United States Court of Appeals
For the First Circuit
No. 10-1092
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY MARTIN WALKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Selya and Lipez, Circuit Judges.
Jonathan Shapiro, with whom Alexandra Deal and Stern, Shapiro,
Weissberg & Garin, LLP were on brief, for appellant.
Marshal D. Morgan, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa and Luke Cass, Assistant United States Attorneys, were on
brief, for appellee.
November 23, 2011
SELYA, Circuit Judge. A jury convicted defendant-
appellant Jeffrey Martin Walker on charges of interstate stalking,
cyberstalking, and mailing a threatening communication. On appeal,
he challenges both the verdict and the ensuing sentence, presenting
(among other issues) three questions of first impression in this
circuit. Two of these questions involve statutory interpretation
and the third involves the operation of Federal Rule of Criminal
Procedure 12(e). After careful consideration of compendious
briefing and well-marshaled arguments, we reject the appeal.
I. BACKGROUND
We rehearse the facts in the light most agreeable to the
verdict, consistent with record support. United States v. Stevens,
640 F.3d 48, 49 (1st Cir. 2011).
The appellant and his wife, Amy Walker, lived together
with their pre-teen son, A.M.W., until their relationship soured.
As with many such tales, there is an element of "he said, she said"
regarding the cause of the discord. Amy says that the appellant
had been physically and emotionally abusive; the appellant says
that the marriage went downhill once the couple moved from Michigan
to Puerto Rico so that Amy could accept a position as a court
reporter.
The family moved to Puerto Rico in 2006, and Amy left the
marital domicile in August of 2007. For the first few months after
the separation, A.M.W. lived with his father in Puerto Rico. In
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December 2007, Amy repaired to the Puerto Rico family court,
complaining that the appellant had prevented her from having any
contact with her son and, in the bargain, was threatening to take
the boy back to Michigan. Responding to Amy's entreaty, the family
court barred the appellant from taking A.M.W. out of Puerto Rico.
The appellant defied the court's order and returned to
Michigan with A.M.W. The court ordered him to bring the boy back.
When he ignored that decree, the court found him in contempt and
issued a warrant for his arrest. Meanwhile, the appellant obtained
a temporary custody order from a Michigan court.
As the rift between the spouses deepened, Amy began
receiving harassing and threatening e-mails. These communiqués
were laced with derogations such as "whore" and "bitch" and
contained threats to harm Amy if she continued her battle for
custody.1 Although the e-mails originated from A.M.W.'s e-mail
account, A.M.W. testified that his father had composed them. Amy
corroborated this identification, testifying that she inferred the
appellant's authorship from certain habitual misspellings and turns
of phrase.
1
A few selected passages suffice to illuminate the general
tenor of these e-mails. From March 28, 2008: "I will take care of
you the day I am forced to come there." From March 29, 2008: "If
you get hurt it will be your own fault." From April 1, 2008: "I
will make you pay." From April 4, 2008: "I have to shoot you to
get you to stop. I don't want to shoot you but you are not leaving
me any choice . . . I can take away what you are fighting for."
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Around this same time, the appellant threatened to "blow
[A.M.W.'s] head off" with a shotgun. The appellant's brother,
Jack, heard the threat and called the police. Alarmed by this
development, Amy flew to Michigan and succeeded in obtaining a
custody order from the court there. The Michigan court allowed Amy
and her son to reside in Puerto Rico after Amy's supervisor at
work, Chief Judge José Fusté of the United States District Court
for the District of Puerto Rico, offered assurances that Amy would
return to Michigan should subsequent proceedings require her
presence.
Amy's return to Puerto Rico did not allay her
trepidation. To keep tabs on her estranged husband's whereabouts,
Amy surreptitiously used her knowledge of his password to monitor
his e-mails. In this way, she learned that the appellant had
contacted a militaristic website asking for pointers on wielding a
knife in close combat. She also learned that the appellant had
asked the author of a religious tome whether a man could commit
premeditated murder and still be saved. Amy testified that these
communications exacerbated her fears that the appellant intended to
kill her and her young son.
Other actions during this period demonstrated the
appellant's increasing desperation. For example, in the spring of
2008, he engaged in an extended correspondence with a private
investigator in Puerto Rico. Although the appellant never hired
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the man, the relevant e-mails make it plain that the appellant
wanted help in learning where his wife and son were living. In
April, the appellant telephoned Amy's sister and described in
gruesome detail how he would murder both his wife and his son if he
lost the ongoing custody battle. Amy's sister related the threat
to Amy. That summer, the appellant engaged in a long online chat
with a counselor at New Hope ministries, a Christian counseling
center. During this chat, he expressed his resolve to harm Amy and
stated that he could have her killed for "a few hundred dollars."
On the day before he made these statements, the appellant
had purchased a one-way airline ticket to Puerto Rico. Upon
viewing the appellant's planned itinerary in his in-box, Amy became
frightened and contacted the authorities. On the day of the flight
to Puerto Rico — August 23, 2008 — agents of the Federal Bureau of
Investigation (FBI) greeted the appellant at the Luis Muñoz Marín
International Airport, arrested him as he deplaned, and charged him
with criminal contempt (for defying the earlier orders of the
Puerto Rico family court). In due course, the appellant received
a ninety-day prison sentence.
While incarcerated, the appellant composed a letter to
Amy, exhorting her to pray lest God harm her or A.M.W. Given the
rancorous background of their relationship, Amy interpreted the
appellant's jumbled prose as a threat. The appellant also wrote to
one Tony Walker (a friend, but not a relative) about a fellow
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inmate's offer to kill Amy for him. In that letter, the appellant
stated that he did not "know if [he] said yes to [the fellow
inmate] or not." The appellant also wrote that "[i]f a man or
woman would have done what my wife and brother did to me, I would
have killed them." Tony viewed these comments as constituting a
threat on Amy's life and informed her of them.
Before the criminal contempt sentence expired, a federal
grand jury sitting in the District of Puerto Rico returned an
indictment against the appellant. The indictment charged him with
one count of interstate stalking, ten counts of cyberstalking (each
count emanating from a particular communication), and two counts of
mailing threatening letters. See 18 U.S.C. §§ 2261A(1)-(2),
876(c). After a twelve-day trial, a jury convicted the appellant
on the interstate stalking count, four cyberstalking counts, and
one "threatening letter" count. It acquitted him on the remaining
counts.
The district court denied the appellant's motion for
acquittal, Fed. R. Crim. P. 29, and imposed a 137-month
incarcerative sentence. This timely appeal ensued. In it, the
appellant is ably represented by new counsel.
II. ANALYSIS
The appellant musters a long list of remonstrances. We
address below each of the various elements of this asseverational
array.
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A. Venue.
The appellant's first contention is that the district
court committed reversible error when it denied his pretrial motion
for a change of venue. The crux of this contention is that it was
unfair to try him in the same courthouse where Amy worked as a
court reporter. He muses that the jurors may have given extra
credence to Amy's testimony because of her position and because of
testimony that Judge Fusté (then the chief judge of Puerto Rico's
federal district court) had "vouched" for Amy in the Michigan
custody proceedings and had encouraged her to contact the FBI when
she learned of the appellant's planned trip to Puerto Rico.2 Based
on these atmospherics, the appellant maintains that his motion to
change venue should have been granted and the case transferred to,
and tried in, some other district.
We review a district court's denial of a motion for a
change of venue for abuse of discretion. See United States v.
Pérez-González, 445 F.3d 39, 46 (1st Cir. 2006). An abuse of
discretion occurs "when a relevant factor deserving of significant
weight is overlooked, or when an improper factor is accorded
2
The appellant claims, in a conclusory fashion, that the
trial judge was predisposed to rule against him and repeatedly did
so because of that bias. In a footnote to his brief, he argues that
these erroneous rulings provide an independent basis for reversal.
Appellant's Br. at 12 n.7. But the appellant has failed to develop
any argument as to why these rulings were in error. Consequently,
we deem this claim abandoned. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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significant weight, or when the court considers the appropriate mix
of factors, but commits a palpable error of judgment in calibrating
the decisional scales." United States v. Nguyen, 542 F.3d 275, 281
(1st Cir. 2008). Within this rubric, a material error of law is
invariably an abuse of discretion. United States v. Snyder, 136
F.3d 65, 67 (1st Cir. 1998).
Venue requirements for criminal cases are set by statute.
See 18 U.S.C. §§ 3232-3244; see also U.S. Const. amend. VI. Where,
as here, those requirements are satisfied, the choice of venue is
in the first instance a matter of prosecutorial discretion. The
district court, however, may overrule that choice in certain
narrowly circumscribed circumstances. As a general rule, a court
must transfer a case to another district if an unacceptable level
of prejudice against the defendant is likely to mar a trial in the
original district. Fed. R. Crim. P. 21(a). This requires
prejudice so great that the defendant cannot receive a fair trial.
Id. A court also may transfer a criminal case to another district
"for the convenience of the parties, any victim, and the witnesses,
and in the interest of justice." Fed. R. Crim. P. 21(b).
The appellant's initial claim implicates Rule 21(a) — the
mandatory transfer provision. This provision has been applied
almost exclusively in cases in which pervasive pretrial publicity
has inflamed passions in the host community past the breaking
point. See, e.g., United States v. Angiulo, 497 F.2d 440, 440-42
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(1st Cir. 1974) (per curiam). Here, however, there is no hint
either that the contretemps between Amy and the appellant had
captured the attention of the wider community or that pretrial
publicity had tainted the jury pool. Instead, the appellant seeks
to extend the mandatory transfer provision to cases, like this one,
in which the putative victim of a charged crime is an employee of
the court.
To the extent that the appellant invites us to forge a
per se rule, we decline his invitation. The mere fact that the
victim of the crime is a court employee in the district is not, in
and of itself, a reason sufficient to compel a transfer of venue.
See, e.g., United States v. Angelus, 258 F. App'x 840, 842-44 (6th
Cir. 2007) (upholding denial of motion to transfer venue where
victim was a Deputy U.S. Marshal who worked in district).
The appellant's citation to the decision in United States
v. Wright, 603 F. Supp. 2d 506 (E.D.N.Y. 2009), does not sully this
conclusion. Wright is readily distinguishable: the crimes charged
there occurred in court and court personnel were to be called as
witnesses. See id. at 508. Nor does the appellant's invocation of
Supreme Court precedents, see, e.g., United States v. Young, 470
U.S. 1, 18-19 (1985); Turner v. Louisiana, 379 U.S. 466, 473-74
(1965), assist his cause. These cases stand for general principles
with which we agree, but they have no specific application here.
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The appellant tries a variation on this theme. He says
that Amy's status as a court employee, coupled with the testimony
about the chief judge's intervention and ongoing advice, biased the
jury against him. But this case was not about the chief judge, who
neither presided over the trial nor appeared as a witness. Refined
to bare essence, the claim of jury prejudice is composed entirely
of speculation and surmise. See Pérez-González, 445 F.3d at 46
(denying change of venue where record contained no hard evidence of
jury prejudice). In idiosyncratic situations like this one, it is
the trial judge's informed discretion, not the view from a more
remote appellate perch, that must control. Cf. United States v.
Lopez-Lopez, 282 F.3d 1, 14 (1st Cir. 2002) (noting the trial
judge's "hands-on familiarity with the nuances of the case —
nuances which may not survive transplantation into a cold appellate
record").
We add a coda. Any concerns about an artificial
inflation of Amy's credibility due to either her position at the
courthouse or her relationship with Chief Judge Fusté easily could
have been addressed by cautionary instructions. Yet, the appellant
never requested any such instructions. Given this omission, his
conclusory complaint that the government had an unfair advantage
rings hollow. Cf. Greer v. Miller, 483 U.S. 756, 764 n.5 (1987)
(concluding that failure by defense counsel to request curative
instruction may suggest that no error occurred).
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This leaves only the appellant's claim that the district
court abused its discretion by refusing to transfer the case,
pursuant to Rule 21(b), "in the interest of justice." We note,
however, that the appellant has not alleged that a change of venue
would have convenienced the parties, the victims, or any of the
witnesses. Rule 21(b) links the two requirements — convenience and
the interest of justice — and when a rule lists two requirements in
the conjunctive, both must be satisfied. See, e.g., United States
v. Luna, 436 F.3d 312, 317 (1st Cir. 2006).
There is no point in beating a dead horse. The facts of
this case plainly indicate that Puerto Rico, where the victims and
several key witnesses resided, was a reasonably convenient forum
for all concerned. To cinch matters, a fair trial was possible in
Puerto Rico, and the jury's careful picking and choosing among the
counts charged is a strong indication that the appellant received
one. On this record, the interest of justice did not demand a
transfer. Consequently, the district court did not abuse its
discretion in refusing to move the trial out of Puerto Rico.
B. Interstate Stalking.
We turn next to the appellant's plaint that the record
does not support his interstate stalking conviction and that,
therefore, the district court should have granted his motion for a
judgment of acquittal on this count. See Fed. R. Crim. P. 29. We
review the denial of a Rule 29 motion de novo. United States v.
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Dwinells, 508 F.3d 63, 72 (1st Cir. 2007). In determining whether
particular evidence is sufficient to ground a conviction, we take
the facts and all reasonable inferences therefrom in the light most
agreeable to the jury's verdict. United States v. O'Brien, 14 F.3d
703, 706 (1st Cir. 1994). If, on that view, the prosecution has
adduced sufficient evidence of the essential elements of the crime
such that a rational jury could find the defendant guilty beyond a
reasonable doubt, the insufficiency challenge fails. Id.
To prove interstate stalking, the government must show
that the accused traveled in interstate or foreign commerce with
the intent to kill, injure, or harass another person and that "in
the course of, or as a result of, such travel," the accused placed
his target in reasonable apprehension of harm to herself or a
family member. 18 U.S.C. § 2261A(1). The appellant theorizes that
the statute applies only when some injuring or harassing act takes
place during or after the interstate travel. If this is so, he
cannot be guilty of the charged crime because he was detained as
soon as he landed in Puerto Rico and the government offered no
proof that he did anything amiss during the course of his travel.
This is quintessentially a statutory argument, and
statutory construction must begin with the words of the statute
itself. United States v. Charles George Trucking Co., 823 F.2d
685, 688 (1st Cir. 1987). Here, the language of the relevant
statute contradicts the appellant's theory.
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The interstate stalking statute proscribes interstate
travel with malicious intent when "in the course of, or as a result
of," that travel, the defendant places his intended victim in
reasonable apprehension of harm. 18 U.S.C. § 2261A(1). By
employing the disjunctive ("in the course of, or as a result of"),
Congress criminalized two types of acts. Cf. Reiter v. Sonotone
Corp., 442 U.S. 330, 338-39 (1979) (discussing effect of
legislature's use of disjunctive). The first type encompasses acts
occurring "in the course of" the specified travel that place the
target in fear of harm. The second type occurs when the interstate
travel itself, viewed in the historical perspective of previous
events, results in placing the target in reasonable fear of harm.
The appellant's proposed construction would read this second class
of prohibited conduct out of the statute, and adopting it would
render nugatory the "as a result of" language. This, in turn,
would flout the venerable principle that "[a]ll words and
provisions of statutes" should "be given effect." United States v.
Ven-Fuel, Inc., 758 F.2d 741, 751 (1st Cir. 1985). Constructions
that "would render statutory words or phrases meaningless,
redundant or superfluous" should be avoided. Id. at 752.
The language of the interstate stalking statute is clear
and unambiguous. Taken at face value, it leads to a sensible
result. The statute should, therefore, be read as written. See
Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir. 2011).
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Common sense supports this reading of the statute. After
all, when a defendant has repeatedly threatened to harm his victims
and then travels across state lines intending to inflict that harm,
it would strain credulity to think that Congress meant to hold the
defendant harmless until he took some further step to carry out his
threat. Giving the statute its plain meaning, we hold that one way
a defendant can engage in interstate stalking is by traveling
across state lines with the intent to harm or harass another and,
as a result of that travel, placing the target of his malevolence
in reasonable fear of harm.3
Once we have settled upon the proper construction of
section 2261A(1), the conclusion is inescapable that the evidence
suffices to support the interstate stalking conviction. The
appellant obviously engaged in interstate travel when he journeyed
from Michigan to Puerto Rico.4 Moreover, the record reveals a
number of pre-travel e-mails that can reasonably be regarded as
threats against Amy and A.M.W. That the putative victims had a
reasonable basis for apprehension is manifest.
3
The appellant's citation to United States v. Helem, 186 F.3d
449 (4th Cir. 1999), does not undermine this reasoning. While
dictum there suggests that interstate stalking requires some actus
reus during or after interstate travel, id. at 454, that court was
interpreting a different statute. See id. at 451 (interpreting
interstate domestic violence act, 18 U.S.C. § 2261(a)(2)). In all
events, the court's dictum appears in a single sentence
unaccompanied by any reasoning and is not controlling.
4
For purposes of the interstate stalking statute, Puerto Rico
is the functional equivalent of a state. See 18 U.S.C. § 10.
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This leaves only the matter of the appellant's intent
and, given the full panoply of circumstances that preceded his
flight, a rational jury reasonably could conclude — as this jury
did — that the appellant traveled to Puerto Rico with the intent to
harm or harass his wife and son. The motion for a judgment of
acquittal was, therefore, appropriately denied.
C. Mailing a Threatening Letter.
Similarly, the appellant challenges the sufficiency of
the evidence undergirding his conviction for mailing a threatening
letter. Because the appellant raised this claim in his Rule 29
motion for a judgment of acquittal, it engenders de novo review.
Dwinells, 508 F.3d at 72.
The statute of conviction makes it a crime for a person
to mail a communication "addressed to any other person and
containing . . . any threat to injure the person of the addressee
or of another." 18 U.S.C. § 876(c). The jury found the appellant
guilty of this crime with respect to the letter that he sent to
Tony Walker (described earlier). In the appellant's view, this
epistle could not have triggered the statute because it did not
contain threatening language and, in all events, was not mailed to
the person allegedly threatened (namely, Amy). The district court
rejected these arguments and so do we.
Whether a writing can fairly be construed as a threat
depends on the totality of the circumstances. See United States v.
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Whiffen, 121 F.3d 18, 21 (1st Cir. 1997). The question is one of
fact. See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.
1997). In deciding whether a particular letter contains a threat,
a factfinder must take the words in a real-world context and
determine whether the author reasonably should have foreseen that
his message would be perceived by the addressee as a threat. See
United States v. Freeman, 176 F.3d 575, 578 (1st Cir. 1999).
Applying these principles, we believe that the jury reasonably
could have concluded that the letter in question contained a threat
against Amy.
We go directly to the text of the letter, which is rife
with references to killing Amy. For example, one paragraph
suggests that the appellant, then incarcerated, was talking with a
fellow inmate about murdering Amy. Scrutinizing this passage in
light of the acrimonious marital history, we cannot second-guess
the jury's determination that the appellant should have foreseen
that his comments would be perceived by the recipient of the letter
as a threat against Amy.5
5
Our conclusion is not affected by the appellant's use of the
phrase "Just Joking" after noting that a fellow inmate had offered
to perform a "free killing." It is unclear what, if anything, the
appellant may have been "joking" about — the fact of the offer?
the fact that he did not recall whether he had accepted it? the
fact that the killing would be without cost to him? — and at any
rate it is a jury question whether the appellant reasonably could
have believed that this disclaimer would cancel out his long
discussion regarding Amy's murder.
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The appellant's first fallback position is that the
letter threatened one person (Amy) but was sent to someone else
(Tony). Those facts are accurate, but the conclusion that the
appellant draws from them is not.
The test under section 876(c) is not whether a
communication contains a threat to the addressee. Rather, the
statute criminalizes the mailing of a letter that contains a threat
either to "the person of the addressee or of another." 18 U.S.C.
§ 876(c). As we already have explained, the jury was entitled to
conclude that the letter in question contained a threat to injure
Amy. No more is exigible to prove that element of the offense.6
See, e.g., United States v. Poe, 96 F.3d 333, 333-34 (8th Cir.
1996) (upholding § 876 conviction where threat was to harm
addressee's daughter); United States v. Malik, 16 F.3d 45, 47-50
(2d Cir. 1994) (upholding § 876 conviction where letter sent to
trial judge threatened the author's litigation adversaries).
The appellant has a further fallback position. He argues
that the letter is protected by the First Amendment. This argument
is hopeless. The law is crystal clear that threats are not
constitutionally protected speech. See R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992). The appellant's citation to Watts v.
6
The appellant also suggests that the temporal gap between
the posting of the letter and Amy's reading of it defeats this
count. But when Amy actually learned of the threat is immaterial
to whether the government has proven the elements of the offense.
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United States, 394 U.S. 705, 708 (1969) (per curiam), does not
reconfigure the decisional calculus. The instant letter contains
none of the politically charged and hyperbolic rhetoric found
protected there.
To say more on this point would be to paint the lily.
The district court did not err in denying the appellant's Rule 29
motion with respect to the "threatening letter" count.
D. Challenges to the Indictment.
The appellant claims for the first time on appeal that
the form of the indictment reveals two fatal defects. First, he
asserts that the interstate stalking count, which listed both Amy
and A.M.W. as intended victims, is duplicitous. Second, he asserts
that cyberstalking should have been charged as a single "course-of-
conduct" offense and that separating it into various counts
offended the rule against multiplicity. These challenges come too
late in the day.
Under the Criminal Rules, a defendant must challenge a
perceived defect in an indictment before the commencement of trial.
Fed. R. Crim. P. 12(b)(3)(B). A failure to mount such a challenge
within the prescribed time frame constitutes a waiver. Fed. R.
Crim. P. 12(e). This is not a judicial gloss; Rule 12(e) itself
uses that precise terminology.
To be sure, this is not a typical "waiver." Waiver
normally involves the intentional relinquishment of a known right.
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See, e.g., United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st
Cir. 2009). "Forfeiture" is the term that is normally used to
describe an unexplained failure to make a timely assertion of a
right. See, e.g., United States v. Olano, 507 U.S. 725, 733
(1993). This distinction can be important. Waived objections
cannot be reviewed on appeal (save for the rare case in which a
reviewing court, as a matter solely of its discretion, forgives the
waiver), whereas forfeited objections are reviewable for plain
error. See id. at 733-34; United States v. Rodriguez, 311 F.3d
435, 437 (1st Cir. 2002).
It is an open question in this circuit whether the words
"waiver" and "waives," as used in Rule 12(e), should be taken
literally. See United States v. Lugo Guerrero, 524 F.3d 5, 11 (1st
Cir. 2008).7 Several other courts of appeals have pondered this
question. The majority view is that a party's failure to raise
Rule 12(b)(3) defenses prior to trial — such as a challenge to the
form of an indictment — constitutes a waiver in the classic sense
and, thus, precludes appellate review of the defaulted challenge.
See, e.g., United States v. Burke, 633 F.3d 984, 990-91 (10th Cir.
2011); United States v. Dupree, 617 F.3d 724, 727-28 & n.1 (3d Cir.
2010); United States v. Acox, 595 F.3d 729, 730-31 (7th Cir. 2010);
7
That said, this court has twice in the recent past, albeit
without extended discussion, refused to consider arguments that
were within Rule 12(e)'s "waiver" proscription. See United States
v. Rivera Calderón, 578 F.3d 78, 99 & n.11 (1st Cir. 2009); United
States v. Rodríguez-Lozada, 558 F.3d 29, 37-38 (1st Cir. 2009).
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United States v. Brooks, 508 F.3d 1205, 1208 (9th Cir. 2007);
United States v. Brown, 498 F.3d 523, 527-28 (6th Cir. 2007). A
few circuits, however, have treated such defaults as forfeitures
and engaged in plain error review. See United States v. Robinson,
627 F.3d 941, 957 (4th Cir. 2010); United States v. Mahdi, 598 F.3d
883, 887-88 (D.C. Cir. 2010); see also United States v. Baker, 538
F.3d 324, 328-29 (5th Cir. 2008) (deeming default a "waiver" but
nevertheless applying plain error review).
We believe that Rule 12(e) says what it means and means
what it says. Great weight must be given to the plain language of
the rule, particularly since Congress amended it in 2002 (after the
Supreme Court had made the distinction between waiver and
forfeiture pellucid) and left the "waiver" terminology intact. See
Fed. R. Crim. P. 12 advisory committee's notes; see also Olano, 507
U.S. at 733 (explaining waiver/forfeiture distinction). What is
more, the matters that fall within the compass of Rule 12(b)(3)
(and thus Rule 12(e)) are normally correctable before trial if
seasonably brought to the attention of the district court and the
government. It strikes us as manifestly unfair for a defendant to
sit silently by, take his chances with the jury, and then be
allowed to ambush the prosecution through a post-trial attack.
Accordingly, we join the majority view and hold that a failure to
challenge a defect in an indictment before trial, as required by
Rule 12(b)(3), results in an unreviewable waiver of that challenge
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pursuant to Rule 12(e). Because the appellant did not raise either
duplicity or multiplicity challenges at any time prior to trial, he
has waived those challenges.
This framework does not risk a miscarriage of justice due
to the presence of a key exception: if a defendant can show "good
cause" for a failure to raise a Rule 12(b)(3) challenge prior to
trial, that challenge may be entertained by the district court and
reviewed on appeal. See Fed. R. Crim. P. 12(e); see also Acox, 595
F.3d at 731. Here, however, the appellant did not make a good
cause argument in the district court at any time, and he has not
made a cognizable showing of good cause in this court. Given these
circumstances, there is no unfairness in holding him to his waiver.
E. Evidentiary Rulings.
The appellant contends that the district court erred in
admitting certain evidence. Where objections have been preserved,
we review a district court's evidentiary rulings for abuse of
discretion. See United States v. Rodríguez-Vélez, 597 F.3d 32, 40
(1st Cir. 2010).
1. Prior Bad Acts. The appellant assigns error to the
admission of testimony about incidents that occurred before the
events at issue here. On those earlier occasions, he had either
threatened family members or behaved violently.
It is common ground that evidence of prior bad acts may
not be introduced to prove subsequent "action in conformity
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therewith." Fed. R. Evid. 404(b). Nevertheless, evidence of prior
bad acts may be admissible if it has special relevance — that is,
if it tends to prove a material fact apart from a mere propensity
to behave in a certain way — as long as its probative value is not
substantially outweighed by any unfairly prejudicial effect. See
United States v. Rodríguez-Berríos, 573 F.3d 55, 64 (1st Cir.
2009).
Here, evidence that the appellant's estranged wife and
son had witnessed him uttering threats and engaging in violence was
specially relevant to show the reasonableness of their apprehension
of harm when the appellant, after making a series of menacing
statements, departed abruptly for Puerto Rico. The reasonable
apprehension of harm is an element of the interstate stalking
offense. See 18 U.S.C. § 2261A(1). Where, as here, evidence is
probative of an element of a charged crime, Rule 404(b) does not
automatically preclude its admission. See United States v.
Alzanki, 54 F.3d 994, 1007 (1st Cir. 1995).
The district court found that this evidence was
admissible. Pertinently, it found the evidence to be more
probative than prejudicial. The balance of probative value and
unfairly prejudicial effect is, within wide limits, one for the
trial court to strike. See United States v. Smith, 292 F.3d 90, 99
(1st Cir. 2002) ("Only rarely — and in extraordinarily compelling
circumstances — will we, from the vista of a cold appellate record,
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reverse a district court's on-the-spot judgment concerning the
relative weighing of probative value and unfair effect." (quoting
Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.
1988))). Seen in this light, the court below did not abuse its
discretion in permitting the introduction of the so-called "prior
bad acts" evidence.
2. Lay opinions. The appellant accuses the district
court of improperly allowing lay witnesses to offer opinion
testimony. The general rule is that a lay opinion, not based upon
any scientific or specialized knowledge, is properly admitted when
it is rationally premised on the witness's perception and promotes
a better understanding of either the witness's testimony or some
material fact. See Fed. R. Evid. 701.
Against this backdrop, we turn to the appellant's
specific claims. First, he suggests that Tony Walker should not
have been permitted to describe his reaction to the letter that he
received. This suggestion is baseless: a recipient's reaction to
a communication addressed to him is helpful to the jury's
determination of whether a threat has been lodged. Fulmer, 108
F.3d at 1499-1500.
The appellant's next complaint, voiced for the first time
on appeal, posits that neither the private investigator nor the
online counselor consulted by the appellant should have been
allowed to opine about his state of mind during their internet
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exchanges. Had there been contemporaneous objections below, this
argument might present a close question. After all, the jurors
were presented with the contents of the online conversations and
were in as good a position as the witnesses to gauge what those
communications portended for the appellant's state of mind. See
United States v. Sanabria, 645 F.3d 505, 515 (1st Cir. 2011)
(holding that lay opinion testimony is not admissible "when the
jury can readily draw the necessary inferences and conclusions
without the aid of the opinion").
But there is a rub. The appellant never interposed
contemporaneous objections to this belatedly challenged testimony.
This boosts the standard of review to plain error. See United
States v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005).
To establish plain error, the appellant must show "(1)
that an error occurred (2) which was clear or obvious and which not
only (3) affected the [appellant's] substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). The appellant cannot surmount this
daunting obstacle: even if the admission of the testimony was error
— a question that we do not reach — the error was not plain.
To show plain error, the appellant would have to satisfy
all four elements of the relevant test. See id. It is readily
apparent that the third element is lacking here. In the grand
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scheme of things, the challenged testimony constituted a tiny part
of the government's case. Moreover, it is wildly implausible that
the jury would have reached a different conclusion about the
appellant's intent in the absence of this testimony. Any error in
admitting the testimony could not, therefore, satisfy the third
prong of the plain error standard. See, e.g., United States v.
Richardson, 515 F.3d 74, 83 (1st Cir. 2008).
The appellant also protests the admission of what he
characterizes as Amy's opinion testimony regarding her
interpretation of various actions taken by him. This protest falls
flat. Placing a victim in reasonable apprehension of harm is an
element of interstate stalking. The victim is in a unique position
to evaluate the effect of a threat. See Fulmer, 108 F.3d at 1501
("[A] victim's reactions and actions taken in response to an
alleged threat are relevant to the determination of whether a
statement is a 'true threat.'"). While the victim's subjective
view is not controlling, it is assuredly relevant. Thus, the
district court did not abuse its discretion in permitting Amy to
explain why certain of the appellant's words and deeds frightened
her.
There is one loose end. The appellant argues that an FBI
agent should not have been permitted to opine that a bag found in
the appellant's house, which contained among other things a knife,
rubber gloves, and duct tape, was a "murder kit." This was not a
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lay opinion at all: the agent had 10 years of law-enforcement
experience and was trained in forensics. See United States v.
Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987) (holding that DEA
agent's experience in combating drug trafficking qualified him to
opine on the meaning of a "coded" telephone conversation between
suspected dealers).
We need not belabor the point. The only objection made
to this testimony below was on relevancy grounds, and the testimony
was unarguably relevant. See Fed. R. Evid. 401. The appellant's
present argument is thus forfeited, and there was no plain error.
Relatedly, we reject the appellant's contention that no foundation
was laid for the admission of the "murder kit" evidence. Amy
testified that she found the bag in the Michigan house that the
appellant had been inhabiting and that it was in the same room as
the appellant's other possessions. Although other people had lived
in the house, Amy's testimony was sufficient to support a finding
that the bag belonged to the appellant. See Fed. R. Evid. 901(a).
3. Hearsay. Moving to a different series of rulings,
the appellant argues that the lower court improperly admitted
hearsay evidence. Hearsay is commonly defined as "a statement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted." Fed. R. Evid. 801(c). It follows from this definition
that a witness's first-hand account of an out-of-court statement,
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not offered to prove the truth of that statement, is not
inadmissible hearsay. See Kassel v. Gannett Co., 875 F.2d 935, 945
(1st Cir. 1989). This axiom defeats much of the appellant's
hearsay argument.8 Only a handful of specific hearsay objections
survives.
The appellant assails Amy's testimony that he "had
threatened to kill [A.M.W.] and then himself." However, this
testimony was not hearsay: Amy gave it in response to a question
that asked for her personal knowledge. Hearsay requires an out-of-
court "statement." Fed. R. Evid. 801(c). The only "statement"
referenced in Amy's challenged testimony was the appellant's own
alleged threat, which cannot be inadmissible hearsay. See Fed. R.
Evid. 801(d)(2).
The appellant's complaint about the admission of various
orders entered by Puerto Rico courts turns on a procedural default.
The appellant lodged no objection below to the admission of these
documents, and we see no plain error.
Nor did the district court commit plain error when it
admitted, without objection, an e-mail from Amy's sister recounting
8
There is no need to list every piece of alleged hearsay
evidence not offered for its truth. One example should suffice.
An FBI agent testified that he was told that the appellant was
suspected of flying to Puerto Rico to harm Amy. This testimony was
offered to provide context to the agent's involvement in the
appellant's arrest, not as proof of the appellant's motive. See
United States v. Cruz-Díaz, 550 F.3d 169, 176 (1st Cir. 2008). It
was, therefore, not within the hearsay prohibition.
-27-
the substance of her telephone conversation with the appellant.
The sister testified at the trial that the appellant, in the course
of this conversation, had threatened to kill Amy and A.M.W.
Because the e-mail was cumulative of this properly admitted
testimony, its introduction did not amount to plain error. See
United States v. Bailey, 270 F.3d 83, 88 (1st Cir. 2001).
The appellant's last hearsay contention relates to the
admission of A.M.W.'s testimony, over objection, to the effect that
police officers and a social worker in Michigan told him that they
were removing him from the appellant's care because the appellant
had threatened to "blow [A.M.W.'s] head off." A.M.W. had no first-
hand knowledge of the threat, so the testimony appears to be a
classic example of inadmissible hearsay.
The government insists that this testimony was not
offered for the truth of the matter asserted but, rather, to
explain how Amy regained custody of A.M.W. This characterization
seems inadequate because the government's proffer was not limited
in that way. Moreover, the alleged statement went to the heart of
the interstate stalking charge, and the "context" exception cannot
be stretched to that extent. See United States v. Martin, 897 F.2d
1368, 1371 (6th Cir. 1990).
Here, however, the appellant wins the battle but loses
the war. Although the trial court erred in admitting this piece of
evidence, its error is not of constitutional magnitude. Thus,
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reversal is not required as long as it can be said "with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error." Kotteakos v. United States,
328 U.S. 750, 765 (1946); see Fed. R. Crim. P. 52(a). Harmless
error review takes into account, among other things, "the
centrality of the tainted material, its uniqueness, its prejudicial
impact, the uses to which it was put during the trial, the relative
strengths of the parties' cases, and any telltales that furnish
clues to the likelihood that the error affected the factfinder's
resolution of a material issue." United States v. Sepulveda, 15
F.3d 1161, 1182 (1st Cir. 1993).
In this instance, the threat related second-hand by
A.M.W. was only one of several threats allegedly made by the
appellant and described to the jury. Perhaps more important, the
jury learned of the very threat mentioned by A.M.W. during Amy's
testimony. Accordingly, we conclude without serious question that
the error in admitting the disputed portion of A.M.W.'s testimony
did not affect the appellant's substantial rights. It was,
therefore, harmless.
F. Sentencing.
The district court grouped the six counts of conviction
and sentenced the appellant to serve a 137-month term of
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immurement. The appellant challenges his sentence on a plethora of
grounds.
When confronted with claims of sentencing error, we
engage in a two-step pavane. First, we inquire whether the
district court committed any procedural bevues, including any
errors in constructing the guideline sentencing range (GSR). See
United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). In
performing this task, we review the court's interpretation and
application of the sentencing guidelines de novo and assay any
subsidiary findings of fact for clear error. United States v.
Parrilla Román, 485 F.3d 185, 190 (1st Cir. 2007). At the second
stage of the analysis, we consider the reasonableness of the
sentence. Martin, 520 F.3d at 92. Review is for abuse of
discretion. United States v. Anonymous Defendant, 629 F.3d 68, 73
(1st Cir. 2010); see Gall v. United States, 552 U.S. 38, 41 (2007).
1. Enhancements. The appellant begins with a multi-
faceted challenge to the procedural reasonableness of the sentence.
The various facets of this challenge consist primarily of attacks
on upward adjustments made by the sentencing court in the course of
constructing the GSR.
We approach these claims of error mindful both that the
government has the burden of proving sentencing enhancements by a
preponderance of the evidence, see United States v. Aymelek, 926
F.2d 64, 67 (1st Cir. 1991), and that we must honor the sentencing
-30-
court's findings of fact unless those findings are clearly
erroneous, see United States v. Villar, 586 F.3d 76, 88 (1st Cir.
2009). We are mindful, too, that the usual rules of evidence do
not pertain at sentencing. Rather, the district court may base
sentencing determinations on any evidence that it reasonably finds
to be reliable. See United States v. Cintrón-Echautegui, 604 F.3d
1, 6 (1st Cir. 2010).
Initially, the appellant argues that the sentencing court
erred in finding that the crimes of conviction involved the
threatened use of a dangerous weapon (a finding that triggered a
two-level upward adjustment, see USSG §2A6.2(b)(1)(C)). This
argument trenches on the frivolous: the record contains ample
evidence to support a determination that the appellant placed both
Amy and A.M.W. in fear of harm through, in part, threats to use a
gun. A prototypical example is the appellant's vow, previously
described, to "blow [A.M.W.'s] head off."
The appellant's next claim relates to the sentencing
court's finding that one of his crimes involved a vulnerable victim
— a finding that triggered a two-level upward adjustment, see id.
§3A1.1(b)(1). For this enhancement to apply, the victim must have
an "impaired capacity . . . to detect or prevent [the] crime," and
the defendant must be aware, actually or constructively, of that
impairment. United States v. Stella, 591 F.3d 23, 29 (1st Cir.
2009).
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In this regard, the sentencing court found that A.M.W.
was a victim of the interstate stalking offense, and this finding
is not clearly erroneous. The court's corollary finding that the
appellant should have known that his pre-teen son was virtually
powerless to fend off or prevent the stalking is equally beyond
reproof. Minors are often regarded as especially vulnerable
victims, see, e.g., United States v. Molina, 226 F. App'x 523, 531
(6th Cir. 2007), and the nature and circumstances of this
interstate stalking offense made such a finding appropriate. See
generally USSG §3A1.1, comment. (n.2) (explaining that victim can
be vulnerable due to, among other things, age or mental condition).
The impaired capacity of a young boy caught in the toils of his
parents' deteriorating marriage is readily evident.
The sentencing court's use of a two-level enhancement
under USSG §3B1.4 was likewise supportable. There is evidence in
the record that the appellant used a minor (A.M.W.) in the
commission of the cyberstalking crimes. A.M.W. testified that the
appellant had forced him to write an e-mail to Amy in an effort to
convince her that a particular e-mail account belonged to him
(A.M.W.). The appellant then used that same account to send
threatening e-mails to Amy while masquerading as A.M.W. On this
basis, the enhancement for using a minor in connection with the
commission of a crime was fully warranted.
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2. Departures. Having made these and other
(unchallenged) determinations, the sentencing court tentatively
assigned the appellant an adjusted offense level of 26. The
combination of this offense level and a criminal history category
(CHC) of I normally would produce a GSR of 63 to 78 months. Here,
however, the court essayed two upward departures and measured their
extent by making corresponding changes to the sentencing grid.
Specifically, the court departed upward by two levels for
the unusual seriousness of the interstate stalking crime. See id.
§2A6.2, comment. (n.5). It simultaneously increased the CHC from
I to IV to represent more accurately the appellant's criminal past.
See id. §4A1.3(a)(1). These departures elevated the GSR to 110 to
137 months, and the court sentenced the appellant at the top of
this reconstructed range. The appellant contests both departures.
We review the factual findings on which a departure rests
for clear error. United States v. Pacheco, 489 F.3d 40, 44 (1st
Cir. 2007). The ultimate departure decision engenders abuse-of-
discretion review. United States v. Roselli, 366 F.3d 58, 67 (1st
Cir. 2004). In determining that the interstate stalking offense
was so serious as to take it out of the heartland, the sentencing
court gave weight to the number and horrific nature of the
appellant's threats, the length of time over which the threats were
made, and the meticulousness of the appellant's plotting. Even
though an upward adjustment already had been made for the
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appellant's "pattern" of behavior, see USSG §2A6.2(b)(1)(D), the
atypical extent of this pattern and the aggravating factors allowed
the sentencing court to make an upward departure. See id. §2A6.2,
comment. (n.5) (explaining that "an upward departure may be
warranted if the defendant stalked the victim on many occasions
over a prolonged period of time"); see also United States v.
Ruggles, No. 98-5477, 2000 WL 331970, at *8-9 (6th Cir. Mar. 24,
2000) (affirming upward departure in analogous circumstances).
By like token, the sentencing court's determination that
the appellant's CHC underrepresented his criminal past was within
the encincture of its discretion. See USSG §4A1.3(a)(1). In
formulating this departure, the court appropriately considered (i)
the appellant's criminal contempt conviction, which resulted in a
sentence of more than sixty days imprisonment and which was
unrelated to the pattern of stalking for which he was being
sentenced, see id. §4A1.1(b); (ii) the mailing of the threatening
letter while imprisoned, see id. §4A1.1(d); and (iii) the fact that
the appellant engaged in stalking while on pretrial release for a
separate violent crime in Michigan, see id. §4A1.3, comment.
(n.2(A)(iv)).9
9
The appellant makes a bald assertion that a sentencing court
may add no more than two criminal history points for the commission
of a crime while on pretrial release. Appellant's Br. at 60.
Nothing in either the sentencing guidelines or the case law
supports this proposition.
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3. Substantive Reasonableness. The appellant's final
sentencing challenge implicates the substantive reasonableness of
his sentence. This challenge fails. The appellant committed a
litany of serious crimes, and the aggravating factors are many and
varied. The sentencing court considered the totality of the
circumstances, weighed all of the relevant factors, see 18 U.S.C.
§ 3553(a), and imposed a sentence within (albeit at the apex of)
the reconstructed GSR.
There is no single reasonable sentence in any particular
case but, rather, a universe of reasonable outcomes. As long as
the sentence imposed is procedurally sound and falls somewhere
within this range of reasonableness, we will uphold it. See United
States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006).
In the case at hand, the able district judge gave a
plausible rationale for the sentence that he chose and reached a
defensible result. The sentence is stiff but, given all the facts,
we cannot say that it falls outside the "range of reasonable
sentencing options." Anonymous Defendant, 629 F.3d at 78.
Consequently, we reject the appellant's challenge.
G. Ineffective Assistance.
There is one final issue that we must discuss. In a
last-ditch argument, the appellant posits that his trial counsel
provided ineffective assistance. The appellant did not advance
-35-
this argument in the court below, and we will not entertain it
here.
We have encountered this type of situation before, and it
suffices simply to repeat what we already have written. "Since
claims of ineffective assistance involve a binary analysis — the
defendant must show, first, that counsel's performance was
constitutionally deficient and, second, that the deficient
performance prejudiced the defense — such claims typically require
the resolution of factual issues that cannot efficaciously be
addressed in the first instance by an appellate tribunal." United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (citation
omitted). Because the Mala court's description fits the
circumstances of this case, we deny the appellant's ineffective
assistance of counsel claim without prejudice to his right to renew
it, if he so chooses, by means of a petition under 28 U.S.C.
§ 2255.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court must stand.
Affirmed.
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