United States v. Whiffen

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 97-1036

UNITED STATES,

Appellee,

v.

KEVIN WHIFFEN,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

Bjorn Lange, Assistant Federal Defender, for appellant.
Jean
B.
Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, and Peter E. Papps, First
Assistant United States Attorney, were on brief for appellee.

August 29, 1997

TORRUELLA, Chief Judge. Defendant-appellant Kevin

Whiffen ("Whiffen") was tried and convicted on four counts of

transmitting threatening communications in interstate commerce in

violation of 18 U.S.C. S 875(c). Whiffen now appeals, arguing that

the indictment failed to allege an offense, that the court should

have granted his motion under Rule 29 of the Federal Rules of

Criminal Procedure for a judgment of acquittal on all counts, and

that the court erred in its jury instructions. We affirm.

I. Background

In 1993, Whiffen, a resident of New Hampshire, was

driving a car that was involved in a two-vehicle accident in Rhode

Island. The other car was insured by Allstate Insurance

("Allstate"). Allstate paid a claim to its insured and sought

reimbursement from Whiffen in the amount of approximately $11,000.

The claim was eventually turned over to Universal Fidelity

Corporation ("UFC"), located in Florida, for collection. On

October 11, 1995, UFC sent a letter to Whiffen, informing him that

the New Hampshire Division of Motor Vehicles had been notified of

his failure to pay and warning that if he failed to pay the claim

within thirty days, he risked losing his license.

On October 17, 1995, Whiffen returned a telephone call

from Kelly Terrell ("Terrell"), a UFC collector. During the call,

Whiffen was "very belligerent," and when Terrell stated that she

could have Whiffen's license suspended, Whiffen said that "the

building will go boom." At that point, Terrell disconnected the

line.

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Several minutes later, Whiffen called back. The call was

transferred to Terrell, and Whiffen told her that "the building

will go boom."

Whiffen called back a third time, speaking on this

occasion with Anna Walls ("Walls") of UFC. He asked that a message

be relayed to Terrell that "buildings go boom boom."

On the evening of October 17, 1995, Walls' supervisor,

Mark Gallo ("Gallo"), called Whiffen to confirm the name of his

attorney and to ask him to pay his bill. Gallo asked Whiffen if he

intended to drive to Florida and blow up the building. Whiffen

responded that he had friends in Florida who would "take care of it

for him."

As a result of Whiffen's statements, UFC closed their

file on Whiffen and returned the account to Allstate. On

October 29, 1995, Whiffen telephoned Allstate's Bedford, New

Hampshire office. The call was automatically transferred to Sheryl

Johnson, a manager at Allstate's St. Petersburg, Florida office.

Whiffen told her that "Allstate had better stop messing with me or

else I'm going to blow up their building."

II. The Requisite Intent

Although Whiffen makes several claims on appeal, all of

them turn on the question of whether the threats made by Whiffen

constitute threats to the person of another. In order to resolve

this question, we must determine the intent necessary for

conviction under section 875.

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The centerpiece of Whiffen's appeal is the claim that 18

U.S.C. S 875(c) is a specific intent crime. In other words, in

order to obtain a conviction, the government must prove that the

defendant intended his communication to be received as a threat.

In support of this view, Whiffen cites
United States
v.
Twine, 853

F.2d 676 (9th Cir. 1988). In Twine, the Ninth Circuit concluded

that "the showing of an intent to threaten, required by S 875(c)

. . . is a showing of specific intent." Id. at 680.

Other circuits, however, disagree with
Twine. In United

States v.
DeAndino, 958 F.2d 146 (6th Cir. 1992), for example, the

Sixth Circuit concluded that "S 875(c) does not require specific

intent in regard to the threat element of the offense, but only

general intent." Id. at 150. Under a general intent standard,

whether a communication is a "true threat" is determined

objectively from all the surrounding facts and circumstances,

rather than from the defendant's subjective purpose. A general

intent standard has also been adopted by three other circuits.
See

United
States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997), United

States v. Himelwright, 42 F.2d 777, 782-83 (3d Cir. 1994), United

States v. Darby, 37 F.3d 1059, 1063-66 (4th Cir. 1994), cert.

denied, 514 U.S. 1097 (1995). The test espoused in these cases is

stated in Darby:

Even within the Ninth Circuit there is some question about the
continuing validity of Twine. See United
States v. King, 920 F.
Supp. 1978, 1079-80 (C.D. Cal. 1996) (suggesting that Twine
conflicts with both prior and subsequent Ninth Circuit precedent).

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[T]o establish a violation of section
875(c), the government must establish that
the defendant intended to transmit the
interstate communication and that the
communication contained a true threat.
Whether a communication in fact contains a
true threat is determined by the
interpretation of a reasonable recipient
familiar with the context of the
communication. The government does not
have to prove that the defendant
subjectively intended for this recipient
to understand the communication as a
threat.

Darby, 37 F.3d at 1066. Our sister circuits have also considered

what constitutes a "true threat" under other federal threat

statutes. See United
States v. Fulmer, 108 F.3d 1486, 1491 (1st

Cir. 1997) (collecting cases).

Although the intent requirement of section 875(c) has not

previously been decided by this court, we recently had occasion to

determine the requisite intent under a different threat statute, 18

U.S.C. S 115(a)(1)(B), which criminalizes threats directed at

federal agents.

In determining what constitutes a "true threat," the

Fulmer panel found the governing standard to be "whether [the

defendant] should have reasonably foreseen that the statement he

uttered would be taken as a threat by those to whom it is made."

Fulmer, 108 F.3d at 1491. This test takes into consideration the

context in which the remark was made and avoids the risk that an

otherwise innocuous statement might become a threat if directed at

an unusually sensitive listener. This approach also protects

listeners from statements that are reasonably interpreted as

threats, even if the speaker lacks the subjective, specific intent

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to threaten, or, as would be more common, the government is unable

to prove such specific intent which, by its nature, is difficult to

demonstrate.

For these reasons, we believe that the logic of Fulmer,

which considered 18 U.S.C. S 115(a)(1)(B), applies with full force

to 18 U.S.C. S 875, and we adopt the same standard for the latter

statute. In doing so, we are also aligning ourselves with the

majority view of our sister circuits, as discussed supra. Having

established that section 875(c) requires only a general intent, we

are able to engage each of Whiffen's specific claims.

III. Failure to Allege an Offense

Whiffen's first claim of error relates to his pre-trial

motion, under Rule 12(b)(2) of the Federal Rules of Criminal

Procedure, to dismiss the indictment for failure to allege an

offense. Whiffen was charged with violation of 18 U.S.C. S 875(c)

which prohibits the transmission in interstate commerce of "any

threat to injure the person of another." The indictment alleges

that Whiffen made such a communication when he stated that "[y]our

building will go boom"; "the building will go boom"; "buildings go

boom"; and "Allstate had better stop messing with me or else I'm

going to blow up their building."

On appeal, Whiffen argues that his motion to dismiss

should have been granted on the grounds that the indictment "fails

to allege 'unequivocal, unconditional and specific expressions of

intention immediately to inflict injury' to another person." Brief

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of Appellant at 7 (quoting
United States
v.
Kelner, 534 F.2d 1020,

1027 (2d Cir. 1976)).

Having determined that specific intent is not the

standard under which Whiffen's statements should be judged, it is

clear that the failure to allege specific intent is not grounds for

dismissal. "[A]n indictment is sufficiently particular if it

elucidates the elements of a crime, enlightens a defendant as to

the nature of the charges against which she must defend, and

enables her to plead double jeopardy in bar of future prosecutions

for the same offense." United States v. Sepulveda, 15 F.3d 1161,

1192 (1st Cir. 1993);
see also
Fed. R. Crim. P. 7(c)(1). Although

the four counts contain slightly different wording, we present only

Count I, which is representative of the other counts. Count I

states that:

On or about October 17, 1995, in the
District of New Hampshire, the defendant,
Kevin Whiffen knowingly and willfully
transmitted in interstate commerce between
Farmington, New Hampshire and Tampa,
Florida, a communication containing a
threat to injure Kelly Terrell and other
employees of Universal Fidelity
Corporation, Tampa, Florida, to wit, "Your
building will go boom." All in violation
of Title 18, United States Code, Section
875(c).

It is our view that the indictment states the offense for which

Whiffen has been convicted. The elements of the crime are

elucidated and the indictment is sufficient to plead double

jeopardy should future prosecutions be brought against Whiffen for

the same offense. The indictment basically tracks the language of

section 875(c), which states: "Whoever transmits in interstate or

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foreign commerce any communication containing . . . any threat to

injure the person of another, shall be fined under this title and

imprisoned for not more than five years, or both." 18 U.S.C.

S 875(c). We find the indictment to be sufficient. See
Darby, 37

F.3d at 1063.

Appellant also argues that the indictment is inadequate

because it "alleges threats that a building or buildings would 'go

boom.' . . . It does not allege that any person would be present

or hurt by any such explosion." Brief of Appellant at 6. The

indictment does, however, allege that each of the threats was a

threat to injure the person of another. In Count I, for example,

it is stated that the communication contained "a threat to injure

Kelly Terrell and other employees of Universal Fidelity

Corporation." Whiffen's argument appears to be that threats to

blow up the building are, as a matter of law, not threats against

a person. Like the district court, we are unwilling to conclude

that his words did not contain a threat to injure a person. One

possible interpretation of a threat to blow up a building is that

the building will be blown up with people inside. Such an

interpretation would lead to the conclusion that the threat was a

threat against those who work in the building. Alternatively, such

a threat may be interpreted as a threat to blow up the building

only when it is empty. Under this interpretation, Whiffen's

statement would not constitute a threat against a person. The

proper interpretation of Whiffen's remarks, however, is a question

of fact and, therefore, appropriately left for the jury. We cannot

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conclude that the interpretation preferred by Whiffen is, as a

matter of law, the correct one.

Whiffen argues that we must interpret section 875(c)

narrowly in order to avoid violation of his First Amendment rights.

In support, he cites Watts v. United States, 394 U.S. 705 (1969),

in which the defendant was accused of threatening the President.

The primary concern of the Court in Watts was the protection of

constitutionally protected political speech. See id. at 706-08.

Whiffen does not claim that his statements were a form of political

speech.

In any event, a true threat is not protected by the First

Amendment. See Fulmer, 108 F.3d at 1492-93; United
States v.

Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990). For this

reason, a conviction upon a finding that the statements were true

threats would not violate Whiffen's constitutionally protected

right to speech.

IV. Judgment of Acquittal

Whiffen also appeals the denial of his motion, under Rule

29 of the Federal Rules of Criminal Procedure, for a judgment of

acquittal on all counts. We review the district court's ruling

deferentially, considering the evidence "in the light most

compatible with the verdict, resolv[ing] all credibility disputes

in the verdict's favor, and then reach[ing] a judgment about

whether a rational jury could find guilt beyond a reasonable

doubt." United States
v.
Taylor, 54 F.3d 967, 974 (1st Cir. 1995).

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Whiffen claims that even under this deferential standard,

the evidence "failed to prove a true threat to injure 'the person

of another.'" Brief of Appellant at 8. This argument is,

ultimately, a claim that the words spoken -- on which there is no

dispute -- did not constitute a true threat. Specifically, Whiffen

argues that "any reasonable person familiar with the context of

those statements could not find beyond a reasonable doubt that they

were true threats under S 875(c). They were frustrated,

inarticulate, and empty words." Brief of Appellant at 10.

There is no dispute that Whiffen made the statements,

there is disagreement only with respect to their proper

interpretation. Whether or not Whiffen's statements were true

threats is determined by applying the
Fulmer test discussed above.

At trial, the government presented testimony that Terrell notified

two supervisors about Whiffen's call, and informed Stacie Thompson,

the person responsible for incoming mail, to "be very careful with

any packages coming in from this area because there was a bomb

threat." Tr., April 9, 1996, at 41. Both Terrell and Walls

testified that this was the only bomb threat they had ever received

while working in claims collection. Walls, who has fifteen years

experience in third party collections, testified that by Whiffen's

third call she was afraid. Joseph Suozzo, a claim manager in

Allstate's Bedford, New Hampshire office, testified that, in

reaction to the phone calls from Whiffen, a security guard was

hired for the Bedford office and the claim against Whiffen was not

pursued. This evidence regarding the reaction of the listeners is

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not conclusive, but it does suggest that at least these individuals

perceived the statements to be threats.

Faced with this evidence, as well as the content of the

statements and other contextual information, a reasonable jury

could have found that the defendant should have reasonably foreseen

that the statement he uttered would be taken as a threat by those

to whom it was made. For that reason, we affirm the denial of

Whiffen's motion for judgments of acquittal on all counts.

With respect to count four, Whiffen argues that he was

unaware that his in-state call was re-routed to Florida. His lack

of knowledge, however, does not constitute a defense. "[W]hile the

Government was required to prove that [the defendant]'s phone call

crossed a state line (a fact not in dispute here), the Government

did not need to prove that [the defendant] knew of the interstate

nexus." Darby, 37 F.3d at 1067.

V. Jury Instructions

Finally, Whiffen challenges the jury instructions. He

claims error in the district court's failure to instruct the jury

that violation of section 875(c) is a specific intent crime. In

our discussion of this issue,
supra section II, we determined that

section 875(c) is a general intent crime. The failure to provide

instructions to the effect that it is a specific intent crime,

therefore, cannot be error.

Whiffen makes the additional argument that the jury

instructions failed to meet the requirements of Fulmer. We turn,

therefore, to consider whether the requirements set forth in that

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opinion, which we have determined apply in this case, were

satisfied by the district court.

Fulmer instructs that "the appropriate standard under

which a defendant may be convicted for making a threat is whether

he should have reasonably foreseen that the statement he uttered

would be taken as a threat by those to whom it is made." Fulmer,

108 F.3d at 1491.

The jury instructions actually given in the instant case

were:

To sustain its burden with regard to the
second element the government must prove
beyond a reasonable doubt that the
communication contained a threat. A
threat is a serious statement or
communication expressing an intention to
inflict bodily injury upon another person
which, under the surrounding
circumstances, and in context, would cause
apprehension in a reasonable person that
the person making the threat will act on
it. A criminal threat must be
distinguished from words used as mere idle
or careless talk, hyperbole, exaggeration,
or something said in a joking manner.
Those are not threats within the meaning
of the statute involved in this case. In
other words, the communication must be
unconditional and a true threat or one
properly perceived by a reasonable person
as a real or genuine threat to injure
another. The government has the burden of
proving beyond a reasonable doubt that an
ordinary reasonable person, familiar with
the context and circumstances surrounding
the communication, would interpret the
communication as a genuine threat to
injure another person. . . . The
government is not required to prove that
the defendant subjectively intended the
recipient to understand the communication
was a threat, nor need to prove that the
defendant intended to or was actually able
to carry out the threat made. [T]he

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government must prove that the threat was
an unequivocal and unconditional
expression of intent to cause bodily
injury to another person and would cause a
reasonable person in the recipient's
circumstances to fear that he, she or
another person faced an imminent risk of
bodily injury.

Tr. 9/5/96, at 14-15.

Comparing the instructions given to those required under

the Fulmer analysis, we see that the district court instructions

failed to inform the jury that it must consider whether the

defendant could reasonably have foreseen that the statement would

be taken as a threat. The instructions given indicate that it is

sufficient if the communication would cause apprehension in a

reasonable listener. In light of Fulmer, this focus on the

recipient of the threat rather than the defendant could be viewed

as error, although we note in fairness to the district court that

Fulmer was decided some months after the trial in this case. In

any event, in this case, as in many others, the distinction is

without practical importance.

We do not reverse a conviction based on an error in the

jury instructions if "it is highly probable that the error did not

contribute to the verdict." United States
v.
Cudlitz, 72 F.3d 992,

999 (1st Cir. 1996). An error that is certain to have had no

significant impact on the jury is harmless.

The facts of this case are such that the instructions

required under Fulmer and the instructions actually given in this

case are functionally equivalent. In certain situations, as in

Fulmer, there may be information known to the listener, but not to

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the speaker (or vice versa), that would cause a reasonable listener

to perceive a statement as an expression of an intent to injure

despite the fact that a reasonable speaker would not view it as

such. That is not the case here. It is not possible that the

words spoken by Whiffen were reasonably understood by the employees

of UFC and Allstate as an expression of an intent to injure, and

yet such an outcome would not have been foreseen by a reasonable

speaker in Whiffen's position. This is so because, unlike in

Fulmer, Whiffen did not employ language that held a different

meaning for him than it did for the listeners.

We conclude, therefore, that the imperfection in the jury

instructions could not have affected the verdict. The error was

harmless.

VI. Conclusion

For the reasons stated herein, we
affirm
the judgment of

the district court.

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