                Case: 11-13295       Date Filed: 09/03/2015       Page: 1 of 4


                                                                                 [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 11-13295
                              ________________________

                        D.C. Docket No. 0:10-cr-60332-KMM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                            versus

ELLISA MARTINEZ,

                                                                  Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                    (September 3, 2015)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before ED CARNES, Chief Judge, BLACK, Circuit Judge, and RESTANI, * Judge.

PER CURIAM:

       *
          The Honorable Jane A. Restani, United States Court of International Trade Judge,
sitting by designation.
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      This case is before this Court for further consideration in light of Elonis v.

United States, 575 U.S. ___, 135 S. Ct. 2001 (2015). We previously affirmed

Ellisa Martinez’s conviction under 18 U.S.C. § 875(c) for knowingly transmitting a

threatening communication. United States v. Martinez, 736 F.3d 981 (11th Cir.

2013). The Supreme Court vacated the opinion and remanded the case to us for

consideration in light of Elonis. See Martinez v. United States, 135 S. Ct. 2798

(2015).

      In Elonis, the Supreme Court reversed and remanded the defendant’s

conviction under § 875(c), holding a jury instruction providing “that the

Government need prove only that a reasonable person would regard [the

defendant’s] communications as threats” was error. 135 S. Ct. at 2012. The Court

determined that “[h]aving liability turn on whether a ‘reasonable person’ regards

the communication as a threat—regardless of what the defendant thinks”—is

insufficient for a conviction under § 875(c). Id. at 2011. The Court cited “the

basic principle that wrongdoing must be conscious to be criminal,” id. at 2009, and

held that “what [the defendant] thinks does matter,” id. at 2011. While the

Supreme Court declined to answer the question of the exact mental state required

by a defendant, it held negligence is not enough to support a conviction under

§ 875(c). Id. at 2013.

      Martinez’s indictment charged that:


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      On or about November 10, 2010, in Broward County, in the Southern
      District of Florida, and elsewhere [Martinez] did knowingly transmit
      in interstate commerce a communication, that is an email form
      response, to WFTL Radio, which communication contained a threat to
      injure the person of another, in violation of Title 18, United States
      Code, Section 875(c).

Martinez moved to dismiss the indictment, asserting, inter alia, that it was facially

defective because it failed to allege she subjectively intended to convey a threat to

injure others. The district court denied the motion. Martinez then pled guilty to

the crime charged in the indictment, but, in pleading guilty, reserved the right to

appeal the district court’s denial of her motion to dismiss.

      Martinez then appealed to this Court, asserting first that her indictment was

deficient because it did not allege she subjectively intended to convey a threat to

injure others, and second that § 875(c) was unconstitutionally overbroad if it did

not require subjective intent. Martinez, 736 F.3d at 984. We rejected both of these

arguments and relied on our prior decision in United States v. Alaboud, 347 F.3d

1293 (11th Cir. 2003), holding the inquiry for a conviction under § 875(c) is an

objective one—specifically, “whether there was sufficient evidence to prove

beyond a reasonable doubt that the defendant intentionally made the statement

under such circumstances that a reasonable person would construe [it] as a serious

expression of an intention to inflict bodily harm,” id. at 1296-97.

      Based on the Supreme Court’s holding in Elonis, Martinez’s indictment is

insufficient as it fails to allege an essential element of § 875(c). An indictment
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must set forth the essential elements of the offense. United States v. Fern, 155

F.3d 1318, 1324-25 (11th Cir. 1998). This rule serves the purposes of (1)

informing the defendant of the nature and cause of the accusation, as required by

the Sixth Amendment; and (2) ensuring a grand jury found probable cause to

support all the necessary elements of the crime, as required by the Fifth

Amendment. Id. at 1325. The indictment fails to allege Martinez’s mens rea or

facts from which her intent can be inferred, with regard to the threatening nature of

her e-mail. It alleges only that a reasonable person would regard Martinez’s

communication as a threat. Martinez’s indictment does not meet the Fifth

Amendment requirement that the grand jury find probable cause for each of the

elements of a violation of § 875(c).

       In light of the Supreme Court’s holding in Elonis, our holdings in Martinez

and Alaboud are overruled. Martinez’s conviction and sentence are vacated, and

we remand this case to the district court with instructions to dismiss Martinez’s

indictment without prejudice.1

       VACATED AND REMANDED.




       1
          After remand, the parties were directed to file supplemental letter briefs addressing how
the Elonis decision applies to this case. Both parties agreed the case should be remanded to the
district court for dismissal of the indictment without prejudice.
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