738 F.3d 1 (1st Cir. 2013), 12-1149, United States v. Clemens

Docket Nº:12-1149.
Citation:738 F.3d 1
Opinion Judge:LYNCH, Chief Judge.
Party Name:UNITED STATES of America, Appellee, v. Jeffrey L. CLEMENS, Defendant, Appellant.
Attorney:Matthew S. Cameron on brief for appellant. Mark T. Quinlivan, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.
Judge Panel:Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.
Case Date:December 10, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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738 F.3d 1 (1st Cir. 2013)

UNITED STATES of America, Appellee,


Jeffrey L. CLEMENS, Defendant, Appellant.

No. 12-1149.

United States Court of Appeals, First Circuit.

December 10, 2013

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Matthew S. Cameron on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.

Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

We are invited in this case to change our circuit law on the type of intent needed by a defendant to communicate " true threats" under 18 U.S.C. § 875(c). We note there is a circuit split on the question of intent in

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the aftermath of Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The issue was not raised before the trial court, and on plain error review we see no reason to depart from this circuit's law that an objective test of defendant's intent is used from the defendant's vantage point under § 875(c). United States v. Whiffen, 121 F.3d 18, 21 (1st Cir.1997).

On May 11, 2011, a jury convicted Jeffrey Clemens of two counts of sending threats to injure another across state lines in violation of 18 U.S.C. § 875(c). He was sentenced to five years of imprisonment. The threats were in two emails, one sent to Stephen Pfaff, the opposing counsel and defendant in a lawsuit that Clemens had filed, and the other to Patricia Vinchesi, the Town Administrator of Scituate, Massachusetts, which was also a defendant in that suit.

Clemens appeals from his conviction, primarily arguing that the district court gave incorrect jury instructions on the meaning of the term " threat." He also argues that there was insufficient evidence to support his conviction and that the district court had erred in denying his pre-trial motion to dismiss his indictment. Pertinent to most of Clemens's claims of error is his argument, made for the first time on appeal, that the Supreme Court decision in Black required the jury to find that he subjectively meant to threaten Pfaff and Vinchesi and that it was insufficient to measure his intent by reference to an objectively reasonable person.

We affirm.


We draw the facts primarily from the parties' pleadings and the trial record. Because Clemens challenges the sufficiency of the evidence, we describe the evidence in the light most favorable to the jury verdict. See United States v. Soto, 720 F.3d 51, 54 (1st Cir.2013).

On May 12, 2005, Clemens was arrested in Scituate, Massachusetts, and that set off the chain of events which eventually resulted in the federal indictment in this case. That day, the Scituate police department had received a call from a town resident that Clemens was trespassing on the grounds of her home. The police arrested Clemens for trespassing, after he had already left the private residence, and charged him with disorderly conduct and impersonating a private investigator, inter alia. See Clemens v. Town of Scituate, No. 07-10845-RGS, 2009 WL 1448807, at *1 (D.Mass. May 22, 2009). A jury convicted Clemens of the disorderly conduct count, for which he served six months in state prison, although that conviction was later overturned. (The reason is not in the record.) He also had admitted that there were sufficient facts to prove his guilt for impersonating an investigator, for which he received a six month suspended sentence.

In May 2007, Clemens filed a § 1983 lawsuit, pro se, in federal court against the Town of Scituate (Town), two local police officers, the Town resident who had accused him of trespassing and that resident's husband, asserting that the arrest had been without probable cause, in violation of the Fourth Amendment, and pendent common law tort claims. See id. at *2. Pfaff was the attorney who represented the Town and the police officers in this § 1983 case. On January 9, 2009, Pfaff filed a motion for summary judgment, arguing that Clemens had no legal basis for his claims. The district court granted summary judgment as to all federal claims on May 22, 2009, declining to exercise jurisdiction over the pendent state law claims. See id. at *3.

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Again proceeding pro se, on October 27, 2009, Clemens filed another lawsuit in federal court against the Town, the Scituate police officers, and additional defendants, including Pfaff; this time Clemens sought damages for malicious prosecution and " willful negligence." The case was assigned to a different federal district court judge.

Pfaff again represented the Town, some individual defendants, and himself in this second lawsuit. On March 5, 2010, Pfaff moved to dismiss the lawsuit as to himself. In response, Clemens sent Pfaff the following email three days later, on March 8, 2010 at 10:25 p.m.1:

Dearest Mr. Pfaff:

The judge to whom you just motioned, William G. Young, by the way [perhaps you knew already], graduated Harvard Law with Alan Alexander, long and dear friend and associate to Ronald Bass, credited author of the movie Rain Man which you took it upon yourself to refer to in your recent motion before him [Young]. Only thing is, Mr. Bass went to Harvard Law, too, and graduated but one year before Mr. Young.

Gee, do you suppose they knew each other? Exchanged notes? Took Civil Procedure together?

If you want to file crap like your Rule 12 motion, fine. Apparently, the truth means nothing to either you or the police [obviously, you motioned to avoid discovery]. Given the recent Stearns disqualification [which you failed to mention in your motion], I believe you are playing a dangerous game, a very dangerous game. I have every hunch someone is going to get hurt. At this point [years of police/court bullshit, and your crap], I'm rather hoping someone will [deserving it, of course].

Have you ever been punched in the face? Well, I was, at PCCH,2 thanks to O'Hara and Moynahan and now, frankly, I rather hope you experience that same thrill someday, figuratively or otherwise, maybe even see one of your " clients" go to prison, you get disbarred, " taken to a chop shop on Staten Island", whatever.

There was never any " argument" between O'Hara and I on May 12, 2005. He is one lying son-of-a-bitch and you knew it on September 17, 2008 when you invited him to sit in on the Goyette deposition. And you knew O'Hara was going to lie at the September 18, 2008 " trial" . And you now expect to let your misconduct be a basis for a Rule 12 motion? What, I pled to " sufficient facts" ? Bullshit. There was never any sufficient facts to begin with much less plea to. You and your people systematically BUTTFUCKED me and you knew it, too.

I will say it now, once. I, at this point, will not ever allow the SPD and HDC to get away with what they have done. They're an affront to all that is [pretended to be] American Democracy and Justice, as are you. One way or another, I will have my day in court or the back alley [hint, hint, veiled threat potential here].

You do be careful now, you hear? And by all means, run to your FBI friends, I would encourage it. After all, perjury is a federal offense too, especially when the victim is from out-of-state. Besides,

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it [you running to the feds] will give me a chance to make my case. Yeah, go ahead and call the FBI and say something like " Oh, Mr. Clemens [']threatened me['] in an email last night" . Yeah, right. Five years, and this ain't over. And do you know why? I mean, really, why is this whole thing not over? Because of people like you, who crossed the line [in September 2008], and O'Hara and Moynahan, who crossed certain lines, too. You, at this point, I assure you, will get what you deserve. Pow! Bang! Splat! I really, truly and sincerely wish you were dead.

I am very much looking forward to putting you in your place, Mr. Pfaff. You disgust me. You are absolute filth [proof positive that a suit and tie ultimately doesn't not make a person " good" or " respectable" ]. Yeah, remember Stearns and the whole Laveroni default? Sure you do. And surely, you will pay the price some day for the many years of incarceration I had to endure BECAUSE OF YOU Mr. Hired in 2007 Over A Year Before The September 2008 Trial That Gave You Summary Judgment Pfaff.

Oh, how I wish a 10-ton I-beam would fall on you, O'Hara, Rooney and Shelly 3 right now. Splat! Boy, would I love to see that!

Perhaps someday I will [or, at least, an equivalent experience]. As far as I am concerned, neither you nor your partners in crime deserve your freedom right now.

From now on, be sure and watch your backside, Mr. Pfaff. God may step up to the plate at any moment. I dunno, I got this feeling someone's going to get hurt REAL BAD. And it ain't gonna be me.

Here's to Law and Order. And yes, you can expect a full briefing from me in the coming days addressing your truth-twisting truth-burying masterpiece of a motion. Rationalize all you want but come Judgment Day you've had it.

Jeffrey Clemens

(emphasis added). Clemens also sent this email as an attachment to Patricia Vinchesi, the Scituate Town Administrator, at 10:34 p.m. on March 8, 2010, with the message " Mr. [sic] Vinchesi: You all might be digging yourself a grave. Jeffrey." Vinchesi was not a defendant in either of Clemens's lawsuits.

Pfaff read Clemens's email the following morning on March 9. He testified in this case that he had read the email as a " personal physical threat." As a result, he sent his wife a photograph of Clemens, which he had in his case file, because he was worried that Clemens would show up at the child care center where she worked. Pfaff sent this same photograph to the Chief of Police in the town where he lived because he " was concerned for [his] physical safety" and asked for extra patrol cars to come by his house.

That same day, Pfaff forwarded the email to an FBI agent whom he knew. He also sent Clemens's email to the courtroom clerk assigned to the...

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