U.S. v. Darby

• Decision Date: 21 October 1994
• Docket Number: No. 93-5551,93-5551
• Citation: 37 F.3d 1059
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Peter DARBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1059

37 F.3d 1059

UNITED STATES of America, Plaintiff-Appellee, v. James Peter DARBY, Defendant-Appellant.

No. 93-5551.

United States Court of Appeals Fourth Circuit.

Argued July 20, 1994.

Decided Oct. 21, 1994.

ARGUED: J. Matthew Martin, Harry C. Martin, Sr., Martin & Martin, P.A., Hillsborough, NC, for appellant. Douglas Cannon, Asst. U.S. Atty., Greensboro, NC, for appellee. ON BRIEF: Benjamin H. White, Jr., U.S. Atty., Greensboro, NC, for appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and ANDERSON, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge JOSEPH F. ANDERSON, Jr., wrote the opinion, in which Judge LUTTIG and Judge WILLIAMS joined.

OPINION

JOSEPH F. ANDERSON, Jr., District Judge:

James Peter Darby was convicted on March 31, 1993 after a jury trial in the Middle District of North Carolina for transmitting a threatening communication in interstate commerce in violation of 18 U.S.C. Sec. 875(c). The district judge sentenced Darby on June 22, 1993 to a term of imprisonment of forty months, three years of supervised release, a fine of $3,000.00, and a special assessment of $50.00. Darby appeals both his conviction and the sentence imposed thereon. For the reasons set forth below, we affirm.

I

In the summer of 1992, the Internal Revenue Service (IRS) sent Darby an appointment letter indicating that his 1989 income tax return was to be the subject of an audit. At that time, Darby lived in Hillsborough, North Carolina, but was working on a computer consulting project in Rochester, New York. On August 4, 1992, Darby responded to the IRS's notice by telephoning the IRS office in Durham, North Carolina. Jerry McKnight, the supervisor of the examination division of the Durham IRS office, testified that Darby was uncooperative about scheduling the pending audit. Specifically, Darby rejected several proposed dates and refused to produce his original tax records, which were located in Colorado.

Because Darby would not make himself available to appear at the audit, the IRS performed the audit in his absence and without his input. The audit revealed that Darby owed penalties and interest for improper deductions in 1989.

On September 17, 1992, approximately two weeks after Darby returned from Rochester to his home in Hillsborough, he received a letter from the IRS stating that he had been audited in his absence and that he owed over $10,000 on his 1989 return. Darby became extremely upset at this revelation and promptly made several telephone calls to the Durham office of the IRS.

Durham IRS employee Annette Miller summarized a call she received from Darby as follows:

He said that he was real upset about the report that was sent out to him. And I was telling him, "Sir, will you please calm down," because he was using a lot of profanity. So, I asked him, I said--He said, "Do you"--"Ma'am, do you know how long it takes to bury a person?" ...

"Do you know how long it takes to kill a person?" ...

Then he said, "I am tired of the IRS with their G** d*mn bullsh**. If I don't hear from you today, it's going to be a massacre." And then he asked me, do I know what "a massacre" means....

After that, he said that he normally don't threaten anyone, but when--he was in Viet Nam; but he would kill again. Then he said, "At 3:00 o'clock, if I don't hear from my manager," we might as well vacate the premises....

Letitia Thompson, another IRS employee in the Durham office, also received a call from Darby on September 17, 1992. Darby asked to speak to Mr. McKnight, the supervisor in that office, but when Ms. Thompson attempted to transfer Darby to Mr. McKnight, she apparently had some trouble with the phone system, and Darby's calls were cut off several times. Ms. Thompson testified as follows: "On the fourth call Mr. Darby said that he wasn't upset with me; but that he had went [sic] to the hardware store, and gotten all that they had, and everything that he needed to make a strong explosive." At that moment, Ms. Thompson summoned IRS criminal investigator Theresa Carson to the phone and handed the receiver to her. Ms. Carson testified that when she picked up the phone, she heard, "How would you like to have a pipe bomb delivered to your place of employment? This is not a bomb threat."

Later that afternoon, Darby called the toll-free, "1-800" number for the IRS Problem Resolution Office, which number he had found in the yellow pages of his Hillsborough phone book. Jennifer Morrison, an IRS taxpayer service representative, answered Darby's call in Nashville, Tennessee. This interstate call is the subject of Darby's conviction presently under review by this court. Ms. Morrison testified about the substance of Darby's threats:

He said that he had a bill now from Greensboro, from an auditor, Ms. Mary Harris, and that he--the bill said he owed $10,833, and he didn't agree with that. He then--at that point he said that if he could get his hands on Mary Harris, her "life expectancy would be zip." ...

.... And then he asked if I knew the policy of the Adolph Hitler School. I said no. And he stated that it was the same as the IRS, get the guilty bastard in here.

And then he asked if I knew who Jeffrey Dahlmer [sic] was, and I said yes. He said that--Mr. Darby said that he didn't eat his victims, like Jeffrey Dahlmer; [sic] that he just killed them by blowing them up. And he also asked if I had seen the little Somalia children on TV that were dying, because the Internal Revenue Service may be the next Somalia. And he asked if we had a flower fund, and he said that we would need one for all of the funerals in Durham.

And at this point I told him that I was going to refer his case to our problem resolution office, he should have a contact back within a few days.

He said if it's going to be a few days, never mind, that it would be too late, people in Durham would be dead. He said, "Do you understand?" I said yes.

Ms. Morrison testified that she was shocked and frightened by the call from Darby.

Thereafter, the police were summoned to the IRS office in Durham. The employees were evacuated while the building was searched for a bomb, and many employees were eventually sent home.

Mr. McKnight made a recorded call to Darby late that same afternoon in an effort to verify Darby's intent in making the threatening phone calls. Darby stated that he had gone to the local farm supply and hardware store earlier that afternoon and had purchased materials which, if properly assembled, "would constitute a bomb." Darby made it apparent that he intended to assemble a bomb and use it against the IRS office if he did not get satisfaction. He also acknowledged telling other IRS employees during earlier calls that "it might not be a good idea to ... continue ... coming to work there."

The next day, September 18, 1992, IRS investigators arrested Darby in his home in Hillsborough pursuant to an arrest warrant. Upon Darby's arrest, the IRS investigators and several agents from the Bureau of Alcohol, Tobacco, and Firearms searched Darby's house and car. In Darby's house the investigators found two five-foot lengths of plastic PVC pipe, four PVC plastic end caps, PVC cement, two electrical switches, two bags of sulphur, a bottle of malathion, receipts indicating the purchase of those items in Hillsborough on September 17, 1992, and a jigsaw. At trial, experts for both parties testified that these items, if combined with a couple of other ingredients, could be used to make a pipe bomb.

On November 30, 1992, a federal grand jury for the Middle District of North Carolina returned a one-count indictment against Darby, charging him with transmitting a threatening communication in interstate commerce in violation of 18 U.S.C. Sec. 875(c). Darby was tried for that offense before a jury in Greensboro, North Carolina beginning on March 29, 1993. After the jury was selected, the Defendant filed a written motion to dismiss the indictment because, he alleged, the indictment was defective. The court denied the Defendant's motion, and the trial proceeded. As stated previously, the jury returned a guilty verdict on March 31, 1993, and Darby was sentenced on June 22, 1993.

Darby raises several issues on appeal with regard to both his conviction and his sentence. We address those issues seriatim.

II

Darby first argues that the district court erred in refusing to dismiss the indictment as facially defective because, he argues, the indictment failed to include all of the elements of the offense charged. Specifically, Darby asserts that 18 U.S.C. Sec. 875(c) requires a showing of specific intent to threaten and that, because the indictment does not charge specific intent, it is invalid. We do not accept the Appellant's argument.

Whether an indictment properly charges an offense is a matter of law which we may consider de novo if the defendant makes a timely objection to the indictment. In reviewing the sufficiency of the indictment in this case, we apply a heightened scrutiny because the Appellant challenged the sufficiency of the indictment prior to the verdict. See United States v. Hooker, 841 F.2d 1225, 1229 (4th Cir.1988) (en banc); cf. Finn v. United States, 256 F.2d 304, 307 (4th Cir.1958) (" 'Indictments and informations are construed more liberally after verdict than before....' ").

As we have previously recognized, "[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense." United States v. Daniels, 973 F.2d 272, 274 (4th Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962)), cert. denied, --- U.S. ----, 113 S.Ct. 1064, 122 L.Ed.2d 369 (1993). Moreover, the indictment must include every essential element of an offense, or else the indictment is...