                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 APRIL 28, 2010
                                 No. 09-11245
                                                                  JOHN LEY
                           ________________________                CLERK

                    D.C. Docket No. 06-00127-CR-T-24-TGW

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

VINCENT JAMES KROCKA,
a.k.a. Da Monster,

                                                          Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                                (April 28, 2010)

Before DUBINA, Chief Judge, MARTIN and COX, Circuit Judges.

PER CURIAM:

      A federal grand jury issued a twenty-five count indictment against Vincent

James Krocka. It includes counts of mail threat in violation of 18 U.S.C. § 876(c),

extortionate mail threat in violation of 18 U.S.C. § 876(b), and witness tampering in
violation of 18 U.S.C. § 1512(b)(1). He was convicted on four counts of mail threat,

four counts of extortionate mail threat, and six counts of witness tampering. He

appeals those convictions and his sentence.

        Krocka raises a number of issues on appeal; we address in detail only his

contention that the district court erred in denying his motion for judgment of acquittal

as to counts twenty-four and twenty-five of the indictment, which allege witness

tampering.1 Because we conclude that insufficient evidence was presented at trial for

a rational juror to find that Krocka attempted to intimidate, threaten, or otherwise

influence the testimony of the witness described in those counts, we hold that he is

entitled to a judgment of acquittal as to those two counts.

        Count twenty-four of the indictment alleges that Krocka:

        did knowingly and willfully use intimidation, threaten, and corruptly
        persuade another person, and attempt to do so, with the intent to
        influence, delay, and prevent the testimony of that person in an official
        proceeding, that is, an appearance as a witness in the trial of Vincent J.
        Krocka, et al, Case Number 8:06-CR-00127-T-23 TGW, in the United


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          Krocka also contends: (1) that the court erred in denying his motion to dismiss the
indictment because he was denied his constitutional right to a speedy trial; (2) that the court erred
in admitting, under Federal Rule of Evidence 404(b), evidence of prior crimes; (3) that the court
erred in admitting evidence of phone calls between Krocka and his sons to which the alleged target
of his threats was not privy; (4) that the court erred in denying his motion for acquittal on sufficiency
of the evidence grounds as to counts 5, 10, 11, 13-17, and 20-23; (5) that the court failed to instruct
the jury that mental abuse is not a form of bodily injury; (6) that the court improperly grouped his
convictions for sentencing purposes; and (7) that the court erred in failing to reduce his sentence due
to the fact that he suffered from reduced mental capacity. After review of the record, and with the
benefit of oral argument, we conclude that these arguments are without merit.

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       States District Court for the Middle District of Florida, in that the
       defendant attempted to send, and sent a letter to his son stating in part:

              “. . . Don’t let the government scare you or bulldoze you.
              Stand up to them. Tell them to fuck off . . . [”]

               “ . . . I need you to stop mom from showing up at court and
              testifying against me. Can you imagine her disloyalty to all
              of us. It is in your hands. I trust you and I am depending
              on you for my freedom.”

(R.1-34 at 19.)

       Count twenty-five of the indictment alleges that Krocka:

       did knowingly and willfully use intimidation, threaten, and corruptly
       persuade another person, and attempt to do so, with the intent to
       influence, delay, and prevent the testimony of that person in an official
       proceeding, that is, an appearance as a witness in the trial of Vincent J.
       Krocka, et al, Case Number 8:06-CR-00127-T-23 TGW, in the United
       States District Court for the Middle District of Florida, in that the
       defendant attempted to send, and sent a letter to his son stating in part:

              “. . . You must stop mom from coming to court and
              testifying against me, and if you are contacted by the
              government, don’t talk to them but refer them to your
              lawyer . . . same for Dan, tell him![”]

(Id. at 20.) At trial, the Government introduced the letters in their entirety, but did not

present other evidence that directly supports the allegations contained in counts

twenty-four and twenty-five.




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       We conclude that the witness described in these counts of the indictment is Jeff

Krocka, the defendant’s son.2 The indictment charges that Defendant Vincent Krocka

willfully intimidated, threatened, and corruptly persuaded Jeff with an intent to

influence, prevent, and delay Jeff’s testimony. And, the jury was instructed that it

could find the defendant guilty only if it was proved beyond a reasonable doubt that:

(1) the person described in the indictment was a witness or scheduled to be a witness;

(2) the defendant used intimidation, threats, or corrupt persuasion or attempted to do

so against such person as charged; and (3) the defendant did so knowingly and

willfully with the intent to influence, delay, or prevent the testimony of the witness.

(R.7-123 at 95.) The jury was instructed that: to “intimidate” means to intentionally

say or do something that would cause a person to be fearful of bodily harm;

“corruptly” means to do something knowingly and dishonestly with a specific intent

to subvert or undermine the integrity of a proceeding; and that to do something




       2
           These counts do not explicitly name Jeff Krocka as the target of the alleged witness
tampering. Each count identifies and quotes from a letter Defendant Krocka wrote to Jeff. The letter
identified in count twenty-five was also addressed and mailed to Jeff, but the letter identified in
count twenty-four was addressed and mailed to Defendant Krocka’s son Dan. The identity of the
witness said to be tampered with is ambiguous at best, but because both of the letters were written
to Jeff, we conclude that these counts charge that Defendant Krocka attempted to interfere with Jeff’s
testimony. Because we reverse Defendant Krocka’s conviction for count twenty-four on other
grounds, we do not address whether the court plainly erred in failing to dismiss this count because
it fails to state an offense.

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“knowingly corruptly,” a person must be conscious of his wrongdoing. (Id. at 95-96.)

No objection was made at trial to these jury instructions.

      After review of the letters offered to support the allegations of witness

tampering, we conclude that no rational juror could interpret the letters as attempting

to intimidate, threaten, or corruptly persuade Jeff Krocka in order to influence, delay,

or prevent his testimony. The letter offered to support the allegations of count

twenty-four advises Jeff that he may be subpoenaed to give copies to the Government

of all of the letters Defendant Vincent Krocka had written to him, and it warns Jeff

that he may be asked to testify before a federal grand jury. It goes on to direct Jeff

to inform the defendant’s attorney if he is subpoenaed and to “[d]o exactly as he tells

you.” (Gov’s Ex. 24.) The letter also advises Jeff that “[y]ou have your own right to

privacy in your mail that you receive,” and it encourages him to “stand up to” the

Government. (Id.) A rational juror would likely interpret these statements as an

attempt by the defendant to advise his son of his legal rights. These statements do not

threaten or intimidate, nor are they an attempt to “corruptly persuade” Jeff, as those

terms are defined by the jury instructions, to delay or alter his testimony. Moreover,

nothing in the letter offered by the Government to prove the allegations contained in

count twenty-five could be construed as an attempt to intimidate, threaten, or

corruptly persuade Jeff to delay or alter his testimony. The six-page letter discusses

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personal matters unrelated to Defendant Krocka’s upcoming trial. The only mention

of the trial is one statement encouraging Jeff to “stop Mom from coming to court and

testifying against me.” (Gov’s Ex. 25 at 5.) This could not be interpreted as an

attempt by Defendant Krocka to influence, delay, or prevent Jeff’s testimony.

      The Government argues, on appeal, that the letters could be construed as

having three intended recipients, Jeff, Mrs. Grace Krocka, and the defendant’s son

Dan. And, it argues that the letters could be interpreted as an attempt to encourage

the sons to prevent or influence Grace Krocka’s testimony. We agree; statements

such as “stop Mom from coming to court and testifying against me” could be

construed as an attempt to cause the sons to prevent Grace from testifying. But, the

counts at issue do not allege that the letters were delivered to anyone other than their

intended recipient, and the counts do not allege that the defendant intended the letters

to affect Grace Krocka’s testimony. Rather, they charge that the defendant attempted

to influence, prevent, or delay Jeff’s testimony. And, the jury was instructed that the

defendant could be found guilty only if it was proved that the defendant used

intimidation, threats, or corrupt persuasion with the intent to influence, delay, or

prevent the testimony of the witness described in the indictment.

      After viewing the evidence in the light most favorable to the Government, we

conclude that no rational trier of fact would have found all the essential elements of

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counts twenty-four and twenty-five beyond a reasonable doubt. See United States v.

Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006). Therefore, we hold that the court erred

in denying Defendant Krocka’s motion for judgment of acquittal. We reverse his

convictions as to counts twenty-four and twenty-five of the indictment, affirm his

convictions as to the remaining counts, and vacate his sentence. We remand the case

to the district court for resentencing, but leave to the discretion of the district court

whether to hold a new sentencing hearing.

      AFFIRMED IN PART; REVERSED IN PART; SENTENCE VACATED;

AND REMANDED FOR RESENTENCING.




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