UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-40375
Civil Docket #L-98-CR-550-1
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN J. MURILLO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
September 12, 2000
Before JONES and BENAVIDES, Circuit Judges, and COBB, District
Court Judge.*
PER CURIAM:**
Appellant John J. Murillo challenges his conviction and
sentence for transmitting threats in interstate commerce in
violation of 18 U.S.C. § 875(c). Murillo alleges (1) that his
*
District Judge of the Eastern District of Texas, sitting by
designation.
**
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opinion should not be published and is not precedent except under the limited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.
conviction violates the First Amendment or lacks sufficient
evidence; (2) that evidence was admitted in violation of the
psychotherapist-patient privilege; (3) that evidence of other e-
mails was wrongfully admitted against him; and (4) that the court
improperly enhanced his sentence. Having carefully reviewed the
appeal, we find no error or abuse of discretion and accordingly
affirm the judgment and sentence.
As a postal employee in Laredo, Texas, Murillo was
disciplined on several occasions beginning in the summer of 1997.
He freely vented his anger over conflicts at work to co-workers,
fellow union members and postal service management. Murillo
referred to himself by nicknames like “Mad Mex” and “Sacred Member”
in anti-management e-mails to his co-workers and on Internet
postings. In August, 1997, Murillo met voluntarily with a
counselor for the postal service Employee Assistance Program named
Escamilla. During the counseling session, Murillo railed that “If
I had a gun I would Glock out the whole management team” after
Escamilla’s repeated inquiries about his temporary work suspension.
Escamilla, believing this was a potentially serious threat,
reported it to his supervisor, who contacted Murillo’s immediate
supervisor, the target of the threat. Escamilla’s action was
permitted under the counseling confidentiality guidelines. Angry
at this disclosure, Murillo posted an e-mail to a website about the
EAP program in which he castigated Escamilla and repeated the Glock
threat.
2
The culmination of Murillo’s vitriol was a threat
entitled “Death Wish” sent to the home e-mail address of his co-
worker William Espinoza, whom he believed to be a close friend.
Murillo’s prosecution was based on this April 18, 1998 e-mail. The
day before, a Dallas postal worker had shot and killed a co-worker.
The Death Wish e-mail stated:
William they are trying to Make Me Go Postal. This
Mexican can only take so much, you kick a dog so much and
sooner or later that chain will snap. I have been very
patient with them but I am tired and have been making
plans, they keep f___ing with me and Judgment Day will
come. It will be a shootout at the OK Corral. It is
only 4 miles to the Mexican Border. The person in Dallas
the chain Snapped. Later from Mad-Mex.
Espinoza forwarded this e-mail to Union supervisors, who
communicated it to Murillo’s supervisors.
The supervisors testified that they took the perceived
threat very seriously in light of Murillo’s previous behavior and
threats. They barred Murillo from the worksite, posted armed
security guards, and were escorted to and from the building. One
supervisor unfamiliar with Murillo’s other e-mails testified in his
defense, as did several co-workers. Among other things, a co-
worker suggested that some of the inflammatory terms in the Death
Wish e-mail were union slang for labor negotiations (“shootout” and
“OK Corral”). Murillo was convicted and sentenced inter alia, to
15 months imprisonment. He has appealed.
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DISCUSSION
1. First Amendment/Sufficiency.
Murillo contends that his e-mail was protected speech
under the First Amendment as a matter of law and, relatedly, that
there was insufficient evidence of a criminal threat.3
Section 875(c) states:
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.
The threat must be made “knowingly and intentionally,” meaning that
the defendant uttered the threat voluntarily and not by mistake.
United States v. Myers, 104 F.3d 76, 79 (5th Cir. 1997).
A statute like section 875(c), which criminalizes pure
speech, “must be interpreted with the commands of the First
Amendment clearly in mind.” Watts v. United States, 394 U.S. 705,
707 (1969). “What is a threat must be distinguished from what is
constitutionally protected speech.” Id.
Murillo attempts to analogize his case to Watts by
asserting that he was engaging in a form of protected speech
because he was criticizing a government entity, the Postal Service,
his statement was hyperbole not received as a threat by Espinoza,
3
A conviction may be overturned for insufficient evidence only if,
viewing the evidence in the light most favorable to the government, a rational
trier of fact would not have found the essential elements of the offense beyond
a reasonable doubt. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.
1995).
4
his statement involved union terminology rather than threats, and
the recipient was his friend. These arguments are without merit.
Watts is fully distinguishable. The Supreme Court
overturned Watts’s conviction because his anti-draft remarks were
made in the context of a political rally against President Johnson,
the crowd laughed in reaction to his statement, and it represented
at bottom a crude, hyperbolic political attack. Watts, 394 U.S. at
707-08. Unlike the demonstrator in Watts, Murillo was not
criticizing government policy or institutions but the personal
discipline he had received. In the employment context, this court
has held that an employee asserting that he was wrongfully
terminated for engaging in protected speech must show that the
speech relates to a matter of public concern. Vojvodich v. Lopez,
48 F.3d 879, 884-85 (5th Cir. 1995). Murillo cannot make such
proof. Further, he has not shown that the April 18 e-mail was a
form of hyperbole used in a management/union labor dispute, such
that it would constitute protected speech. At the time of the
Death Wish e-mail, the Union had told Murillo not to send them
further similar communications, and the testimony concerning
whether some of his terms related to labor disputes was equivocal.
Murillo’s final First Amendment argument is that because
the e-mail was a private message not sent to the purported victim,
it must be construed as protected speech rather than a threat. In
support, he cites three district court cases in other circuits.
5
See United States v. Baker, 890 F.Supp. 1375, 1387-90 (E.D.Mich.
1995), aff’d on other grounds sub nom, United States v. Alkhabaz,
104 F.3d 1492 (6th Cir. 1997) (private message sent to co-defendant
either did not specify a victim or did not evince a true intent to
carry out the threats); United States v. Bellrichard, 779 F.Supp.
454, 459-60 (D. Minn. 1991), aff’d., 994 F.2d 1318 (8th Cir. 1993)
(no evidence that the defendant wished the threat, communicated to
a friend, to reach the judge who was the intended victim, and no
evidence that the friend was likely to transmit it); United States
v. Fenton, 30 F.Supp. 2d 520, 526-27 (W.D. Pa. 1998) (threats under
similar statute, made against a United States representative, were
communicated to an insurance adjuster who was not connected to the
representative). These cases are dissimilar from Murillo’s,
because none of them involved communication to a friend who was
also a co-worker and fellow union member, and who was intimately
connected with the workplace and the supervisors who were the focus
of Murillo’s indignation. Murillo’s threat was uttered much closer
to a realistic target. In any event, accepting the defendant’s
explanation of these cases that a subjective intent not to harm
invokes First Amendment protection would conflict with our rule
that section 875(c) is not a specific intent crime. Myers, 104
F.3d at 80-81.
Although the Death Wish e-mail was not protected by the
First Amendment, there remains Murillo’s challenge to the
6
sufficiency of the evidence. A threat is to be interpreted in
context to determine whether the communication would reasonably
tend to create apprehension that the originator will act in
accordance with the threat. Myers, 104 F.3d at 79. The context of
this communication – Murillo’s building resentment toward his
superiors; his threatened firing; his overt manifestations of
hostility both face-to-face and in other e-mails; his ignoring the
union directive; and the timing of the Death Wish e-mail just after
a postal worker’s murder in Dallas – all support the rationality of
the jury’s verdict.
2. Psychotherapist/Patient Privilege.
Murillo contends that the district court erred in
admitting statements he made to Escamilla and in admitting a
subsequent Internet message by Murillo referring to the counseling
session. Escamilla testified at Murillo’s trial about the
statement, and the October 13 Internet message was also presented
to the jury.
In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme
Court held that confidential communications between a licensed
psychotherapist, or licensed social worker and a patient is
privileged. The government assumes that the counseling session
with Escamilla was covered by Jaffee, so this point is not
disputed. The government does assert, however, that insofar as
Escamilla professionally determined that Murillo’s statements
exhibited the “potential for homicidal ideations” and that
7
Murillo’s immediate supervisor could be in danger, EAP guidelines
required him to disclose Murillo’s statements and alert the
supervisor. Thus, no psychotherapist/patient privilege protected
such statements. Jaffee, 518 U.S. at 18 n.19. Most likely this is
correct.
In any event, however, Murillo waived the privilege when
he revealed the entirety of the incriminating statement from the
interview to third parties in an Internet posting. A voluntary
disclosure of information which is inconsistent with the
confidential nature of the relationship waives the privilege. See
Industrial Clearinghouse, Inc. v. Browning Mfg. Division of Emerson
Electric Co., 953 F.2d 1004, 1007 (5th Cir. 1992); Alldread v.
Granada, 988 F.2d 1425, 1434 (5th Cir. 1993).
3. Other E-Mails.
Murillo challenges as an abuse of discretion the district
court’s admission of eight e-mails and messages spaced between late
1997 and the period shortly after the Death Wish e-mail. Federal
Rule of Evidence 404(b) permits evidence of other wrongs or acts as
proof of identity, motive and intent, subject to weighing the
evidence’s probative value against unfair prejudice. See United
States v. Zanabria, 74 F.3d 590, 592 (5th Cir. 1996). Rule 404(b)
does not, however, apply where the other acts are inextricably
entwined to the charged crime or are necessary preliminaries to the
crime. Coleman, 78 F.3d at 156. This court reviews evidentiary
8
rulings with respect to intrinsic and extrinsic evidence under an
abuse of discretion standard. United States v. Coleman, 78 F.3d
154, 156 (5th Cir.), cert. denied, 519 U.S. 891 (1996).
In this case, the government was required to prove that
the Death Wish e-mail reasonably caused apprehension in its
recipients, a showing that this court has held established by the
context in which the threat was received. See Myers, 104 F.3d at
79. Thus, the pre-crime messages tended to prove the
reasonableness of management’s fear of the Death Wish e-mail, as
the district court instructed the jury. Similarly, Murillo’s post-
crime e-mails and activities, which included his inquiries about
covering the tracks of his earlier communications, were relevant to
show consciousness of guilt. United States v. Martinez, 190 F.3d
673, 678 (5th Cir. 1999). In these ways, the other e-mails and
communications provided intrinsic evidence of the offense.
Alternatively, because Murillo had stipulated to no facts
before trial, not even to his authorship of the Death Wish e-mail,
the other e-mails were relevant to prove his identity, his intent
to send the criminal e-mail, and his motive. From this standpoint,
the district court committed no abuse of discretion in admitting
the evidence pursuant to Rule 404(b). Further, the court
instructed the jury not to use any of this evidence to judge
Murillo’s character.
4. Sentencing Issues.
9
Murillo challenges both the district court’s factual
findings and legal interpretation of the Guidelines. We review
those determinations according to the usual standards. See United
States v. Goynes, 175 F.3d 350, 353 (5th Cir. 1999). Murillo first
contends that a sentencing enhancement provision (Section
2A6.1(b)(2)), which took effect on November 1, 1997, could not be
used to count conduct occurring before that date as an enhancement
of the offense conduct. The Supreme Court and this court have
recognized, however, that the ex post facto clause does not apply
to aggravating factors of an offense. See Gryger v. Burke, 334
U.S. 728, 732 (1948) (“The sentence . . . is not to be viewed as
either a new jeopardy or additional penalty for the earlier crimes.
It is a stiffened penalty for the latest crime, which is considered
to be an aggravated offense”)); see also United States v. Saenz-
Forero, 27 F.3d 1016 (5th Cir. 1994) (same conclusion in Guidelines
context).
Murillo also asserts that the October 13, 1997 Internet
posting and December 18, 1997 e-mail message were not threats as
defined in U.S.S.G. § 2A6.1(b)(2). We disagree, based on
Application Note 2, which refers to prior conduct that is, as here,
substantially and directly connected to the offense. The district
court’s factual findings that the Glock threat and the December 18
e-mail, which stated that Murillo would fix management’s wagon for
10
trying to fire him and that “your wagon will get burned” were
threats were not clearly erroneous.
For the foregoing reasons, the conviction and sentence
are AFFIRMED.
11
United States v. Murillo
Combined Opinion