14-1809-cr
United States v. Wright-Darrisaw

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of September, two thousand fifteen.

Present:
            GUIDO CALABRESI,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                            No. 14-1809-cr

CHRISTINE WRIGHT-DARRISAW,

                  Defendant-Appellant.
____________________________________________________

For Defendant-Appellant:           JEFFREY L. CICCONE, Assistant Federal Public Defender, (Jay
                                   Ovsiovitch, Of Counsel, on the brief), Federal Public Defender’s
                                   Office, Rochester, NY.

For Appellee:           MONICA J. RICHARDS and Joseph J. Karaszewski, Assistant United
                        States Attorneys, for William J. Hochul, Jr., United States Attorney
                        for the Western District of New York, Buffalo, NY.
____________________________________________________

        Appeal from a judgment of the United States District Court for the Western District of

New York (Geraci, J.).

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14-1809-cr
United States v. Wright-Darrisaw

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

              Defendant-Appellant Christine Wright-Darrisaw (“Wright-Darrisaw”) appeals her

conviction for threatening to kill the President of the United States in violation of 18 U.S.C.

§ 871(a)1 and the procedural reasonableness of her sentence of 33 months imprisonment. This

court previously addressed the procedural reasonableness of Wright-Darrisaw’s sentence—in

particular, whether her threat involved the sort of deliberation contemplated under U.S.S.G.

§ 2A6.1(b)(6) that precluded her from receiving a four-level decrease in her offense level. See

United States v. Wright-Darrisaw, 781 F.3d 35, 39 (2d Cir. 2015). We deferred consideration of

whether Wright-Darrisaw’s statement constituted a “true threat” until after the Supreme Court

had issued its decision in Elonis v. United States, 135 S.Ct. 2001 (2015). We now address

whether there was sufficient evidence to support Wright-Darrisaw’s conviction under 18 U.S.C.

§ 871(a). We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues remaining on appeal, to which we refer only as necessary to explain our

decision.

              This Court reviews de novo a district court’s grant or denial of a judgment of acquittal

and will affirm the judgment if, after considering all the facts in the light most favorable to the

prosecution, “no rational trier of fact could have found the defendant guilty beyond a reasonable

doubt.” United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008) (quoting United States v.

Jackson, 335 F.3d 170, 180 (2d Cir. 2003)). In pertinent part, 18 U.S.C. § 871(a) provides that

anyone who “knowingly and willfully . . . [makes] any threat to take the life of, to kidnap, or to

inflict bodily harm upon the President of the United States . . . shall be fined under this title or

                                                            
1
 Wright-Darrisaw does not challenge her conviction for making false statements in violation of
18 U.S.C. § 1001(a)(2).
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14-1809-cr
United States v. Wright-Darrisaw

imprisoned not more than five years, or both.” 18 U.S.C. § 871(a). This Court has traditionally

applied an objective test to determine whether a defendant’s statement is a true threat. United

States v. Turner, 720 F.3d 411, 420 (2d Cir. 2013). A statement rises to the level of true threat if

“an ordinary, reasonable recipient who is familiar with the context of the [communication] would

interpret it as a threat of injury.” Id. (quoting U.S. v. Davila, 461 F.3d 298, 305 (2d Cir. 2006)).

“True threats encompass those statements where the speaker means to communicate a serious

expression of [] intent to commit an act of unlawful violence” even without the intent to commit

the act. Virginia v. Black, 538 U.S. 343, 359–60 (2003) (internal citations omitted).2 “[W]hether

[the] words used are a true threat is generally best left to the triers of fact.” United States v.

Amor, 24 F.3d 432, 436 (2d Cir. 1994) (quoting United States v. Carrier, 672 F.2d 300, 306 (2d

Cir. 1982)).

              In this case, the Supreme Court’s holding in Elonis does not significantly alter the

standard by which we determine whether a threat is a true threat under 18 U.S.C. § 871(a). 135

S.Ct. at 2012. Section 871(a) requires the Government to prove that the defendant “knowingly

and willfully” threatened the President of the United States. 18 U.S.C. § 871(a). Elonis informs

our understanding of 18 U.S.C. § 871(a) that the Government will have met its burden if it

                                                            
2
  As we recognized in Turner, this Court has yet to address whether the objective test for a true
threat has been supplemented with a subjective test by the United States Supreme Court in
Virginia v. Black, and now in Elonis, both of which might be read (albeit in different statutory
contexts) to require that the speaker subjectively intend to communicate a threat or intimidate the
threat’s recipient. See Turner, 720 F.3d at 420 n.4; Black, 538 U.S. at 359 (2003); Elonis, 135
S.Ct. at 2012. But see United States v. Johnson, 14 F.3d 766, 769–71 (2d Cir. 1994). But as in
Turner, we find no reason here to delineate with more precision the subjective elements of a true
threat needed to sustain a conviction under 18 U.S.C. § 871(a). In our view, the subjective
element is satisfied in 18 U.S.C. § 871(a) by the use of the terms “knowingly and willfully”—
elements not present in 18 U.S.C. § 875(c), the statute on which the Court focused in Elonis.
Here, the district court invoked that element when it instructed the jury to apply the “knowingly
and willfully” requirement to both the act of communicating and the act of threatening, requiring
the jury to find beyond a reasonable doubt that Wright-Darrisaw intended her communication to
be understood as a threat. See J.A. at 82–83. Under § 871(a), this sufficed.
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14-1809-cr
United States v. Wright-Darrisaw

proves that Wright-Darrisaw’s statement was objectively a true threat and that she “knowingly

and willfully” made her statement, intending it to be understood by others to be a true threat.

This is precisely what the district court instructed the jury to consider. J.A. at 82–83 (instructing

the jury that a statement is a true threat if a “reasonable person hearing or reading the statement

would understand it as a serious expression of intent to inflict bodily injury . . . [and that] the

Government must prove that the defendant . . . made the statement intending it to be understood

by others to be a serious threat”).

        We conclude on our review of the evidence presented—Wright-Darrisaw’s statement that

she was going to “f**ck and kill Obama,” coupled with the surrounding factual circumstances—

that it is sufficient for a rational juror to find that she intended to make a true threat against the

President and thus violated 18 U.S.C. § 871(a).

        We have considered all of Wright-Darrisaw’s remaining arguments that have not been

addressed in our prior opinion and find them to be without merit. Accordingly, we AFFIRM the

conviction.



                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




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