United States v. William White

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4375

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM A. WHITE,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:13-cr-00013-JCT-1)

Argued: October 29, 2015 Decided: January 7, 2016

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Motz and Judge King joined.

ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Laura Day Rottenborn, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
ON BRIEF: Anthony P. Giorno, United States Attorney, Roanoke,
Virginia, Jennifer R. Bockhorst, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.
THACKER, Circuit Judge:

William White (“Appellant”) believed his ex-wife

(“MW”) owed him money. When she refused to pay, he sent her a

series of e-mails, four of which threatened violence if MW did

not meet his demands. MW reported the threats to the

authorities, and Appellant was eventually charged in a four-

count indictment with violating 18 U.S.C. § 875(b), which makes

it a felony to transmit threats in interstate commerce with the

intent to extort. After trial, a jury convicted him of three of

the charged § 875(b) counts, and one count of the lesser-

included offense of transmitting a threat (without the intent to

extort), in violation of § 875(c). The district court sentenced

Appellant to a 92–month term of imprisonment.

Appellant now asks us to reverse his conviction and

vacate his sentence, assigning a number of errors. He maintains

he could not have intended to extort MW because she owed him a

legitimate debt and alleges more generally that the district

court misinstructed the jury on the mens rea requirements for

conviction pursuant to § 875(b) and (c). He also complains that

the use of an anonymous jury at his trial was improper; asserts

that the district court erroneously admitted hearsay evidence;

challenges the sufficiency of the evidence presented against

him; and disputes both the procedural and substantive

reasonableness of his sentence. We are not persuaded that any

2
of Appellant’s arguments undermine the jury’s verdict or the

district court’s sentence. We therefore affirm the district

court’s judgment for the reasons that follow.

I.

A.

This is not Appellant’s first brush with the law for

making threats, and his prior misadventures set the stage for

this case. In 2010, he was charged in the Western District of

Virginia for making a threatening telephone call to a university

administrator and sending intimidating letters to several

tenants in Roanoke who had filed a fair housing complaint

against their landlord. A jury convicted him, and the district

court imposed a 30-month term of imprisonment.

While he was incarcerated, Appellant’s relationship

with his now-ex-wife, MW, deteriorated. They eventually

separated and MW agreed 1 to pay alimony to Appellant. She made

the first two payments in March and April of 2012. Around the

same time, in March 2012, we upheld Appellant’s conviction on

appeal, but remanded the case for resentencing. See United

States v. White, 670 F.3d 498, 502-03, 515-16 (4th Cir. 2012).

1
MW claims the agreement was informal and never actually
finalized. But whether Appellant and MW formed a valid
separation agreement is immaterial to our analysis.

3
 Appellant was out of prison and on supervised release

by that time, so the district court set a resentencing hearing

for May 14, 2012. Appellant didn’t show. Instead, he fled,

absconding to Mexico with an acquaintance named Sabrina Gnos.

When MW learned Appellant was on the lam, she stopped making the

alimony payments, at least in part because she feared that doing

so would amount to aiding a fugitive. Appellant’s subsequent

attempts to persuade MW to resume making the payments form the

basis of the indictment in this case.

Appellant sent MW the following messages, which form

Counts I, II, and III of the indictment at issue here, between

May 27th and May 29th:

May 27, 2012 (Count I): I’ve had an offer
from a loan shark in Roanoke to split the
money you owe me 50/50. He will send
someone to beat your ass if you don’t pay,
and I will give him half for that service.
I would rather we found some way to
peacefully work things out so I had
continuing contact with my daughter and you
faced up to your obligations to me. If I
don’t hear from you soon, I will just let
the guy know you owe me $500 and let him
take care of it. If you won’t face up to
what you’ve done, someone has to hold you
accountable.

May 28, 2012 (Count II): If I were to allow
myself to be arrested, you have proven that
you will take [our daughter] from me forever
and that the federal government will assist
you with this. So, rather than be arrested,
I will remain free, and if you attempt you
are going to have the living shit beat out
of you -- to start with. You don’t seem to

4
 have any sense of right or wrong and only
seem to respond to the threat of legal or
physical force. The things you do upset a
lot of people, and I have a lot of friends
who think nothing of taking out on you the
things you have done to me.

May 29, 2012 (Count III): Later on someone
will be in touch with you. You owe me two
alimony payments and $85 in fees, which is
being called $500. I would strongly
recommend you have the $500 when you are
contacted -- or you will probably be
hospitalized.

J.A. 17-18. 2

Appellant also asked Gnos for help finding someone in

Virginia to pressure MW into making the payments. On June 2,

2012, Gnos, who was by that time cooperating with the Federal

Bureau of Investigation (“FBI”), recorded the following

conversation:

GNOS: Ah, you said you wanted, you wanted
to start off with a phone call and see how
that works. Are you . . .

APPELLANT: I think that’s probably best,
um, I mean, that’s easiest. You said you
didn’t know anybody that would actually go
there and just tell her to give them the
fucking money.

J.A. 730. The following day brought more of the same:

APPELLANT: I assume you’re still, ah,
working on the deal with my ex-wife up
there.

2 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

5
 GNOS: Yeah, it’s not that easy.

APPELLANT: Honestly, it is really easy.
Right now you just need to find someone to
get on the phone and pick up, pick up a
throw phone and call her up and say you’re
gonna pay the fucking money or I’m gonna
fuck you up.

Id. at 733. Appellant followed up again on June 4th:

APPELLANT: So, anyways, but, yeah, ah,
well, I just thought I’d, ah, check in with
you. Have you got any solution for getting
some money out of my ex-wife?

GNOS: No I’ve been sick. I haven’t been
talking to anybody on the phone.

APPELLANT: All right, well, it’s kind of
important. . . . I’m not kidding. You can
probably pay somebody ten bucks to just
scream some fucking obscenities into the
phone and get what she, get five hundred
bucks out of her. But I do need somebody to
lean on her and get that money, so, if you
can’t do it, I got to talk to somebody else
up there.

Id. at 737.

Finally, on June 7, 2012, after Gnos failed to find a

solution, the indictment alleges Appellant sent MW a final

warning, charged in Count IV:

June 7, 2012 (Count IV): I would very much
like to avoid an incident in which something
violent potentially happens to you around
the baby. Will you make some agreement to
settle the issues with the money and with my
access to my daughter? If I don’t hear from
you within 24 hours, then what follows will
be on you -I’ve done everything I can to
work this out peacefully.

6
J.A. 18.

The following day, June 8, 2012, Appellant was

arrested in Mexico and eventually deported to the United States.

On February 7, 2013, he was indicted in the Western District of

Virginia and charged with four counts of violating 18 U.S.C.

§ 875(b) on the basis of the e-mails set forth above. As

relevant here, the statute penalizes “[w]hoever, with intent to

extort from any person . . . any money . . ., transmits in . . .

foreign commerce any communication containing any threat to

. . . injure the person of another[.]” 18 U.S.C. § 875(b).

B.

Before trial, Appellant moved to dismiss the

indictment, arguing that it failed as a matter of law because he

had a legal right to the alimony payments he demanded. The

district court denied the motion. At the Government’s request,

and over Appellant’s objection, the case proceeded to trial

before an anonymous jury.

At trial, Gnos testified in detail about Appellant’s

activities during his escape to Mexico. She noted that

Appellant frequently used a Toshiba laptop during the trip and

that Appellant explained he was using software to disguise the

computer’s Internet Protocol (“IP”) address. Gnos also

testified that, after she returned to Virginia, she continued to

7
communicate with Appellant, check his mail, and wire him money.

At her father’s urging, Gnos explained, she eventually contacted

authorities and agreed to record her telephone conversations

with Appellant. The Government played several of those

recordings for the jury, including the clips from early June,

described above, in which Appellant repeatedly asked Gnos to

find someone to lean on MW so that she would resume making the

disputed alimony payments. The court also received into

evidence a handwritten note Gnos made of a call with Appellant,

which had not been recorded. According to Gnos’s note, the

tenor of the call was much like the others; Appellant told her,

“OK - if phone call dont [sic] work - we will have to have

someone fuck her up!” J.A. 727.

Other testimony implicated Appellant as the author of

the e-mails charged in the indictment. FBI Agent David Church

testified that the e-mails to MW originated from an e-mail

address, dhyphen@yahoo.com, that Appellant had previously used.

Church also explained that Appellant bragged on his Facebook

account of using an IP anonymizer much like the technology Gnos

testified Appellant had described to her. And Church testified

that Appellant’s Facebook account registered activity very near

in time to the moments when threatening e-mails were sent to MW,

and that both the Facebook activity and e-mails originated from

the same (albeit anonymized) IP address.

8
 MW testified that the e-mails made her fearful for her

safety and the safety of her daughter. For example, she

testified that, after receiving the May 27, 2012 e-mail, she

went to the local police station to ask for a protective order.

She also shared the e-mails with the United States Marshals

Service and the FBI, and took care not to travel alone whenever

possible until Appellant had been captured.

Appellant took the stand in his own defense. He

testified he did not send MW any of the e-mails identified in

the indictment, suggesting instead that Gnos was responsible.

The jury deliberated for just over three hours, but ultimately

rejected Appellant’s version of events, finding him guilty of

violating § 875(b) when he sent the May 27th, May 29th, and June

7th e-mails; the jury also convicted Appellant of the lesser-

included-offense of violating § 875(c) on the basis of the May

28th e-mail.

The Probation Department thereafter prepared a

Presentence Report (“PSR”) that recommended a sentence of 92-115

months, based on a total offense level of 26 and a criminal

history category of IV. Appellant’s offense level was enhanced

by two points for obstruction of justice as a result of his

trial testimony, and the PSR opined that Appellant’s counts of

conviction were not subject to grouping pursuant to § 3D1.2(d)

of the United States Sentencing Guidelines (“Guidelines”).

9
Appellant objected to the enhancement and also requested a

downward departure from the recommended Guidelines sentence.

The district court denied Appellant’s objection and sentenced

him to a 92-month term of imprisonment, at the low end of the

Guidelines range.

II.

Appellant raises several issues on appeal, attacking

each stage of his prosecution. The heart of his appeal,

however, concerns the legal requirements for conviction pursuant

to § 875(b) and (c). Appellant claims the indictment against

him was legally deficient (and therefore should have been

dismissed) because he could not have intended to “extort”

alimony payments to which he was legally entitled. He also

maintains the jury was improperly instructed on the intent

elements of § 875(b) and (c). We review both issues de novo.

See United States v. Said, 798 F.3d 182, 193 (4th Cir. 2015)

(“We review de novo a district court’s denial of a motion to

dismiss an indictment where the denial depends solely on

questions of law.”); United States v. Jefferson, 674 F.3d 332,

351 (4th Cir. 2012) (“We review de novo the claim that a jury

instruction failed to correctly state the applicable law.”).

Sections 875(b) and 875(c) both prohibit transmitting

“in interstate or foreign commerce any communication containing

any threat to kidnap any person or any threat to injure the

10
person of another.” 18 U.S.C. § 875(b) and (c). The

distinction between the two is that § 875(b) is violated only

when such a threat is transmitted with the specific intent to

extort something of value, whereas § 875(c) says nothing about

the speaker’s intent. Appellant’s challenges to his § 875(b)

convictions turn on the meaning of “intent to extort.” His

appeal of his § 875(c) conviction, which we consider first,

depends on the application of the Supreme Court’s recent

decision in Elonis v. United States, 135 S. Ct. 2001 (2015).

A.

Section 875(c)

1.

We have previously held § 875(c) is violated if (1)

the defendant knowingly communicates a statement in interstate

commerce that (2) contains a “true threat” that is not protected

by the First Amendment. See United States v. White, 670 F.3d

498, 508-10 (4th Cir. 2012) (discussing our prior cases and

collecting those of other circuits). And we have explained that

a “true threat” in the constitutional sense is one that a

reasonable recipient who is familiar with the circumstances

would interpret as a serious expression of an intent to do harm.

See id. But because the text of § 875(c) does not articulate

any additional intent requirements, we have repeatedly held that

neither the statute nor the Constitution requires the Government

11
to prove that a defendant subjectively intended the recipient of

the communication to understand it as threatening. See, e.g.,

United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994);

White, 670 F.3d at 509-11. That is how the district court

instructed the jury in this case. Appellant maintains that to

do so was error in light of the Supreme Court’s decision in

Elonis.

In Elonis the Supreme Court asked “whether [§ 875(c)]

. . . requires that the defendant be aware of the threatening

nature of the communication, and -- if not -- whether the First

Amendment requires such a showing.” Elonis, 135 S. Ct. at 2004.

The Court began by explaining that the text of § 875(c)

“requires that a communication be transmitted and that the

communication contain a threat,” but acknowledged, as we have

previously observed, that no “mental state with respect to

th[ose] elements” is otherwise specified. Id. at 2008. The

Court nevertheless explained that the “‘mere omission from a

criminal enactment of any mention of criminal intent’ should not

be read ‘as dispensing with it.’” Id. at 2009 (quoting

Morissette v. United States, 342 U.S. 246, 250 (1952)).

Instead, because courts “generally interpret[] criminal statutes

to include broadly applicable scienter requirements, even where

the statute by its terms does not contain them,” id. (internal

quotation marks and citations omitted; alteration in original),

12
the Court found it appropriate to “read into the statute only

that mens rea which is necessary to separate wrongful conduct

from otherwise innocent conduct,” id. at 2010 (internal

quotation marks omitted).

Turning to § 875(c), the Court emphasized “the crucial

element separating legal innocence from wrongful conduct is the

threatening nature of the communication.” See Elonis, 135 S.

Ct. at 2011 (internal quotation marks omitted). As a result,

the Court concluded, a defendant may not be convicted of

violating § 875(c) based “solely on how his [words] would be

understood by a reasonable person,” because doing so would

impermissibly allow “criminal liability” to “turn solely on the

results of an act without considering the defendant’s mental

state.” See id. at 2011-12. Instead, the Court held that to

violate § 875(c), a defendant must transmit “a communication for

the purpose of issuing a threat, or with knowledge that the

communication will be viewed as a threat,” or, possibly, with

reckless disregard for the likelihood that the communication

would be perceived as a threat. Id. But, importantly, the

Court’s holding in Elonis was purely statutory; and, having

resolved the question on statutory grounds, the Court declined

to address whether a similar subjective intent to threaten is a

necessary component of a “true threat” for purposes of the First

13
Amendment. See id. at 2012 (“Given our disposition, it is not

necessary to consider any First Amendment issues.”).

Thus, Elonis abrogates our prior holding that

liability under § 875(c) can turn solely on how a recipient

would interpret a statement, without regard to whether the

speaker intended it as a threat. Contra White, 670 F.3d at 508

(“[B]ecause the threat element is not part of the mens rea, it

becomes an element of the crime that must be established without

consideration of the defendant’s intent.”). But Elonis does not

affect our constitutional rule that a “true threat” is one that

a reasonable recipient familiar with the context would interpret

as a serious expression of an intent to do harm. See White, 670

F.3d at 508-10.

What that means, in this circuit after Elonis, is that

a conviction pursuant to § 875(c) now entails “what the [statute

requires] (a subjectively intended threat) and [also] what

constitutional avoidance principles demand (an objectively real

threat).” See United States v. Jeffries, 692 F.3d 473, 485 (6th

Cir. 2012) (Sutton, J., dubitante). That is: (1) that the

defendant knowingly transmitted a communication in interstate or

foreign commerce; (2) that the defendant subjectively intended

the communication as a threat; and (3) that the content of the

communication contained a “true threat” to kidnap or injure. To

prove the second element, the Government, consistent with

14
Elonis, must establish that the defendant transmitted the

communication “for the purpose of issuing a threat, or with

knowledge that the communication will be viewed as a threat,”

or, perhaps, with reckless disregard for the likelihood that the

communication will be viewed as a threat. See Elonis, 135 S.

Ct. at 2012-13. And to establish the third element, in keeping

with our prior cases, the prosecution must show that an

ordinary, reasonable recipient who is familiar with the context

in which the statement is made would interpret it as a serious

expression of an intent to do harm. See White, 670 F.3d at 508-

10.

Here, by contrast, the district court (which did not

have the benefit of the Court’s decision in Elonis) instructed

the jury that it could convict Appellant pursuant to § 875(c) if

he transmitted a true threat in interstate commerce, without

regard to his subjective intent. In light of Elonis, that

instruction was erroneous. See United States v. Houston, 792

F.3d 663, 667 (6th Cir. 2015).

2.

The Government nevertheless maintains the error was

harmless. We agree.

The Supreme Court has “often applied harmless-error

analysis to cases involving improper instructions,” Neder v.

United States, 527 U.S. 1, 9, (1999), as have we, see United

15
States v. Brown, 202 F.3d 691, 699 (4th Cir. 2000). “[O]ur task

is to determine whether the guilty verdict actually rendered

[at] trial was surely unattributable to the error.” Brown, 202

F.3d at 699 (internal quotation marks omitted). To do so, we

ask whether it is “clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the

error[.]” Neder, 527 U.S. at 18.

Where, as here, the district court declines to give an

instruction “not required under precedent that the Supreme Court

later supersede[s],” United States v. Ramos-Cruz, 667 F.3d 487,

496 (4th Cir. 2012), we engage in two specific inquiries to test

the harmlessness of the omission. Under the first, we will find

an erroneous instruction harmless if we “conclude[] beyond a

reasonable doubt that the omitted element was uncontested and

supported by overwhelming evidence.” Neder, 527 U.S. at 17.

Under the second, in cases where the defendant has contested the

omitted element, we ask “whether the record contains evidence

that could rationally lead to a contrary finding with respect to

that omitted element. If not, then the error was harmless. If

so, however, reversal is necessary.” Ramos-Cruz, 667 F.3d at

496 (internal quotation marks and citations omitted).

The omitted issue in this case is whether Appellant

sent the e-mail charged in Count II of the indictment for the

purpose of issuing a threat, with the knowledge that the

16
communication would be viewed as a threat, or (perhaps) with

reckless disregard that the e-mail would be perceived as

threatening. 3 Appellant did not suggest that he sent any of the

e-mails in question as a joke, nor did he testify that he was

simply blowing off steam. Instead, he contested the issue of

intent, at best and if at all, only implicitly -- by denying

that he sent the e-mails. The jury, however, resoundingly

rejected that theory. Thus, the jury having concluded beyond a

reasonable doubt that Appellant sent the e-mails, we are left to

consider only whether the contents of the Count II e-mail, in

the absence of any alternative explanation from Appellant, would

permit a jury to rationally find that Appellant did not intend

the message as a threat or know it would be received as a

threat. We think no rational jury could reach that conclusion.

We acknowledge that appellate courts are ill-equipped

to “evaluate states of mind based on a cold record.” See

Houston, 792 F.3d at 669. And we appreciate that, in many

threat cases, the question of intent will be far from clear,

even where it is undisputed that the defendant transmitted the

communication and the message itself contains harsh and

3
The Supreme Court in Elonis declined to decide whether
§ 875(c) requires a defendant to act with purpose, knowledge, or
recklessness. We similarly need not reach the issue because,
for the reasons that follow, we believe no jury could reasonably
conclude that Appellant’s conduct was anything but purposeful.

17
inflammatory language. In Elonis, for example, the defendant

posted threatening language on his own Facebook page with

disclaimers that the posts were rap lyrics, suggesting that they

may have been created for personal, therapeutic, rather than

malevolent, reasons. See 135 S. Ct. at 2004-05. Similarly, the

Sixth Circuit recently declined to find harmless error in a

§ 875(c) prosecution where a defendant threatened his lawyer in

a call to a relative, rather than to the lawyer himself, because

the circumstances of the call made it plausible that the

defendant was simply “venting his frustration to a trusted

confidante rather than issuing a public death threat to

another.” See Houston, 792 F.3d at 667-68.

But this case, and the message at issue, give rise to

no comparably reasonable competing inferences. The jury found

that Appellant sent the e-mail constituting Count II directly to

MW, the intended recipient. And the language used -- “you are

going to have the living shit beat out of you -- to start with”

-- was direct and declarative, not circumspect or hypothetical.

Appellant offered no other explanation for the message. And in

his contemporaneous conversations with Gnos, he explained his

desire to scare MW into resuming the alimony payments.

“In many cases, the predicate facts conclusively

establish intent, so that no rational jury could find that the

defendant committed the relevant criminal act but did not intend

18
to cause injury.” Pope v. Illinois, 481 U.S. 497, 503 (1987)

(internal quotation marks omitted). That holds true here.

Accordingly, because the record contains no evidence that could

rationally lead a jury to conclude that the sender of the Count

II e-mail intended to do anything other than threaten the

recipient, and because the jury concluded beyond a reasonable

doubt that Appellant was indeed the sender, the district court’s

instructional error was harmless.

B.

Section 875(b)

We now turn to Appellant’s three § 875(b) convictions.

Like § 875(c), that statute prohibits the transmission in

interstate or foreign commerce of threats to kidnap or injure.

But, as noted, § 875(b) also requires the threatening

communication to be sent “with intent to extort from any person,

firm, association, or corporation, any money or other thing of

value[.]” 18 U.S.C. § 875(b). Appellant maintains the district

court erred by failing to instruct the jury, consistent with

Elonis, that he intended the e-mails charged in Counts I, III,

and IV as extortionate threats, or knew or recklessly

disregarded that those e-mails would be perceived as

extortionate threats. He also claims the indictment should have

been dismissed because he could not have intended to “extort”

from MW alimony payments to which he was legally entitled. The

19
meaning of “intent to extort,” however, forecloses both

arguments.

1.

Section 875 does not define “intent to extort” or even

the term “extortion.” See United States v. Coss, 677 F.3d 278,

283-84 (6th Cir. 2012) (“The precise meaning of ‘extort’ . . .

in the context of 18 U.S.C. § 875(d) is an issue of first

impression in the Sixth Circuit.”); United States v. Jackson,

180 F.3d 55, 65 (2d Cir. 1999) (noting that § 875(d) “does not

define the terms ‘extort’ or ‘intent to extort’”). However, two

of our sister circuits have persuasively reasoned, and we agree,

that § 875 employs “the traditional concept of extortion, which

includes an element of wrongfulness.” Jackson, 180 F.3d 55, 70-

71 (2d Cir. 1999); Coss, 677 F.3d 278, 285 (6th Cir. 2012)

(importing into § 875 “the broader concept of extortion, which

carries with it the use of a wrongful threat to procure

something of value” (emphasis in original)).

Incorporating this understanding, we hold that the

intent to extort for purposes of § 875(b) is the intent to

procure something of value through the use of a wrongful threat

to kidnap or injure the person of another. Such a threat is

wrongful when delivered intentionally. Cf. Elonis, 135 S. Ct.

at 2012-13. But this helps Appellant not at all, because it

would be passing strange, indeed impossible, for a defendant to

20
intend to obtain something by communicating such a threat

without also intending, understanding, or, possibly, recklessly

disregarding that the communication would be perceived as

threatening, as Elonis requires. The reason is straightforward:

Extortion only works if the recipient of the communication fears

that not paying will invite an unsavory result. Thus, to intend

to extort one must necessarily intend to instill fear of harm

(for purposes of § 875(b), in the form of kidnapping or physical

injury). Cf., e.g., United States v. Marsh, 26 F.3d 1496, 1500-

01 (9th Cir. 1994) (“For attempted extortion, . . . the victim’s

state of mind is not important. What is important is that the

defendant attempted to instill fear in the victim.”) (internal

quotation marks omitted)); United States v. Frazier, 560 F.2d

884, 887 (8th Cir. 1977) (“Proof of an attempt to arouse fear is

sufficient proof of an attempted extortion under the Hobbs

Act.”). In other words, the intent to carry out an unlawful act

by use of a threat necessarily subsumes the intent to threaten.

The Ninth Circuit’s decision in United States v.

Stewart, 420 F.3d 1007 (2005), illustrates well the principle we

have just articulated. There the court considered whether 18

U.S.C. § 115(a)(1)(B) -- which makes it a crime to threaten

certain federal officials with the intent to impede, intimidate,

interfere with, or retaliate against the official in the

performance of his or her duties -- requires proof that the

21
defendant subjectively intended his words to be threatening. As

the court explained, “proof that the speaker intended the speech

to impede, intimidate, interfere with, or retaliate against the

protected official” necessarily includes the subjective intent

to threaten, because “one cannot have the intent” to impede,

intimidate, interfere, or retaliate through the use of a threat

“without also intending to make the threat.” See id. at 1017,

1019. Likewise, here, we conclude that one cannot have the

intent to scare someone into relinquishing property or something

of value by communicating a wrongful threat to kidnap or injure

without also intending the communication to be threatening.

The district court’s instruction sufficiently captured

this concept. As the court explained, to convict Appellant

pursuant to § 875(b), the jury was required to find that he

acted “with intent to . . . wrongfully induce someone to pay

money or something of value by threatening to injure that person

if such payment is not made.” J.A. 1076. Accordingly, because

the charge required the jury to find that Appellant intended to

threaten MW to induce her to pay the disputed alimony, we find

no error in the instruction.

2.

Appellant’s remaining argument -- that he could not

have intended to extort MW because he had a “claim of right” to

the alimony payments -- is similarly unavailing. As we have now

22
said, the question is whether Appellant intended to procure

something of value from MW through the use of a wrongful threat

to kidnap or injure. The key word is “wrongful.”

Appellant’s argument is that it is not wrongful to

demand money one is rightfully owed. There are situations where

that may well be true. In extortion cases under the Hobbs Act,

for example, courts have held “a defendant cannot be found

guilty of wrongfully obtaining property through the use of a

legitimate economic threat if he has a claim of right to the

property.” See, e.g., United States v. Sturm, 870 F.2d 769, 773

(1st Cir. 1989) (emphasis supplied). Instead, “the use of

legitimate economic threats to obtain property is wrongful only

if the defendant has no claim of right to that property.” Id.

(footnote omitted).

But this case involves threats of violence, not

“legitimate economic threats.” And, outside the context of

labor relations, 4 the “claim of right” defense is inapplicable in

4
In United States v. Enmons, 410 U.S. 396, 401-08 (1973),
the Supreme Court held that the Hobbs Act does not prohibit the
use of force (specifically, strike violence) to achieve
legitimate goals in labor negotiations. But courts have
uniformly limited Enmons to the labor context. See, e.g.,
Levitt v. Yelp! Inc., 765 F.3d 1123, 1131 (9th Cir. 2014) (“As
to violent threats, we have declined to extend Enmons beyond the
context of a labor dispute[.]” (internal quotation marks
omitted)); Rennell v. Rowe, 635 F.3d 1008, 1012 (7th Cir. 2011)
(“We have understood Enmons to be limited to the context of
organized labor.”); United States v. Markle, 628 F.3d 58, 62 (2d
(Continued)
23
Hobbs Act cases involving the use or threatened use of violence.

See, e.g., United States v. Villalobos, 748 F.3d 953, 956 (9th

Cir. 2014) (“[T]he claim of right defense . . . is unavailable

in cases involving physical violence . . . because such violence

is inherently wrongful.”). This is so, courts have explained,

because “Congress meant to punish as extortion” under the Hobbs

Act “any effort to obtain property by inherently wrongful means,

such as force or threats of force . . ., regardless of the

defendant’s claim of right to the property.” United States v.

Zappola, 677 F.2d 264, 268-69 (2d Cir. 1982) (emphasis

supplied).

It makes some sense, then, that the small number of

courts to incorporate the “claim of right” defense into their

understanding of § 875 have done so in the context of § 875(d),

which prohibits the transmission of extortionate threats to the

property or reputation of the recipient, rather than threats to

kidnap or injure. See 18 U.S.C. § 875(d). As with the Hobbs

Act cases, the defense has been limited in the § 875(d) context

to a narrow category of threats to reputation deemed not

“inherently wrongful.” In United States v. Jackson, for

example, the Second Circuit opined that it would not be wrongful

Cir. 2010) (“In this Circuit, we have declined to extend the
Enmons defense to non-labor cases.”).

24
for a club to threaten to publish the names of members with

delinquent accounts if the dues were indeed owing, or for a

consumer to register a public complaint about the quality of a

seller’s product if the product was actually defective. See 180

F.3d at 70-71 (“[I]f the club posts a list of members with

unpaid dues and its list is accurate, the dues generally will be

paid; if the consumer lodges her complaint and is right, she is

likely to receive her refund; and both matters are thereby

concluded.”). On the other hand, the Jackson court expressly

distinguished “extortionate threats to kidnap or to injure a

person,” explaining that such “conduct . . . plainly is

inherently wrongful.” Id. at 67; see also Coss, 677 F.3d at 284

(quoting Jackson, 180 F.3d at 67). And no court has suggested,

as Appellant does, that such threats of physical violence would

cease to be wrongful simply because a legitimate debt is at

issue.

In sum, just as “you cannot beat someone up to collect

a debt, even if you believe he owes it to you,” United States v.

Castor, 937 F.2d 293, 299 (7th Cir. 1991) (internal quotation

marks omitted), it follows that a defendant may not threaten to

injure or kidnap a person to collect a debt, even one

legitimately due and owing. The indictment in this case alleged

that Appellant threatened to have MW beaten, hospitalized, or

subjected to some less specific violence. Accordingly, even

25
assuming MW owed Appellant the alimony payments he sought,

Appellant was not entitled to have the indictment against him

dismissed on the basis of his “claim of right” theory.

III.

Having resolved the legal framework, we now consider,

and reject, Appellant’s remaining objections to the proceedings

below.

A.

The Anonymous Jury

Appellant claims the district court erred by

empaneling an anonymous jury, a decision which we review for

abuse of discretion. See United States v. Hager, 721 F.3d 167,

186 (4th Cir. 2013).

A district court should rarely empanel an anonymous

jury, but may do so if “(1) there is strong reason to conclude

that the jury needs protection from interference or harm, or

that the integrity of the jury’s function will be compromised

absent anonymity; and (2) reasonable safeguards have been

adopted to minimize the risk that the rights of the accused will

be infringed.” Hager, 721 F.3d at 186 (4th Cir. 2013) (quoting

United States v. Dinkins, 691 F.3d 358, 372 (4th Cir. 2012)).

In assessing the need to protect the jury and its

functions, a district court should consider several factors,

including: whether the defendant is involved in organized crime

26
or a member of some other group with the capacity to harm

jurors; whether he has previously attempted to interfere with

the judicial process; whether he is facing a lengthy sentence or

substantial fine; and whether extensive publicity makes it more

likely that the jury will be subjected to intimidation or

harassment. See Hager, 721 F.3d at 187. As is often true of

multi-factor tests, however, the list is not exhaustive and the

presence or absence of any of those is not dispositive. See id.

Here, the district court found Appellant’s criminal

history weighed heavily in favor of jury anonymity. As the

district court carefully explained, Appellant’s previous

convictions each “reflect his willingness to use threats or

personal information to intimidate persons involved in judicial

proceedings.” J.A. 145. For example, his 2010 conviction in

the Western District of Virginia involved threats intended to

influence, delay, or prevent the testimony of tenants involved

in an ongoing housing discrimination complaint. See United

States v. White, 670 F.3d 498, 501, 503-04 (4th Cir. 2012).

And, as the district court further observed, Appellant

had also previously been convicted in the Northern District of

Illinois “of soliciting the commission of a violent federal

offense” against a juror “in violation of 18 U.S.C. § 373.”

J.A. 146 (citing United States v. White, 698 F.3d 1005 (7th Cir.

2012)). In that case, Appellant authored an Internet post in

27
which he disclosed personal information about a juror who,

according to Appellant, “played a key role in convicting Matt

Hale,” a white supremacist. See United States v. White, 698

F.3d 1005, 1009-10 (7th Cir. 2012). The posting included a

picture of the juror and the juror’s address and telephone

numbers. See id. As the district court explained, Appellant

elsewhere on the same website expressed his view that

“[e]veryone associated with the Matt Hale trial has deserved

assassination for a long time[.]” J.A. 146 (internal quotation

marks and citation omitted).

We agree with the district court that Appellant’s

prior history of interfering with witnesses and a juror, and in

particular his use of the Internet to publicize a juror’s

personal information, strongly favored the use of an anonymous

jury. Appellant complains that the district court erred by

affording “dispositive weight” to this factor, but the district

court did not rest its decision solely on Appellant’s prior

history. As the district judge explained, he also found that

the possibility of a lengthy sentence under § 875(b) and the

considerable press attention to Appellant’s trial provided

additional support for the decision to empanel an anonymous

jury. We perceive no abuse of discretion in that decision.

Indeed, the Seventh Circuit upheld the use of an anonymous jury

in a case against Appellant based on the mere allegation that he

28
had posted the personal information of a juror on the Internet

and the existence of “some publicity” around the trial. See

United States v. White, 698 F.3d 1005, 1017 (7th Cir. 2012)

(emphasizing that Appellant was on trial for posting “the

personal contact information [] of a juror”).

The district court also satisfied its obligation to

adopt reasonable safeguards to protect Appellant’s right to a

fair trial. Most significantly, the district court told the

jurors they were being empaneled anonymously to prevent the

press from communicating with them during trial:

We’re not using this process to be
disrespectful to any of you. Instead, we
want to ensure that you will remain
anonymous so that you will not be contacted
by anyone in the media, and to ensure that
no outside information is communicated to
any juror throughout the jury selection
process and the trial. This is so that each
side can have a fair and impartial trial.

The fact that we are identifying you by
number should have no impact at all on the
presumption of innocence that the defendant
is entitled to, or any impact in any other
way as you consider and decide the case if
you were selected to serve on the jury.

J.A. 155. We have previously endorsed precisely such a

safeguard, and we find it appropriate here as well. See Hager,

721 F.3d at 188-89 (observing that a very similar explanation to

the jury was a sufficient “neutral non-prejudicial reason for

empaneling an anonymous jury”); see also United States v. White,

29
698 F.3d 1005, 1017 (7th Cir. 2012) (noting that any harm from

empaneling an anonymous jury would be rendered harmless where

the jury was told the measure was adopted “to ensure a fair and

impartial trial” and the court “did not mention security as a

reason”). Accordingly, the district court’s use of an anonymous

jury was not error.

B.

The Gnos Notes

Appellant also argues it was reversible error to admit

Gnos’s handwritten notes into evidence. We review evidentiary

rulings for an abuse of discretion, affording substantial

deference to the district court. See United States v. Medford,

661 F.3d 746, 751 (4th Cir. 2011).

The relevant portions of the notes, which were

admitted during Gnos’s direct examination by the prosecution,

read as follows:

OK- if Phone Call dont [sic] work – we will
have to have someone fuck her up!

***

find someone to talk to wife on [sic] go and
collect money –

J.A. 727-28. The Government concedes the notes are prior out-

of-court statements, but argues they were admissible under

Federal Rule of Evidence 803(1)’s exception for present-sense-

impressions. Appellant aptly points out that the Government

30
failed to offer that rationale for the notes’ admissibility at

trial. But we need not resolve the issue because, even assuming

the notes are inadmissible hearsay, we agree with the

Government’s alternative contention that any error in admitting

them was ultimately harmless.

“A nonconstitutional error ceases to be harmless if it

had a substantial and injurious effect or influence in

determining the jury’s verdict.” United States v. Briley, 770

F.3d 267, 276 (4th Cir. 2014) (internal quotation marks

omitted). “We do not reverse evidentiary rulings for

inconsequential technicalities. Rather, reversal is reserved

for more serious errors that affect substantial rights or that

directly affect the outcome of a case.” Id. (internal quotation

marks omitted).

In this case, the notes, if believed by the jury,

could have informed the jury’s consideration of two important

issues: whether Appellant authored the e-mails and whether

Appellant intended to extort money from MW. But the Government

properly introduced several audio recordings of Appellant making

nearly identical comments to Gnos on several occasions. And

those recordings demonstrated, in far more vibrant detail than

Gnos’s notes, that Appellant was preoccupied with finding

someone in Virginia willing to intimidate MW.

31
 Appellant maintains that the strength of the

Government’s additional evidence is not dispositive. Fair

enough. But the closeness of the case, which will frequently

turn on the weight of the evidence, is clearly relevant to the

harmless error analysis. See Kotteakos v. United States, 328

U.S. 750, 763 (1946) (“Errors of this sort in criminal causes

conceivably may be altogether harmless in the face of other

clear evidence, although the same error might turn scales

otherwise level, as constantly appears in the application of the

policy . . . to questions of the admission of cumulative

evidence.”). And we have in the past held evidentiary errors

harmless where the Government’s case is strongly corroborated by

other admissible evidence. See Briley, 770 F.3d at 277-78

(observing that a “plethora of testimony established” the

elements of the charged offense and concluding the admission of

improper character evidence was harmless).

Ultimately, the question is whether we can say “with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the

[jurors’] judgment was not substantially swayed by the error.”

Kotteakos, 328 U.S. at 765. In this case, because the substance

of Gnos’s notes was repeatedly corroborated by Appellant’s own

later-recorded statements, we are confident any error in

admitting the notes did not affect the outcome of the case. See

32
United States v. Mazza, 792 F.2d 1210, 1216-22 (1st Cir. 1986)

(Breyer, J.) (holding hearsay admission harmless where recorded

conversations largely corroborated out-of-court statements).

C.

The Sufficiency of the Evidence

We next turn to Appellant’s claim that he was entitled

to a judgment of acquittal, a question which we review de novo.

See United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014).

The question is whether, “viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). Under that standard, we think a rational trier of fact

could easily have found that Appellant sent MW true threats of

bodily harm through foreign commerce with the intent to extort.

The district court therefore properly denied the motion.

1.

Respecting the “true threat” requirement, the question

-- which remains unchanged following Elonis -- is whether “a

reasonable recipient familiar with the context” would consider

the communicated statement “a serious expression of an intent to

do harm.” United States v. White, 670 F.3d 498, 509 (4th Cir.

2012) (internal quotation marks and emphasis omitted).

33
 In the case at hand, we have an estranged wife on the

outs with her fugitive husband with whom she was engaged in a

dispute over money. The e-mails comprising Counts I, III, and

IV explained (either explicitly or implicitly) that the sender

had been in contact with a loan shark who lived near the

recipient, and advised the recipient to be ready to remit

payment or risk, respectively, having someone “beat [her] ass,”

“probably be[ing] hospitalized,” or having “something violent

potentially happen[] to [her] around [her] baby.” J.A. 717-25.

As for the e-mail constituting Count II, it similarly warned the

recipient that she would “have the living shit beat out of

[her]-- to start with,” and that the sender had “a lot of

friends who think nothing of taking out on [her] the things” she

allegedly did to the sender. J.A. 721. By any measure, a

reasonable person would have interpreted those messages as a

serious expression of an intent to do harm. See White, 670 F.3d

at 513 (holding that a caller’s message that recipient would be

“hunted down and shot” was a true threat).

2.

Whether Appellant sent the e-mails and whether they

traveled in foreign commerce are overlapping questions. There

is no dispute Appellant was in Mexico and MW in Virginia when

the e-mails were sent; if he sent them, the foreign commerce

element is clearly satisfied. And the jury heard more than

34
enough evidence to find, beyond a reasonable doubt, that

Appellant was indeed the author of each charged e-mail. To

begin with, the e-mails originated from an e-mail address long

associated with Appellant. They were also sent from an IP

address that had been masked through the use of an anonymizer,

technology which Appellant bragged to Gnos and on Facebook about

using. Moreover, the e-mails were sent around the same time

that someone using the same IP address was updating Appellant’s

Facebook page. Appellant flatly denied sending the e-mails,

but, given the evidence just discussed, a rational trier of fact

would have been justified in discounting his testimony. See

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc) (We “remain cognizant . . . that the [j]ury, not the

reviewing court, weighs the credibility of the evidence and

resolves any conflicts in the evidence presented.” (internal

quotation marks omitted)).

3.

Finally, to demonstrate that Appellant sent each e-

mail with the intent to extort, the Government was obliged to

show Appellant intended to induce MW to pay him by wrongfully

threatening her with bodily injury if she did not. The jury

heard Appellant repeatedly emphasize to Gnos the importance of

finding someone to lean on MW. And each of the e-mails

comprising Counts I, III, and IV specifically demands money from

35
the recipient, and threatens violence if the money is not paid.

A rational jury could easily have found that the sender of those

messages intended to express exactly what those words mean --

the quintessential extortionate demand: “pay up, or else.” That

Appellant also contemporaneously discussed his plans to

intimidate MW into paying the alimony only crystalized his

evident intent to extort her. Accordingly, the district court

did not err in denying Appellant’s motion for judgment of

acquittal. 5

5Whether the district court erred in denying the motion for
judgment of acquittal as to Count II is almost nearly moot
inasmuch as the jury implicitly acquitted Appellant of violating
§ 875(b) on that count, finding him guilty only of violating
§ 875(c). And, even assuming the jury reached the correct
verdict on Count II, Appellant was not entitled to a judgment of
acquittal on the lesser-included offense because, as discussed
above, a rational trier of fact could have found each of the
elements of a § 875(c) offense, as it existed prior to Elonis,
satisfied beyond a reasonable doubt. See United States v. Wood,
207 F.3d 1222, 1229 (10th Cir. 2000) (“When ruling on a motion
for judgment of acquittal, a district court should consider not
only whether the evidence would be sufficient to sustain a
conviction of the offense charged, but also whether it would be
sufficient to sustain a conviction on a lesser included
offense.”); see also United States v. Ellyson, 326 F.3d 522,
532-33 (4th Cir. 2003) (declining to issue judgment of acquittal
in case involving erroneous jury instructions because, “[u]nder
circuit law at the time of trial, the Government presented more
than sufficient evidence to support a guilty verdict”); United
States v. Houston, 792 F.3d 663, 670-71 (6th Cir. 2015) (“Do we
measure the sufficiency of the evidence to convict . . . under
the wrong instruction (what was given) or the right one (what
would otherwise be given on remand)? Oddly enough, it is the
wrong instruction, at least when the instructions omit or
inaccurately describe an element of the offense.”).

36
 D.

The Reasonableness of the Sentence

Finally, we consider Appellant’s three challenges to

his sentence. “We review the reasonableness of a sentencing

decision under an abuse of discretion standard.” United States

v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).

1.

Appellant first asserts the district court erred in

applying the two-level enhancement for obstruction of justice,

rendering his sentence procedurally unreasonable. “There are

three elements necessary to impose a two-level enhancement for

obstruction of justice based on the defendant’s perjurious

testimony: the sentencing court must find that the defendant (1)

gave false testimony; (2) concerning a material matter; (3) with

willful intent to deceive.” United States v. Perez, 661 F.3d

189, 192 (4th Cir. 2011) (internal quotation marks omitted).

“[I]t is preferable for a district court to address each element

of the alleged perjury in a separate and clear finding. It is

enough, however, if the court makes a finding of an obstruction

of, or impediment to, justice that encompasses all of the

factual predicates for a finding of perjury.” Id. at 193

(internal quotation marks and citation omitted).

Appellant testified at trial that he did not send the

threatening e-mails to MW and suggested instead that Gnos was

37
the responsible party. The jury, inasmuch as it found him

guilty, clearly rejected Appellant’s alternative theory of the

crime. At sentencing the district court denied Appellant’s

objection to the two-level enhancement. The court explained:

Well, I have heard the evidence before a
jury. I think there was ample evidence for
the jury to have found like it did. I think
when you took the stand and testified, I
can’t imagine you not knowing what you had
done. I think that was to obstruct justice;
maybe get the jury to think that someone
else other than you did it.

J.A. 1139. Although not as explicit as ideal, the district

court provided a sufficient basis for imposing the two-level

enhancement. The observation that the jury rejected Appellant’s

testimony, and the court’s comment that it could “not imagine”

Appellant was unaware of sending the e-mails when he testified,

established falsity and willfulness. See J.A. 1139. And the

issue of who authored the e-mails, which Appellant attempted to

muddy by falsely implicating Gnos, was plainly material.

Accordingly, the district court did not err in applying the two-

level enhancement.

2.

Next, Appellant claims his sentence is substantively

unreasonable because the district court improperly considered

his political views. “Any sentence that is within or below a

properly calculated Guidelines range is presumptively

38
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th

Cir. 2014). Appellant bears the burden of convincing us that

his sentence was instead greater than necessary to provide just

punishment, promote respect for the law, reflect the seriousness

of the offense, adequately deter similar criminal conduct,

protect the public, and provide necessary rehabilitation. See

18 U.S.C. § 3553(a); see also Louthian, 756 F.3d at 306

(observing that the presumption that a within-Guidelines

sentence is reasonable “can be rebutted only by showing that the

sentence is unreasonable when measured against the . . .

§ 3553(a) factors.”).

Here, the district court imposed a 92-month sentence

at the bottom of the Guidelines range. Appellant argues the

sentence was nevertheless “greater than necessary” because it

was improperly based on his unpopular political views. He

relies on two statements from the bench during the sentencing

hearing. In the first, the district court noted its concern

that “the Government [wa]s trying to punish [Appellant] for

[his] beliefs,” or “largely because of [his] beliefs.” J.A.

1140-41. In the second, the district court observed that it was

“bothered . . . a little bit” that the Guidelines range was “a

little high because of [Appellant’s] beliefs,” but ultimately

denied Appellant’s request for a downward departure because his

offense was “serious,” and because MW “would have been very

39
apprehensive about” receiving the threats Appellant was

convicted of sending. See id. at 1145.

Appellant reads too much into these remarks. The

district court immediately rebuked the Government when the

prosecutor attempted to argue that some of Appellant’s

politically controversial writings showed a lack of respect for

the law. The court explained that Appellant “has a

constitutional right to believe what he believes,” and reminded

the Government that it “[c]an’t punish him for that.” J.A.

1136-37.

In sum, we think the most that can be inferred from

the sentencing transcript is that the district court was

concerned by the potential that Appellant had been singled out

for prosecution and so selected a sentence at the bottom of the

Guidelines range. But the district court also acknowledged that

Appellant’s words nevertheless constituted serious threats that

negatively impacted MW, making departure below the Guidelines

range inappropriate. We find no error in this approach.

3.

Finally, Appellant contends that the district court

erred by failing to group his counts of conviction under § 3D1.2

of the Guidelines. Because he did not raise the grouping issue

until his reply brief in this court, he acknowledges that plain

error review is appropriate. “To satisfy plain error review,

40
the defendant must establish that: (1) there is a sentencing

error; (2) the error is plain; and (3) the error affects his

substantial rights.” United States v. Aplicano-Oyuela, 792 F.3d

416, 422 (4th Cir. 2015). “If the three-part plain error test

is satisfied, we must decide whether to cure the error, and

should not do so unless the error seriously affects the

fairness, integrity or public reputation of judicial

proceedings.” Id. (internal quotation marks and citation

omitted).

Appellant’s PSR stated that his convictions were not

subject to grouping pursuant to § 3D1.2(d) of the Guidelines.

That is a correct statement of § 3D1.2(d). But Appellant

maintains it was nevertheless plain error not to group his

offenses under § 3D1.2(a) or (b) and that the probation officer

and district court (along with the parties’ counsel) plainly

misinterpreted Subsection (d) as a blanket or overriding bar

against grouping under Subsection (a) or (b).

Several courts have made clear that offenses excluded

from grouping under Subsection (d) may nevertheless be grouped

pursuant to Subsection (a) or (b). See, e.g., United States v.

Lopez-Urbina, 434 F.3d 750, 764 (5th Cir. 2005); United States

v. Tank, 200 F.3d 627, 632 (9th Cir. 2000). But there is no

evidence in the sentencing transcript suggesting the court

interpreted Subsection (d) to absolutely bar grouping under any

41
circumstances. Nor was it plainly erroneous for the district

court to decline to group Appellant’s offenses pursuant

Subsection (a) or (b). In fact, though we need not definitively

resolve the question, the Application Notes to those Subsections

could be plausibly read to suggest Appellant’s offenses were not

subject to grouping. For example, respecting Subsection (a),

Comment 3 states:

(5) The defendant is convicted of three
counts of unlawfully bringing aliens into
the United States, all counts arising out of
a single incident. The three counts are to
be grouped together. But: (6) The defendant
is convicted of two counts of assault on a
federal officer for shooting at the officer
on two separate days. The counts are not to
be grouped together.

See U.S.S.G. § 3D1.2 cmt. 3. The commentary and explanations

explicating Subsection (b) contain a similar distinction:

(2) The defendant is convicted of two counts
of mail fraud and one count of wire fraud,
each in furtherance of a single fraudulent
scheme. The counts are to be grouped
together, even if the mailings and telephone
call occurred on different days. . . . .
But: (5) The defendant is convicted of two
counts of rape for raping the same person on
different days. The counts are not to be
grouped together.

See id. § 3D1.2 cmt. 4. And the Application Notes further

provide that Subsection (b) “does not authorize the grouping of

offenses that cannot be considered to represent essentially one

composite harm (e.g., robbery of the same victim on different

42
occasions involves multiple, separate instances of fear and risk

of harm, not one composite harm).” Id. Given that each of

Appellant’s threats against MW involved “separate instances of

fear and risk of harm,” the district court did not plainly err

by categorizing “[e]ach message []as a separate offense,” J.A.

1132, and declining to group them.

In support of his argument, Appellant points to United

States v. Thomas, 155 F.3d 833, 840 (7th Cir. 1998), in which

the court remanded for consideration of the grouping question

with respect to multiple § 876 convictions. But in doing so the

Thomas court relied on Application Note 3 of § 2A6.1 of the

Guidelines, which specifically provides that “multiple counts

involving making a threatening or harassing communication to the

same victim are grouped together under [sect] 3D1.2[.]”

U.S.S.G. § 2A6.1 cmt. 3 (emphasis supplied). By contrast,

Appellant’s § 875(b) offenses fall under Guideline § 2B3.2 which

says nothing about grouping; only his lone § 875(c) conviction

is covered by § 2A6.1. Accordingly, given that the Application

Notes to § 3D1.2 do not unambiguously direct grouping of

§ 875(b) offenses pursuant to Subsection (a) or (b), the

district court did not plainly err by failing to do so.

IV.

A defendant is entitled to a fair trial, not a perfect

one. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).

43
Here, Appellant received a fair trial, and we find no reason to

disturb the jury’s verdict or the district court’s sentence.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

44