U.S. v. Guevara

• Decision Date: 02 May 2005
• Docket Number: No. 03-11299.,03-11299.
• Citation: 408 F.3d 252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Paco GUEVARA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.3d 252

UNITED STATES of America, Plaintiff-Appellee, v. Frank Paco GUEVARA, Defendant-Appellant.

No. 03-11299.

United States Court of Appeals, Fifth Circuit.

May 2, 2005.

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Susan B. Cowger (argued), Dallas, TX, for U.S.

Jerry V. Beard, Asst. Fed. Pub. Def. (argued), Lubbock, TX, for Guevara.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Frank Guevara challenges his conviction under 18 U.S.C. § 2332a of threatening to use a weapon of mass destruction ("WMD"). He also appeals his classification as a career offender under the sentencing guidelines. Finally, he challenges his sentence in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹ Finding no reversible error, we affirm.

I.

Guevara committed what is called an "anthrax hoax." In August 2002 he wrote and mailed a letter to United States District Judge Mary Lou Robinson. An employee at the court's mail depository retrieved the letter and, recognizing that it was from an inmate, opened the envelope, which contained a white, powdery substance that got onto the employee's fingers. The letter stated:

Mary Lou Robinson,

I am sick and tired of your games[.] All [A]mericans will die as well as you. You have been now been [sic] exposure [sic] to anthrax.

Mohammed Abdullah.

The substance in the envelope turned out to be harmless hair gel and powdered cleanser.

The incident effectively closed the federal building for a period of time. Local police with hazardous materials training, bomb squad personnel, and the FBI responded. The building's air conditioning had to be turned off. Judge Robinson (the target of the letter) shut down her courtroom. The federal building housed numerous federal agencies that were required to close for the rest of the day.

The government charged Guevara with (1) threatening to use a WMD in violation of 18 U.S.C. § 2332a and (2) mailing a threatening communication by way of the United States Postal Service in violation of 18 U.S.C. § 876. During trial, Guevara moved for judgment of acquittal at the close of the government's case and at the close of all of the evidence. His motions were denied, and the jury convicted him on both counts.

The presentence report ("PSR") classified Guevara as a career offender under the guidelines because he was over eighteen years of age at the time of the crime, he had at least two convictions for crimes of violence, and the probation officer characterized the § 2332a conviction as a crime of violence. Guevara objected to the career offender classification, arguing that the instant WMD conviction was not a crime of violence. The district court overruled his objection and, based on this classification, imposed a sentence of life imprisonment.²

II.

A.

1.

We review the denial of a motion for judgment of acquittal de novo. See United States v. DeLeon, 170 F.3d 494, 496 (5th Cir.1999). When reviewing the sufficiency of the evidence, we consider "`whether a reasonable trier of fact could have found that the evidence established the essential elements of the crime beyond a reasonable doubt.'" United States v. Cathey, 259 F.3d 365, 368 (5th Cir.2001) (quoting United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998)).

§ 2332a provides in relevant part:

A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction ... (2) against any person within the United States, and the results of such use affect interstate or foreign commerce or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce ... shall be imprisoned for any term of years or for life ....

When construing a criminal statute, we are bound by the plain and unambiguous meaning of its language. See United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). We look first to the words' ordinary and natural meaning and the overall policies and objectives of the statute. See id. We must seek to give every word in the statute some operative effect. See id.

2.

Guevara contends that to secure a conviction under § 2332a, the government must establish both that he made a "threat" and that it encompassed the "use" of a weapon of mass destruction. Guevara makes arguments that would, in the absence of preclusive authority, make closer the issue of whether "to threaten to use" requires an expression of intent to act in the future. There are plain-language and legislative history arguments that, in a vacuum, might lend credence to Guevara's interpretation.³

These arguments are nonetheless unavailing in light of United States v. Reynolds, 381 F.3d 404, 406 (5th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 922, 160 L.Ed.2d 810 (2005), in which we construed § 2332a to contain no requirement of future action:

We have found no credible support for a definition of "threat" that requires reference to a future act. We therefore conclude that the proper definition of "threaten" in § 2332a is that adopted by this court in Myers: a communication that has a reasonable tendency to create apprehension that [the] originator of the communication will act as represented.

In Reynolds the defendant, who was involved in a dispute with a mortgage company, told the company's telephone operator that he had just dumped anthrax into the air conditioning system. Id. at 405. Company security personnel ultimately deemed the threat to be non-credible and decided not to evacuate the building. Reynolds was nonetheless convicted under § 2332a for threatening to use a WMD.

On appeal Reynolds argued that he had not "threatened" to use a WMD because the statement in question conveyed only the completion of a past act. Citing United States v. Myers, 104 F.3d 76, 79 (5th Cir.1997), we held that § 2332a's threat language does not require reference to a future act.⁴ There is no reason able way to distinguish that ruling here.

Once we have interpreted § 2332a to have no future-action requirement, the evidentiary question is an easy one. Guevara claimed to have mailed anthrax, and the record is more than sufficient to sustain the conviction under our interpretation of the statutory language.

B.

Although we ordinarily review jury instructions for abuse of discretion, we review an instruction de novo where there is the possibility that the jury instruction misstated an element of the crime, because that is an issue of statutory construction. See United States v. Ho, 311 F.3d 589, 605 (5th Cir.2002). Guevara objected to the jury instruction indicating that the government did not have to prove that he actually intended or was able to carry out the threat. The district court instructed the jury as follows:

A threat is a serious statement expressing an intention to do an act which under the circumstances would cause apprehension in a reasonable person, as distinguished from idle or careless talk, exaggeration, or something said in a joking manner. It is not necessary to prove that the defendant actually intended or was able to carry out the threat made.

We view this issue as redundant of that discussed in part II.A.2. If, as we have held both here and in Reynolds, a person can violate § 2332a merely by making a statement about completed action, and if, as we held in Reynolds, that threat need not be credible, there is no problem with the court's instruction regarding intent or plausibility.

III.

Section 2332a requires the government to show that the use of a WMD, as threatened, would have affected interstate commerce. In United States v. Wise, 221 F.3d 140, 152 (5th Cir.2000), we held that, in the case of a § 2332a threat, there need not be an actual or substantial effect on commerce.

A.

The court erroneously instructed the jury that, to convict Guevara under § 2332a, it had to find that the WMD, if used as threatened, would have substantially affected interstate commerce; the statute requires only that the threat, if carried out, would have some effect, not necessarily a substantial one. The court instructed that "commerce" meant the "flow of goods, merchandise, money, or other property between states." The interstate commerce element was stated properly in the indictment.

Guevara argues that because the instructions mistakenly stated, without government objection, the degree of effect required on commerce, the "substantially affected" language became "law of the case," and the government had to prove it beyond a reasonable doubt. Although there is no binding precedent in this circuit, there is persuasive authority that guides our analysis.

In United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir.1999), the court held that where a misstated element is included in the jury instruction, but not in the indictment, the misstated element does not necessarily become law of the case. Our court has held as much, albeit in an unpublished opinion. See United States v. Munoz-Hernandez, 94 Fed.Appx. 243, 245 (5th Cir.2004) (unpublished), vacated on other grounds, ___ U.S. ___, 125 S.Ct. 999, 160 L.Ed.2d 1009 (2005). We now adopt the First Circuit rule, to the effect that the "substantially affected" language does not become law of the case.⁵ Consistent with the foregoing authorities, the jury instruction may not become law of the case if both (1) it is patently erroneous and (2) the issue is not misstated in the indictment.

B.

We review the interstate commerce element determination for sufficiency of the evidence by deciding whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See United States v. Daniel, 957 F.2d 162, 164 (5th Cir.1992). Without speculating...