to Universal Fidelity


          Corporation ("UFC"), located in Florida, for collection. On


          October 11, 1995, UFC sent a letter to Whiffen, informing him that


          the New Hampshire Division of Motor Vehicles had been notified of


          his failure to pay and warning that if he failed to pay the claim


          within thirty days, he risked losing his license.


                    On October 17, 1995, Whiffen returned a telephone call


          from Kelly Terrell ("Terrell"), a UFC collector. During the call,


          Whiffen was "very belligerent," and when Terrell stated that she


          could have Whiffen's license suspended, Whiffen said that "the


          building will go boom." At that point, Terrell disconnected the


          line.


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Several minutes later, Whiffen called back. The call was


          transferred to Terrell, and Whiffen told her that "the building


          will go boom."


                    Whiffen called back a third time, speaking on this


          occasion with Anna Walls ("Walls") of UFC. He asked that a message


          be relayed to Terrell that "buildings go boom boom."


                    On the evening of October 17, 1995, Walls' supervisor,


          Mark Gallo ("Gallo"), called Whiffen to confirm the name of his


          attorney and to ask him to pay his bill. Gallo asked Whiffen if he


          intended to drive to Florida and blow up the building. Whiffen


          responded that he had friends in Florida who would "take care of it


          for him."


                    As a result of Whiffen's statements, UFC closed their


          file on Whiffen and returned the account to Allstate. On


          October 29, 1995, Whiffen telephoned Allstate's Bedford, New


          Hampshire office. The call was automatically transferred to Sheryl


          Johnson, a manager at Allstate's St. Petersburg, Florida office.


          Whiffen told her that "Allstate had better stop messing with me or


          else I'm going to blow up their building."


                              II. The Requisite Intent


                    Although Whiffen makes several claims on appeal, all of


          them turn on the question of whether the threats made by Whiffen


          constitute threats to the person of another. In order to resolve


          this question, we must determine the intent necessary for


          conviction under section 875.


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The centerpiece of Whiffen's appeal is the claim that 18


          U.S.C. S 875(c) is a specific intent crime. In other words, in


          order to obtain a conviction, the government must prove that the


          defendant intended his communication to be received as a threat.


          In support of this view, Whiffen cites 
                                                United States
                                                              v. 
                                                                 Twine, 853


          F.2d 676 (9th Cir. 1988). In  Twine, the Ninth Circuit concluded


          that "the showing of an intent to threaten, required by S 875(c)


          . . . is a showing of specific intent."  Id. at 680.


                    Other circuits, however, disagree with 
                                                          Twine. In  United


          States v. 
                   DeAndino, 958 F.2d 146 (6th Cir. 1992), for example, the


          Sixth Circuit concluded that "S 875(c) does not require specific


          intent in regard to the threat element of the offense, but only


          general intent."  Id. at 150. Under a general intent standard,


          whether a communication is a "true threat" is determined


          objectively from all the surrounding facts and circumstances,


          rather than from the defendant's subjective purpose. A general


          intent standard has also been adopted by three other circuits. 
                                                                        See


          United 
                 States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997),   United


          States v. Himelwright, 42 F.2d 777, 782-83 (3d Cir. 1994), United


          States v. Darby, 37 F.3d 1059, 1063-66 (4th Cir. 1994),     cert.


          denied, 514 U.S. 1097 (1995). The test espoused in these cases is


          stated in Darby:


Even within the Ninth Circuit there is some question about the

          continuing validity of Twine.  See United 
                                                    States v. King, 920 F.

          Supp. 1978, 1079-80 (C.D. Cal. 1996) (suggesting that       Twine

          conflicts with both prior and subsequent Ninth Circuit precedent).


                                         -4-



[T]o establish a violation of section

                      875(c), the government must establish that

                      the defendant intended to transmit the

                      interstate communication and that the

                      communication contained a true threat.

                      Whether a communication in fact contains a

                      true threat is determined by the

                      interpretation of a reasonable recipient

                      familiar with the context of the

                      communication. The government does not

                      have to prove that the defendant

                      subjectively intended for this recipient

                      to understand the communication as a

                      threat.


          Darby, 37 F.3d at 1066. Our sister circuits have also considered


          what constitutes a "true threat" under other federal threat


          statutes.  See United 
                                States v. Fulmer, 108 F.3d 1486, 1491 (1st


          Cir. 1997) (collecting cases).


                    Although the intent requirement of section 875(c) has not


          previously been decided by this court, we recently had occasion to


          determine the requisite intent under a different threat statute, 18


          U.S.C. S 115(a)(1)(B), which criminalizes threats directed at


          federal agents.


                    In determining what constitutes a "true threat," the


          Fulmer panel found the governing standard to be "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."


          Fulmer, 108 F.3d at 1491. This test takes into consideration the


          context in which the remark was made and avoids the risk that an


          otherwise innocuous statement might become a threat if directed at


          an unusually sensitive listener. This approach also protects


          listeners from statements that are reasonably interpreted as


          threats, even if the speaker lacks the subjective, specific intent


                                         -5-



to threaten, or, as would be more common, the government is unable


          to prove such specific intent which, by its nature, is difficult to


          demonstrate. 


                    For these reasons, we believe that the logic of Fulmer,


          which considered 18 U.S.C. S 115(a)(1)(B), applies with full force


          to 18 U.S.C. S 875, and we adopt the same standard for the latter


          statute. In doing so, we are also aligning ourselves with the


          majority view of our sister circuits, as discussed supra. Having


          established that section 875(c) requires only a general intent, we


          are able to engage each of Whiffen's specific claims.


                         III. Failure to Allege an Offense


                    Whiffen's first claim of error relates to his pre-trial


          motion, under Rule 12(b)(2) of the Federal Rules of Criminal


          Procedure, to dismiss the indictment for failure to allege an


          offense. Whiffen was charged with violation of 18 U.S.C. S 875(c)


          which prohibits the transmission in interstate commerce of "any


          threat to injure the person of another." The indictment alleges


          that Whiffen made such a communication when he stated that "[y]our


          building will go boom"; "the building will go boom"; "buildings go


          boom"; and "Allstate had better stop messing with me or else I'm


          going to blow up their building."


                    On appeal, Whiffen argues that his motion to dismiss


          should have been granted on the grounds that the indictment "fails


          to allege 'unequivocal, unconditional and specific expressions of


          intention immediately to inflict injury' to another person." Brief


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of Appellant at 7 (quoting 
                                    United States
                                                  v. 
                                                     Kelner, 534 F.2d 1020,


          1027 (2d Cir. 1976)).


                    Having determined that specific intent is not the


          standard under which Whiffen's statements should be judged, it is


          clear that the failure to allege specific intent is not grounds for


          dismissal. "[A]n indictment is sufficiently particular if it


          elucidates the elements of a crime, enlightens a defendant as to


          the nature of the charges against which she must defend, and


          enables her to plead double jeopardy in bar of future prosecutions


          for the same offense."  United States v. Sepulveda, 15 F.3d 1161,


          1192 (1st Cir. 1993); 
                               see also
                                        Fed. R. Crim. P. 7(c)(1). Although


          the four counts contain slightly different wording, we present only


          Count I, which is representative of the other counts. Count I


          states that:


                      On or about October 17, 1995, in the

                      District of New Hampshire, the defendant,

                      Kevin Whiffen knowingly and willfully

                      transmitted in interstate commerce between

                      Farmington, New Hampshire and Tampa,

                      Florida, a communication containing a

                      threat to injure Kelly Terrell and other

                      employees of Universal Fidelity

                      Corporation, Tampa, Florida, to wit, "Your

                      building will go boom." All in violation

                      of Title 18, United States Code, Section

                      875(c).


          It is our view that the indictment states the offense for which


          Whiffen has been convicted. The elements of the crime are


          elucidated and the indictment is sufficient to plead double


          jeopardy should future prosecutions be brought against Whiffen for


          the same offense. The indictment basically tracks the language of


          section 875(c), which states: "Whoever transmits in interstate or


                                         -7-



foreign commerce any communication containing . . . any threat to


          injure the person of another, shall be fined under this title and


          imprisoned for not more than five years, or both." 18 U.S.C.


          S 875(c). We find the indictment to be sufficient.  See 
                                                                  Darby, 37


          F.3d at 1063.


                    Appellant also argues that the indictment is inadequate


          because it "alleges threats that a building or buildings would 'go


          boom.' . . . It does not allege that any person would be present


          or hurt by any such explosion." Brief of Appellant at 6. The


          indictment does, however, allege that each of the threats was a


          threat to injure the person of another. In Count I, for example,


          it is stated that the communication contained "a threat to injure


          Kelly Terrell and other employees of Universal Fidelity


          Corporation." Whiffen's argument appears to be that threats to


          blow up the building are, as a matter of law, not threats against


          a person. Like the district court, we are unwilling to conclude


          that his words did not contain a threat to injure a person. One


          possible interpretation of a threat to blow up a building is that


          the building will be blown up with people inside. Such an


          interpretation would lead to the conclusion that the threat was a


          threat against those who work in the building. Alternatively, such


          a threat may be interpreted as a threat to blow up the building


          only when it is empty. Under this interpretation, Whiffen's


          statement would not constitute a threat against a person. The


          proper interpretation of Whiffen's remarks, however, is a question


          of fact and, therefore, appropriately left for the jury. We cannot


-8-



conclude that the interpretation preferred by Whiffen is, as a


          matter of law, the correct one.


                    Whiffen argues that we must interpret section 875(c)


          narrowly in order to avoid violation of his First Amendment rights.


          In support, he cites Watts v. United States, 394 U.S. 705 (1969),


          in which the defendant was accused of threatening the President.


          The primary concern of the Court in  Watts was the protection of


          constitutionally protected political speech.  See id. at 706-08.


          Whiffen does not claim that his statements were a form of political


          speech.


                    In any event, a true threat is not protected by the First


          Amendment.  See  Fulmer, 108 F.3d at 1492-93;   United 
                                                                 States v.


          Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990). For this


          reason, a conviction upon a finding that the statements were true


          threats would not violate Whiffen's constitutionally protected


          right to speech.


                             IV.  Judgment of Acquittal


                    Whiffen also appeals the denial of his motion, under Rule


          29 of the Federal Rules of Criminal Procedure, for a judgment of


          acquittal on all counts. We review the district court's ruling


          deferentially, considering the evidence "in the light most


          compatible with the verdict, resolv[ing] all credibility disputes


          in the verdict's favor, and then reach[ing] a judgment about


          whether a rational jury could find guilt beyond a reasonable


          doubt." United States
                                v. 
                                   Taylor, 54 F.3d 967, 974 (1st Cir. 1995).


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Whiffen claims that even under this deferential standard,


          the evidence "failed to prove a true threat to injure 'the person


          of another.'" Brief of Appellant at 8. This argument is,


          ultimately, a claim that the words spoken -- on which there is no


          dispute -- did not constitute a true threat. Specifically, Whiffen


          argues that "any reasonable person familiar with the context of


          those statements could not find beyond a reasonable doubt that they


          were true threats under S 875(c). They were frustrated,


          inarticulate, and empty words." Brief of Appellant at 10.


                    There is no dispute that Whiffen made the statements,


          there is disagreement only with respect to their proper


          interpretation. Whether or not Whiffen's statements were true


          threats is determined by applying the 
                                               Fulmer test discussed above.


          At trial, the government presented testimony that Terrell notified


          two supervisors about Whiffen's call, and informed Stacie Thompson,


          the person responsible for incoming mail, to "be very careful with


          any packages coming in from this area because there was a bomb


          threat." Tr., April 9, 1996, at 41. Both Terrell and Walls


          testified that this was the only bomb threat they had ever received


          while working in claims collection. Walls, who has fifteen years


          experience in third party collections, testified that by Whiffen's


          third call she was afraid. Joseph Suozzo, a claim manager in


          Allstate's Bedford, New Hampshire office, testified that, in


          reaction to the phone calls from Whiffen, a security guard was


          hired for the Bedford office and the claim against Whiffen was not


          pursued. This evidence regarding the reaction of the listeners is


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not conclusive, but it does suggest that at least these individuals


          perceived the statements to be threats.


                    Faced with this evidence, as well as the content of the


          statements and other contextual information, a reasonable jury


          could have found that the defendant should have reasonably foreseen


          that the statement he uttered would be taken as a threat by those


          to whom it was made. For that reason, we affirm the denial of


          Whiffen's motion for judgments of acquittal on all counts.


                    With respect to count four, Whiffen argues that he was


          unaware that his in-state call was re-routed to Florida. His lack


          of knowledge, however, does not constitute a defense. "[W]hile the


          Government was required to prove that [the defendant]'s phone call


          crossed a state line (a fact not in dispute here), the Government


          did not need to prove that [the defendant] knew of the interstate


          nexus."  Darby, 37 F.3d at 1067.


                                V. Jury Instructions


                    Finally, Whiffen challenges the jury instructions. He


          claims error in the district court's failure to instruct the jury


          that violation of section 875(c) is a specific intent crime. In


          our discussion of this issue, 
                                       supra section II, we determined that


          section 875(c) is a general intent crime. The failure to provide


          instructions to the effect that it is a specific intent crime,


          therefore, cannot be error.


                    Whiffen makes the additional argument that the jury


          instructions failed to meet the requirements of Fulmer. We turn,


          therefore, to consider whether the requirements set forth in that


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opinion, which we have determined apply in this case, were


          satisfied by the district court.


                    Fulmer instructs that "the appropriate standard under


          which a defendant may be convicted for making a threat is whether


          he should have reasonably foreseen that the statement he uttered


          would be taken as a threat by those to whom it is made."  Fulmer,


          108 F.3d at 1491.


                    The jury instructions actually given in the instant case


          were:


                      To sustain its burden with regard to the

                      second element the government must prove

                      beyond a reasonable doubt that the

                      communication contained a threat. A

                      threat is a serious statement or

                      communication expressing an intention to

                      inflict bodily injury upon another person

                      which, under the surrounding

                      circumstances, and in context, would cause

                      apprehension in a reasonable person that

                      the person making the threat will act on

                      it. A criminal threat must be

                      distinguished from words used as mere idle

                      or careless talk, hyperbole, exaggeration,

                      or something said in a joking manner.

                      Those are not threats within the meaning

                      of the statute involved in this case. In

                      other words, the communication must be

                      unconditional and a true threat or one

                      properly perceived by a reasonable person

                      as a real or genuine threat to injure

                      another. The government has the burden of

                      proving beyond a reasonable doubt that an

                      ordinary reasonable person, familiar with

                      the context and circumstances surrounding

                      the communication, would interpret the

                      communication as a genuine threat to

                      injure another person. . . . The

                      government is not required to prove that

                      the defendant subjectively intended the

                      recipient to understand the communication

                      was a threat, nor need to prove that the

                      defendant intended to or was actually able

                      to carry out the threat made. [T]he


                                        -12-



government must prove that the threat was

                      an unequivocal and unconditional

                      expression of intent to cause bodily

                      injury to another person and would cause a

                      reasonable person in the recipient's

                      circumstances to fear that he, she or

                      another person faced an imminent risk of

                      bodily injury.


          Tr. 9/5/96, at 14-15.


                    Comparing the instructions given to those required under


          the Fulmer analysis, we see that the district court instructions


          failed to inform the jury that it must consider whether the


          defendant could reasonably have foreseen that the statement would


          be taken as a threat. The instructions given indicate that it is


          sufficient if the communication would cause apprehension in a


          reasonable listener. In light of     Fulmer, this focus on the


          recipient of the threat rather than the defendant could be viewed


          as error, although we note in fairness to the district court that


          Fulmer was decided some months after the trial in this case. In


          any event, in this case, as in many others, the distinction is


          without practical importance.


                    We do not reverse a conviction based on an error in the


          jury instructions if "it is highly probable that the error did not


          contribute to the verdict." United States
                                                   v. 
                                                      Cudlitz, 72 F.3d 992,


          999 (1st Cir. 1996). An error that is certain to have had no


          significant impact on the jury is harmless.


                    The facts of this case are such that the instructions


          required under Fulmer and the instructions actually given in this


          case are functionally equivalent. In certain situations, as in


          Fulmer, there may be information known to the listener, but not to


                                        -13-



the speaker (or vice versa), that would cause a reasonable listener


          to perceive a statement as an expression of an intent to injure


          despite the fact that a reasonable speaker would not view it as


          such. That is not the case here. It is not possible that the


          words spoken by Whiffen were reasonably understood by the employees


          of UFC and Allstate as an expression of an intent to injure, and


          yet such an outcome would not have been foreseen by a reasonable


          speaker in Whiffen's position. This is so because, unlike in


          Fulmer, Whiffen did not employ language that held a different


          meaning for him than it did for the listeners.


                    We conclude, therefore, that the imperfection in the jury


          instructions could not have affected the verdict. The error was


          harmless.


                                   VI. Conclusion


                    For the reasons stated herein, we 
                                                     affirm 
                                                            the judgment of


          the district court.


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