IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20969
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RANDALL LEROY MYERS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
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January 14, 1997
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Randall Myers appeals his conviction of, and sentence for,
three counts of interstate transmission of threatening communica-
tions. We affirm the conviction but remand for resentencing.
I.
Myers is a Vietnam veteran with a history of mental illness.
In 1981, he was diagnosed with Post-Traumatic Stress Disorder
(“PTSD”) and classified by the Veterans Administration as 100%
disabled. He also suffers from bipolar or “manic-depressive”
disorder, for which he has been prescribed lithium, and diabetes,
for which he takes injections of insulin. As he readily concedes,
failure to take his medication sometimes leads him to become easily
agitated.
In March 1995, Myers’s wife discovered a lump in her breast
that she feared might be cancerous. When Myers inquired with the
Veterans Administration about medical coverage for the tests and
treatment she would need, he discovered that his benefits required
him to pay a $150 deductible and covered only 75% of his wife’s
expenses beyond that amount. Unable to afford the copayment, Myers
became convinced that his disabled veteran status entitled his wife
to full coverage of her medical expenses.
Myers first attempted to negotiate this full coverage by
calling the toll-free number for CHAMPVA, the organization
administering his health benefits. After repeatedly failing to get
through to CHAMPVA, however, he turned his attention to his
congressman, William Archer. Myers phoned Archer’s Washington,
D.C., office from his Houston residence and spoke with Andrew
Shore, a member of Archer’s staff. Shore agreed to contact CHAMPVA
on Myers’s behalf but was unable to obtain the coverage Myers
wanted.1
On March 22, 1995, Myers became dissatisfied with the response
he was getting from Archer’s office and telephoned Shore again.
According to Shore, Myers was extremely emotional during this
conversation, at various points crying, screaming, and yelling.
1
This was not the first time Myers had spoken with Shore. At trial,
Shore testified that they had had between 14 and 16 conversations in the six
months prior to March 1995, most of which concerned veterans’ affairs.
2
Myers told Shore that if his wife died, he “would take matters into
his own hands” and that Shore “should be sure to have plenty of
body bags around.” As one might expect, these statements caused
Archer’s staff serious concern. The office contacted the FBI,
which installed a recording device on Shore’s phone.
On March 24, Myers called again. This time the entire
conversation was recorded, including the following exchange:
Shore: The other day[,] Randy, you talked about body bags
and ...
Myers: Right and ...
Shore: ... And not being ...
Myers: ... And I’m still talking about body bags because
if you do nothing what do you expect.
Shore: I don’t, what should I expect?
Myers: I am going to get retribution for my and my
family’s suffering. You can take that to the bank.
Shore: What does that mean? I mean what do you ...
Myers: What it means, I’ll do what, ah, like we said in
Nam, whatever it takes.
Later in the conversation, Myers told Shore that he had a friend in
Seattle who had TOW missiles, and spoke of “coming up there to
die.”
On April 7, Myers made a call to Carole Carrick, an employee
of the Washington, D.C., office of the Paralyzed Veterans of
America. Carrick took notes of the conversation and testified at
trial that Myers sounded “angry” and had spoken to her in “a very
loud voice.” According to Carrick, Myers threatened the “VA and
3
Congress with damage severe enough to make the explosion in the
World Trade Center look like a picnic,” and announced his intention
to confront Archer on videotape. Myers also told Carrick that he
was “head of the militia in this area” and made reference to AK-47
rifles being shoved into the faces of congressmen. Understandably
concerned, Carrick informed Archer’s office of the conversation.
A grand jury indicted Myers on three counts of interstate
transmission of threatening communications in violation of
18 U.S.C. § 875(c). Count one stemmed from his statements to Shore
on March 22 to the effect that if his wife died, Shore “should be
sure to have plenty of body bags around.” Count two stemmed from
the references during the March 24 conversation to “body bags” and
doing “whatever it takes” to get even with the government. Count
three stemmed from his statements to Carrick on April 7 that he
would cause the VA and Congress sufficient damage “to make the
explosion in the World Trade Center look like a picnic.”
A jury found Myers guilty on all three counts. He was
sentenced to two concurrent twelve-month prison terms and to three
three-year terms of supervised release, two of them concurrent and
the third consecutive to the other two.
II.
Myers’s first claim is that there was insufficient evidence as
to all three counts of his conviction because the government failed
to prove that he made the threats voluntarily. He argues that
evidence of his psychological problems demonstrated that he was
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unable to control his actions, which in turn compels the conclusion
that he acted involuntarily.
We review de novo the denials of Myers’s motions for judgment
of acquittal. United States v. Sanchez, 961 F.2d 1169, 1179 (5th
Cir.), cert. denied, 506 U.S. 918 (1992). We will affirm the
jury’s verdict if a reasonable trier of fact could conclude from
the evidence that the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences from
the evidence to support the verdict. United States v. Lewis,
92 F.3d 1371, 1380-81 (5th Cir. 1996), petition for cert. filed
(U.S. Dec. 16, 1996) (No. 96-7151); United States v. Gaytan,
74 F.3d 545, 555 (5th Cir.), cert. denied, 117 S. Ct. 77 (1996).
Our review of the sufficiency of the evidence does not include a
review of the weight of the evidence or of the credibility of the
witnesses. United States v. Garcia, 995 F.2d 556, 561 (5th Cir.
1993). Moreover, the evidence “need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Lopez, 74 F.3d
575, 577 (5th Cir.), cert. denied, 116 S. Ct. 1867 (1996).
Title 18 U.S.C. § 875(c) provides that “[w]hoever transmits in
interstate or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person of
another, shall be fined under this title or imprisoned not more
than five years, or both.” In this circuit, § 875(c) “requires
proof that the threat was made knowingly and intentionally.”
5
United States v. Bozeman, 495 F.2d 508, 510 (5th Cir. 1974), cert.
denied, 422 U.S. 1044 (1975). Pursuant to the Fifth Circuit
Pattern Jury Instructions, the district court charged the jury that
an act is done “knowingly” when it is done voluntarily and
intentionally, and not because of mistake or accident.
Our review of the record leads us to conclude that the
government did present sufficient evidence to establish that Myers
made his threats voluntarily. Two experts, Dr. Archie Blackburn
and Dr. Seth Silverman, testified that Myers consciously chose to
stop taking his medication during the time that he made the
threats. This alone could have allowed the jury to conclude that
he acted voluntarily, for if he knew that discontinuing his
medication might lead to such behavior and consciously chose to do
so anyway, his resulting actions could not be characterized as
involuntary. To be sure, Myers presented expert testimony that his
statements were involuntary. None of the experts was present
during any of Myers’s phone calls, however, and it was squarely
within the province of the jury to weigh their testimony accord-
ingly.
The jury could also have inferred voluntariness from the tone
and content of Myers’s conversations with Shore and Carrick.
Numerous remarks during those conversations indicate that Myers was
aware both of himself and of his actions: When talking to Shore,
for example, he offered to be “civil” if allowed to speak with
Archer; with Carrick, he gave considered responses to some of her
questions. A rational trier of fact could have found that the
6
evidence established voluntariness beyond a reasonable doubt.
III.
In a separate insufficient evidence argument, Myers contends
that count two was what he calls a “cheap shot,” because it was
Shore rather than Myers who initiated talk of “body bags” during
the March 24 conversation. Specifically, Myers contends that any
threatening statements he made on March 24 were simply reiterations
of his March 22 statements and that he was prompted by Shore to
repeat these threats. Because of this, he argues, count two is
completely duplicative of count one.
This argument is meritless. In this circuit, a communication
is a threat under § 875(c) if “in its context [it] would have a
reasonable tendency to create apprehension that its originator will
act according to its tenor.” Bozeman, 495 F.2d at 510 (citations
and internal quotations omitted). The evidence was more than
sufficient to show that the March 24 statements met this test.
A communication does not lose its status as a § 875(c) threat
merely by virtue of the defendant's having previously uttered
similar words. For us to hold otherwise, as Myers urges, would
effectively give people free license to recycle threats after their
initial communication. That is not the law in any circuit, and we
decline so to hold.2
2
Myers appears to suggest that his conviction on count two violated his
double jeopardy rights. Beyond the bare assertion in his appellate brief that
he “basically has been convicted twice for the same offense,” however, Myers has
neither briefed nor otherwise presented any discussion on this point, and nothing
(continued...)
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IV.
Myers next contends that he was unfairly prejudiced by Carole
Carrick’s testimony regarding his involvement in a militia group.
Without objection from the defense, Carrick testified that Myers
told her he was “the head of the militia in this area and there are
other militias all over the country and you’re going to very soon
start seeing them taken actions that are really going to be
serious.” As a threshold matter, Myers asserts that these
statements were not relevant to any of the issues before the jury.
Moreover, he argues, because his trial occurred a short time after
the April 1995 bombing of the Oklahoma City federal building, it
was unfairly prejudicial and thus plainly erroneous for the
district court to have admitted them.
As Myers concedes, his failure to object to this testimony at
trial means that he must show plain error. See FED. R. CRIM. P.
52(b). Under the plain error standard, we correct forfeited errors
only if (1) there was error, (2) the error was plain, and (3) it
affected the defendant’s substantial rights. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert.
denied, 115 S. Ct. 1266 (1995); United States v. Olano, 507 U.S.
725, 730-37 (1993). Even where an error meets these requirements,
however, we will not exercise our discretion to correct it unless
it “seriously affect[s] the fairness, integrity, or public
(...continued)
in the record indicates that he raised it prior to trial under FED. R. CRIM. P.
12(b)(2). Whatever double jeopardy claims he might have had have therefore been
waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
8
reputation of judicial proceedings.” Calverley, 37 F.3d at 164
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
The district did not err, and certainly did not commit plain
error, in admitting Carrick’s testimony. Bozeman instructs us that
whether a statement amounts to a threat under § 875(c) depends on
its context. Bozeman, 495 F.2d at 510. In order to convict, a
factfinder must determine that the recipient of the in-context
threat reasonably feared it would be carried out. Id. It was
entirely appropriate, then, for the jury to consider the context of
Myers’s threat, for the context was directly relevant to how
Carrick perceived the threat. Indeed, it probably would have been
inappropriate for the jury not to consider these statements.
Without citation to FED. R. EVID. 403, Myers also argues that
the “militia” remarks were unfairly prejudicial. Given that these
statements were directly relevant to one of the core issues in this
case, we do not believe that their probative value was substan-
tially outweighed by the danger of unfair prejudice, and instead we
conclude that it was not plain error to admit them.
V.
Myers next argues that the district court erred in refusing a
proposed instruction that would have required the jury to find that
he intended his statements to be threats. As Myers notes, whether
this instruction correctly states the law depends on whether
§ 875(c) offenses require specific or general intent. The courts
of appeals are divided on this issue, and our circuit has never
9
directly addressed the question.
We review the district court’s refusal to give the requested
jury instruction for abuse of discretion. United States v. Thomas,
12 F.3d 1350, 1365 (5th Cir.), cert. denied, 511 U.S. 1095, and
cert. denied, 511 U.S. 1114 (1994). Recognizing the substantial
latitude that district courts have in formulating a jury charge, we
reverse only if the requested instruction (1) was substantially
correct; (2) was not substantially covered in the charge as a
whole; and (3) concerned an important point in the trial, the
omission of which seriously impaired the defendant’s ability to
present an effective defense. United States v. Aggarwal, 17 F.3d
737, 743 (5th Cir. 1994); United States v. Gray, 96 F.3d 769, 775
(5th Cir. 1996); United States v. Townsend, 31 F.3d 262, 270 (5th
Cir. 1994), cert. denied, 115 S. Ct. 773 (1995).
As previously noted, the threshold issue in this determination
is whether Myers’s requested instruction was correct, which in turn
hinges on whether § 875(c) defines a general or specific intent
crime. Although this normally would be a simple inquiry, the
absence of any explicit mens rea requirement from § 875(c)’s text
appears to have produced some confusion in the courts. The
majority view, represented by cases from the Third, Fourth, and
Sixth Circuits, is that a § 875(c) violation requires only general
intent. See United States v. Himelwright, 42 F.3d 777, 783 (3d
Cir. 1994); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir.
1994), cert. denied, 115 S. Ct. 1826 (1996); United States v.
DeAndino, 958 F.2d 146, 149 (6th Cir.), cert. denied, 505 U.S. 1206
10
(1992). The Ninth Circuit, in contrast, has at least once taken
the position that an § 875(c) conviction requires a showing of
specific intent, i.e., that the defendant intended his statement to
be perceived as a threat. See United States v. Twine, 853 F.2d
676, 679-80 (9th Cir. 1988). Like us, the other eight courts of
appeals have not previously confronted this issue.
Myers hesitantly urges us to adopt the Ninth Circuit’s holding
in Twine. We confess to being somewhat baffled by his arguments.
Although he variously describes the Ninth Circuit’s reasoning as
“strained,” “result[-]oriented,” and “a bit of boot strapping,” he
nonetheless asks us to follow it “[i]f only for public policy
reasons.” At one point Myers even attempts to argue that we should
adopt Twine’s interpretation of § 875(c) because the defendant in
that case had a mental illness, whereas the defendants in the cases
decided by other circuits did not.
Upon a careful reading of both Twine and the caselaw of this
circuit, we conclude that Myers’s characterization of Twine is
accurate. Twine is something of an outlier within the Ninth
Circuit’s jurisprudence, and its continued validity has been
questioned on the ground that it conflicts with both prior and
subsequent Ninth Circuit decisions.3 We find the decisions of the
Third, Fourth, and Sixth Circuits considerably more persuasive, and
consequently we decline to hold that § 875(c) requires specific
3
See United States v. King, 920 F. Supp. 1078, 1079-80 (C.D. Cal. 1996)
(suggesting that Twine conflicts with both United States v. Sirhan, 504 F.2d 818
(9th Cir. 1974), and United States v. Davis, 876 F.2d 71 (9th Cir.), cert.
denied, 493 U.S. 861 (1989)).
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intent.
Fortunately, we need not delve into public policy to reach
this result. As a straightforward matter of textual interpreta-
tion, we will not presume that a statutory crime requires specific
intent in the absence of language to that effect. See United
States v. Hicks, 980 F.2d 963, 974 (5th Cir.) (citing United States
v. Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986)), cert. denied,
508 U.S. 941 (1993).4 Because § 875(c) contains nothing suggesting
a specific intent requirement, it defines only a general intent
offense. This in turn means that the district court’s instructions
were not erroneous, and the government need not show specific
intent in order to prove a violation of § 875(c).
VI.
Myers’s final argument is that the district court erred in
upwardly departing from the Sentencing Guidelines and ordering that
some of his terms of supervised release run consecutively.
Specifically, he contends that 18 U.S.C. § 3624(e) does not
authorize the “stacking” of supervised release terms and that the
commentary to U.S.S.G. § 5G1.2 in fact expressly prohibits such
consecutive terms. The government now concedes that this argument
is correct, so we vacate Myers’s sentence with respect to all three
counts and remand for resentencing.
4
In this respect, the instant case is easily distinguishable from those in
which we read a statute as requiring specific intent because its text expressly
applies a scienter requirement to each element of the offense or to “violation” of
the statute as a whole. See, e.g., United States v. Ahmad, 101 F.3d 386, ___ (5th
Cir. 1996).
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For the reasons stated above, the judgment of conviction is
AFFIRMED, and the case is REMANDED for resentencing.
13