United States District Court, D. Minnesota
W. PRATT, JUDGE
the Court is Defendant Robert Phillip Ivers's motion for
acquittal or, in the alternative, motion for new trial, filed
on September 28, 2018. ECF No. 147. The Government has not
filed a response. The matter is fully submitted.
August 21, 2018, a grand jury returned a Superseding
Indictment charging Defendant with one count of Threatening
to Murder a Federal Judge, in violation of 18 U.S.C. §
115(a)(1)(B), and one count of Interstate Transmission of a
Threat to Injure the Person of Another, in violation of 18
U.S.C. § 875(c), in relation to a threat Defendant made
against a federal judge during a phone call with two
attorneys on February 27, 2018. ECF No. 83. Defendant stood
trial on these charges, and on September 14, 2018, the jury
returned guilty verdicts on both counts. ECF No. 138. At the
close of the Government's case-in-chief, ECF No. 157 at
175-76, and again at the close of all the evidence, ECF No.
155 at 21, Defendant moved for a judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29. The Court
overruled Defendant's motions. ECF Nos. 155 at 21, 157 at
now renews his motion for judgment of acquittal as to both
counts and, in the alternative, requests a new trial pursuant
to Rule 33. ECF No. 147. In his motion, Defendant claims
there was insufficient evidence that he made a threat
presently or in the future against Judge A on February 27,
2018, as charged in the Superseding Indictment. Id.
Alternatively, he claims the Court should grant him a new
trial because the jury's verdict was against the weight
of the evidence. Id.
Motion for Judgment of Acquittal
Court “must enter a judgment of acquittal if the
evidence presented at trial is insufficient to sustain a
conviction.” United States v. Boesen, 491 F.3d
852, 855 (8th Cir. 2007) (citing Fed. R. Crim. P. 29(a)).
“This standard is ‘very strict' and a
jury's verdict should not be overturned lightly.”
Id. (quoting United States v. Ellefson, 419
F.3d 859, 862 (8th Cir. 2005)). Therefore, “[a] motion
for judgment of acquittal should be granted only if there is
no interpretation of the evidence that would allow a
reasonable jury to find the defendant guilty beyond a
reasonable doubt.” Id. (quoting United
States v. Cacioppo, 460 F.3d 1012, 1021 (8th Cir.
2006)); accord United States v. Moore, 108 F.3d 878,
881 (8th Cir. 1997) (“The jury's verdict must be
upheld if there is an interpretation of the evidence that
would allow a reasonable jury to find the defendant guilty
beyond a reasonable doubt.”).
considering a motion for judgment of acquittal based on the
sufficiency of the evidence presented at trial, the Court
must “view the evidence in the light most favorable to
the guilty verdict, giving the government the benefit of all
reasonable inferences that may be drawn from the
evidence.” United States v. Basile, 109 F.3d
1304, 1310 (8th Cir. 1997); see also United States v.
Lincoln, 630 F.2d 1313, 1316 (8th Cir. 1980) (noting
both the trial and appellate courts apply the same principles
when reviewing the sufficiency of the evidence to sustain the
jury's verdict). The Court “can overturn the
jury's verdict only if ‘a reasonable fact-finder
must have entertained a reasonable doubt about the
government's proof of one'” or more of the
essential elements of the crimes charged. United States
v. Kinshaw, 71 F.3d 268, 271 (8th Cir. 1995) (quoting
United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir.
1991)). “This standard applies even when the conviction
rests entirely on circumstantial evidence.” United
States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996). In
reviewing the evidence presented to the jury, it is important
to note “[t]he evidence need not exclude every
reasonable hypothesis except guilt.” United States
v. Baker, 98 F.3d 330, 338 (8th Cir. 1996) (quoting
United States v. Erdman, 953 F.2d 387, 389 (8th Cir.
1992)). Finally, the Court must not “weigh the evidence
or assess the credibility of witnesses, ” because this
is the role of the jury alone. United States v.
Baker, 367 F.3d 790, 797 (8th Cir. 2004).
§ 115(a)(1)(B), the Government must prove beyond a
reasonable doubt that Defendant “threaten[ed] to . . .
murder . . . a United States judge . . . with intent to
retaliate against such . . . judge . . . on account of the
performance of official duties.” 18 U.S.C. §
115(a)(1). “[Section] 115(a)(1)(B) ‘includes both
objective and subjective elements:' a true threat to
assault or murder a federal employee, and the intent to
retaliate against the employee ‘on account of the
performance of official duties.'” United States
v. Wynn, 827 F.3d 778, 785 (8th Cir. 2016) (quoting
United States v. Turner, 720 F.3d 411, 420 (2d Cir.
2013)). However, the Government need not show “that the
threat was credible or could be immediately carried
out.” United States v. Schiefen, 139 F.3d 638,
639 (8th Cir. 1998) (quoting United States v.
Stevenson, 126 F.3d 662, 664 (5th Cir. 1997)); see
also United States v. Miller, 340 Fed. App'x 335,
339 (7th Cir. 2009) (“[Section] 115(a)(1)(B) . . .
prohibit[s] making a threat; it is irrelevant
whether the defendant intended to carry out the threat or
even had the ability to do so.”). Under § 875(c),
the government must prove beyond a reasonable doubt that a
defendant knowingly “transmit[ted] in interstate or
foreign commerce any communication containing . . . any
threat to injure the person of another.” 18 U.S.C.
§ 875(c). In other words, the Government had to prove
that Defendant “intended for the communication to be
threatening or at least knew that the communication would be
viewed as threatening.” United States v.
LaFontaine, 847 F.3d 974, 979 (8th Cir. 2017) (citing
Elonis v. United States, 135 S.Ct. 2001, 2012 (2015)
(“[T]he mental state requirement in [§] 875(c) is
satisfied if the defendant transmits a communication for the
purpose of issuing a threat, or with knowledge that the
communication will be viewed as a
Defendant rehashes his argument that implicit in §
115(a)(1) and § 875(c) is the requirement that the
Government “show that [Defendant] actually said words
that a reasonable person would interpret as a serious
expression of an intention to injure the person of another
now or in the future.” ECF No. 147 at 3
(emphasis added) (citing United States v. Stock, 728
F.3d 287, 293-95 (3rd Cir. 2013)). He asserts the Eighth
Circuit has adopted this temporal element in holding,
“To determine whether a true threat exists, a court
must analyze the alleged threat in light of its ‘entire
factual context' and determine ‘whether the
recipient of the alleged threat could reasonably conclude
that it expresses a determination or intent to injure
presently or in the future.'” United States
v. Hart, 212 F.3d 1067, 1071 (8th Cir. 2000) (emphasis
added) (quoting United States v. Dinwiddie, 76 F.3d
913, 925 (8th Cir. 1996)). Thus, he claims, the Government
failed to present sufficient evidence that he threatened
Judge A because the language he used during the phone call
was past tense-he told his attorneys that they did not know
the fifty different ways he had “imagined” or
“planned” to kill Judge A. He further claims that
beyond the tense of the language, his statement only
indicated what he had been thinking, which is not a threat.
true threat is a statement that a reasonable recipient would
have interpreted as a serious expression of an intent to harm
or cause injury to another.” Doe v. Pulaski Cty.
Special Sch. Dist., 306 F.3d 616, 624 (8th Cir.
2002). The Eighth Circuit has set forth a nonexhaustive list
of factors that are relevant when considering how a
reasonable person would interpret a purported threat,
(1) the reaction of those who heard the alleged threat; (2)
whether the threat was conditional; (3) whether the person
who made the alleged threat communicated it directly to the
object of the threat; (4) whether the speaker had a history
of making threats against the person purportedly threatened;
and (5) whether the recipient had a reason to believe that
the speaker had a propensity to engage in violence.
Id. at 623 (citing Dinwiddie, 76 F.3d at
925). “In determining whether a communication is a
threat . . ., ‘the communication must be viewed in
“textual context and also in the context of the
totality of the circumstances in which the communication was
made.”'” United States v. Nicklas,
713 F.3d 435, 440 (8th Cir. 2013) (quoting United States
v. Floyd, 458 F.3d 844, 849 (8th Cir. 2006)). In
Stock, the Third Circuit similarly noted, “in
the right context, an expression of an intent to injure in
the past may be circumstantial evidence of an intent to
injure in the present or the future.” 728 F.3d at 300.
Furthermore, the word “threat, ” when referring
“to the speaker's intent, . . . is an ...