                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 08-2111
                                ________________


United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      District of South Dakota.
Larry Jongewaard,                        *
                                         *
            Appellant.                   *

                                _______________

                            Submitte: November 11, 2008
                               Filed: June 3, 2009
                               ________________

Before MURPHY, RILEY and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

      Larry Jongewaard was convicted of transmitting in interstate commerce a
communication containing a threat to injure the person of another in violation of 18
U.S.C. § 875(c). Jongewaard appeals, arguing that his conviction cannot stand
because the Government failed to allege or prove that the relevant interstate
communications were made to effect some change or achieve some goal through
intimidation. Alternatively, Jongewaard contends that two evidentiary rulings by the
district court1 deprived him of a fair trial. For the following reasons, we affirm.

I.    BACKGROUND

        In the waning hours of September 23, 2007, Larry Jongewaard placed a
telephone call from his home in Omaha, Nebraska, to the home of Ted Schmidt in
Mellette County, South Dakota. During this call, Jongewaard told Schmidt that he
was going to kill Richard Jongewaard, Larry Jongewaard’s uncle and Schmidt’s best
friend. Jongewaard repeated this threat to Schmidt as many as forty times in a series
of calls that continued into the early morning hours of September 24. Jongewaard
invited Schmidt to tape record their conversation (Schmidt did not), stating “I know
this is illegal for me to say this and I’m saying it.” Jongewaard went on to describe
his plan to kill Richard with Richard’s own gun and then to turn the gun on himself.
Jongewaard also recounted spending a week or two near Richard’s home the previous
November, undetected, to “stake out the place.”

       At about 12:30 a.m. on September 24, Schmidt called Richard Jongewaard to
inform him of the threat that Larry Jongewaard had made. Later that morning,
Schmidt went with Richard to the Mellette County Courthouse to report Larry’s
threatening phone calls and to seek a restraining order on Richard’s behalf.

       Two months later, Larry Jongewaard called Schmidt after learning that he had
been charged with violating 18 U.S.C. § 875(c). At first, Jongewaard denied making
any threatening statements during the September 23 and 24 phone calls. Schmidt
eventually interrupted Jongewaard and repeated the exact wording of Jongewaard’s
earlier threat to kill Richard Jongewaard. Jongewaard then acknowledged his


      1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.

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previous statements but noted that he made them to Schmidt and not to Richard.
Jongewaard told Schmidt that he planned to turn himself in and contest the charge,
vowing that he would make Richard “look so bad” that Schmidt would be
“embarrassed to be [Richard’s] friend.”

        At trial, the Government presented testimony from Schmidt, Richard
Jongewaard and two employees of telecommunications companies that provide
service in Nebraska and South Dakota. Jongewaard filed a motion in limine seeking
to prevent Schmidt and Richard Jongewaard from testifying about an incident that
occurred in September 2004 in which Larry caused Richard to fear for his life.
Jongewaard also objected to Richard’s testimony regarding the call he received from
Schmidt at about 12:30 a.m. on September 24, 2007, in which Schmidt told Richard
about Larry’s threat. The district court denied Jongewaard’s motion in limine insofar
as it related to the September 2004 incident and overruled his objection relating to the
phone conversation between Schmidt and Richard. At the close of the Government’s
case-in-chief, Jongewaard moved for a judgment of acquittal, which the district court
denied. Jongewaard was convicted and sentenced to 60 months’ imprisonment, the
top of the advisory sentencing guidelines range.

II.   DISCUSSION

       Jongewaard’s principal argument is that the Government failed to allege or
prove an essential element of 18 U.S.C. § 875(c); namely, that the relevant interstate
communications were made to effect some change or achieve some goal through
intimidation. The dispositive question is whether § 875(c) actually contains such a
requirement. This is a question of law that we would ordinarily review de novo. See,
e.g., United States v. Yockel, 320 F.3d 818, 822 (8th Cir. 2003). However, because
Jongewaard did not raise this issue before the district court, our review is for plain
error. See, e.g., United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir. 1996). Under
the plain error standard, the defendant bears the burden of showing that an obvious

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error affected his substantial rights. United States v. New, 491 F.3d 369, 378 (8th Cir.
2007). We have discretion to correct such an error “if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.

       Jongewaard insists that his proposed requirement that an allegedly unlawful
communication be made to effect some change or achieve some goal is an element of
§ 875(c) rather than a limitation derived from the First Amendment or some other
constitutional source.2 Our inquiry therefore begins and ends with the unambiguous
text of the statute. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (“It is well
established that ‘when the statute’s language is plain, the sole function of the
courts—at least where the disposition required by the text is not absurd—is to enforce
it according to its terms.’” (quoting Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000))).

       Section 875(c) provides that “[w]hoever transmits in interstate or foreign
commerce any communication containing any threat to kidnap any person or any
threat to injure the person of another, shall be fined under this title or imprisoned not
more than five years, or both.” According to Jongewaard, the legislative history of
§ 875(c) shows that Congress intended to criminalize only a subcategory of threats
aimed at inducing the person being threatened to act in a certain manner. This


      2
        Because § 875(c) criminalizes “pure speech,” the Government must prove that
an allegedly unlawful communication contains a so-called “true threat.” United States
v. Stewart, 411 F.3d 825, 828 (7th Cir. 2005) (quoting Watts v. United States, 394
U.S. 705, 707-08 (1969)). In this circuit, the test for distinguishing a true threat from
constitutionally protected speech is whether an objectively reasonable recipient would
interpret the purported threat “as a serious expression of an intent to harm or cause
injury to another.” See, e.g., Doe ex rel. Doe v. Pulaski County Special Sch. Dist., 306
F.3d 616, 624 (8th Cir. 2002) (en banc). Jongewaard expressly disclaims any
challenge to his conviction under the First Amendment, so we need not address the
question whether Jongewaard’s statements to Schmidt contained a true threat rather
than constitutionally protected speech.

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assertion is contrary to the statutory text, which prohibits transmitting in interstate
commerce any threat to injure the person of another. The ordinary meaning of the
term “threat” is not limited to statements made to effect some change or achieve some
goal. See Black’s Law Dictionary 1519 (8th ed. 2004) (defining “threat” as “[a]
communicated intent to inflict harm or loss on another or on another’s property, esp.
one that might diminish a person’s freedom to act voluntarily or with lawful
consent”); Webster’s Third New International Dictionary 2382 (2002) (defining
“threat” as “an expression of an intention to inflict evil, injury, or damage on another
usu. as retribution or punishment for something done or left undone”). Rather, a
statement constitutes a threat if it expresses an intention to inflict harm, loss, evil,
injury, or damage on another, regardless of whether the person making the threat has
a discernible purpose for communicating such an intention.

       The plain language of § 875(c) thus criminalizes a broad spectrum of threats to
injure the person of another, ranging from threats that are a means to achieving some
tangible end, to threats that serve no discernible purpose other than intimidation for
its own sake. Jongewaard cannot plausibly argue that Congress used “threat” as a
term of art (i.e., to refer to a subcategory of goal-oriented threats), that the inclusion
of the adjective “any” was a scrivener’s error, or that the meaning of “any threat” is
ambiguous. Since Jongewaard has not shown that the statute is ambiguous or that
enforcing the statute as written would produce absurd results, we need not consider
the legislative history of § 875(c). See In re Operation of Mo. River Sys. Litig., 418
F.3d 915, 918 (8th Cir. 2005) (“Absent some ambiguity in the statute, we have no
occasion to look to legislative history.” (quoting Neosho R-V Sch. Dist. v. Clark, 315
F.3d 1022, 1032 (8th Cir. 2003))).

       Jongewaard also relies on a controversial decision in which the Sixth Circuit
held that “a communication objectively indicating a serious expression of an intention
to inflict bodily harm cannot constitute a threat unless the communication . . . is
conveyed for the purpose of furthering some goal through the use of intimidation.”

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United States v. Alkhabaz, 104 F.3d 1492, 1495 (6th Cir. 1997); see generally Jennifer
E. Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol’y 283,
309-11 (2001). For the reasons set out above, we reject the premise that a
communication qualifies as a threat under § 875(c) only if it is a means to an end other
than intimidation for its own sake. Cf. Alkhabaz, 104 F.3d at 1501 (Krupansky, J.,
dissenting) (“[The] statutory language commands only that the . . . communication
must contain any threat to kidnap or physically injure any person, made for any
reason or no reason.”). No other circuit has adopted the Sixth Circuit’s narrow
interpretation of § 875(c), and we decline to do so.3

       Jongewaard’s reliance on United States v. Bellrichard, 779 F. Supp. 454 (D.
Minn. 1991), aff’d, 994 F.2d 1318 (8th Cir. 1993), is likewise misplaced. In
Bellrichard, Judge Murphy posed a series of hypotheticals designed to illustrate the
significance of the constitutionally mandated “true threat” analysis in the context of
a prosecution under 18 U.S.C. § 876. See id. at 459. Since Jongewaard expressly
disclaims any challenge to his conviction under the First Amendment, Bellrichard is


      3
        We note that a panel of this court quoted language from Alkhabaz as an
example of the tests formulated by other circuits to distinguish true threats from
constitutionally protected speech. See Doe ex rel. Doe v. Pulaksi County Special Sch.
Dist., 263 F.3d 833, 837 (8th Cir. 2001), rev’d, 306 F.3d 616 (8th Cir. 2002) (en
banc). The panel in Doe apparently overlooked the Sixth Circuit’s disclaimer that its
opinion did not address the “First Amendment issues raised by the parties.” See
Alkhabaz, 104 F.3d at 1493. The holding in Alkhabaz was instead premised on the
court’s interpretation of the elements of § 875(c), see id. at 1494-96, a statute that was
not at all relevant in Doe, which involved a First Amendment challenge to a student’s
expulsion from school, see Doe, 263 F.3d at 835. Although the panel in Doe did not
expressly adopt the test purportedly announced in Alkhabaz, it “integrated” Alkhabaz,
along with authorities from this and other circuits, in formulating “a concise standard
for identifying a true threat.” Doe, 263 F.3d at 837. Even assuming, however, that
the panel adopted the holding in Alkhabaz entirely, we would not be bound to follow
the panel’s decision, for it was vacated by an en banc decision that did not adopt,
quote, cite, or even allude to Alkhabaz. See Doe, 306 F.3d at 619, 624.

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inapposite. Besides, Bellrichard did not suggest that a true threat must be made to
effect some change or achieve some goal through intimidation.

      Based on the foregoing analysis, we hold that Jongewaard’s proposed change-
or-goal requirement is not an element of § 875(c). Because the Government was not
required to allege in the indictment or prove at trial that the relevant interstate
communications were made to effect some change or achieve some goal through
intimidation, we conclude that Jongewaard’s principal argument fails to show that his
conviction was tainted by error, plain or otherwise.

       Jongewaard contends, in the alternative, that two evidentiary rulings by the
district court deprived him of a fair trial. We disagree.

       We review the district court’s evidentiary rulings for abuse of discretion.
United States v. LaDue, 561 F.3d 855, 857 (8th Cir. 2009). The first ruling that
Jongewaard challenges is the district court’s decision to allow Schmidt and Richard
Jongewaard to testify about the September 2004 incident in which Larry caused
Richard to fear for his life. According to Richard, Larry showed up at Richard’s home
late one evening, unannounced, along with Larry’s wife, mother, and brother. Larry’s
mother reportedly confronted Richard with allegations that he abused Larry when
Larry was a child. Later, outside the presence of his wife and mother, Larry allegedly
remarked to Richard, “[I] might commit a double murder tonight.”

       Rule 404(b) of the Federal Rules of Evidence provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show action in conformity therewith,” but “may . . . be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” We have held that evidence of prior acts
is admissible if “(1) it is relevant to a material issue; (2) it is similar in kind and not
overly remote in time to the crime charged; (3) it is supported by sufficient evidence;

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and (4) its potential for unfair prejudice does not substantially outweigh its probative
value.” United States v. Ziesman, 409 F.3d 941, 952 (8th Cir. 2005). Applying this
test, we have found that a defendant’s past threats may be admissible under Rule
404(b) to provide “context for the indicted conduct” and to show “the seriousness of
[later] threats.” United States v. Cvijanovich, 556 F.3d 857, 864 (8th Cir. 2009).

        The district court found that the proffered evidence relating to the September
2004 incident, including Jongewaard’s alleged declaration that he “might commit a
double murder tonight,” was admissible under Rule 404(b). Specifically, the court
found that the incident involved the same parties and was “reasonably close in time”
to the alleged offense, that the evidence could be admitted to prove Jongewaard’s
intent or the absence of a mistake, and that the probative value of the evidence
outweighed its potential prejudicial effect. In addition, the court instructed the jury
that it could consider Jongewaard’s alleged prior acts only if it found that the evidence
of those acts was “more likely true than not true,” and then “only on the issues of state
of mind or intent, motive, and absence of mistake or accident.”

      Jongewaard argues that the September 2004 incident had no relevance apart
from proving that he previously “made statements exhibiting an angry character” and
that Richard Jongewaard believed that the threatening statements communicated to
Schmidt in September 2007 were “made in conformity [with] this attribute of [Larry]
Jongewaard’s character.” Moreover, Jongewaard suggests that neither his intent nor
the absence of a mistake were material issues because “[n]o one claimed that
Jongewaard’s . . . statements to Schmidt [in September 2007] were a mistake [or] that
[Jongewaard] did not intend to make [them].” We are not persuaded.

      Jongewaard’s statements and actions during the September 2004 incident were
relevant evidence of Jongewaard’s motive and intent to commit the present offense.
Contrary to Jongewaard’s assertions on appeal, he made his intent a material issue by
seeking and receiving a jury instruction concerning voluntary intoxication, by eliciting

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testimony from his brother, Nicky Ham, that he drank alcohol on a daily basis,
including on the night of September 23, 2007, and by arguing to the jury that
“intoxication does play a part in your determination[] o[f] whether Larry Jongewaard
had the specific intent . . . to commit the crime.”4

       Jongewaard does not argue that the September 2004 incident was either overly
remote in time or insufficiently similar in kind to the present offense. Nor does
Jongewaard contend that the evidence of the September 2004 incident was
insufficient. Although Jongewaard describes the evidence as “highly prejudicial,” he
has not shown that its potential for unfair prejudice substantially outweighed its
probative value. Cf. United States v. Pitrone, 115 F.3d 1, 8 (1st Cir. 1997) (“Virtually
all evidence is prejudicial—if the truth be told, that is almost always why the
proponent seeks to introduce it—but it is only unfair prejudice against which the law
protects.”). In any event, the district court’s limiting instruction lessened the danger
that the evidence had an unfairly prejudicial effect. See United States v. Walker, 470
F.3d 1271, 1275 (8th Cir. 2006). Thus, we are satisfied that the district court did not
abuse its discretion by admitting the disputed evidence about the September 2004
incident.

       The second ruling that Jongewaard challenges is the district court’s decision to
overrule Jongewaard’s hearsay objection to Richard Jongewaard’s testimony
regarding the call he received from Schmidt at about 12:30 a.m. on September 24,
2007, in which Schmidt told Richard about Larry’s threat. The court found that this
testimony was admissible under Rule 803(2) because Schmidt’s statements to Richard
qualified as “excited utterances,” which are excepted from the general rule against
hearsay. See United States v. Bercier, 506 F.3d 625, 630 (8th Cir. 2007) (“Rule
803(2) excepts [from the hearsay rule] an out-of-court statement ‘relating to a startling

      4
        Because Jongewaard does not contend that the evidence was insufficient to
satisfy the mens rea element charged in the indictment, we express no opinion on
whether § 875(c) requires proof of specific intent.

                                          -9-
event or condition made while the declarant was under the stress of excitement caused
by the event or condition.’” (quoting Fed. R. Evid. 803(2))).

       Jongewaard argues that the Government failed to lay an adequate foundation
to show that the call between Schmidt and Richard occurred while Schmidt was under
the stress of excitement caused by his conversation with Larry. This argument fails
to recognize that Schmidt’s testimony preceded Richard’s. There was no need for the
Government to make a full proffer in response to Jongewaard’s objection because
Schmidt had already testified that he called Richard after his startling conversation
with Larry to recount “exactly what Larry had said.” Schmidt’s testimony provided
an adequate foundation for Richard to testify about his recollection of Schmidt’s
excited utterances. Thus, we are satisfied that the district court did not abuse its
discretion by overruling Jongewaard’s objection to Richard Jongewaard’s testimony.

       Even if we assume, for the sake of argument, that the challenged evidentiary
rulings were improper in whole or in part, the uncontroverted evidence of
Jongewaard’s guilt was overwhelming. Accordingly, any error was harmless. See,
e.g., United States v. Langley, 549 F.3d 726, 729 (8th Cir. 2008).

III.   CONCLUSION

       For the foregoing reasons, we affirm Jongewaard’s conviction.
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