U.S. v. Whiffen

• Decision Date: 04 June 1997
• Docket Number: No. 97-1036,97-1036
• Citation: 121 F.3d 18
• Parties: UNITED STATES, Appellee, v. Kevin WHIFFEN, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

121 F.3d 18

UNITED STATES, Appellee, v. Kevin WHIFFEN, Defendant-Appellant.

No. 97-1036.

United States Court of Appeals, First Circuit.

Heard June 4, 1997.

Decided Aug. 29, 1997.

Bjorn Lange, Assistant Federal Defender, for defendant-appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, and Peter E. Papps, First Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant-appellant Kevin Whiffen ("Whiffen") was tried and convicted on four counts of transmitting threatening communications in interstate commerce in violation of 18 U.S.C. § 875(c). Whiffen now appeals, arguing that the indictment failed to allege an offense, that the court should have granted his motion under Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on all counts, and that the court erred in its jury instructions. We affirm.

I. Background

In 1993, Whiffen, a resident of New Hampshire, was driving a car that was involved in a two-vehicle accident in Rhode Island. The other car was insured by Allstate Insurance ("Allstate"). Allstate paid a claim to its insured and sought reimbursement from Whiffen in the amount of approximately $11,000. The claim was eventually turned over to Universal Fidelity Corporation ("UFC"), located in Florida, for collection. On October 11, 1995, UFC sent a letter to Whiffen, informing him that the New Hampshire Division of Motor Vehicles had been notified of his failure to pay and warning that if he failed to pay the claim within thirty days, he risked losing his license.

On October 17, 1995, Whiffen returned a telephone call from Kelly Terrell ("Terrell"), a UFC collector. During the call, Whiffen was "very belligerent," and when Terrell stated that she could have Whiffen's license suspended, Whiffen said that "the building will go boom." At that point, Terrell disconnected the line.

Several minutes later, Whiffen called back. The call was transferred to Terrell, and Whiffen told her that "the building will go boom."

Whiffen called back a third time, speaking on this occasion with Anna Walls ("Walls") of UFC. He asked that a message be relayed to Terrell that "buildings go boom boom."

On the evening of October 17, 1995, Walls' supervisor, Mark Gallo ("Gallo"), called Whiffen to confirm the name of his attorney and to ask him to pay his bill. Gallo asked Whiffen if he intended to drive to Florida and blow up the building. Whiffen responded that he had friends in Florida who would "take care of it for him."

As a result of Whiffen's statements, UFC closed their file on Whiffen and returned the account to Allstate. On October 29, 1995, Whiffen telephoned Allstate's Bedford, New Hampshire office. The call was automatically transferred to Sheryl Johnson, a manager at Allstate's St. Petersburg, Florida office. Whiffen told her that "Allstate had better stop messing with me or else I'm going to blow up their building."

II. The Requisite Intent

Although Whiffen makes several claims on appeal, all of them turn on the question of whether the threats made by Whiffen constitute threats to the person of another. In order to resolve this question, we must determine the intent necessary for conviction under section 875.

The centerpiece of Whiffen's appeal is the claim that 18 U.S.C. § 875(c) is a specific intent crime. In other words, in order to obtain a conviction, the government must prove that the defendant intended his communication to be received as a threat. In support of this view, Whiffen cites United States v. Twine, 853 F.2d 676 (9th Cir.1988). In Twine, the Ninth Circuit concluded that "the showing of an intent to threaten, required by § 875(c) ... is a showing of specific intent." Id. at 680.

Other circuits, however, disagree with Twine. ¹ In United States v. DeAndino, 958 F.2d 146 (6th Cir.1992), for example, the Sixth Circuit concluded that " § 875(c) does not require specific intent in regard to the threat element of the offense, but only general intent." Id. at 150. Under a general intent standard, whether a communication is a "true threat" is determined objectively from all the surrounding facts and circumstances, rather than from the defendant's subjective purpose. A general intent standard has also been adopted by three other circuits. See United States v. Myers, 104 F.3d 76, 81 (5th Cir.1997), United States v. Himelwright, 42 F.3d 777, 782-83 (3d Cir.1994), United States v. Darby, 37 F.3d 1059, 1063-66 (4th Cir.1994), cert. denied, 514 U.S. 1097, 115 S.Ct. 1826, 131 L.Ed.2d 747 (1995). The test espoused in these cases is stated in Darby:

[T]o establish a violation of section 875(c), the government must establish that the defendant intended to transmit the interstate communication and that the communication contained a true threat. Whether a communication in fact contains a true threat is determined by the interpretation of a reasonable recipient familiar with the context of the communication. The government does not have to prove that the defendant subjectively intended for this recipient to understand the communication as a threat.

Darby, 37 F.3d at 1066. Our sister circuits have also considered what constitutes a "true threat" under other federal threat statutes. See United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir.1997) (collecting cases).

Although the intent requirement of section 875(c) has not previously been decided by this court, we recently had occasion to determine the requisite intent under a different threat statute, 18 U.S.C. § 115(a)(1)(B), which criminalizes threats directed at federal agents.

In determining what constitutes a "true threat," the Fulmer panel found the governing standard to be "whether [the defendant] should have reasonably foreseen that the statement he uttered would be taken as a threat by those to whom it is made." Fulmer, 108 F.3d at 1491. This test takes into consideration the context in which the remark was made and avoids the risk that an otherwise innocuous statement might become a threat if directed at an unusually sensitive listener. This approach also protects listeners from statements that are reasonably interpreted as threats, even if the speaker lacks the subjective, specific intent to threaten, or, as would be more common, the government is unable to prove such specific intent which, by its nature, is difficult to demonstrate.

For these reasons, we believe that the logic of Fulmer, which considered 18 U.S.C. § 115(a)(1)(B), applies with full force to 18 U.S.C. § 875, and we adopt the same standard for the latter statute. In doing so, we are also aligning ourselves with the majority view of our sister circuits, as discussed supra. Having established that section 875(c) requires only a general intent, we are able to engage each of Whiffen's specific claims.

III. Failure to Allege an Offense

Whiffen's first claim of error relates to his pre-trial motion, under Rule 12(b)(2) of the Federal Rules of Criminal Procedure, to dismiss the indictment for failure to allege an offense. Whiffen was charged with violation of 18 U.S.C. § 875(c) which prohibits the transmission in interstate commerce of "any threat to injure the person of another." The indictment alleges that Whiffen made such a communication when he stated that "[y]our building will go boom"; "the building will go boom"; "buildings go boom"; and "Allstate had better stop messing with me or else I'm going to blow up their building."

On appeal, Whiffen argues that his motion to dismiss should have been granted on the grounds that the indictment "fails to allege 'unequivocal, unconditional and specific expressions of intention immediately to inflict injury' to another person." Brief of Appellant at 7 (quoting United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.1976)).

Having determined that specific intent is not the standard under which Whiffen's statements should be judged, it is clear that the failure to allege specific intent is not grounds for dismissal. "[A]n indictment is sufficiently particular if it elucidates the elements of a crime, enlightens a defendant as to the nature of the charges against which she must defend, and enables her to plead double jeopardy in bar of future prosecutions for the same offense." United States v. Sepulveda, 15 F.3d 1161, 1192 (1st Cir.1993); see also Fed.R.Crim.P. 7(c)(1). Although the four counts contain slightly different wording, we present only Count I, which is representative of the other counts. Count I states that:

On or about October 17, 1995, in the District of New Hampshire, the defendant, Kevin Whiffen knowingly and willfully transmitted in interstate commerce between Farmington, New Hampshire and Tampa, Florida, a communication containing a threat to injure Kelly Terrell and other employees of Universal Fidelity Corporation, Tampa, Florida, to wit, "Your building will go boom." All in violation of Title 18, United States Code, Section 875(c).

It is our view that the indictment states the offense for which Whiffen has been convicted. The elements of the crime are elucidated and the indictment is sufficient to plead double jeopardy should future prosecutions be brought against Whiffen for the same offense. The indictment basically tracks the language of section 875(c), which states: "Whoever transmits in interstate or foreign commerce any communication containing ... any threat to injure the person of another, shall be fined under this title and imprisoned for not more than five years, or both." 18 U.S.C. § 875(c). We find the indictment to be sufficient. See Darby, 37 F.3d at 1063.

Appellant also argues that the indictment is inadequate because it "alleges threats that a building or buildings would 'go boom.' ... It does not allege that any person would be present or hurt by any such explosion." Brief of Appellant at...