United States v. Dorian Williams

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 11-3625
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Dorian Williams

lllllllllllllllllllll Defendant - Appellant
____________

Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________

Submitted: June 15, 2012
Filed: August 30, 2012
____________

Before SMITH, BEAM, and SHEPHERD, Circuit Judges.
____________

BEAM, Circuit Judge.

Dorian Williams appeals from his conviction and sentence for conveying false
information about bombing a commercial aircraft in violation of 18 U.S.C. § 35(b)
and conveying a threat and false information in interstate commerce about the
destruction of life and property by explosives under 18 U.S.C. § 844(e). Williams
challenges the constitutionality of the statutes under which he was convicted, the
district court's1 denial of certain requested jury instructions, the sufficiency of the
evidence at trial, the duplicity of his punishments in violation of the Double Jeopardy
Clause, as well as the application of the career offender enhancement at sentencing.
We affirm.

I. BACKGROUND

On January 15, 2010, Officer Michael Helldoerfer received an anonymous
phone call while on duty at Lambert-St. Louis Airport. The caller refused to identify
himself and the source of his information, but informed the officer that a black man
named Dorian would board Continental flight 5938 destined for Washington, D.C.,
carrying explosives. Following the call the officer made the appropriate (and
requisite) notifications according to protocol. Airport officers and security personnel
ultimately dispelled the threat by contacting an extensive list of people and agencies,
checking flight schedules (flight 5938 was not going to D.C.), passenger lists (there
was no passenger named Dorian on flight 5938), and a search of the interior of the
flight (trained dogs made no indications for explosives on the aircraft). The
investigation then turned to locating the caller that made the threat, which lead to the
arrest of Dorian Williams.

Williams was indicted for conveying false information about bombing a
commercial aircraft, a violation of 18 U.S.C. § 35(b), and conveying a threat and false
information in interstate commerce about the destruction of life and property by
explosives, a violation of 18 U.S.C. § 844(e). Prior to trial, Williams sought a
dismissal of the indictment, claiming that the statutes under which he was charged
were overbroad and unconstitutionally vague. The district court denied the motion.
During the jury trial, after the government rested, Williams moved for a judgment of

1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

-2-
acquittal and renewed his motion to dismiss, both of which were denied. Williams did
not present any evidence in his defense. At the jury instruction conference, Williams
challenged several instructions as discussed in detail below. Following the jury's
guilty verdict, Williams challenged the application of a career offender enhancement
at sentencing.

II. DISCUSSION

A. Constitutionality of Charging Statutes

This court reviews de novo the district court's decision rejecting Williams' claim
that §§ 35(b) and 844(e) are unconstitutional under the First Amendment overbreadth
doctrine. United States v. Beale, 620 F.3d 856, 865 (8th Cir. 2010), cert. denied, 131
S. Ct. 1023 (2011). A "law may be invalidated as overbroad if a substantial number
of its applications are unconstitutional, judged in relation to the statute's plainly
legitimate sweep." United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal
quotation omitted). In this determination, a court must first examine the statute, since
"'it is impossible to determine whether a statute reaches too far without first knowing
what the statute covers.'" Id. (quoting United States v. Williams, 553 U.S. 285, 293
(2008)). Thereafter, the court must decide whether the statute, as construed,
"criminalizes a substantial amount of protected expressive activity." Williams, 553
U.S. at 297.

Williams was indicted under the following federal statutes:

18 U.S.C. § 35(b):

Whoever willfully and maliciously, or with reckless disregard for the
safety of human life, imparts or conveys or causes to be imparted or
conveyed false information, knowing the information to be false,
concerning an attempt or alleged attempt being made or to be made, to

-3-
 do any act which would be a crime prohibited by this chapter or chapter
97 or chapter 111 of this title – shall be fined under this title, or
imprisoned not more than five years, or both.

18 U.S.C. § 844(e):

Whoever, through the use of the mail, telephone, telegraph, or other
instrument of interstate or foreign commerce, or in or affecting interstate
or foreign commerce, willfully makes any threat, or maliciously conveys
false information knowing the same to be false, concerning an attempt
or alleged attempt being made, or to be made, to kill, injure, or intimidate
any individual or unlawfully to damage or destroy any building, vehicle,
or other real or personal property by means of fire or an explosive shall
be imprisoned for not more than 10 years or fined under this title, or
both.

For purposes of § 35(b), and according to the indictment, the specific crime that
Williams falsely and maliciously threatened to commit was the placing of a
destructive device or substance upon a civil aircraft used, operated, and employed in
interstate commerce, in violation of 18 U.S.C. § 32(a)(2).

In United States v. Alvarez, the United States Supreme Court recently discussed
the constitutional limitations on content-based restrictions on speech. 132 S. Ct. 2537
(2012). Although not couched specifically as an overbreadth analysis under the First
Amendment, Alvarez greatly informs the instant discussion. "'[T]he First Amendment
means that government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.'" Id. at 2543 (quoting Ashcroft v. Am. Civil
Liberties Union, 535 U.S. 564, 573 (2002)). Accordingly, the Constitution demands
that content-based restrictions on speech, such as we face here under §§ 35(b) and
844(e), be presumed invalid, and that the government bears the burden of showing
their constitutionality. Id. at 2543-44. Indeed, only discrete categories of content-
based restrictions on speech have been permitted to-date: (1) advocacy intended, and

-4-
likely, to incite imminent lawless action, (2) obscenity, (3) defamation, (4) speech
integral to criminal conduct, (5) so-called "fighting words," (6) child pornography, (7)
fraud, (8) true threats, and (9) speech presenting some grave and imminent threat the
government has the power to prevent. Id. at 2544. "These categories have a historical
foundation in the Court's free speech tradition. The vast realm of free speech and
thought always protected in our tradition can still thrive, and even be furthered, by
adherence to those categories and rules." Id.

In response to Williams' constitutional challenge in this action, the government
first contends that §§ 35(b) and 844(e) fall directly within one of those categories
already held constitutionally permissible–the restriction of true threats–and thus
Williams' statements are not protected by the First Amendment and the statutes
proscribing the speech are constitutional. See Watts v. United States, 394 U.S. 705,
708 (1969) (describing what would not be considered a "true threat," including
political hyperbole; and uninhibited, robust and caustic debate, which might include
vituperative and abusive language, wholly dependent on the context in which spoken);
see also United States v. Mabie, 663 F.3d 322, 330 (8th Cir. 2011) ("A 'true threat'
is defined as a 'statement that a reasonable recipient would have interpreted as a
serious expression of an intent to harm or cause injury to another.'" (quoting Doe v.
Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc)); United
States v. Spruill, 118 F.3d 221, 228 (4th Cir. 1997) (defining "true threat"
contemplated by 18 U.S.C. § 844(e) as a "serious threat as distinguished from words
as mere political argument, idle talk or jest" (quotation omitted)).

Williams responds that his statements were not true threats, as that term is
defined and applied. While Williams acknowledges that Mabie establishes that a "true
threat" is determined from the point of view of a reasonable recipient, he urges the
panel, and the court en banc as well, to reevaluate this holding in light of Virginia v.
Black, 538 U.S. 343 (2003). He claims that in order for the statutes at issue to be
applied constitutionally, there must be a finding that the speaker subjectively intended

-5-
to threaten when he made false statements. We decline Williams' invitation. Mabie
fully contemplates Black. Mabie, 663 F.3d at 332 (reiterating that the objective test
for determining whether a communication is a true threat, adopted by the Eighth
Circuit post-Black, does not consider the subjective intent of the speaker). Sections
35(b) and 844(e) criminalize "true threats," as determined by the context of each
situation. See Spruill, 118 F.3d at 228 ("[Section] 844(e) proscribes only 'true'
threats."); see also United States v. Viefhaus, 168 F.3d 392, 395-96 (10th Cir. 1999)
(recognizing that § 844(e) criminalizes true threats); United States v. Leaverton, 835
F.2d 254, 257 (10th Cir. 1987) (determining that § 844(e) contemplates only true
threats and noting that "[i]n determining whether words were uttered as a threat, the
context in which they were spoken must be considered.").

However, even though these statutes criminalize true threats, which put them
in line with established and limited categories accepted as constitutional content-based
restrictions, this does not complete our analysis. Williams' primary claim is that these
statutes are too broad because a substantial number of their applications are
unconstitutional, judged in relation to the statutes' plainly legitimate sweep. See
Stevens, 130 S. Ct. at 1587. Williams claims these statutes prohibit the conveyance
of all false information concerning an attempt to commit an unlawful act without
regard to whom it is conveyed; the time or place it is conveyed; or whether air
commerce, public business or individuals are in fact hindered or threatened.
Accordingly, deduces Williams, these statutes do not require that the harm legislators
sought to prevent, actually occurs.

As examples of protected speech that could potentially be swept into these
criminal statutes rendering them overbroad, Williams highlights speech where a false
statement causes no harm such as when a known pathological liar makes a false
statement about planting a bomb, as well as purely private speech such as a person
speaking with a friend at home. He also claims that the text of the statutes do not
make an exception for playful, satirical, or dramatized false claims, which are clearly

-6-
protected under the First Amendment–like a young child yelling in the airport that he
wants to go home and will blow up the plane if he cannot. The government responds
that the statutes proscribe only knowingly false and malicious statements about the
commission of serious crimes, and do so in a manner not likely to chill valid First
Amendment interests.

Our initial determination that these statutes proscribe "true threats," resolves
Williams' overbreadth claim on many fronts. The speech prohibited by §§ 35(b) and
844(e)–namely, false and malicious statements about the commission of serious
crimes threatening life and real property–lies outside the scope of First Amendment
protection. Congress's explicit inclusion of requisite mental states in these hoax
statutes forecloses the potential for prosecution in the various scenarios suggested by
Williams. Section 35(b) requires that the false information be conveyed "willfully and
maliciously, or with reckless disregard for the safety of human life." 18 U.S.C. §
35(b). Section 844(e) requires that the criminalized threats be conveyed "willfully,"
or that the false information (known to be false) be conveyed "maliciously." 18
U.S.C. § 844(e). Too, in each instance, the false statement of fact must be made in a
context where it has the propensity to inflict some public or private harm beyond the
mere transmission of false information, regardless of whether the harm is actually
inflicted. For example, the underlying crime supporting Williams' § 35(b) conviction
in this case is the placement of a device or a substance upon or in proximity to an
aircraft if such placing is likely to endanger the safety of the aircraft. 18 U.S.C. §
32(a)(2). And on its face, as relevant here, § 844(e) generally requires proof that the
threat or false information concern an attempt or alleged attempt to kill, injure, or
intimidate an individual, or damage or destroy real property by means of an explosive.
Again, the elements of the statutes narrow the field as far as those who may
potentially fall within their reach.

There is no general exception to the First Amendment for false statements,
generally. Alvarez, 132 S. Ct. at 2544-45. But, unlike the Stolen Valor Act analyzed

-7-
in Alvarez, which targets falsity and nothing more according to the Court plurality,
the instant statutes are akin to the categories of content-based restrictions listed
previously. Id. The instant statutes are not crafted such that they lead to the broader
proposition that false statements are unprotected when made to any person, at any
time, in any context. Id. at 2546. The falsities governed here have no value in and of
themselves, are necessarily injurious and do not "chill" otherwise valuable or
protected speech. Id. at 2547-49 (holding that the Stolen Valor Act falters under First
Amendment scrutiny given its sweeping reach without any clear limiting principle on
the government power it instills). These statutes criminalize only those lies that are
particularly likely to produce harm. Id. at 2554 (Breyer, J., concurring). To be sure,
"[h]oax bomb reports have seriously disrupted the orderly operation of common
carriers, jeopardizing the safety of personnel and passengers, and causing confusion,
fear and panic." S. Rep. 87-1055 (1961). Congress responded to the highlighted
problems by appropriately crafting statutes that criminalize only true threats. Sections
35(b) and 844(e) are certainly not examples of the government "orchestrat[ing] public
discussion through content-based mandates," as that concern was recently discussed
at length in Alvarez. 132 S. Ct. at 2550.

Sections 844(e) and 35(b) legitimately criminalize true threats and not protected
expressive activity. Accordingly, the statutes under which Williams was convicted
are constitutional.

B. Jury Instructions

At trial, because Williams argued that a "true threat" can only be determined
based upon the subjective intent of the speaker, he sought a correlative instruction
telling the jury that §§ 35(b) and 844(e) required proof not just that Williams intended
to communicate a threat but that he did so with the intent to place the recipient in fear
of bodily harm or death. The district court denied the proposed instruction. This
court reviews a district court's decision to grant or deny a request for a particular jury

-8-
instruction under an abuse of discretion standard, taking into account the full context
of the challenge. United States v. Whitehead, 176 F.3d 1030, 1037 (8th Cir. 1999).

A district court possesses broad discretion in instructing the jury, and
jury instructions do not need to be technically perfect or even a model of
clarity. Our review is limited to whether the jury instructions, taken as
a whole, fairly and adequately represent the evidence and applicable law
in light of the issues presented to the jury in a particular case.

McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 744 (8th Cir. 2010)
(internal quotations omitted). There was no abuse of discretion here.

The district court's ruling was not an abuse of discretion because it fully
comports with Eighth Circuit precedent, noted above. Mabie reiterates this circuit's
adoption of an objective test for determining whether a communication is a true threat.
663 F.3d at 332. Thus, the given instruction appropriately read as follows:

Instruction number 20, The false information conveyed must be a serious
expression distinguished from idle or careless talk or something said in
a joking manner or in other words an actual threat. A statement is an
actual threat if it was made under such circumstances that an objectively
reasonable recipient would construe it as a serious expression of an
intent to inflict harm, loss, evil, injury, or injury to another person. The
essence of the offense is the willful transmission of a true threat. It is not
necessary that anyone actually intended to carry out the threat.

Williams further claims the district court abused its discretion in giving a jury
instruction that defined "maliciously." The instruction defining maliciously read:

Instruction number 21, A defendant acts maliciously if he acts with
intent to vex, annoy, or injure another or with an intent to do a wrongful
act. To act maliciously as the term is used in these instructions means to

-9-
 act intentionally or with willful disregard of the likelihood that damage
or injury will result.

Williams requested that only the latter sentence be included in the instruction
and that the inclusion of the additional "with an intent to vex, annoy, or injure
another" language, lessened the government's burden of proof. The instruction given,
however, comports with an instruction defining the word malicious approved in
United States v. Sweet, 985 F.2d 443, 445 (8th Cir. 1993). Given our standard of
review, its use was not an abuse of discretion.

And, finally, Williams challenges the district court's refusal to instruct the jury
at all on the definition of "willfully." Again, Williams sought such an instruction to
ensure that the jury would not convict him without considering whether he appreciated
the threatening nature of his statement and his intention in conveying his message.
Williams argued that an additional instruction on the definition of "willfully" would
have provided some protection against this. The district court disagreed and the
omission of this instruction was not an abuse of discretion. See id. at 444-45
(recognizing that § 35(b) requires a particular mental state but clarifies that it is not
a "specific intent" statute where the defendant's knowledge that he is violating the law
is an element of the offense). While the court could have instructed on the definition
of willfully, its failure to do so was well within its discretion, especially given that
maliciously had already been defined and the remaining instructions adequately
addressed the appropriate mental states required for conviction for each particular
crime. An additional instruction was unnecessary to provide the protection Williams
sought. Taken together, the instructions accurately informed the jury of the mental
states required for convictions under the offenses charged.

-10-
 C. Double Jeopardy

Williams argues that post-conviction dismissal of count II is necessary to
maintain Williams' Fifth Amendment right to protection from double jeopardy.
Williams failed to raise this issue at trial. He claims that he was convicted on two
counts that required proof of nearly identical elements and thus that essentially the
same crime was proscribed by different statutes. "Multiplicity in charging an offense
is reviewed de novo." United States v. Carpenter, 422 F.3d 738, 747 (8th Cir. 2005).
Because Williams did not raise this issue in the trial court, we review this claim for
plain error–Williams must demonstrate that the error was not intentionally
relinquished, that it is clear and obvious, that it affected his substantial rights, and that
it was prejudicial. United States v. Robertson, 606 F.3d 943, 950, 951-52 (8th Cir.
2010). This claim also fails.2

The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution is violated in a single proceeding only where multiple punishments are
imposed for the same crime contrary to the legislature's intent. United States v.
Gamboa, 439 F.3d 796, 809 (8th Cir. 2006). Simultaneous convictions under §§ 35(b)
and 844(e), however, do not violate the Double Jeopardy Clause, as the two statutes
contain elements not contained in the other. Accordingly, the Blockburger test
resolves the issue. Blockburger v. United States, 284 U.S. 299, 304 (1932)

2
The government also argues that Williams waived this argument by not raising
it before the district court and thus we should decline to address it at all. United States
v. Honken, 541 F.3d 1146, 1154 (8th Cir. 2008). Because there is no evidence in the
record that Williams intentionally relinquished his double jeopardy claim (i.e., waived
the claim), we will review his claim for plain error. See United States v. Lara-Ruiz,
681 F.3d 914, 922 (8th Cir. 2012) ("The 'forfeiture' of a right arises from a failure to
make the timely assertion of the right and limits appellate review to plain error. In
contrast, 'waiver' is the intentional relinquishment or abandonment of a known right,
and a waived claim is unreviewable on appeal." (internal quotations and alteration
omitted)).

-11-
(establishing that where each offense requires proof of a different element, there is not
a double jeopardy problem); United States v. Dixon, 509 U.S. 688, 696 (1993)
(holding that the same-elements test inquires whether each offense contains an
element not contained in the other; if not, they are the same offense and double
jeopardy bars additional punishment and successive prosecution). The Blockburger
test focuses on the statutory elements of the offense, rather than the evidence
presented at trial. United States v. Sandstrom, 594 F.3d 634, 654 (8th Cir.), cert.
denied, 131 S. Ct. 192 and 131 S. Ct. 202 (2010).

Here, count one (the § 35(b) charge) required proof that the hoax threat be
targeted at an aircraft. 18 U.S.C. § 32(a)(2). This factual element was absent from
count two (the § 844(e) charge), which required proof only that the threat be targeted
at any person or real property. 18 U.S.C. § 844(e) (requiring that the false information
concern an attempt to "kill, injure, or intimidate any individual or unlawfully to
damage or destroy any building, vehicle, or other real or personal property by means
of fire or an explosive"). Likewise, count two included a factual element that was
absent from count one–proof that the threat be made or conveyed "through the use of
the mail, telephone, telegraph, or other instrument of interstate or foreign commerce."
18 U.S.C. § 844(e). A conviction under count one is not so specific, as the false
information must only be generally "impart[ed] or convey[ed]." 18 U.S.C. § 35(b).
Too, § 844(e) requires that the threat involve the use of "fire or an explosive," 18
U.S.C. § 844(e), while count one required proof that the threat involved a "destructive
device or substance," which is defined more broadly to include "any explosive
substance, flammable material, infernal machine, or other chemical, mechanical, or
radioactive device or matter of a combustible, contaminative, corrosive, or explosive
nature." 18 U.S.C. § 31.

While related, and even though these charges stem from the same conduct, they
each uniquely contain an element not required by the other, or an element that

-12-
demands the showing of a "heightened requirement." See Gamboa, 439 F.3d at 810.
Accordingly, there is no double jeopardy violation here.

D. Sufficiency of the Evidence

This court reviews the sufficiency of the trial evidence de novo, in the light
most favorable to the government. United States v. Van, 543 F.3d 963, 964 (8th Cir.
2008). The crux of Williams' argument is that, evaluated under the totality of the
circumstances, no reasonable recipient would have believed this call to be a true
threat. He claims that even the actual recipient in this case did not appear to be rattled
during the call and merely followed protocol after hanging up. He also reiterates that
given the definition of "maliciously" contained in the instructions, the mens rea
requirement was not met, or was broadened; a claim we previously disposed of when
discussing Williams' claims regarding the jury instructions. Finally, Williams claims
there was insufficient evidence that he knew that the information he conveyed that day
on the phone was not true.

Given our standard of review and based upon our review of the record, all of
Williams' sufficiency claims fail. A "true threat" is "a statement that a reasonable
recipient would have interpreted as a serious expression of an intent to harm." Mabie,
663 F.3d at 332 (internal quotation omitted). The record supports the conclusion that
indeed the officer at Lambert Airport took Williams' call seriously. Yet, even
indulging Williams' claim that the officer who first received Williams' call, and others,
did not legitimately consider Williams' statements a threat, it is of no consequence.
The test is an objective one, not subjective, and officers at airports do not have the
luxury of discounting threats such as those made by Williams. The very protocol
instituted in this case is the harm sought to be avoided and criminalized by these
statutes. And, there was sufficient evidence to support the conclusion that Williams
knew the information conveyed was false. The jury could infer that Williams had
knowledge of his own plan for future action, or inaction, especially if those plans

-13-
included the bombing of a commercial aircraft. Williams gave the name of "Dorian"
as the supposed explosives-carrying passenger, which turned out to be false, and
suspiciously attempted to conceal his identity when law enforcement closed in on his
use of the telephone just prior to his arrest. There is ample evidence in this record to
support both charges.

E. Career Offender Enhancement

Finally, Williams contends that the court erred in sentencing him as a career
offender, arguing that his instant conviction for violation of § 844(e) is not a crime of
violence because "the jury could have found the false information concerned injury
to the property of an airport or airplane vehicle and not to persons." He does not,
however, dispute that he had two prior qualifying felony convictions for crimes of
violence, nor is there a dispute that Williams was at least eighteen years old when he
committed the instant offense. The court of appeals reviews de novo a district court's
determination that a conviction constitutes a crime of violence under the career
offender sentencing guideline. United States v. Craig, 630 F.3d 717, 723 (8th Cir.
2011).

In Williams' presentence investigation report (PSR), the probation office
recommended a base offense level of twenty four, based upon its deduction that
Williams should be sentenced as a career offender. U.S.S.G. § 4B1.1(a). Sentencing
as a career offender requires (1) that the defendant be at least eighteen years old at the
time the defendant committed the instant offense of conviction, (2) that the instant
offense is a felony that is either a crime of violence or a controlled substance offense,
and (3) that the defendant have at least two prior felony convictions of either a crime
of violence or a controlled substance offense. Id. The PSR noted that Williams was
at least eighteen years old at the time of the instant offense and that count two is a
felony crime of violence. The United States Sentencing Guidelines (U.S.S.G.) §
4B1.2(a) defines a "crime of violence" as:

-14-
 any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that – (1) has an element the use, attempted
use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.

The definition of "crime of violence" contemplated by § 4B1.2(a) is nearly identical
to that of "violent felony," as contemplated by 18 U.S.C. § 924(e)(2)(B) (which,
generally, enhances criminal sentences in particular circumstances when the person
has three previous convictions for a violent felony), and which similarly uses the term
"physical force," and we treat the two as interchangeable. Craig, 630 F.3d at 723.
"Physical force" under the career offender guideline § 4B1.2(a)(1), then, refers to
"violent force–that is, force capable of causing physical pain or injury to another
person." Johnson v. United States, 130 S. Ct. 1265, 1271 (2010). The "residual
clause," contained in § 4B1.2(a)(2), establishes a crime of violence when the
conviction in consideration (1) presents a serious potential risk of physical injury to
another, and (2) is roughly similar in kind as well as degree of risk posed, to the
offenses listed in § 4B1.2(a)(2). United States v. Watson, 650 F.3d 1084, 1092 (8th
Cir. 2011).

Williams astutely contends that the jury instructions on the § 844(e) charge
allowed the jury to find that he had threatened "to kill and injure individuals, or to
unlawfully damage or destroy a vehicle or property." He claims the use of "or," rather
than "and," implies that the jury might have convicted him on the theory that he
threatened only property, and not human life and limb, which Williams claims
prohibits a finding that this charge qualified as a crime of violence. The disjunctive
nature of this jury instruction is problematic. The determinative issue for resolution
of this matter involves determining what this court can review to decide whether the
instant conviction constituted a crime of violence or not for purposes of applying the
career offender enhancement. Citing Johnson, id. at 1273, Williams argues that the

-15-
Supreme Court has limited the source material for the crime of violence analysis in
jury-tried cases to "jury instructions and verdict forms."

If we only look at the jury instructions here, then Williams likely would have
a meritorious argument. It is arguable that, because of the "or," Williams could have
been convicted under § 844(e) for a bomb and arson threat against persons; or a bomb
and arson threat against property, only one of which is a crime of violence. However,
we reject Williams' argument that the district court erred in sentencing him as a career
offender. Williams fails to fully note the breadth of information available to resolve
this issue under the modified categorical approach. Quoted in full, Johnson held "the
modified categorical approach that we have approved permits a court to determine
which statutory phrase was the basis for the conviction by consulting the trial
record–including charging documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and jury instructions and
verdict forms." Id. (internal quotations omitted).

In that vein, the indictment alleged the § 844(e) violation in the conjunctive,
which would likely land the charge in the "crime of violence" camp, while the
disjunctive jury instruction would not. The indictment reads:

On or about January 15, 2010, in St. Louis County, in the Eastern
District of Missouri, the Defendant herein, through the use of a telephone
in or affecting interstate commerce, did willfully make a threat, and did
maliciously convey false information knowing the same to be false,
concerning an alleged attempt to be made to kill and injure individuals
and unlawfully to damage and destroy a vehicle and personal property
by means of an explosive.

Here, then, reviewing the charging document does not necessarily resolve the matter.
Despite the conjunctive nature of the indictment, there remains uncertainty regarding
the basis of the jury's verdict here given the disjunctive nature of the instruction.

-16-
 The government argues that in this instance we can review the evidence at trial
to determine whether Williams' conviction under § 844(e) constitutes a crime of
violence.3 In the normal course we apply the "modified categorical approach" when
determining whether a prior state court conviction, for example, qualifies as a crime
of violence for purposes of sentencing. Shepard v. United States, 544 U.S. 13, 20
(2005) (noting that the categorical approach to previous convictions was adopted
because "the practical difficulties and potential unfairness of a factual approach are
daunting" (quotation omitted)). It is rare that a dispute concerning the career offender
enhancement revolves around the instant offense of conviction. This paradigm affects
our analysis.

Here, we will consider the readily available trial evidence to assess whether
Williams' conviction under 18 U.S.C. § 844(e) qualified as a crime of violence. See
United States v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (observing that
"the practical difficulties of conducting an 'ad hoc mini-trial[]' of past convictions . . .
do not apply when the court is examining the conduct of the defendant in the instant
offense" (first alteration in original)); United States v. Piccolo, 441 F.3d 1084, 1087
(9th Cir. 2006) (looking to the record evidence underlying the instant conviction,
following its determination that the offense did not categorically qualify as a crime of
violence, to determine whether the instant offense qualified). "[A] conduct-specific
inquiry is permissible when considering whether the instant offense is a crime of
violence." Riggans, 254 F.3d at 1204 (quotation and internal quotations omitted).
Given the record evidence, namely threatening that a passenger would possibly be
carrying explosives onto a commercial airline flight, the jury convicted Williams
under the "kill and injure individuals," (and likely also the "unlawfully damage or

3
The government alternatively argues that even if Williams' conviction under
§ 844(e) fails to establish a crime of violence for this enhancement, the record fully
supports the use of the § 35(b) conviction to support the enhancement and that this
panel is free to do so on this record. Although we decide the appeal on the merits of
the § 844(e) argument raised, this alternative path, too, is tenable.

-17-
destroy a vehicle or property") part of the § 844(e) instruction. This conviction
necessarily involves conduct capable of causing physical pain or injury to another
person, and presents a serious potential risk of physical injury to another similar to
other crimes enumerated in the Guidelines defining crimes of violence. Cf. United
States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir. 1990) (where defendant mailed
threatening letter, he committed crime of violence under career offender provisions,
even if he lacked ability to act contemporaneously upon his threat); United States v.
Flannery, 103 F. App'x 919, 920 (8th Cir. 2004) (unpublished) (determining out of
hand that a conviction for aiding and abetting others in threatening to blow up a
courthouse constituted a crime of violence). The record evidence resolves the
question. The district court did not err in sentencing Williams as a career offender.

III. CONCLUSION

For the reasons stated herein, we affirm.
______________________________

-18-