United States v. Clemens

United States Court of Appeals
For the First Circuit

No. 12-1149

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY L. CLEMENS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.

Matthew S. Cameron on brief for appellant.
Mark T. Quinlivan, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.

December 10, 2013
 LYNCH, Chief Judge. We are invited in this case to

change our circuit law on the type of intent needed by a defendant

to communicate "true threats" under 18 U.S.C. § 875(c). We note

there is a circuit split on the question of intent in the aftermath

of Virginia v. Black, 538 U.S. 343 (2003). The issue was not

raised before the trial court, and on plain error review we see no

reason to depart from this circuit's law that an objective test of

defendant's intent is used from the defendant's vantage point under

§ 875(c). United States v. Whiffen, 121 F.3d 18, 21 (1st Cir.

1997).

On May 11, 2011, a jury convicted Jeffrey Clemens of two

counts of sending threats to injure another across state lines in

violation of 18 U.S.C. § 875(c). He was sentenced to five years of

imprisonment. The threats were in two emails, one sent to Stephen

Pfaff, the opposing counsel and defendant in a lawsuit that Clemens

had filed, and the other to Patricia Vinchesi, the Town

Administrator of Scituate, Massachusetts, which was also a

defendant in that suit.

Clemens appeals from his conviction, primarily arguing

that the district court gave incorrect jury instructions on the

meaning of the term "threat." He also argues that there was

insufficient evidence to support his conviction and that the

district court had erred in denying his pre-trial motion to dismiss

his indictment. Pertinent to most of Clemens's claims of error is

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his argument, made for the first time on appeal, that the Supreme

Court decision in Black required the jury to find that he

subjectively meant to threaten Pfaff and Vinchesi and that it was

insufficient to measure his intent by reference to an objectively

reasonable person.

We affirm.

I.

We draw the facts primarily from the parties' pleadings

and the trial record. Because Clemens challenges the sufficiency

of the evidence, we describe the evidence in the light most

favorable to the jury verdict. See United States v. Soto, 720 F.3d

51, 54 (1st Cir. 2013).

On May 12, 2005, Clemens was arrested in Scituate,

Massachusetts, and that set off the chain of events which

eventually resulted in the federal indictment in this case. That

day, the Scituate police department had received a call from a town

resident that Clemens was trespassing on the grounds of her home.

The police arrested Clemens for trespassing, after he had already

left the private residence, and charged him with disorderly conduct

and impersonating a private investigator, inter alia. See Clemens

v. Town of Scituate, No. 07-10845-RGS, 2009 WL 1448807, at *1 (D.

Mass. May 22, 2009). A jury convicted Clemens of the disorderly

conduct count, for which he served six months in state prison,

although that conviction was later overturned. (The reason is not

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in the record.) He also had admitted that there were sufficient

facts to prove his guilt for impersonating an investigator, for

which he received a six month suspended sentence.

In May 2007, Clemens filed a § 1983 lawsuit, pro se, in

federal court against the Town of Scituate (Town), two local police

officers, the Town resident who had accused him of trespassing and

that resident's husband, asserting that the arrest had been without

probable cause, in violation of the Fourth Amendment, and pendent

common law tort claims. See id. at *2. Pfaff was the attorney who

represented the Town and the police officers in this § 1983 case.

On January 9, 2009, Pfaff filed a motion for summary judgment,

arguing that Clemens had no legal basis for his claims. The

district court granted summary judgment as to all federal claims on

May 22, 2009, declining to exercise jurisdiction over the pendent

state law claims. See id. at *3.

Again proceeding pro se, on October 27, 2009, Clemens

filed another lawsuit in federal court against the Town, the

Scituate police officers, and additional defendants, including

Pfaff; this time Clemens sought damages for malicious prosecution

and "willful negligence." The case was assigned to a different

federal district court judge.

Pfaff again represented the Town, some individual

defendants, and himself in this second lawsuit. On March 5, 2010,

Pfaff moved to dismiss the lawsuit as to himself. In response,

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Clemens sent Pfaff the following email three days later, on March

8, 2010 at 10:25 p.m.1:

Dearest Mr. Pfaff:

The judge to whom you just motioned, William
G. Young, by the way [perhaps you knew
already], graduated Harvard Law with Alan
Alexander, long and dear friend and associate
to Ronald Bass, credited author of the movie
Rain Man which you took it upon yourself to
refer to in your recent motion before him
[Young]. Only thing is, Mr. Bass went to
Harvard Law, too, and graduated but one year
before Mr. Young.

Gee, do you suppose they knew each other?
Exchanged notes? Took Civil Procedure
together?

If you want to file crap like your Rule 12
motion, fine. Apparently, the truth means
nothing to either you or the police
[obviously, you motioned to avoid discovery].
Given the recent Stearns disqualification
[which you failed to mention in your motion],
I believe you are playing a dangerous game, a
very dangerous game. I have every hunch
someone is going to get hurt. At this point
[years of police/court bullshit, and your
crap], I'm rather hoping someone will
[deserving it, of course].

Have you ever been punched in the face? Well,
I was, at PCCH,2 thanks to O'Hara and Moynahan
and now, frankly, I rather hope you experience
that same thrill someday, figuratively or
otherwise, maybe even see one of your

1
The underlined portions of the email are those that Pfaff
identified as threatening at trial. The emphasis that was in
Clemens's original email has been removed. The bracketed material
appears as such in the original.
2
PCCH presumably refers to the Plymouth County House of
Correction.

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"clients" go to prison, you get disbarred,
"taken to a chop shop on Staten Island",
whatever.

There was never any "argument" between O'Hara
and I on May 12, 2005. He is one lying
son-of-a-bitch and you knew it on September
17, 2008 when you invited him to sit in on the
Goyette deposition. And you knew O'Hara was
going to lie at the September 18, 2008
"trial". And you now expect to let your
misconduct be a basis for a Rule 12 motion?
What, I pled to "sufficient facts"? Bullshit.
There was never any sufficient facts to begin
with much less plea to. You and your people
systematically BUTTFUCKED me and you knew it,
too.

I will say it now, once. I, at this point,
will not ever allow the SPD and HDC to get
away with what they have done. They're an
affront to all that is [pretended to be]
American Democracy and Justice, as are you.
One way or another, I will have my day in
court or the back alley [hint, hint, veiled
threat potential here].

You do be careful now, you hear? And by all
means, run to your FBI friends, I would
encourage it. After all, perjury is a federal
offense too, especially when the victim is
from out-of-state. Besides, it [you running
to the feds] will give me a chance to make my
case. Yeah, go ahead and call the FBI and say
something like "Oh, Mr. Clemens [']threatened
me['] in an email last night". Yeah, right.
Five years, and this ain't over. And do you
know why? I mean, really, why is this whole
thing not over? Because of people like you,
who crossed the line [in September 2008], and
O'Hara and Moynahan, who crossed certain
lines, too. You, at this point, I assure you,
will get what you deserve. Pow! Bang!
Splat! I really, truly and sincerely wish you
were dead.

I am very much looking forward to putting you
in your place, Mr. Pfaff. You disgust me. You

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 are absolute filth [proof positive that a suit
and tie ultimately doesn't not make a person
"good" or "respectable"]. Yeah, remember
Stearns and the whole Laveroni default? Sure
you do. And surely, you will pay the price
some day for the many years of incarceration I
had to endure BECAUSE OF YOU Mr. Hired in 2007
Over A Year Before The September 2008 Trial
That Gave You Summary Judgment Pfaff.

Oh, how I wish a 10-ton I-beam would fall on
you, O'Hara, Rooney and Shelly3 right now.
Splat! Boy, would I love to see that!

Perhaps someday I will [or, at least, an
equivalent experience]. As far as I am
concerned, neither you nor your partners in
crime deserve your freedom right now.

From now on, be sure and watch your backside,
Mr. Pfaff. God may step up to the plate at
any moment. I dunno, I got this feeling
someone's going to get hurt REAL BAD. And it
ain't gonna be me.

Here's to Law and Order. And yes, you can
expect a full briefing from me in the coming
days addressing your truth-twisting
truth-burying masterpiece of a motion.
Rationalize all you want but come Judgment Day
you've had it.

Jeffrey Clemens

(emphasis added).

Clemens also sent this email as an attachment to Patricia

Vinchesi, the Scituate Town Administrator, at 10:34 p.m. on March

8, 2010, with the message "Mr. [sic] Vinchesi: You all might be

3
Sergeant Michael O'Hara and Lieutenant John Rooney are
Scituate police officers and defendants in Clemens's lawsuits.
Shelley Laveroni had accused Clemens of trespassing and is also a
defendant in his lawsuits.

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digging yourself a grave. Jeffrey." Vinchesi was not a defendant

in either of Clemens's lawsuits.

Pfaff read Clemens's email the following morning on March

9. He testified in this case that he had read the email as a

"personal physical threat." As a result, he sent his wife a

photograph of Clemens, which he had in his case file, because he

was worried that Clemens would show up at the child care center

where she worked. Pfaff sent this same photograph to the Chief of

Police in the town where he lived because he "was concerned for

[his] physical safety" and asked for extra patrol cars to come by

his house.

That same day, Pfaff forwarded the email to an FBI agent

whom he knew. He also sent Clemens's email to the courtroom clerk

assigned to the civil lawsuit.4

Like Pfaff, Vinchesi also opened the email from Clemens

on March 9. She testified that she "got very scared" considering

that she was the only person to receive an attachment with

Clemens's email to Pfaff, and the message addressed to her was "You

all might be digging yourself a grave." She forwarded the email to

Scituate's Chief of Police and also met with him in person. The

Chief gave her a photograph of Clemens. Vinchesi said it was "very

4
After a hearing on April 1, 2010, the district court
dismissed Clemens's second civil suit with prejudice "due to
[Clemens's] abuse of litigation process through his scurrilous and
threatening communications."

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important to know what [Clemens] looked like, [in case] he should

show up in [her] office" in the Scituate Town Hall, which was open

to the public and had no security measures.

FBI Agent Thomas Greenwalt testified that he had arrested

Clemens on March 17 in Huron, Ohio, where he then lived with his

parents. After being advised of his rights, Clemens admitted that

he had sent the emails to Pfaff and Vinchesi while he was in Huron.

Greenwalt testified that Clemens had characterized the emails as

"strongly worded" and "rhetoric." Clemens also said to Greenwalt

that he did not use his best judgment in sending them although he

asserted that "[f]eeling like doing something is not the same as

actually doing it."

II.

On April 14, 2010, a grand jury charged Clemens with two

counts of "Interstate Transmission of Threat to Injure" in

violation of 18 U.S.C. § 875(c), based on the emails that he had

sent to Pfaff and Vinchesi. Section 875(c) punishes "[w]hoever

transmits in interstate . . . commerce any communication containing

any threat . . . to injure" another person.

Clemens moved to dismiss the indictment, arguing in part

that the emails are, as a matter of law, protected speech under the

First Amendment and do not contain "true threats," which are

outside the scope of First Amendment protection.

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 On April 22, 2011, the district court denied Clemens's

motion, noting that whether a statement is a threat under § 875(c)

is usually an issue of fact for the jury. It applied this

circuit's objective test under which a statement is a threat if the

sender5 should have reasonably foreseen that the recipient would

interpret it as such.

While acknowledging Clemens's point that some of the

statements in the email express hopes or wishes, such as Clemens's

"wish" that a "10-ton I-beam" fall on Pfaff, the court observed

that these wishes are "hardly of a benign nature" and are

accompanied by statements that reference Clemens's intent to

actually "do something" to Pfaff. Given the context of Clemens's

communications -- highly contentious litigation -- the court

5
The court, relying on model jury instructions, also
instructed that the test for a threat was objective as to the
recipient, because a true threat is one that a "reasonable
recipient familiarized with the context of the communication would
find threatening." United States v. Clemens, No. 10-10124-DPW,
2011 WL 1540150, at *2 (D. Mass. Apr. 22, 2011) (quoting United
States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003)) (internal
quotation mark omitted).
The government has argued that the court erroneously raised
the government's burden proof when it said that the objective test
applies to both the sender and the recipient. The government
contends that the test in this circuit, as articulated in United
States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997), and United States
v. Whiffen, 121 F.3d 18 (1st Cir. 1997), is an objective standard
only from the perspective of the sender. We do not address the
government's objection, which is not necessary to the outcome of
this appeal. The government does not claim to have called this
issue to the attention of the trial judge.

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concluded that a "reasonable jury could find that [Clemens's]

statements constituted a threat."

During a three-day trial in May 2011, Pfaff, Vinchesi,

and FBI Agent Greenwalt testified on behalf of the government and

Clemens's emails to Pfaff and Vinchesi were submitted as evidence.

The defense did not call any witnesses, and Clemens chose not to

testify.

At trial, Clemens had admitted that: 1) the emails were

sent in interstate commerce, traveling from Ohio to Massachusetts,

where Pfaff and Vinchesi received them; and 2) he intended to send

the emails. So, the only issue left for the jury under § 875(c)

was whether the emails contained a threat to injure someone.

In closing, the defense argued that it is not reasonable

to construe these emails as literal threats, characterizing Clemens

as an "aggrieved" person who was just blowing off steam because he

felt he had been treated unfairly in the state criminal justice

system and was frustrated with the progress of his related civil

suits. The defense also focused on the language of the emails,

saying that Clemens's "cartoonish" and "self-referential"

statements were not meant to be taken literally.

Clemens proposed several jury instructions to the

district court, including one on the meaning of a "threat."6

6
The defendant proposed these instructions, as pertinent to
this appeal:

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 The district court instructed the jury that it had to

determine whether the emails sent to Pfaff and Vinchesi contained

The government must prove beyond a reasonable doubt
that the statements made constitute a true threat under
federal law. A threat is a statement made in a context
or under such circumstances that a reasonable person
would foresee that the statement would convey to the
recipient a seriousness of purpose to inflict bodily harm
and the apparent prospect of execution.

A true threat is a statement expressing an intention
to assault someone in such a way as could reasonably
induce fear. A true threat is to be distinguished from
idle, careless talk, exaggeration, or something said in
a rude, aggressive, or offensive manner.

You must determine whether the government has proved
beyond a reasonable doubt that Mr. Clemens's alleged
statements were a true threat when judged in their
context, that is, whether the government has proved
beyond a reasonable doubt that the statements were a
serious expression of intent to inflict injury and not
merely a vehement or offensive expression of hyperbole or
argument against a government official.

This means you should consider the statement in
light of the entire factual context, including:

• The surrounding events;
• The place from where the statements were made;
• The circumstances leading up to Mr. Clemens's
statements;
• The way in which Mr. Clemens chose to communicate
the statements;
• The effect of the statements on the recipients;
• The context of the statements within the emails
sent;
• Whether on their face and in the circumstances in
which they were made the statements were so
unequivocal, unconditional, and specific as to
convey to the recipients a gravity of purpose and
apparent prospect of execution; and
• Any prior interactions between Mr. Clemens and Mr.
Pfaff and/or Ms. Vinchesi.

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a threat to injure, explaining that the "general definition of a

threat, is a communicated intent to inflict harm or loss on

another." The court also instructed the jury to use an objective

test for identifying a threat under § 875(c), saying in part:

[W]e are looking for a societal judgment about
whether or not a person sending such a
communication would understand that it was a
threat and that a person receiving such a
communication would understand that they have
been threatened. You become the embodiment of
society here in making this kind of judgment
about deciding according to our ordinary
notions of behavior and responsibility among
ordinary people in our society at this time,
not somebody who is overanxious or over-
concerned, not somebody who is oblivious to
communications. But the ordinary person who
receives this or sends it, what would they
believe this to be, a threat or not?

Clemens objected to the jury instructions, arguing that

the court should have used his proposed instructions on threats

because they "add[] an additional protection" of describing threats

as "true," and because they say that the threat of injury must be

imminent.

Clemens did not object to the court's refusal to instruct

the jury on "ambiguous statements" or its application of an

objective, as opposed to subjective, standard to the issue of

intent. He raises both of these arguments for the first time on

appeal. Nor did Clemens ever challenge the sufficiency of the

evidence at trial.

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 After the court had already given its instructions it

declined to add Clemens's definition of a threat, saying that "[it]

add[s] dimensions to the case that are nowhere to be found in the

First Circuit law."

After deliberating for just under two hours, on May 11,

2011, the jury found Clemens guilty of both counts of sending

threats to injure in interstate commerce. Clemens timely appealed.

III.

A. Jury Instructions

Clemens's only preserved challenge to the jury

instructions is that the court did not use his language on a "true

threat." He suggests that the court's instructions did not

distinguish between language that is protected by the First

Amendment and "true threats." Clemens's own proposed instructions,

it is worth pointing out, utilized an objective test, referring to

"an intention to assault someone in such a way as could reasonably

induce fear." (emphasis added).

We review preserved claims of legal error in jury

instructions de novo. See United States v. Sasso, 695 F.3d 25, 29

(1st Cir. 2012). "[A] district court's refusal to give a

particular instruction constitutes error only if the requested

instruction was (1) correct as a matter of substantive law, (2) not

substantially incorporated into the charge as rendered, and (3)

integral to an important point in the case." United States v.

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Symonevich, 688 F.3d 12, 24 (1st Cir. 2012). "An error mandates

reversal only when it is prejudicial based on a review of the

entire record." Id.

The district court did not err in not adopting Clemens's

instructions. To start, Clemens's proposal contains incorrect

statements. His instructions ask the jury to consider whether his

statements "were so unequivocal, unconditional, and specific as to

convey to the recipients a gravity of purpose and apparent prospect

of execution." We have rejected any requirement that threats be

"unequivocal, unconditional, and specific." Rather, "use of

ambiguous language does not preclude a statement from being a

threat."7 United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.

1997); see id. at 1490, 1492 (holding that a jury could find the

phrase "[t]he silver bullets are coming" represented a threat

despite evidence of that phrase's potential innocuous meaning); see

also United States v. Turner, 720 F.3d 411, 424 (2d Cir. 2013)

(commenting that the Second Circuit has "affirmed convictions for

threats that were both conditional and inexplicit").

There are other errors in Clemens's instructions, but we

need not parse them because the district court's jury instructions

accomplish that which he requested: distinguishing real or "true"

7
Although Fulmer reviewed a conviction under 18 U.S.C.
§ 115(a)(1)(B), a different statute that proscribes threats to
"assault, kidnap, or murder" United States officials, this court
has treated the term "threat" or "threaten" as having the same
meaning in both criminal statutes. See Whiffen, 121 F.3d at 21.

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threats from those that are not. See Symonevich, 688 F.3d at 24

(holding that there is no error where the requested instruction is

"substantially incorporated into the charge as rendered").

Clemens's submitted instructions asked jurors to evaluate

statements "in their context" to distinguish a "true threat" from

"idle, careless talk, exaggeration, or something said in a rude,

aggressive, or offensive manner."

The district court accomplished the needed distinctions,

but in more appropriate language:

Now, there have been various adjectives
that have been used by the parties in talking
about this, "incendiary" and "excitable" and
"bad judgment" and "not friendly" and
"vehement" and "bad manners." Those may or
may not be ways to distinguish a threat under
these circumstances, but you are not so much
concerned about whether or not it was bad
manners or vehement or excitable as to whether
or not a reasonable person reading this would
say that is a threat, and whether a reasonable
person sending it would understand that is a
threat. . . .

Of course [in making that
determination] you consider all of the
circumstances. Horseplay between kids using
inflated language might, under some
circumstances, not be considered a threat. A
kind of acting out might not be considered a
threat. But what you are focusing on is
whether or not in our society at this time the
communication of these words in this context
would, by a reasonable person, be considered a
threat, and that is what is at the core of
this case.

As to Clemens's stated objections at trial, there was no error.

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 We turn to Clemens's arguments made for the first time on

appeal. First, he argues that the court's definition of a threat,

drawn from Black's Law Dictionary, misstates the law because it

failed to include the statutory language of a threat "to injure."

He mixes apples and oranges. The court had initially instructed

the jury:

At the guts of this case, I would suggest to
you, and the thing that you are going to have
to be concerned with is whether or not the
communications . . . contained a threat to
injure someone.

Now, the law has been I think fairly
specific about what a threat means in this
setting. The general proposition, general
definition of a threat, is a communicated
intent to inflict harm or loss on another.

(emphasis added). The district court did not err at all when it

explained to the jury that it was providing a general definition of

the term "threat" immediately after it had instructed them of their

particular task: deciding whether the emails contained a "threat to

injure."

More significantly, Clemens argues that the district

court erred when it told the jury to decide if a "reasonable

person" sending Clemens's emails would understand them to be

threats. He argues that the Supreme Court's 2003 decision in Black

mandates a subjective intent test. To be more precise, the

question under 18 U.S.C. § 875(c) is whether the government must

prove only that a reasonable person would construe the words as a

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threat, and need not prove as well that the defendant subjectively

meant the words to be a threat. See United States v. Jeffries, 692

F.3d 473, 483-84 (6th Cir. 2012) (Sutton, J., dubitante), cert.

denied, 134 S. Ct. 59 (2013).

Because Clemens never once raised this issue at trial,

although it was clearly available to him, we review only for plain

error,8 United States v. LaPlante, 714 F.3d 641, 643 (1st Cir.

2013), which Clemens cannot establish. To do so, Clemens must show

that: "(1) there was error; (2) the error was plain; (3) the error

affected [his] substantial rights; and (4) the error adversely

impacted the fairness, integrity, or public reputation of judicial

proceedings." United States v. Caraballo-Rodriguez, 480 F.3d 62,

69 (1st Cir. 2007) (quoting United States v. Riggs, 287 F.3d 221,

224 (1st Cir. 2002)) (internal quotation mark omitted).

Before Black was decided, this court had addressed what

test must be used to determine intent under true threat statutes.

In Fulmer, involving a threat to a federal agent under 18 U.S.C.

§ 115(a)(1)(B), we framed the question. We noted the circuits

8
Clemens argues that he did raise the subjective intent
issue at trial when he objected to the jury instructions because he
said that the term "true threat" is "language which derives from
the Supreme Court." This argument is frivolous. His vague
reference to Supreme Court precedent does not give the district
court notice of the argument he now makes on appeal, which is based
on a sentence in Black. Clemens mentioned neither Black nor
subjective intent in his objection (or at any point during the
trial). Moreover, Clemens's own proffered definition of a "true
threat" applied an objective standard to intent.

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agreed that the test was an objective one but that they

"disagree[d] regarding the appropriate vantage point -- what a

person making the statement should have reasonably foreseen or what

a reasonable person receiving the statement would believe." 108

F.3d at 1491. We concluded 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 [wa]s made." Id.

The question of whether the statute involved in this

case, 18 U.S.C. § 875(c), required the government to prove specific

intent -- that the defendant intended his communications to be

received as a threat -- was addressed a few months later in

Whiffen. We rejected the argument that § 875(c) was a specific

intent crime, described it as a general intent crime, and adhered

to the Fulmer articulation. Whiffen, 121 F.3d at 21.

Although not previously presented with this type of

argument based on Black, since Black was decided in 2003 this court

has continued to apply its objective defendant's vantage point test

for determining intent in criminal threat cases. See, e.g., United

States v. Stefanik, 674 F.3d 71, 75 (1st Cir. 2012); United States

v. Walker, 665 F.3d 212, 226 (1st Cir. 2011); United States v.

Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003).

The core holding of Black is actually addressed to a

different issue about the constitutionality of a Virginia law that

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banned cross burning with an intent to intimidate, which contained

a presumption as to intent. A jury in Black had been instructed

that the state must prove the defendant had the intent to

intimidate any person and that specific intent was not at issue.

The Supreme Court of Virginia held the statute unconstitutional on

First Amendment grounds. The United States Supreme Court, in a

divided opinion concerned only with the statute's facial provision,

which "treat[ed] any cross burning as prima facie evidence of

intent to intimidate," Black, 538 U.S. at 347-48, remanded in part

for further interpretation of that provision, id. at 367. In its

analysis, the Court said, "'True threats' encompass those

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." Id. at 359

(emphasis added). It continued, saying "[i]ntimidation in the

constitutionally proscribable sense of the word is a type of true

threat, where a speaker directs a threat to a person or group of

persons with the intent of placing the victim in fear of bodily

harm or death." Id. at 360. It is this first "means to

communicate" language on which defendant's argument is based. Even

if the statement were only dicta, we must take Supreme Court dicta

seriously. See Mass. Delivery Ass'n. v. Coakley, 671 F.3d 33, 43

(1st Cir. 2012).

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 Of the courts of appeals to consider a subjective intent

argument derived from this language in Black, most have rejected

it. See United States v. Martinez, No. 11-13295, 2013 WL 6182973

(11th Cir. Nov. 27, 2013); United States v. Elonis, 730 F.3d 321

(3d Cir. 2013); United States v. Nicklas, 713 F.3d 435 (8th Cir.

2013); Jeffries, 692 F.3d 473;9 United States v. White, 670 F.3d

498 (4th Cir. 2012). These courts have reasoned that the Black

decision had no occasion to distinguish between subjective and

objective standards for construing threats because (1) the Virginia

law at issue required subjective intent; and (2) the prima facie

evidence provision that the Court invalidated had no standard at

all for intent, "allow[ing] convictions 'based solely on the fact

of cross burning itself.'" Jeffries, 692 F.3d at 479-80 (quoting

Black, 538 U.S. at 365); see also Elonis, 730 F.3d at 329 (refusing

to interpret Black as "invalidat[ing] the objective intent standard

the majority of circuits appl[y] to true threats" because the

9
Only the Black argument, on plain error review, is before
us. No argument is made to us that the language of the statute of
conviction, construed in Whiffen, requires that we change our rule.
Only an en banc panel has authority to change this circuit's
interpretation of § 875(c) absent a Supreme Court case on point.
See Downing/Salt Pond Partners, L.P. v. R.I. & Providence
Plantations, 643 F.3d 16, 24 (1st Cir. 2011).
We are aware of Judge Sutton's opinion dubitante in Jeffries
opining that the language of § 875(c) requires subjective intent
and that most courts have gotten it wrong by imposing an objective
intent test. Importantly, he was clear that his interpretation of
§ 875(c) is not at all based on Black or the First Amendment. See
Jeffries, 692 F.3d at 483-86 (Sutton, J., dubitante).

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Virginia statute "already required a subjective intent to

intimidate").

These courts have also addressed the particular language

in Black on which Clemens relies, in which threats are those

statements where the "speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence."

Rather than read the language as setting forth a subjective intent

requirement, they have concluded that the sentence only requires

the speaker to "intend to make the communication," not the threat.

Elonis, 730 F.3d at 329; see Martinez, 2013 WL 6182973, at *5;

Jeffries, 692 F.3d at 480; White, 670 F.3d at 508-09.

To date, only the Ninth Circuit has held that this

language from Black imposes a subjective intent requirement in a

criminal threat statute, 18 U.S.C. § 879(a)(3), which prohibits

certain threats against presidential candidates and their families.

See United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th Cir.

2011). That holding is consistent with the Ninth Circuit's prior

case law.10 See id. at 1117-18 (observing that Black affirmed that

circuit's dictum requiring subjective intent). In United States v.

Parr, 545 F.3d 491, 500 (7th Cir. 2008), the Seventh Circuit did

10
One Ninth Circuit panel has commented that the question is
not whether a subjective or an objective test is required, since in
its view a subjective test is required under 18 U.S.C. § 879(a)(3),
but whether both are required. See Bagdasarian, 652 F.3d at 1117-
18.

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not decide the issue but suggested that an objective intent

standard is "no longer tenable" after Black.

Here, we need only conclude that Clemens cannot show

plain error. Even if there was any error, that error is not plain

or obvious. Most circuits have rejected Clemens's argument and

this court has applied an objective defendant vantage point

standard post-Black. Cf. United States v. Diaz, 285 F.3d 92, 97

(1st Cir. 2002) (holding that defendant cannot establish plain

error where law is unsettled both within and outside the First

Circuit). Absent further clarification from the Supreme Court, we

see no basis to venture further and no basis to depart from our

circuit law.

As to the remaining prongs of plain error, we add that we

have little doubt that if a subjective specific intent instruction

had been given, the jury would have, on these facts, found such

intent. Under either an objective or subjective standard, the jury

evaluates the particular circumstances of a case to determine

intent. See United States v. Goodchild, 25 F.3d 55, 60 (1st Cir.

1994) (observing, in a criminal fraud case, that direct proof of

intent is rare and that the government "usually prove[s]" specific

intent "by circumstantial evidence"). It is rare that a jury would

find that a reasonable speaker would have intended a threat under

the particular facts of a case but that a competent defendant did

not. (This might occur, for example, if the defendant were

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mentally handicapped.) The choice between an objective and

specific intent requirement is likely to have a greater impact in

circuits, like the Sixth but not like this circuit, which uphold

criminal threat convictions based solely on the reaction of the

reasonable listener. See Jeffries, 692 F.3d at 478, 480.

Finally, Clemens also argues for the first time on appeal

that the district court erred in refusing to read his instruction

on ambiguous statements. He again cannot show plain error where

his instructions include errors of law, such as by saying "[t]he

government must prove beyond a reasonable doubt that the statement

was not ambiguous and that it clearly conveyed a threat to

assault."

While he claims his instruction is drawn from Fulmer, it

instead contradicts Fulmer, which said that ambiguous language does

not prevent a statement from being a threat. 108 F.3d at 1492.

So, under § 875(c) the government must prove beyond a reasonable

doubt that a statement is a threat, but need not prove that the

statement is unambiguous.

Clemens's proposed instruction also erroneously requires

the government to prove a "threat to assault." (emphasis added).

Section 875(c), however, prohibits a threat to injure. The

"assault" language appears to come from § 115(a)(1)(B), which

proscribes threats to "assault, kidnap, or murder" United States

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officials. The district court did not plainly err in rejecting an

instruction riddled with legal error.

B. Denial of Motion to Dismiss the Indictment

Clemens argues that the district court should have

dismissed his indictment before trial because no reasonable jury

could conclude his emails, as charged, communicated "true threats."

We review his legal challenge to the indictment de novo. United

States v. Guerrier, 669 F.3d 1, 3 (1st Cir. 2011). The argument is

misplaced.

It is true that "statute[s] . . . which make[] criminal

a form of 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) (per curiam). This is not a basis on which to

take away from a jury the factual question of whether or not

Clemens's emails conveyed true threats. See United States v.

White, 610 F.3d 956, 959 (7th Cir. 2010) (per curiam) (rejecting

defendant's First Amendment argument to dismiss an indictment

because "potential First Amendment concern[s] [are] addressed by

the requirement of proof beyond a reasonable doubt at trial, not by

a dismissal at the indictment stage").

"Whether a . . . [statement] constitutes a threat is an

issue of fact for the trial jury," involving assessments of both

credibility and of context. Fulmer, 108 F.3d at 1492 (quoting

United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994)) (internal

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quotation marks omitted); see, e.g., White, 610 F.3d at 962 (noting

that an indictment need not lay out all of the government's

evidence that defendant's speech was criminal solicitation);

Nishnianidze, 342 F.3d at 15 (considering circumstances leading up

to alleged threatening statements in determining whether a

reasonable jury could convict the defendant under a criminal threat

statute).

Clemens argues his case is different because his

statements were nothing more than "generalized fantasy,"

"sarcastic[]," and "cartoonish and hyperbolic."11 Not so. In

Whiffen, a defendant also offered a non-threatening interpretation

of the statements that served as the basis for his indictment, and

we held that the choice among interpretations was an issue of fact

properly left to a jury. 121 F.3d at 22. Here too the district

court was correct in letting the jury decide.

11
Clemens concedes that his statements were not "political
speech" protected by the First Amendment. See Watts v. United
States, 394 U.S. 705, 708 (1969) (per curiam). However, he asks
this court to view his statements differently from ordinary private
speech because they were communicated to opposing counsel in the
context of civil litigation.
To the extent he suggests the First Amendment treats speech
between opposing counsel (or, in this case, a pro se litigant and
opposing counsel) differently so as to warrant dismissal of the
indictment in this case as a matter of law, he offers no support
for this legal theory. The context of his communications is, of
course, relevant to the "true threats" inquiry, but that does not
help him; it is still for the jury to make this fact-based
assessment.

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 Other circuits agree. United States v. Stock, 728 F.3d

287, 298 (3d Cir. 2013) ("In the usual case, whether a

communication constitutes a threat or a true threat 'is a matter to

be decided by the trier of fact.'" (quoting United States v.

Kosma, 951 F.2d 549, 555 (3d Cir. 1991))); see, e.g., White, 670

F.3d at 512 (whether speech constitutes a threat is an issue of

fact for a jury); Parr, 545 F.3d at 497 (same); Malik, 16 F.3d at

49 (same). There may be cases where no reasonable jury could

conclude the statements were threats, but this is not one. See

United States v. Alkhabaz, 104 F.3d 1492, 1496 (6th Cir. 1997).

C. Sufficiency of the Evidence

Turning from his argument that his statements as a matter

of law were not threats, Clemens next argues the evidence before

the jury was not sufficient. Because Clemens never challenged the

sufficiency of the evidence at trial,12 we review the evidence only

to determine if there is a "clear and gross injustice." United

States v. Hicks, 575 F.3d 130, 139 (1st Cir. 2009) (quoting United

States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006)) (internal

quotation mark omitted).

A jury could easily conclude Clemens had intentionally

made true threats. Here Clemens sent an email that warned Pfaff to

"watch [his] backside," that they might meet in a "back alley,"

12
Clemens did not move for a judgment of acquittal at the
close of the government's evidence or at the close of all of the
evidence; nor did he move for a post-verdict judgment of acquittal.

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that Pfaff was playing a "very dangerous game," that Clemens wished

Pfaff were dead, that he hoped a 10-ton beam would fall on Pfaff,

and that he had a feeling someone would "get hurt REAL BAD."

Clemens forwarded the email to Vinchesi, with the note to her, "You

all might be digging yourself a grave."

The victims did in fact feel fear Clemens would

physically harm them after reading the emails and acted to protect

themselves. Pfaff took several precautions, including sending a

photo of Clemens to his wife and asking for patrol cars to circle

his home. Vinchesi also took precautions, meeting with Scituate's

Chief of Police. The jury verdict was firmly based in the

evidence. See Nishnianidze, 342 F.3d at 16 ("While the fact-finder

may consider other evidence, including the effect of the statement

on the recipient, the ultimate standard is an objective one --

whether a reasonable person would understand the statement to be

threatening."); Fulmer, 108 F.3d at 1500 (commenting that "evidence

of the recipient's reactions" is relevant to "what a person making

the statement should have reasonably foreseen"); see also Mitchell

v. United States, 141 F.3d 8, 17 (1st Cir. 1998) (noting that even

where challenges to evidence are preserved, an appellate court

cannot disturb a factfinder's weighing of evidence and credibility

determinations except for clear error).

Clemens's claim that his statements were not threatening

because they were made to an opposing counsel during civil

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litigation is also unavailing. To the contrary, a jury could have

found the perceived threat was more likely to be carried out given

that litigation was contentious and the significance of the suit to

Clemens.

The judgment is affirmed.

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