United States v. Jeffries

• Citation: 692 F.3d 473
• Decision Date: 27 August 2012
• Docket Number: No. 11–5722.,11–5722.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Franklin Delano JEFFRIES, II, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

692 F.3d 473

UNITED STATES of America, Plaintiff–Appellee,

v.Franklin Delano JEFFRIES, II, Defendant–Appellant.

No. 11–5722.

United States Court of Appeals,Sixth Circuit.

Argued: July 17, 2012.

Decided and Filed: Aug. 27, 2012.

ARGUED:Jonathan Harwell, Harwell & Harwell, P.C., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:Jonathan Harwell, Ralph E. Harwell, Harwell & Harwell, P.C., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, Kelly A. Norris, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: SUTTON and GRIFFIN, Circuit Judges; DOWD, District Judge. ^*

SUTTON, J., delivered the opinion of the court in which GRIFFIN, J., and DOWD, D.J., joined. SUTTON, J. (pp. 483–86), also delivered a separate dubitante opinion.

OPINION

SUTTON, Circuit Judge.

Tangled in a prolonged legal dispute over visitation rights to see his daughter, Franklin Delano Jeffries II tried something new. He wrote a song. The title, “Daughter's Love,” gives away half of the lyrics. The song contains sweet passages about relationships between fathers and daughters and the importance of spending time together. The rest boils into an assortment of the banal (complaints about his ex-wife), the ranting (gripes about lawyers and the legal system) and the menacing (threats to kill the judge if he doesn't “do the right thing” at an upcoming custody hearing). Jeffries set the words to music and created a video of himself performing the song on a guitar painted with an American flag on it. The style is part country, part rap, sometimes on key, and surely therapeutic. Had Jeffries left it at that, there would be nothing more to say.

But he did not. He posted the music video on YouTube and shared it with friends, family and a few others. The timing left something to be desired. Six months earlier, the judge assigned to his custody case, Knox County Chancellor Michael Moyers, had granted Jeffries' petition for unsupervised visits. For reasons the record does not fully disclose, the judge set a hearing to re-evaluate Jeffries' visitation rights. Five days before the scheduled hearing, Jeffries uploaded the video.

In the video, Jeffries sings of his upcoming visitation hearing and directs his words to Chancellor Moyers, saying, “This song's for you, judge.” Here are the lyrics of the song in full, a few of which Jeffries speaks rather than sings:

I've had enough of this abuse from you.

It has been goin' on for 13 years.

I have been to war and killed a man.

I don't care if I go to jail for 2,000 years.

‘Cause this is my daughter we're talkin’ about,

And when I come to court this better be the last time.

I'm not kidding at all, I'm making this video public.

'Cause if I have to kill a judge or a lawyer or a woman I don't care.

'Cause this is my daughter we're talking about.

I'm getting tired of abuse and the parent alienation.

You know it's abuse.

I love you; daughters are the beautiful things in my life.

It keeps me going and keeps me alive everyday.

Take my child and I'll take your life.

I'm not kidding, judge, you better listen to me.

I killed a man downrange in war.

I have nothing against you, but I'm tellin' you this better be the last court date.

Because I'm gettin' tired of missin' out on my daughter's love.

(And that's the name of the song by the way “Daughter's Love.”)

And I'm getting tired of you sickos

Thinking it's the right thing for the children.

You think it's the best interest of the child,

But look at my daughter from her mother's abuse.

She's mentally and physically abused her,

And I'm getting tired of this bull.

So I promise you, judge, I will kill a man.

This time better be the last time I end up in court

'Cause, damn, this world is getting tired.

When you don't have your daughter to love on or have a big hug

'Cause she's so mentally abused and psychologically gone.

She can't even hold her own dad

Because her mom has abused [her] by parent alienation [ ].

And this s____ needs to stop because you're gonna lose your job.

And I guarantee you, if you don't stop, I'll kill you.

'Cause I am gonna make a point either way you look at it somebody's gotta pay,

And I'm telling you right now live on the Internet.

So put me in jail and make a big scene.

Everybody else needs to know the truth.

'Cause this s____'s been going on for 13 years and now my daughter's screwed up

'Cause the judge and the lawyers need money.

They don't really care about the best interest of the child.

So I'm gonna f____ somebody up, and I'm going back to war in my head.

So July the 14th is the last time I'm goin' to court.

Believe that. Believe that, or I'll come after you after court. Believe that.

I love my daughter.

Nobody's going take her away from me.

'Cause I got four years left to make her into an adult.

I got four years left until she's eighteen.

So stop this s____ because I'm getting tired of you,

And I don't care if everybody sees this Internet site

Because it is the truth and it's war.

Stop abusing the children and let 'em see their dads,

'Cause I love you, Allison.

I really do love you. I want to hold you and hug you, and I want the abuse to stop.

That's why I started Traumatized Foundation.org. Traumatized Foundation.org.

Because of children being left behind, being abused by judges, the courts.

They're being abused by lawyers.

The best interest ain't of the child anymore.

The judges and the lawyers are abusing 'em.

Let's get them out of office. Vote 'em out of office.

If fathers don't have rights or women don't have their rights or equal visitation,

Get their ass out of office.

'Cause you don't deserve to be a judge and you don't deserve to live.

You don't deserve to live in my book.

And you're gonna get some crazy guy like me after your ass.

And I hope I encourage other dads to go out there and put bombs in their goddamn cars.

Blow 'em up. Because it's children we're, children we're talkin' about.

I care about her.

And I'm willing to go to prison,

But somebody's gonna listen to me,

Because this is a new war.

This ain't Iraq or Afghanistan. This is goddamn America. This is my goddamn daughter. There, I cussed. Don't tell me I can't f____in' cuss.

Stupid f____in' [Guitar crashes over in the background] BOOM! There went your f____in' car. I can shoot you. I can kill you. I can f____ you. Be my friend. Do something right. Serve my daughter.

Yeah, look at that, that's the evil. You better keep me on God's side.

Do the right thing July 14th.

R.103–7 (emphases added).

Jeffries posted a link to the video on his Facebook wall and sent links to twenty-nine Facebook users, including Tennessee State Representative Stacey Campfield, WBIR Channel 10 in Knoxville, and DADS of Tennessee, Inc., an organization devoted to empowering divorced fathers as equal partners in parenting. Twenty-five hours later, Jeffries removed the video from YouTube and his Facebook page. That was too late. By then, the sister of Jeffries' ex-wife had seen the link on Jeffries' wall and told the judge about it.

Law enforcement got wind of the video, and the italicized words caught their attention. Federal prosecutors charged Jeffries with violating a federal law that prohibits “transmit[ting] in interstate or foreign commerce any communication containing any threat to ... injure the person of another”—namely Chancellor Moyers. 18 U.S.C. § 875(c). A jury convicted Jeffries.

Elements of § 875(c). The heart of Jeffries' appeal turns on a jury instruction, which turns on the proper elements of a § 875(c) charge. The parties agree that Jeffries could be convicted only if his threat was objectively real, only if a reasonable person would have perceived Jeffries' words and conduct as a true threat to Chancellor Moyers. The question is whether the court, as Jeffries claims, also should have instructed the jury that it could convict Jeffries only if he subjectively meant to threaten the judge.

Here is what the court instructed the jury to do:

In evaluating whether a statement is a true threat, you should consider whether in light of the context a reasonable person would believe that the statement was made as a serious expression of intent to inflict bodily injury on Chancellor Moyers and whether the communication was done to effect some change or achieve some goal through intimidation.

* * *

The communication must be viewed from an objective or reasonable person perspective. Accordingly, any statements about how Chancellor Moyers perceived or felt about the communication are irrelevant. In fact, it is not relevant that Chancellor Moyers even viewed the communication. The defendant's subjective intent in making the communication is also irrelevant. Unlike most criminal statutes, the government does not have to prove defendant's subjective intent. Specifically, the government does not have to prove that defendant subjectively intended for Chancellor Moyers to understand the communication as a threat, nor does the government have to prove that the defendant intended to carry out the threat.

R.121 at 259–61.

Here is what Jeffries asked the court to say in the jury instructions:

In determining whether a communication constitutes a “true threat,” you must determine the defendant's subjective purpose in making the communication. If the defendant did not seriously intend to inflict bodily harm, or did not make the communication with the subjective intent to effect some change or achieve some goal through intimidation, then it is not a “true threat.”

R.87 at 6.

Based on existing precedent, the court correctly rejected Jeffries' proposed instruction. The language of the statute prohibits “any” interstate “communication” that “contain[s] any threat to ... injure the person of another.” 18 U.S.C. § 875(c). In proscribing interstate “communication[s]” of this sort, § 875(c) punishes speech. That is something courts must keep “in mind” in construing the statute, Watts v. United States, 394 U.S....