
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.                                         -2-                    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.                                         -3-                    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                                         -6-          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).                                         -9-                    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                                        -10-          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                                        -11-          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.                                        -14-
