IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20811
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO MORALES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas, Houston Division
_________________________________________________________________
November 5, 2001
Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:
Eduardo Morales was an 18-year-old student at Milby High
School in Houston, Texas at the time of the internet communications
at issue. He entered an internet chatroom and, in a conversation
with a stranger in the state of Washington, threatened to shoot and
kill students at Milby High. The stranger alerted the police, who
ultimately traced the communications to Morales. He was indicted
for knowingly and intentionally transmitting in interstate commerce
a threat to injure another in violation of 18 U.S.C. § 875(c).1 He
1
Section 875(c) reads:
was convicted by a jury and sentenced to twenty-four months
probation. Based on this court’s earlier decision in United States
v. Myers, 104 F.3d 76, 79 (5th Cir. 1997), we affirm the conviction
of Morales and the district court’s holdings.
I
Morales’s conviction stemmed from an internet conversation
Morales had with Crystal Lees, a 26-year-old mother of two living
in Puyallup, Washington, whom Morales did not know at the time.
Both Morales and Lees were in a “Young Latinos” chat room when
Morales, using the screen name “Fusion_2”, sent an instant message
directed to Lees, who was using the screen name “Crystalita.”2 The
following exchange via instant messages ensued:
Morales: I will kill
Lees: huh? - me
You will kill what - me
Morales: TEACHERS AND STUDENTS AT MILBY
Lees: Why do you want to do that
Where is Milby?
Morales: CAUSE AM TIRED ......HOUSTON
Lees: are you really going to go and kill people
Who has made you mad
r u ok do you want to talk to me
Morales: YES F NE ONE STANDS N MY WAY WILL SHOT
Lees: r u ok
Morales: I HATE LIVE
Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person
or any threat to injure the person of another, shall be
fined under this title or imprisoned not more than five
years, or both.
2
Morales testified that he chose to communicate with Lees
simply because her screen name was the first one on the chat room
“whisper list.”
2
Lees: I am here
Morales: YES MY NAME S ED HARRIS
SEE U N A COUPLE OF MONTHS
Lees alerted the police because she was concerned about the
well-being of Milby High School students. Milby High School’s
principal was informed, and he increased security measures at the
school.
That same day, police traced the screen name “Fusion_2” to a
friend of Morales, who informed the police that Morales had been
using his WebTV internet terminal device. Morales was arrested
after admitting that he was the individual who had parlayed with
Lees in the chat room. However, Morales insisted that he was only
joking. He told police he was trying to joke that he was the ghost
of Ed Harris, whom he mistakenly thought was the assailant at
Columbine High School, who in fact was Eric Harris.
Morales filed a pretrial motion to dismiss the indictment on
First Amendment grounds, arguing that his statements to a distant
third party did not constitute a true threat under Supreme Court
jurisprudence. That motion was denied. During the jury trial,
Morales moved for a judgment of acquittal, asserting again that no
true threat was made because the statements were made to a third
party. He also argued that no evidence established that he made
the statements with the intent to intimidate. Again, the motions
were denied.
Morales then objected to the court’s proposed jury instruction
3
that the government was not required to prove that Morales
subjectively intended to communicate a threat. The court rejected
his proposed instructions that 1) the government must prove that
the defendant has communicated the threat to the target or someone
he intended would communicate the threat to the target, and 2) that
the government must prove that the defendant intended to make a
threat. The jury convicted Morales of the single § 875(c) count,
charging him with knowingly and intentionally transmitting a threat
to injure another. The court thereafter denied Morales’s post-
verdict motions for judgment of acquittal and a new trial.
On appeal, Morales challenges his conviction on three grounds.
First, Morales argues that his communication was not a “true
threat” given the context in which it was delivered. Second,
Morales asserts that his statements were not actionable under §
875(c) because they were communicated to a third party. Third,
Morales argues that the district court erred by not instructing the
jury that the government must establish that Morales intended to
communicate a threat.
II
We review de novo the denials of Morales’s motions for
judgment of acquittal. United States v. DeLeon, 170 F.3d 494, 496
(5th Cir. 1999). “In evaluating the sufficiency of the evidence,
this court asks ‘whether a reasonable trier of fact could have
found that the evidence established the essential elements of the
4
crime beyond a reasonable doubt.’ We consider the evidence in the
light most favorable to the verdict, drawing all reasonable
inferences in favor of the verdict. ‘It is well-settled that
credibility determinations are the sole province of the jury.’”
United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001)
(citations omitted).
A
We first address whether Morales’s statements constituted a
“true threat.” In this circuit, a communication is a threat under
§ 875(c) if “in its context [it] would have a reasonable tendency
to create apprehension that its originator will act according to
its tenor.” United States v. Myers, 104 F.3d 76, 79 (5th Cir.
1997), citing United States v. Bozeman, 495 F.2d 508, 510 (5th Cir.
1974) (citations and internal quotations omitted). Prosecution
under § 875(c) “requires proof that the threat was made knowingly
and intentionally.” Myers, 104 F.3d at 79. An act is performed
“knowingly” when it is done voluntarily and intentionally, and not
because of mistake or accident. See id. “A threat is knowingly
made if the maker of it comprehends the meaning of the words
uttered by him, and a threat is willfully made if in addition to
comprehending his words, the maker voluntarily and intelligently
utters the words as a declaration of an apparent determination to
carry out the threat.” United States v. Pilkington, 583 F.2d 746,
747 (5th Cir. 1978) (citation omitted).
5
However, “[b]ecause § 875(c) contains nothing suggesting a
specific intent requirement, it defines only a general intent
offense.” Myers, 104 F.3d at 81. The Supreme Court has held that
“a statute such as this one, which makes criminal a form of pure
speech, must be interpreted with the commands of the First
Amendment clearly in mind. What is a threat must be distinguished
from what is constitutionally protected speech.” Watts v. United
States, 394 U.S. 705, 707 (1969).
Before analyzing a defendant’s willfulness or intention, the
Supreme Court has noted that federal statutes prohibiting threats
“initially require[] the Government to prove a true threat.” Id.
at 708. The Court distinguished “political hyperbole” from a “true
threat,” and recognized the importance of examining statements “in
context” to determine whether they are true threats punishable by
law. Id. Thus, in Myers we determined that “[i]n order to
convict, a fact finder must determine that the recipient of the in-
context threat reasonably feared it would be carried out.” 104
F.3d at 80, citing Bozeman, 495 F.2d at 510.
Morales admitted making the statements. He admitted more,
however: that he did it to see how Lees would react. Morales
further testified that he could see why Lees “would get scared or
why she reacted the way she did.” Morales admitted that he was
aware of a prior incident in which a student at Milby had made
6
threats over the internet,3 and that he knew it was wrong to do so.
Under Myers all that is required is general intent. 104 F.3d at
81. It is up to the jury to decide whether Morales made the
statements knowingly and intentionally. Id. at 78. There was
sufficient evidence to support the jury’s finding that Morales
acted with knowledge and intent.
Additionally, however, the trier of fact must have found that
the communication “in its context would have a reasonable tendency
to create apprehension that its originator will act according to
its tenor.” Id. at 79. The jury was presented with evidence that
Lees felt apprehension that “Fusion_2” would act on his threat to
kill. Morales repeated his threats to kill several times, and gave
no indication that he was joking. Morales admitted that he
attempted to refer to Eric Harris, one of the perpetrators of the
Columbine High School killings. Thus, his statement in context
cannot be divorced from the reality of that tragedy. We should
also observe that the context of Morales’s statement is different
from that in Watts. Unlike Watts, Morales was not engaged in
political speech as part of a public debate, in which the listeners
laughed in response to Watts’s comments. See Watts, 394 U.S. at
708. Given these factors and the length of the communication
between Morales and Lees, a reasonable juror could find all the
3
Morales gave conflicting testimony on whether he was aware
that the other student had been charged with a crime as a result of
his statements.
7
facts necessary to make Morales’s communication a “true threat.”
B
Morales contends, however, that his statements cannot, as a
matter of law, constitute a true threat because they were made to
a random third party who had no connection with Milby High School.
Our precedent does not allow for this distinction. For
example, in Myers, the defendant was a Vietnam veteran with a
history of mental illness. In two telephone conversations he
directly threatened a member of his congressman’s staff. In a
third telephone conversation, Myers communicated a threat against
the Veterans Administration and Congress to an employee of the
Paralyzed Veterans of America (“PVA”). Myers was convicted on
three separate counts of violations of § 875(c) for each individual
phone call. This court affirmed Myers’s conviction, drawing no
distinction between the threat made to the PVA and two other
threats communicated directly to their targets. Myers, 104 F.3d at
77-78. Again, the focus was on whether the threat “in its context
would have a reasonable tendency to create apprehension that its
originator will act according to its tenor.” Myers, 104 F.3d at
78, quoting Bozeman, 495 F.2d at 510. It is this character and
context of the threat that is the relevant test. As discussed in
the previous section, the jury found a reasonable tendency to
create such apprehension in this case, and there is no basis for us
to disturb the jury’s findings.
8
The government notes that it has never been required to show
an intent to communicate the threat to the intended victim under §
875(c). The language of § 875(c) does not require that the threat
be made directly to the intended target; it simply prohibits “any
threat to injure the person of another” made in interstate
commerce. Moreover, as we have pointed out, our precedent in Myers
does not require that the threat be made directly to the victim.
Based on Myers and the text of § 875(c), we hold that Morales’s
statements are actionable under the federal statute.
III
Morales also challenges the instructions given the jury at the
close of his trial. The jury was instructed, in relevant part:
The Government does not have to prove that the defendant
subjectively intended for the recipient to understand the
communication as a threat. The Government also does not
have to prove that the defendant actually intended to
carry out the threat.
Morales objected to this instruction, instead offering that the
jury be instructed that it must find that Morales “understood and
meant [his] words as a threat” and that Morales “sent the words
knowingly and willfully, that is, intending them to be taken
seriously.”4
We review the rejection of a requested jury instruction for
4
Morales also challenges the district court’s refusal to
include an instruction requiring the jury to find that Morales
intended for Lees to communicate the threat to its target. This
issue is disposed of by our addressing direct and third-party
threats.
9
abuse of discretion, “affording the trial judge substantial
latitude in tailoring [the] instructions.” United States v.
Turner, 960 F.2d 461, 464 (5th Cir. 1992). The refusal to accept
a requested instruction is reversible error only if the requested
instruction “1) is substantively correct; 2) was not substantively
covered in the charge actually delivered to the jury; and 3)
concerns an important point in the trial so that the failure to
give it seriously impaired the defendant’s ability to effectively
present a defense.” Id. Morales’s proposed instructions were not
substantively covered in the actual jury instructions and did
concern an important point in the trial; thus the question is
whether prosecution under § 875(c) requires a showing that the
defendant intended to make a threat.
Again, the Myers decision answers the question. There, we
specifically rejected the defendant’s claim that the district court
erred by refusing a jury instruction requiring a finding that Myers
intended his statements to be threats. Noting that “[a]s a
straightforward matter of textual interpretation, we will not
presume that a statutory crime requires specific intent in the
absence of language to that effect,” and recognizing that “§ 875(c)
contains nothing suggesting a specific intent requirement,” we held
that the government was not required to prove that the defendant
intended the statements to be threats. Myers, 104 F.3d at 80-81.
The jury instructions rejected here were essentially the same. So
10
we can only conclude that, given that § 875(c) requires only
general intent, the district court’s denial of Morales’s requested
jury instruction was not an abuse of discretion.
IV
For the reasons we have explained, the district court did not
err in denying Morales’s motions for judgment of acquittal, nor in
denying Morales’s requested jury instructions. The judgment of
conviction is therefore
AFFIRMED.
11