                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             January 15, 2015
                                   PUBLISH                  Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                      No. 14-1031
 v.

 KENNETH ROYAL WHEELER,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 1:12-CR-00138-WJM-1)


O. Dean Sanderford, Assistant Federal Public Defender (and Virginia L. Grady,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant - Appellant.

James C. Murphy, Assistant United States Attorney (and John F. Walsh, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff -
Appellee.


Before KELLY, BALDOCK, and EBEL, Circuit Judges.


KELLY, Circuit Judge.



      Kenneth Wheeler was convicted of two counts of transmitting a threat in

foreign commerce under 18 U.S.C. § 875(c) based on Facebook posts that called
upon his “religious followers” to carry out violent acts. Count One of the

indictment referenced Mr. Wheeler’s “wrath commands” to kill law enforcement

officers and children. 1 R. 27. Count Two referenced Mr. Wheeler’s instructions

to kill law enforcement officers, politicians, judges, district attorneys, public

defenders and their children. Id. at 28. Mr. Wheeler was sentenced to forty

months’ imprisonment on each count to run concurrently, and three years’

supervised release on each count, also to run concurrently. On appeal, Mr.

Wheeler argues that his convictions must be reversed because: (1) the jury was

not properly instructed that it had to find Mr. Wheeler had a subjective intent to

threaten in order to convict; and (2) the evidence was insufficient to support a

finding that Mr. Wheeler transmitted a “true threat.” We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse for a new trial because the jury was

not properly instructed. We are not persuaded that the evidence was insufficient

to convict.


                                     Background

      Mr. Wheeler has strong anti-government views and became angry at certain

police officers in Grand Junction, Colorado, because of, among other things, a

DUI arrest that he viewed as a set-up. On March 12, 2012, Mr. Wheeler, while in

Italy, posted a statement to his Facebook page urging his “religious followers” to

“kill cops. drown them in the blood of thier [sic] children, hunt them down and


                                         -2-
kill their entire bloodlines” and provided names. Gov’t Ex. 8g. Four days later,

on March 16, 2012, Mr. Wheeler posted again from Italy: “to my religious

followers and religious operatives. if my dui charges are not dropped, commit a

massacre in the stepping stones preschool and day care, just walk in and kill

everybody.” Id. Mr. Wheeler lived two to three blocks away from the Stepping

Stones daycare center.

      In addition, the government introduced evidence of a third Facebook post

by Mr. Wheeler on March 17, 2012, his “last mean update, once i can’t do this in

america.” Id. In this post, which was not the basis of a charge, Mr. Wheeler

stated that “in my faith revenge is the only commandment.” Id.

      Each post appeared as a “status update” on Mr. Wheeler’s page, which a

Facebook custodian explained is “when a user posts what they are thinking or

how they are feeling on their own wall to share with their friends and family.” 3

R. 220–21. According to Facebook’s records, Mr. Wheeler’s status updates could

be viewed by his “friends and networks.” Id. at 224. There is no evidence Mr.

Wheeler was a member of any “networks” at the times he posted the status

updates. But, two officers testified that they viewed Mr. Wheeler’s Facebook

page on March 16 and thought he had friends listed on the page. Further,

Facebook records indicated that on March 17, Mr. Wheeler removed ten Facebook

friends, which suggests that he had these friends when he posted the March 12

and March 16 status updates.

                                        -3-
      After his arrest, Mr. Wheeler told the police that he thought he had deleted

all of his Facebook friends prior to posting the status updates. The district judge,

who listened to a recording of Mr. Wheeler’s interview, believed Mr. Wheeler

was operating under the “mistaken belief” that nobody would see his Facebook

posts. Id. at 562. Mr. Wheeler further explained that he had no “religious

followers”; indeed, the district court found “no evidence in the record at all from

which anyone can reasonably conclude that such individuals ever existed.” Id. at

550. When the police asked Mr. Wheeler why he made the posts, he said, “I was

just basically trying to stick it to the man and say f*** you.” Id. at 292. When

Mr. Wheeler was asked how he would feel if somebody had carried out his orders,

he responded that he “would probably have a wide spectrum of mixed emotions”;

he would “feel bad if people got hurt,” but also would “want to point [his] middle

finger at—in the face of people—certain people and say, That’s what you get for

all of the terrorism that you did to me.” Id. at 293.

      One of the individuals referenced in Mr. Wheeler’s posts came across the

posts on Facebook. The man knew Mr. Wheeler because he worked as a bouncer

at a pub Mr. Wheeler frequented. He testified that, in his experience, Mr.

Wheeler was “loud and mouthy,” but had not been violent. Id. at 181–82.

Nevertheless, the posts worried him and he called the police. He did not interpret

the posts to be a joke and could not understand how anybody would. The other

individuals mentioned in Mr. Wheeler’s posts were notified by the police. One of

                                        -4-
the men, an employee at the same bar, testified that the posts made him concerned

for his safety. He knew that Mr. Wheeler was “not right in the head,” and was

concerned because “there are other people in the world that I don’t necessarily

trust.” Id. at 207.

      One of the threatened police officers lived right next to the Stepping Stones

preschool and testified that he had “never seen something like this” in his eight

years in law enforcement and that it was “chilling” and “crossed the line.” Id. at

299. When he told his wife of the threats, she wanted “to go out and, you know,

get comfortable using a firearm.” Id. at 300. Another officer knew Mr. Wheeler

and thought he was “a nut to the point where he was violent and could be a

danger to [his] family.” Id. at 305. This officer went to his church and children’s

school to warn the pastor and teachers about the posts and made sure that his wife

was armed. A third officer spent the day patrolling the area around Stepping

Stones daycare.

      Mr. Wheeler was charged under 18 U.S.C. § 875(c), which states in

relevant part: “Whoever transmits in interstate or foreign commerce any

communication containing . . . any threat to injure the person of another, shall be

fined under this title or imprisoned not more than five years, or both.” At trial,

Mr. Wheeler submitted two proposed instructions on the elements of the offense,

both which required the jury to find that “Mr. Wheeler understood and meant the

words as a true threat.” 1 R. 360–61. The government objected to the proposed

                                         -5-
instruction, arguing that it “improperly makes 18 U.S.C. § 875(c) a specific intent

crime rather than the general intent crime that it is.” Doc. 142 at 1. It asserted

that only the Ninth Circuit required subjective intent to threaten and that the

Tenth Circuit had rejected such an approach. Id. at 1–2. The court agreed,

rejected the defendant’s proposed instructions, and instead defined a “threat” as:

      a declaration of intention, purpose, design, goal or determination to
      inflict punishment, loss or pain on another, or to injure another or his
      property, by the commission of some unlawful act. A true threat is a
      serious threat, not political argument, idle talk or something said
      jokingly; that is, made under circumstances that would lead a
      probable [sic] person, 1 who hears or reads the threat, to believe that
      the defendant intended to injure another person.


3 R. 442. As to the requisite state of mind, the court instructed the jury:

      Whether the defendant intended or had the ability to carry out the
      threat is not relevant. The inquiry is how a reasonable person would
      have perceived the threat.


Id. Thus, the court did not instruct the jury that in order to convict, it had to find

that Mr. Wheeler subjectively intended to threaten anyone.



                                     Discussion

A.    Jury Instructions

      Mr. Wheeler first argues that his conviction should be reversed because the


      1
        The written jury instructions refer to a “reasonable person,” not a
probable person. 1 R. 467.

                                         -6-
district court erroneously refused to instruct the jury that, in order to convict, it

had to find that Mr. Wheeler subjectively intended the posts to be threatening.

This court recently held in United States v. Heineman, 767 F.3d 970 (10th Cir.

2014) that § 875(c), in accord with the First Amendment, requires proof of a

defendant’s subjective intent to threaten. While the government maintains

Heineman was wrongly decided, Aplee. Br. 23 n.7, it concedes that under current

Tenth Circuit law, Mr. Wheeler’s jury instructions were flawed. 2 Nevertheless,

the government contends that the conviction should be affirmed because the

faulty instructions were harmless error.

      Where an element is improperly omitted from a jury instruction, we must

reverse unless “it [is] clear beyond a reasonable doubt that a rational jury would


      2
          Because the Supreme Court recently granted certiorari on a case from the
Third Circuit addressing this precise issue, see Elonis v. United States, 730 F.3d
321 (3d Cir. 2013), cert. granted, 134 S. Ct. 2819 (June 16, 2014) (No. 13–983),
the government also suggests that this court “may wish to await the Supreme
Court’s decision before deciding Mr. Wheeler’s case.” Aplee. Br. 23 n.7. This
court rejected a similar argument in Heineman, noting that the Elonis decision
“may not be handed down until next June, and there is always the possibility that
an unexpected problem with the case will cause the Supreme Court not to proceed
with its review.” 767 F.3d at 971 n.1. Though in Heineman the defendant was
only on probation, and thus would “not suffer as much in the interim as one who
has been incarcerated,” the court concluded that “probation is not an insignificant
sanction” and resolved the appeal. Id. Here, Mr. Wheeler is imprisoned and thus
has an even stronger claim for quick resolution of his case than did the defendant
in Heineman. Further, Mr. Wheeler challenges the sufficiency of the evidence
supporting his conviction. Success on this claim would prevent Mr. Wheeler’s
retrial, see Burks v. United States, 437 U.S. 1, 18 (1978), and thus this court
would need to address it regardless of the result in Elonis. These factors persuade
us that we should not delay resolution of this case.

                                           -7-
have found the defendant guilty absent the error.” Neder v. United States, 527

U.S. 1, 18 (1999); see also United States v. Sierra-Ledesma, 645 F.3d 1213, 1217

(10th Cir. 2011). The government contends that no rational juror could conclude,

based on the evidence presented, that Mr. Wheeler did not subjectively intend for

his remarks to be threatening. We disagree.

      First, Mr. Wheeler stated that he believed he had no Facebook friends at the

time he posted the status updates. A rational juror could certainly believe, as the

district court apparently did, 3 R. 562, that Mr. Wheeler honestly thought nobody

would see his posts. Second, Mr. Wheeler had no religious followers, and a

rational juror could consider that fact in deciding whether Mr. Wheeler had an

intent to threaten.

      The government suggests that several undisputed facts conclusively show

that Mr. Wheeler intended to instill fear in the individuals he mentioned in his

Facebook posts. First, the government points to Mr. Wheeler’s statement in his

first post that “the americans cant punish me for what i say here in rome italy on

facebook.” Aplee. Br. 24. But Mr. Wheeler’s vague sense that his statements

would be illegal if made in the United States does not conclusively reveal whether

he intended them to be threatening. Second, the government argues that because

the jury was instructed that it had to find that Mr. Wheeler acted “purposely, with

the intent to do something that the law forbids,” the guilty verdict was

“tantamount” to a finding that Mr. Wheeler intended his posts to be threatening.

                                        -8-
Id. But once again, the jury’s finding that Mr. Wheeler intended to break the law

does not conclusively establish that he intended for the parties mentioned to feel

threatened.

      Finally, the government asserts that Mr. Wheeler’s “revenge motive,”

evidenced by his post-arrest interrogation, shows his intent to threaten. Id. at 25.

Mr. Wheeler’s statement that he was “trying to stick it to the man and say ‘f***

you’” and the satisfaction Mr. Wheeler stated he would receive from somebody

carrying out his orders certainly are the types of circumstantial evidence relevant

to a jury’s determination of whether an individual acted with the requisite intent.

See Wingfield v. Massie, 122 F.3d 1329, 1333 (10th Cir. 1997). The government

can certainly argue this to the jury, but that does not resolve the issue. This is not

an instance where an omitted element was “supported by uncontroverted

evidence,” Neder, 527 U.S. at 18; thus, the issue of intent must be determined by

a jury upon retrial given our resolution of the sufficiency issue.

B.    Sufficiency of the Evidence

      Mr. Wheeler also contends that the evidence was insufficient to support his

conviction under § 875(c) because his Facebook posts do not express his own

intent to do violence. We must address Mr. Wheeler’s sufficiency challenge

because, if successful, it would prevent his retrial. See Burks v. United States,

437 U.S. 1, 18 (1978).

      1.      Standard of Review

      As a preliminary matter, the parties disagree as to the proper standard of

                                          -9-
review for Mr. Wheeler’s sufficiency challenge. Generally, this court reviews

claims of evidentiary sufficiency under a deferential standard, “view[ing] all the

evidence, direct and circumstantial, together with all reasonable inferences

therefrom, in the light most favorable to the prosecution.” United States v.

Leaverton, 835 F.2d 254, 255 (10th Cir. 1987). The proper inquiry, in such cases,

is whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      However, the Supreme Court in Bose Corp. v. Consumers Union of United

States, Inc. set forth an exception to this rule applicable where a defendant argues

his speech is protected by the First Amendment. 466 U.S. 485 (1984). In such

cases involving “constitutional facts,” id. at 508 n.27, reviewing courts must

undertake an “independent review” of the record to ensure the speech actually

qualifies as unprotected speech. Id. at 505. This independent review does not

alter the established rule that reviewing courts cannot overturn factual findings

unless “clearly erroneous” or second-guess a jury’s credibility determinations. Id.

at 500–01 (citing Fed. R. Civ. P. 52(a)). Rather, it simply directs reviewing courts

to determine for themselves whether the fact-finder appropriately applied First

Amendment law to the facts. Id.; see also Hurley v. Irish-American Gay, Lesbian

& Bisexual Grp. of Boston, 515 U.S. 557, 567 (1995) (“This obligation rests upon

us simply because the reaches of the First Amendment are ultimately defined by

the facts it is held to embrace, and we must thus decide for ourselves whether a

given course of conduct falls on the near or far side of the line of constitutional

                                         - 10 -
protection.”).

      Though Bose dealt with the actual malice standard in defamation actions,

Mr. Wheeler contends that independent review applies here, as he argues his posts

do not fall within the “true threat” category of unprotected speech. The Fourth

and Ninth Circuits have held the doctrine of independent review of constitutional

facts to apply to “true threat” cases, see United States v. Bly, 510 F.3d 453,

457–58 (4th Cir. 2007); Planned Parenthood of the Columbia/Willamette, Inc. v.

Am. Coal. of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002), but several other

courts review true threat cases under the traditional deferential standard. See

United States v. Jeffries, 692 F.3d 473, 481 (6th Cir. 2012); United States v. Parr,

545 F.3d 491, 497 (7th Cir. 2008); United States v. Schiefen, 139 F.3d 638, 639

(8th Cir. 1998); see also United States v. Turner, 720 F.3d 411, 419 (2d Cir. 2013)

(noting uncertainty in the doctrine’s application to true threat cases).

      This court has not relied upon Bose in “true threat” cases and has

consistently stated that “whether a defendant’s statement is a true threat or mere

political speech is a question for the jury.” United States v. Viefhaus, 168 F.3d

392, 397 (10th Cir. 1999); see also Leaverton, 835 F.2d at 255. Of course, “[i]f

there is no question that a defendant’s speech is protected by the First

Amendment, the court may dismiss the charge as a matter of law.” Viefhaus, 168

F.3d at 397. But, absent an “unusual set of facts,” the question whether statements

amount to true threats “is a question generally best left to a jury.” United States v.

Malik, 16 F.3d 45, 51 (2d Cir. 1994).

                                         - 11 -
      2.     Sufficiency of the Evidence

      Section 875(c), like all threat statutes, “must be interpreted with the

commands of the First Amendment clearly in mind.” Watts v. United States, 394

U.S. 705, 707 (1969). Thus, such statutes apply only to “true threat[s]”—i.e.,

threats outside the protective scope of the First Amendment. Viefhaus, 168 F.3d

at 397. The Supreme Court in Virginia v. Black defined “true threats” as

“statements where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular individual or group of

individuals.” 538 U.S. 343, 359 (2003). Such a threat must be “a serious threat as

distinguished from words as mere political argument, idle talk or jest.” Leaverton,

835 F.2d at 256.

      In distinguishing between “true threats” and protected speech, this court

asks “whether those who hear or read the threat reasonably consider that an actual

threat has been made.” Viefhaus, 168 F.3d at 396; see also United States v.

Magleby, 241 F.3d 1306, 1311 (10th Cir. 2001) (“In determining the existence of a

threat . . . this circuit had adopted an objective test, focusing on whether a

reasonable person would find that a threat existed.”). 3 Thus, it is not necessary to


      3
           This court’s recent decision in Heineman does not alter this standard.
Heineman dealt solely with the mens rea required under § 875(c) and does not
alter the objective, reasonable person standard for determining what constitutes a
true threat. 767 F.3d at 972 (“[T]he statement itself must be one that a reasonable
person in the circumstances would understand ‘as a declaration of intention,
purpose, design, goal, or determination to inflict [bodily injury] on another.’”
(quoting Viefhaus, 168 F.3d at 395)). Instead, Heineman simply added a separate
element the government must prove—that the defendant possessed a subjective

                                         - 12 -
show that a defendant intended to or had the ability to actually carry out the threat.

Viefhaus, 168 F.3d at 395–96. Determining whether a statement amounts to a true

threat requires “a fact-intensive inquiry, in which the language, the context in

which the statements are made, as well as the recipients’ responses are all

relevant.” Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1167–68 (10th Cir.

2009); see also Magleby, 241 F.3d at 1311 (the “reaction of the recipient of the

alleged threat” is relevant in determining whether a reasonable person would

interpret a statement to be a threat).

      a.     Can Exhortations Constitute Threats?

      Mr. Wheeler contends that the evidence is insufficient to support his

conviction under § 875(c) because his posts did not state his own intention to harm

anyone—whether directly or through a party subject to his control; instead, the

posts merely call upon Mr. Wheeler’s non-existent “religious followers” to take

violent action. Mr. Wheeler relies chiefly on two cases: United States v. White,

670 F.3d 498 (4th Cir. 2012), and United States v. Bagdasarian, 652 F.3d 1113

(9th Cir. 2011). In White, the leader of a white supremacist organization was

convicted under § 875(c) based on posts urging others to kill a Canadian civil

rights attorney. 670 F.3d at 506. The Fourth Circuit held that the evidence was

insufficient to support Mr. White’s conviction because neither of the defendant’s

posts expressed the defendant’s own intent to kill the attorney. Id. at 513. The



intent to threaten.

                                         - 13 -
court explained that the posts could have constituted threats if the defendant “had

some control over those other persons” of “if [the defendant’s] violent commands

in the past had predictably been carried out,” but found no evidence of that

context. Id.

      Similarly, in Bagdasarian, the defendant was convicted based on two posts

to an online financial discussion board shortly before Barack Obama’s election,

one which stated “shoot the nig country fkd for another 4 years.” 652 F.3d at

1115. The Ninth Circuit found “no explicit or implicit threat on the part of

Bagdasarian that he himself [would] kill or injure Obama,” id. at 1119, but instead

just an “imperative that some unknown third party should take violent action.” Id.

at 1122.

      Relying on White and Bagdasarian, Mr. Wheeler urges this court to adopt a

bright-line rule: exhortations to unspecified others to commit violence cannot

amount to true threats. We reject that position as inconsistent with this court’s

established precedent. We have consistently held that statements amount to true

threats when a reasonable person would interpret the statements to be threats—a

“fact-intensive” inquiry. Nielander, 582 F.3d at 1167. Especially where, as here,

a reasonable person might believe the individuals ordered to take violent action are

subject to the will of the threatening party, such exhortations may amount to true

threats.

      Other courts have reached similar conclusions. In United States v. Turner,

the defendant published a blog post listing certain Seventh Circuit judges who

                                        - 14 -
“deserve[d] to be killed” and subsequently provided their photographs, work

addresses, and room numbers along with a map that pointed out the courthouse’s

anti-truck bomb barriers. 720 F.3d 411, 413–14 (2d Cir. 2013). The post

suggested these judges “didn’t get the hint” from the earlier murder of a federal

judge’s family members. The defendant argued that because he did not

specifically state that he would kill certain judges, his statements were not threats.

Id. at 421–22. The court rejected this argument, noting that such an interpretation

“would render the [threat] statute powerless against the ingenuity of threateners

who can instill in the victim’s mind as clear an apprehension of impending injury

by an implied menace as by a literal threat.” Id. (quoting Malik, 16 F.3d at 50).

      Likewise, in Planned Parenthood of the Columbia/Willamette, Inc. v.

American Coalition of Life Activists (ACLA), four physicians brought suit under

the Freedom of Access to Clinics Entrances Act (FACE) against the ACLA, a pro-

life organization. 290 F.3d 1058, 1062 (9th Cir. 2002) (en banc). In the wake of

the murder of several abortion doctors that had been listed on pro-life “Wanted”

posters, the ACLA published “Deadly Dozen” posters listing the names of the

plaintiffs and deeming them “Guilty of Crimes Against Humanity.” In addition,

the ACLA published a “Nuremberg Files” website displaying the names of

abortion rights supporters with the names of those previously killed crossed out

and those wounded greyed out. The ACLA argued the posters and website

constituted protected speech, as they did not actually threaten anyone. The Ninth

Circuit en banc rejected this position, emphasizing that “threats should be

                                         - 15 -
considered in light of their entire factual context, including the surrounding events

and the reaction of the listeners.” Id. at 1075 (citation omitted). The Ninth

Circuit held that given the recent violence against abortion doctors featured on

other wanted-type posters, the posters and Nuremberg Files website constituted

true threats. Id. at 1080.

      Mr. Wheeler contends that interpreting true threats to include such

exhortations would “effectively abolish the constitutional distinction between

threats and incitement to violence.” Aplt. Br. 34. Under Brandenburg v. Ohio,

incitement speech is unprotected only if it is “directed to inciting or producing

imminent lawless action and is likely to incite or produce such action.” 395 U.S.

444, 447 (1969) (emphasis added). Mr. Wheeler argues that treating his

statements as true threats creates an end-run around the stringent Brandenburg

requirements and permits incitement to be charged under the more lenient threat

standard. But the line between threats and incitement, especially in cyberspace, 4 is

not as clear as Mr. Wheeler contends, and no court has suggested that the

categories of unprotected speech are completely distinct from one another. Speech



      4
         Several attributes of the Internet substantially amplify the fear an
individual can instill via threats or incitement. Such threats have the ability to
reach a vast audience—far more than the traditional speaker or author published
in a single venue. The threats may often come cloaked in anonymity, allowing
authors to make menacing statements they would never consider making to an
individual in person. And, given the prevalence and diversity of Internet fora and
discussion boards, such exhortations may often find a receptive audience of like-
minded individuals—perhaps audiences more willing to do the bidding of one
urging violent action.

                                        - 16 -
such as Mr. Wheeler’s may at first blush appear to be closer to incitement, but fits

squarely within the rationale for excluding true threats from First Amendment

protection. Prohibiting true threats “protect[s] individuals from the fear of

violence, from the disruption that fear engenders, and from the possibility that the

threatened violence will occur.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,

388 (1992). Exhorting groups of followers to kill specific individuals can produce

fear in a recipient no less than more traditional forms of threats. Allowing

defendants to seek refuge in the First Amendment simply by phrasing threats as

exhortations would, as the Turner court observed, leave the state “powerless

against the ingenuity of threateners.” 720 F.3d at 422. We cannot endorse so

wooden an interpretation of the term “threat.”

      b.     Reasonable Person Standard

      Concluding that such exhortations are not categorically excluded from the

realm of true threats, we must still address whether a reasonable person would

interpret Mr. Wheeler’s Facebook posts to be serious threats, in light of the full

context in which the posts were made, including the reaction of the recipients.

Nielander, 582 F.3d at 1167–68; see also Watts v. United States, 394 U.S. 705,

708 (1969) (considering, among other things, “the reaction of the listeners” in

determining what constitutes a true threat). Mr. Wheeler’s March 12 post calls

upon his “religious followers” to “kill all the children of [a police officer’s] blood

line[].” It directs these followers to “eradicate [another officer’s] blood line

children first.” He makes similar commands with regards to two other individuals.

                                         - 17 -
“[I]f u have to walk right in to anywhere, church, hospitals, terrorist trianing [sic]

facilities and lodge claw hammers into the back of thier [sic] heads. rite on,” Mr.

Wheeler explained. In his March 16 post, Mr. Wheeler directed his “religious

operatives” to, if his DUI charges were not dropped, “commit a massacre in the

stepping stones preschool and day care, just walk in and kill everybody. . . if you

have to bomb,em, set them on fire.”

      A rational juror considering the language and context of these posts could

consider them to be true threats. Mr. Wheeler’s posts command his religious

followers to take specific, deadly action against a number of individuals—from

policemen, to ordinary civilians, to children at a daycare center less than three

blocks from Mr. Wheeler’s home. We think the full context of the posts includes

the collective consciousness which includes recent massacres at educational and

other institutions by active shooters. A reasonable person could conclude that the

posts are not mere “political argument, idle talk or jest,” Leaverton, 835 F.2d at

257, but rather calculated, serious directives to kill. Mr. Wheeler’s posts do not

simply imply that some individuals should be killed; they explicitly call for the

killing of a number of individuals. Moreover, the posts do not merely state an

“imperative that some unknown third party should take violent action,”

Bagdasarian, 652 F.3d at 1122; instead, they call upon a specific party or parties

presumably subject to Mr. Wheeler’s control.

      Mr. Wheeler places dispositive weight on the fact that he had no religious

followers to carry out his commands. Aplt. Br. 29–30. Mr. Wheeler concedes that

                                         - 18 -
had he “direct[ed] anyone under his control” to do violence, his posts would have

amounted to true threats. Id. at 26. But, he argues, because he in fact had no

religious followers, his posts could not amount to threats. But the appropriate

inquiry is not whether Mr. Wheeler in fact had religious followers, or whether he

believed he had religious followers, but whether a reasonable recipient of the

threat could have so thought. See Nielander, 582 F.3d at 1167. Suffice it to say, a

reasonable person could conclude that ordering followers to “commit a massacre”

at a preschool implies their existence.

       Though certainly not dispositive, the parties referenced in Mr. Wheeler’s

posts were in fact frightened. One officer called the posts “chilling” and explained

that he had never seen statements like Mr. Wheeler’s in his law enforcement

career. When this officer told his wife of the threats, she wanted to “go out and,

you know, get comfortable using a firearm.” 3 R. 300. Another officer, upon

learning of the threats, went to his church and children’s school and warned the

pastor and teachers of Mr. Wheeler’s posts. He ensured that his wife was armed.

Id. at 306–07. The other individuals mentioned in the posts were also

concerned—one enough so that he called the police. In light of the nature of Mr.

Wheeler’s posts, and Mr. Wheeler’s home’s proximity to the preschool, we find

these reactions to be eminently reasonable.

       We cannot say that no rational juror could find Mr. Wheeler’s statements to

be true threats. Accordingly, the evidence was sufficient and Mr. Wheeler may be

retried.

                                          - 19 -
REVERSED and REMANDED for retrial with proper instructions.




                             - 20 -
