     Case: 10-30701     Document: 00511614726         Page: 1     Date Filed: 09/27/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 27, 2011

                                       No. 10-30701                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,
v.

ASHTON R. O’DWYER, JR.,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-34-1


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        In February 2010, the government obtained an indictment against Ashton
O’Dwyer alleging a violation of 18 U.S.C. § 875(c), which criminalizes the
interstate communication of certain threats. The government appeals from the
district court’s dismissal of the indictment. Because the district court correctly
determined that O’Dwyer’s speech was protected by the First Amendment, and
not a true threat, we AFFIRM.



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 10-30701

                      I. FACTS AND PROCEEDINGS
      O’Dwyer sent an e-mail to Sean McGinn, an employee of the bankruptcy
court for the Eastern District of Louisiana. At the time of the e-mail, O’Dwyer
was the debtor in bankruptcy proceedings before Bankruptcy Judge Jerry
Brown. The apparent purpose of O’Dwyer’s e-mail was to obtain leave from
Judge Brown to pay for his anti-depressant medication out of his most recent
Social Security check. The full text of O’Dwyer’s e-mail is as follows:
      Well, please convey to Judge Brown my belief that he can “try” to protect
      the CRIMINALS Duval, Lemelle and Dennis, but he can’t protect them
      from themselves, and the “damage” is already done. As is the case with
      Judge Porteous, their impeachment is “just a matter of time”. Also convey
      to Judge Brown a reminder that I have been totally without money since
      the weekend of January 8, 9, and 10, and that I have been without my
      anti-depressant medication, for which I have sought leave to pay
      Walgreen’s from my most recent Social Security check, since last weekend.
      I could not sleep last night, which I attribute to the effects of abruptly
      stopping my medication on Sunday, the 24 th (my pills “ran out”, and I
      have no money to purchase more). Maybe my creditors would benefit from
      my suicide, but suppose I become “homicidal”? Given the recent “security
      breach” at 500 Poydras Street, a number of scoundrels might be at risk if
      I DO become homicidal. Please ask His Honor to consider allowing me to
      refill my prescription at Walgreen’s, and allowing me to pay them, which
      is a condition for my obtaining a refill. Please communicate this missive
      to creditors and their counsel. Thank you.

McGinn contacted the U.S. Marshals after receiving O’Dwyer’s e-mail. About
nine hours later, O’Dwyer was arrested outside his home.
      The district court dismissed the indictment on the ground that O’Dwyer’s
“statements are insufficient to warrant submission to a jury to determine if they
are a true threat.” The district court concluded that, read in context, O’Dwyer’s
statements did not constitute a threat as a matter of law. The government
timely appealed.




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                                   No. 10-30701

                                II. DISCUSSION
      We review de novo the district court’s dismissal of an indictment. See
United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009). To uphold dismissal
of the indictment we must determine as a matter of law that no reasonable jury
could find the allegedly criminal statement to be a true threat. See United
States v. Daughenbaugh, 49 F.3d 171, 173 (5th Cir. 1995) (whether a statement
“constitutes a ‘threat’ is an issue of fact for the jury”); United States v. Morales,
272 F.3d 284, 287 (5th Cir. 2001) (applying the reasonable jury standard on
review of a motion for judgment of acquittal).
      The First Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. Nevertheless, the First
Amendment does not protect “true threat[s].” Virginia v. Black, 538 U.S. 343,
359 (2003) (“[T]he First Amendment . . . permits [the government] to ban a ‘true
threat.’”). A communication rises to the level of an unprotected threat, within
the meaning of 18 U.S.C. § 875(c), only if “in its context [it] would have a
reasonable tendency to create apprehension that its originator will act according
to its tenor.” Morales, 272 F.3d at 288 (internal quotation marks omitted).
      We agree with the district court that O’Dwyer’s statement is not a true
threat as a matter of law. His statement is hypothetical and conditional:
“[S]uppose I become ‘homicidal’ . . . a number of scoundrels might be at risk if I
DO become homicidal.” See Watts v. United States, 394 U.S. 705, 708 (1969)
(statement not a true threat considering in part its “expressly conditional
nature”). Moreover, as the district court correctly observed, O’Dwyer’s e-mail did
not threaten bodily harm to any particular individual. O’Dwyer made his
allegedly threatening statement in an e-mail transmitted to a bankruptcy court
employee, with a message for Judge Brown, in which he never identified any
individual whom he intended to harm. The most he said was that “a number of
scoundrels might be at risk.” We conclude, based on the language of O’Dwyer’s

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                                 No. 10-30701

statement, and in light of his documented history of using coarse and hyperbolic
language in prior court proceedings, that no reasonable jury could find that
O’Dwyer’s communication constitutes a true threat.
      We therefore AFFIRM the district court’s dismissal of the indictment.




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