                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3028
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                David Eugene Nicklas

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                              Submitted: April 10, 2013
                                Filed: April 26, 2013
                                   ____________

Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.
                              ____________

BYE, Circuit Judge.

      A jury found David Nicklas guilty of transmitting a facsimile communication
containing a threat to injure in violation of 18 U.S.C. § 875(c). The district court1
sentenced Nicklas to forty-five months of imprisonment. Nicklas appeals his

      1
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
conviction raising three issues: (1) the district court erred when it allowed the
government to redact the word "willfully" from the indictment in reference to
Nicklas's state of mind when committing the crime; (2) the evidence was insufficient
to support the verdict; and (3) the district court committed instructional error when it
rejected Nicklas's proffered jury instruction on reasonable doubt. We affirm.

                                           I

       Sometime in 2008, Nicklas claims he received a vision that the mob purchased
a property on his behalf in Rogers, Arkansas (the Rogers property). Following his
vision, Nicklas wrote a series of letters to several people demanding they give him the
deed to the Rogers property. The people Nicklas contacted included the developer of
the Rogers property; the prosecutor for Benton County, Arkansas; the agent in charge
of the Federal Bureau of Investigation (FBI) office in Little Rock, Arkansas; and the
Inspector General of the Department of Justice in Washington, D.C. In these letters,
Nicklas claimed he was personally responsible for costing organized crime over $1
billion, took credit for all the terrorists housed in Guantanamo Bay, and said he saved
over 7,000 teenage girls who were kidnaped by the mob for prostitution and
pornography. Nicklas claimed the mob placed the Rogers property in his name to
implicate him in the mob's illegal activities, while at the same time claiming the mob
intended to use the property as a drug and prostitution house.

       Nicklas sent a total of four letters to the Inspector General. The third letter,
which Nicklas faxed to the Inspector General on September 28, 2008, contained a
threat to kill FBI agents. Specifically, the letter stated the following:

      Dear sir. I understand the FBI is under attack nationwide. Agents are
      being killed in a number of cities and a major task force is trying to
      figure out why. Remember what I told you last week. Tom Duvall,
      Gambino crime boss, gave you a message. For each day I do not receive
      the deed to my property which you are illegally holding, an FBI agent

                                          -2-
      will die. The deadline is noon of each day. The FBI satellite office in
      Fayetteville, Arkansas has the deed. Any other questions? Sincerely,
      David E. Nicklas.2

       On November 19, 2008, a federal grand jury returned an indictment charging
Nicklas with transmitting a facsimile communication containing a threat to injure in
violation of 18 U.S.C. § 875(c). The indictment accused Nicklas of "knowingly and
willfully" transmitting the fax. After being indicted, Nicklas was diagnosed with
paranoid schizophrenia and found mentally incompetent to stand trial. In April 2012,
a psychiatrist opined that Nicklas's competency had been restored by forced
medication. Nicklas exercised his right to a jury trial shortly thereafter. Prior to trial,
however, the government moved to redact the word "willfully" from the indictment.
The government argued "willfully" overstated the mens rea required to prove the
charge and was mere surplusage in the indictment. The district court granted the
motion.

      During the trial, Nicklas offered an instruction on the definition of reasonable
doubt. The district court rejected Nicklas's proffered instruction and gave the jury the
following instruction:

      A reasonable doubt is a doubt based on reason and common sense and
      not the mere possibility of innocence. A reasonable doubt is the kind of
      doubt that would make a reasonable person hesitate to act. Proof beyond
      a reasonable doubt, therefore, must be proof of such a convincing
      character that a reasonable person would not hesitate to rely and act upon
      it. However, proof beyond a reasonable doubt does not mean proof
      beyond all possible doubt.




      2
        The day before this letter was faxed, Nicklas sent a letter to the Detroit FBI
office and the Police Department in Detroit claiming terrorists had planted a nuclear
device at a U Haul storage unit in Detroit.

                                           -3-
      Based upon the evidence presented at trial, which included the text of the
September 28 fax to the Inspector General as well as testimony indicating government
authorities treated the letter as a serious threat, the jury found Nicklas guilty. He filed
a timely appeal. On appeal, he claims the district court erred when it allowed the
government to redact the word "willfully" from the indictment. He also contends the
evidence was insufficient to support the verdict. Finally, he contends the district court
abused its discretion when it rejected his proffered instruction on reasonable doubt.

                                            II

       We first review the challenge to the district court's order granting the
government's motion to strike the word "willfully" from the indictment. Nicklas
contends § 875(c) sets forth a specific intent crime and requires the government to
prove he "willfully" made a threat. In response, the government argues § 875(c) only
requires proof that a defendant knowingly transmitted a communication, and that the
communication contained a statement a reasonable person would perceive as a
threat–in other words, proving the statement is a threat does not depend upon the
defendant's state of mind but upon how a reasonable recipient would interpret the
defendant's words. See, e.g., United States v. Mabie, 663 F.3d 322, 332 (8th Cir.
2011) (indicating a threat is a "statement that a reasonable recipient would have
interpreted as a serious expression of an intent to harm or cause injury to another")
(citation omitted). The government therefore argues the indictment overstated the
mens rea for the crime charged and the word "willfully" was mere surplusage. See
United States v. Nabors, 762 F.2d 642, 647 (8th Cir. 1985) (setting forth the general
rule that a court may not allow an indictment to be amended, but recognizing an
exception where the amendment merely removes surplusage from the indictment and
the remaining allegations correctly state the essential elements of an offense); United
States v. Holmes, 594 F.2d 1167, 1173 (8th Cir. 1979) (indicating language in an
indictment overstating the mental state for the crime charged constitutes mere
surplusage).

                                           -4-
       Although the Eighth Circuit has addressed this same issue for an analogous
charge under § 876(c), see United States v. Koski, 424 F.3d 812, 817 (8th Cir. 2005)
(concluding the "intent of the sender is not an element of the offense"), we have not
yet directly addressed whether § 875(c) is a specific intent crime that requires the
government to prove the defendant's subjective intentions. Most circuits have
addressed the issue, however, and have concluded § 875(c) sets forth a general intent
crime which only requires the government to prove a defendant acted knowingly in
transmitting a communication containing a threat to injure. See United States v.
Whiffen, 121 F.3d 18, 21 (1st Cir. 1997); United States v. Francis, 164 F.3d 120, 121-
22 (2nd Cir. 1999); United States v. Himelwright, 42 F.3d 777, 782-83 (3rd Cir.
1994); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994); United States v.
Meyers, 104 F.3d 76, 81 (5th Cir. 1997); United States v. DeAndino, 958 F.2d 146,
148-49 (6th Cir. 1992); United States v. Stewart, 411 F.3d 825, 828 (7th Cir. 2005);
United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006).3

       Undaunted by the deck of circuit precedent stacked heavily against him, Nicklas
argues his fate is controlled by a Supreme Court decision. In Virginia v. Black, 538
U.S. 343 (2003), the Supreme Court addressed a Virginia statute that made it a felony
to burn a cross on a highway or other public place "with the intent of intimidating any
person or group." Va. Code Ann. § 18.2-423. In deciding whether the statute violated
freedom of speech rights under the First Amendment, the Supreme Court defined "true
threats" to "encompass those statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence[.]" Black, 538
U.S. at 359. Nicklas argues this statement from Black suggests the Supreme Court
requires proof of the defendant's actual intent to threaten, i.e., specific intent, for any
offense involving a threat, including a threat under § 875(c). In response, the
government argues Black is not on point because it dealt with a crime that already

      3
       The lone exception is the Ninth Circuit. See United States v. Twine, 853 F.2d
676, 679-80 (9th Cir. 1988).


                                           -5-
required specific intent and involved a "true threat" analysis under the First
Amendment rather than a mens rea requirement.

       In United States v. Jeffries, the Sixth Circuit addressed the same argument
Nicklas makes and concluded Black's First Amendment "true threat" analysis did not
apply to the mens rea the government must establish to prove a violation of § 875(c):

      Black does not work the sea change that Jeffries proposes. The case
      merely applies—it does not innovate—the principle that "[w]hat is a
      threat must be distinguished from what is constitutionally protected
      speech." Watts, 394 U.S. at 707. It says nothing about imposing a
      subjective standard on other threat-prohibiting statutes, and indeed had
      no occasion to do so: the Virginia law itself required subjective "intent."
      The problem in Black thus did not turn on subjective versus objective
      standards for construing threats. It turned on overbreadth—that the
      statute lacked any standard at all. The prima facie evidence provision
      failed to distinguish true threats from constitutionally protected speech
      because it "ignore[d] all of the contextual factors that are necessary to
      decide whether a particular cross burning is intended to intimidate," and
      allowed convictions "based solely on the fact of cross burning itself." Id.
      at 365, 367.

692 F.3d 473, 479-80 (6th Cir. 2012). The Sixth Circuit reasoned the general intent
crime set forth in § 875(c) does not ignore the context of an alleged threat because a
"reasonable person" must still perceive the statement "as a serious expression of an
intention to inflict bodily harm." Id. at 480 (quoting United States v. Alkhabaz, 104
F.3d 1492, 1495 (6th Cir. 1997)); cf. United States v. Floyd, 458 F.3d 844, 848 (8th
Cir. 2006) (rejecting Black's application to a mens rea analysis under § 876(c)).

       We agree with the sound reasoning in Jeffries, and now join the other circuits
that have concluded § 875(c) does not require the government to prove a defendant
specifically intended his or her statements to be threatening, but rather requires the
government to prove a reasonable recipient would have interpreted the defendant's

                                         -6-
communication as a serious threat to injure. We therefore conclude the district court
did not abuse its discretion when it granted the government's motion to strike
surplusage from the indictment. See United States v. Figueroa, 900 F.2d 1211, 1218
(8th Cir. 1990) (reviewing a motion to strike surplusage from an indictment for an
abuse of discretion).

       Nicklas next contends the evidence was insufficient to support his conviction,
even if § 875(c) is a general intent crime, because the September 28 fax to the
Inspector General did not contain a statement that a reasonable recipient would
interpret as a serious threat to injure. We review challenges to the sufficiency of the
evidence de novo, viewing the evidence in the light most favorable to the verdict and
giving the verdict the benefit of all reasonable inferences. United States v. Johnson,
688 F.3d 494, 502 (8th Cir. 2012).

       To sustain a conviction under § 875(c), the government was required to prove
the following elements: (1) Nicklas caused a transmission to be made in interstate
commerce; (2) he did so knowingly; and (3) the transmission contained a threat to
injure the person of another. See, e.g., DeAndino, 958 F.2d at 148. Nicklas stipulated
to the first two elements, so the only issue for the jury was whether the September 28
fax contained a statement a reasonable recipient would interpret as a threat to injure
the person of another. In determining whether a communication is a threat that
violates the statute, "the communication must be viewed in 'textual context and also
in the context of the totality of the circumstances in which the communication was
made.'" Floyd, 458 F.3d at 849 (quoting United States v. Bellrichard, 994 F.2d 1318,
1323 (8th Cir. 1993) (addressing an analogous violation of § 876)).

      The government contends the statement Nicklas made in the September 28 fax–
"For each day I do not receive the deed to my property which you are illegally
holding, an FBI agent will die"–was alone sufficient to sustain the jury's conviction.
In addition, the government presented evidence placing the letter in context. The

                                         -7-
government called the developer of the Rogers property as a witness, and he informed
the jury one of the letters he received from Nicklas said "Do not let the FBI influence
your decision [to give me the deed] . . . I will take care of them." The government
also called the Benton County Prosecuting Attorney's assistant as a witness, and she
told the jury one of the eight letters sent to her boss accusing the county of wrongfully
holding the deed to the Rogers property said "Tell the FBI to take a flying leap into
hell." The government also introduced evidence of the extensive investigation the FBI
initiated as a result of the September 28 fax, from which a jury could reasonably infer
the FBI took the matter very seriously. Based on these facts, we conclude the
evidence was sufficient to support the jury's verdict.

       Finally, Nicklas challenges the district court's failure to give his proffered
instruction on reasonable doubt. We review the district court's rejection of a proposed
instruction offered by a criminal defendant for an abuse of discretion. United States
v. Beale, 620 F.3d 856, 866 (8th Cir. 2010). We find no abuse of discretion here,
because Nicklas's challenge is foreclosed by circuit precedent. See United States v.
Spires, 628 F.3d 1049, 1054 (8th Cir.), cert. denied, 131 S.Ct. 2475 (2011) (upholding
the same reasonable doubt instruction used by the district court in this case).

                                           III

      We affirm the judgment of the district court.
                      ______________________________




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