                              NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 11a0692n.06

                                                   No. 11-3462
                                                                                                          FILED
                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT                                          Sep 28, 2011
                                                                                             LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )
                                       )                     ON APPEAL FROM THE UNITED
v.                                     )                     STATES DISTRICT COURT FOR THE
                                       )                     NORTHERN DISTRICT OF OHIO
JAMES SCHMIDLIN,                       )
                                       )                     OPINION
      Defendant-Appellant.             )
                                       )
______________________________________ )

       Before: GILMAN and KETHLEDGE, Circuit Judges; and LUDINGTON, District
               Judge.*

       RONALD LEE GILMAN, Circuit Judge. James Schmidlin was convicted by a jury of

making an interstate communication involving a threat of arson, in violation of 18 U.S.C. § 844(e).

He argues on appeal that the district court erred by (1) failing to give an augmented unanimity jury

instruction regarding the elements of § 844(e), (2) rejecting his proposed jury instruction, and

(3) failing to provide the jury with a special-verdict form. For the reasons set forth below, we

AFFIRM the judgment of the district court.

                                             I. BACKGROUND

A.     Factual background




        *
           The Honorable Thomas L. Ludington, United States District Court Judge for the Eastern District of Michigan,
sitting by designation.
No. 11-3462
United States v. Schmidlin


       In the early months of 2010, while Congress was vigorously debating the merits of proposed

healthcare-reform legislation, Schmidlin began calling the offices of congressional representatives

to voice his objection to the bill. One of his calls was to Congressman John Boccieri’s field office

in Canton, Ohio. The call was made on March 4, 2010 from a parking lot in Cleveland, Tennessee.

Katie Jones, an assistant to the congressman, answered Schmidlin’s call. She gave a standard

greeting, provided her name, and identified the office as that of Congressman Boccieri.

       At trial, Jones and Schmidlin offered different accounts about what happened next. According

to Jones’s testimony, Schmidlin ignored her greeting and immediately launched into a verbal assault

on the congressman, yelling: “John Boccieri doesn’t get it. He just doesn’t get it. I swear I’m going

to burn his fucking house down.” Jones said that she replied to Schmidlin by asking for his name and

telling him that such threats would not be tolerated. Schmidlin did not respond, but instead repeated

his threat to burn down Congressman Boccieri’s house and then hung up the phone. The entire call

lasted less than one minute.

       Schmidlin recalled the conversation quite differently. In his version, he began by pledging

to never vote for another Democrat if the House of Representatives passed the healthcare-reform bill.

There was then some back-and-forth regarding Congressman Boccieri’s intention to vote for the bill,

during which time Schmidlin grew progressively angrier. Schmidlin ended the call by repeating his

earlier pledge to never again vote for a Democrat if the bill passed in the House.

       In his testimony, Schmidlin conceded that he was upset by the end of the conversation. But

he maintained that he never threatened to burn down Congressman Boccieri’s house; rather, he told


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No. 11-3462
United States v. Schmidlin


Jones that “if [Congressman Boccieri] votes for this bill and this bill passes the House, we’re going

to kick every one of them out of office and we are going to fucking burn down this house of cards.”

Thus, in Schmidlin’s account of the conversation, the threat that he made to Congressman Boccieri

was purely a political one: he used the phrase “burn down” in conjunction with the word “house”

only as a metaphor for the power of the vote.

       When the call was over, Jones immediately reported the conversation to Congressman

Boccieri’s Washington, D.C. office. She also sent an email to the Capitol Police detailing the nature

of the call and the relevant facts. Jones did not know that Schmidlin was the one who made the call,

however, because he had used his cell phone’s “*67” feature, which blocked the display of the

incoming number. But the government eventually traced the call to Schmidlin’s cell phone by

examining the telephone records from Congressman Boccieri’s office and focusing on the only call

made to the office during the time frame given by Jones that took less than one minute. Three weeks

later, an agent from the Federal Bureau of Investigation questioned Schmidlin about the incident.

Schmidlin denied recognizing Congressman Boccieri’s name and refused to acknowledge whether

he knew anything about the call.

B.     Procedural background

       On September 29, 2010, Schmidlin was indicted on one count of making an interstate

communication involving a threat of arson, in violation of 18 U.S.C. § 844(e), and on one count of

making a harassing telephone call, in violation of 47 U.S.C. § 223(a)(1)(C). Because Schmidlin was




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 No. 11-3462
 United States v. Schmidlin


ultimately convicted on only the first count, the relevant statute for the purposes of this appeal is 18

U.S.C. § 844(e).

       Count one of the indictment against Schmidlin reads as follows:

       On or about March 4, 2010, in the Northern District of Ohio, Eastern Division, the
       defendant, JAMES L. SCHMIDLIN, did place a telephone call in interstate commerce
       from the State of Tennessee to the State of Ohio, which telephone call willfully made
       a threat, and maliciously conveyed false information known to JAMES L.
       SCHMIDLIN to be materially false, concerning an attempt being made and to be made
       to unlawfully damage and destroy a building by means of fire; to wit, the house of
       United States Congressman John Boccieri, in violation of Title 18, Section 844(e),
       United States Code.

(Emphasis added.) Section 844(e), in contrast, provides in relevant part that a person can be

convicted under the statute if he or she uses an instrument of interstate commerce to “willfully make[]

any threat, or maliciously convey[] false information knowing the same to be false, concerning an

attempt or alleged attempt being made, or to be made, to . . . damage or destroy any building, vehicle,

or other real or personal property by means of fire.” (Emphasis added.) That is, a person can violate

§ 844(e) by either (1) willfully making a threat concerning an attempt to destroy property by fire, or

(2) maliciously and knowingly conveying false information concerning such an attempt. But the

statute does not require the perpetrator to do both, as Schmidlin himself conceded in his brief.

       The indictment against Schmidlin charged that he had violated the statute in both ways, thus

creating a divergence between what the government had charged and what it was required to prove.

Although such a divergence is permissible for statutes written in the disjunctive, like § 844(e), see

United States v. Budd, 496 F.3d 517, 528-29 (6th Cir. 2007), the use of the word “and” in the

indictment where the statute uses “or” nevertheless created confusion when the case went to trial.

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 No. 11-3462
 United States v. Schmidlin


During their deliberations, the jurors submitted a note to the district court asking it to clarify whether

the government needed to prove what was charged in the indictment or only what the statute required.

The court then gave the following supplemental jury instruction:

                  Even though the indictment uses the conjunction “and” to divide the two ways
        of . . . committing the crime under Section 844(e), if the government proves beyond
        a reasonable doubt either one of the two alleged means by which it is charged that the
        defendant violated 844(e), then that element has been proved.

               . . . Therefore, I instruct you that you must all agree unanimously that the
        defendant either made or caused to be made a threat to unlawfully . . . damage or
        destroy the house of United States Congressman John Boccieri or you must all agree
        unanimously that defendant . . . maliciously conveyed false information which he
        knew to be false concerning an attempt or alleged attempt being made or to be made
        to unlawfully destroy the house of United States Congressman John Boccieri.

                If you reach such a unanimous decision described in the preceding paragraph,
        you still must determine whether the government has proved the other elements [that
        are required by § 844(e)].

(Internal quotation marks omitted in second paragraph.)

        Before the supplemental instruction was read to the jury, however, Schmidlin’s attorney

requested that the following sentence be added: “You cannot split your determination between

either.” The district court responded to the request by telling him that the supplemental instruction

already “says that.” Schmidlin’s attorney replied by saying: “I think it does, too. I’m just being a

little anally retentive.”

        After receiving the supplemental instruction, the jury found Schmidlin guilty of violating

§ 844(e). The district court subsequently sentenced him to four months of imprisonment and three

years of supervised release. Schmidlin now appeals on the grounds that the district court erred by


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 United States v. Schmidlin
 No. 11-3462

failing to give an augmented unanimity jury instruction regarding the elements of the offense, by

rejecting his proposed instruction, and by failing to provide the jury with a special-verdict form.




                                            II. ANALYSIS

A.      Standard of review

        We review a district court’s denial of a proposed jury instruction under the abuse-of-discretion

standard. United States v. Adams, 583 F.3d 457, 468-69 (6th Cir. 2009). Jury instructions are viewed

“as a whole to determine whether they fairly and accurately inform the jury of relevant considerations

and explain the applicable law.” United States v. McGee, 529 F.3d 691, 695 (6th Cir. 2008) (internal

quotation marks omitted). “A trial court’s refusal to give a requested jury instruction is reversible

error only if the instruction is (1) correct, (2) not substantially covered by the actual jury charge, and

(3) so important that failure to give it substantially impairs the defendant’s defense.” United States

v. Hart, 635 F.3d 850, 854 (6th Cir. 2011) (brackets and internal quotation marks omitted).

B.      Schmidlin’s arguments for reversible error

        On appeal, Schmidlin first contends that the district court erred by failing to give a more

specific jury instruction on unanimity. Schmidlin claims that he was entitled to an augmented

unanimity instruction because such an instruction is required if one of three criteria is met: “1) a

count is extremely complex, 2) there is a variance between the indictment and the proof at trial, or

3) there is a tangible risk of jury confusion.” United States v. Krimsky, 230 F.3d 855, 860 (6th Cir.

2000) (internal quotation marks omitted). He contends that all three criteria have been met in this

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 United States v. Schmidlin
 No. 11-3462

case. But even assuming without deciding that Schmidlin was entitled to such an instruction, his

argument fails because he received the very instruction that he claims he was entitled to. The district

court’s supplemental jury instruction spelled out the particular elements of the offense on which the

jury needed to be unanimous and is precisely the kind of special unanimity instruction that Krimsky,

if applicable, would require.

        Schmidlin next alleges that the district court erred by refusing his proposed jury instruction.

This argument also lacks merit. As stated above, a district court’s refusal to deliver a requested

instruction “is reversible error only if the instruction is (1) correct, (2) not substantially covered by

the actual jury charge, and (3) so important that failure to give it substantially impairs the defendant’s

defense.” Hart, 635 F.3d at 854 (brackets and internal quotation marks omitted). Schmidlin’s

proposed instruction, which would have added a sentence telling the jury that it could not “split your

determination between either,” does not meet either the second or third requirements.

        The proposed instruction does not meet the second requirement because it was substantially

covered by the supplemental jury instruction actually given, as Schmidlin’s attorney acknowledged

before the instruction was read to the jury. Although § 844(e) can be violated in two different ways,

the given instruction made clear that Schmidlin could be convicted under the statute only if the jury

was unanimous on which of the two ways he had violated § 844(e). Put differently, the supplemental

instruction informed the jury that it could not “split your determination between either” way as to how

the statute was violated. The proposed instruction was therefore superfluous, so the district court did

not err in declining to give it.



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 United States v. Schmidlin
 No. 11-3462

        Nor does Schmidlin’s proposed instruction meet the third requirement—that the instruction

be “so important that failure to give it substantially impairs the defendant’s defense.” Hart, 635 F.3d

at 854 (brackets and internal quotation marks omitted). Schmidlin’s defense at trial was that he did

not threaten to burn down Congressman’s Boccieri’s house during his conversation with Jones, but

instead used a poorly chosen metaphor to refer to the power of the vote to “burn down this house of

cards.” His defense was not in the least impaired—let alone substantially impaired—by the district

court’s failure to add Schmidlin’s proposed sentence to the supplemental jury instruction.

        Finally, Schmidlin argues that the district court erred by not providing “an augmented jury

instruction verdict form concerning unanimity.” But Schmidlin cites no authority that supports his

contention, and in fact the caselaw cuts the other way: special-verdict forms are disfavored in

criminal cases, so a district court’s failure to require such a form does not usually constitute reversible

error. United States v. Blackwell, 459 F.3d 739, 766-67 (6th Cir. 2006) (noting the “general rule

against special verdicts in criminal cases,” and holding that the district court’s refusal to grant the

defendant’s request for a special-verdict form was not an abuse of discretion); see also United States

v. Musick, 291 F. App’x 706, 730 (6th Cir. 2008) (unpublished opinion) (“There is no authority for

the proposition that failure to ask the jury to return a special verdict constitutes reversible error.”).

Moreover, the merit of Schmidlin’s argument is especially dubious because he never requested that

the district court submit a special-verdict form to the jury. See Davis v. Rennie, 264 F.3d 86, 106-07

(1st Cir. 2001) (questioning the defendant’s right to object to the lack of a special-verdict form where

the defendant did not make such a request to the district court or otherwise object to the general-

verdict form).

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United States v. Schmidlin
No. 11-3462

                                    III. CONCLUSION

      For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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