United States v. Martinez

• Decision Date: 27 November 2013
• Docket Number: No. 11–13295.,11–13295.
• Citation: 736 F.3d 981
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ellisa MARTINEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

736 F.3d 981

UNITED STATES of America, Plaintiff–Appellee,

v.Ellisa MARTINEZ, Defendant–Appellant.

No. 11–13295.

United States Court of Appeals, Eleventh Circuit.

Nov. 27, 2013.

Sally M. Richardson, Stephen Schlessinger, Anne Ruth Schultz, Wifredo A. Ferrer, Laura Thomas Rivero, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, Michael Garrett Walleisa, U.S. Attorney's Office, Fort Lauderdale, FL, for Plaintiff–Appellee.

Samuel J. Randall, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:10–cr–60332–KMM–1.

Before CARNES, Chief Judge, BLACK, Circuit Judge, and RESTANI, ^* Judge.

PER CURIAM:

Ellisa Martinez appeals her conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On November 10, 2010, talk-show host Joyce Kaufman at WFTL radio received an anonymous email form-response stating:

Dear Ms. Kaufman I was so thrilled to see you speak in person for congressman elect west. I was especially exited [sic] to hear you encourage us to exercise our second amendment gun rights. I felt your plan to organize people with guns in the hills of Kentucky and else where was a great idea. I know that you know one election is not enough to take our country back from the illegal aliens, jews, muslims, and illuminati who are running the show. I am so glad you support people who think like me. i'm planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I'm going to walk in and teach all the government hacks working there what the 2nd amendment is all about. Can I count on your help? you and those people you know in Kentucky? we'll end this year of 2010 in a blaze of glory for sure. thanks for your support mrs kaufman. what does sarah say, don't retreat, reload! let's make headlines girl!

Several hours after this email was sent, an anonymous woman called WFTL. She told station officials that her husband had sent the prior email, that he was mentally ill, and that he was now planning to open fire at a nearby school. The anonymous woman implored the station to broadcast a plea asking her husband not to carry out the shooting.

These communications prompted the Pembroke Pines Police Department to institute a “Code Red” lockdown on all Broward County schools. The Police Department also shut down several other public buildings, requiring officers to work overtime securing the facilities. Ultimately, however, no shooting occurred and the anonymous woman sent no further communications.

Soon after these events, investigators discovered that both anonymous communications were sent by the same person: Ellisa Martinez. Initially, Martinez denied any involvement in or knowledge of the incident. However, once a grand jury indicted her for making a true threat in violation of 18 U.S.C. § 875(c), and once the district court denied her motion to dismiss the indictment, Martinez pleaded guilty.

In pleading guilty, Martinez reserved the right to appeal the denial of her motion to dismiss the indictment on the following issues: (1) whether the indictment was insufficient because it did not allege Martinez subjectively intended to convey a threat to injure others; and (2) whether § 875(c) was unconstitutionally overbroad because it did not require the Government to prove the speaker subjectively intended her statements to constitute a threat. Concurrent with her guilty plea, Martinez and the Government executed and filed a factual stipulation. That stipulation recounted the legal elements of an offense under § 875(c) and detailed the factual basis of Martinez's crime. Martinez conceded that she knowingly and willfully sent the November 10th email, and that “the email contained language that an objectively reasonable jury could find beyond a reasonable doubt to be a serious expression of an intent to injure another person.” At her change-of-plea hearing, Martinez acknowledged she understood the plea agreement, and the Government read the parties' factual stipulation aloud in court.

After the district court accepted Martinez's guilty plea, the court ultimately ordered Martinez to pay the Police Department $5,350.89 in restitution for the costs incurred securing and safeguarding the schools and students in Broward County, Florida, as a result of her offense. Martinez appealed.

II. THE FIRST AMENDMENT AND TRUE THREATS

Pursuant to her conditional guilty plea, Martinez brings two constitutional challenges under the First Amendment. First, Martinez contends her indictment was constitutionally deficient under Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), because it did not allege she subjectively intended to convey a threat to injure others. Second, Martinez argues that, if § 875(c) does not require subjective intent, the statute is unconstitutionally overbroad.¹

A. True Threats and Intent

While the First Amendment generally prohibits the Government from restricting speech based on its message or viewpoint, Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002), the First Amendment's free-speech protections are not absolute, see Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In certain narrowly drawn categories, the Government may permissibly restrict speech on the basis of content. United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). These categories of unprotected speech do not require case-by-case balancing because the harms they impose “so overwhelmingly outweigh[ ]” any First Amendment concerns that the “balance of competing interests is clearly struck.” New York v. Ferber, 458 U.S. 747, 763–64, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982).

“True threats” are one such category of unprotected speech. United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion). Although statutes penalizing speech “must be interpreted with the commands of the First Amendment clearly in mind,” Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969), objective threats of violence contribute nothing to public discourse and enjoy no First Amendment protection, see R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83, 112 S.Ct. 2538, 2542–43, 120 L.Ed.2d 305 (1992). The critical issue for the true threats doctrine is distinguishing true threats from mere political hyperbole; while the former are outside the First Amendment, the latter is entitled to full constitutional protection. See Watts, 394 U.S. at 707–08, 89 S.Ct. at 1401–02.

Martinez argues that the Supreme Court's decision in Virginia v. Black draws the distinction between true threats and protected speech based on the speaker's subjective intent. Relying on Ninth Circuit precedent, Martinez contends Black redefined true threats to require proof the speaker subjectively intended to threaten listeners. See United States v. Bagdasarian, 652 F.3d 1113, 1116 (9th Cir.2011) (holding that a threat—even one “objective observers would reasonably perceive ... as a threat of injury or death”—cannot be prosecuted unless the speaker subjectively intended the speech to be a threat). Therefore, Martinez claims, her indictment was constitutionally insufficient because it did not allege she acted with the subjective intent to threaten.

1. Origins of the True Threats Doctrine

The true threats doctrine took shape in Watts v. United States. See394 U.S. at 705–08, 89 S.Ct. at 1399–1402. In Watts, the Supreme Court reversed the conviction of a man charged with knowingly and willfully threatening the President under 18 U.S.C. § 871(a), based on the following statements:

They always holler at us to get an education. And now I have already received my draft classification as 1–A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.

Id. at 705–06, 89 S.Ct. at 1400–01 (internal quotation marks omitted).

Although the Court acknowledged that true threats were not protected expression, the Court nonetheless held that Watts's statements were mere “political hyperbole.” Id. at 707–08, 89 S.Ct. at 1401. When taken in context, the Court could not see how Watts's statements could be interpreted as anything other than “a kind of very crude offensive method of stating a political opposition to the President.” Id. at 708, 89 S.Ct. at 1402 (internal quotation marks omitted).

Importantly, the Court reached this conclusion based on the objective characteristics of the speech and the context in which it was delivered—the Court did not speculate as to the speaker's subjective mental state. See id. For example, the Court looked to where the statement was made: in public during a group political debate. Id. Additionally, the Court looked to the nature of the statement: it was expressly conditional upon Watts's conscription into the military—an event he vowed would never occur. Id. at 707–08, 89 S.Ct. at 1401–02. Finally, the Court looked to the reaction of those in attendance: listeners as well as the speaker “laughed after the statement was made.” Id.

Following Watts, most federal courts of appeals defined true threats according to an objective standard. See Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.2002) (en banc) (noting that, while some courts applied a reasonable-speaker standard and others a reasonable-listener standard, “[a]ll the courts to have reached the issue ... consistently adopted an objective test” for true threats). Between Watts in 1969 and Black in 2003, this Court in particular consistently applied an objective, reasonable-person test when...