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United States v. Ivers

United States District Court, D. Minnesota

January 2, 2019

United States of America, Plaintiff,
v.
Robert Phillip Ivers, Defendant.

          ORDER

          ROBERT W. PRATT, JUDGE

         Before 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.

         I. PROCEDURAL BACKGROUND

         On 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 177.

         Defendant 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.

         II. ANALYSIS

         A. Motion for Judgment of Acquittal

         This 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.”).

         In 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).

         Under § 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 threat.”)).[1]

         Essentially, 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.'”[2] 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.

         “[A] 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, including

(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 ...


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