U.S. v. Jongewaard

• Decision Date: 03 June 2009
• Docket Number: No. 08-2111.,08-2111.
• Citation: U.S. v. Jongewaard, 567 F.3d 336 (8th Cir. 2009)
• Parties: UNITED STATES of America, Appellee, v. Larry JONGEWAARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

567 F.3d 336

UNITED STATES of America, Appellee, v. Larry JONGEWAARD, Appellant.

No. 08-2111.

United States Court of Appeals, Eighth Circuit.

Submitted: November 11, 2008.

Filed: June 3, 2009.

Jana Miner, AFPD, Pierre, SD, for appellant.

Eric D. Kelderman, AUSA, Pierre, SD, for appellee.

Before MURPHY, RILEY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Larry Jongewaard was convicted of transmitting in interstate commerce a communication containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c). Jongewaard appeals, arguing that his conviction cannot stand because the Government failed to allege or prove that the relevant interstate communications were made to effect some change or achieve some goal through intimidation. Alternatively, Jongewaard contends that two evidentiary rulings by the district court¹ deprived him of a fair trial. For the following reasons, we affirm.

I. BACKGROUND

In the waning hours of September 23, 2007, Larry Jongewaard placed a telephone call from his home in Omaha, Nebraska, to the home of Ted Schmidt in Mellette County, South Dakota. During this call, Jongewaard told Schmidt that he was going to kill Richard Jongewaard, Larry Jongewaard's uncle and Schmidt's best friend. Jongewaard repeated this threat to Schmidt as many as forty times in a series of calls that continued into the early morning hours of September 24. Jongewaard invited Schmidt to tape record their conversation (Schmidt did not), stating "I know this is illegal for me to say this and I'm saying it." Jongewaard went on to describe his plan to kill Richard with Richard's own gun and then to turn the gun on himself. Jongewaard also recounted spending a week or two near Richard's home the previous November, undetected, to "stake out the place."

At about 12:30 a.m. on September 24, Schmidt called Richard Jongewaard to inform him of the threat that Larry Jongewaard had made. Later that morning, Schmidt went with Richard to the Mellette County Courthouse to report Larry's threatening phone calls and to seek a restraining order on Richard's behalf.

Two months later, Larry Jongewaard called Schmidt after learning that he had been charged with violating 18 U.S.C. § 875(c). At first, Jongewaard denied making any threatening statements during the September 23 and 24 phone calls. Schmidt eventually interrupted Jongewaard and repeated the exact wording of Jongewaard's earlier threat to kill Richard Jongewaard. Jongewaard then acknowledged his previous statements but noted that he made them to Schmidt and not to Richard. Jongewaard told Schmidt that he planned to turn himself in and contest the charge, vowing that he would make Richard "look so bad" that Schmidt would be "embarrassed to be [Richard's] friend."

At trial, the Government presented testimony from Schmidt, Richard Jongewaard and two employees of telecommunications companies that provide service in Nebraska and South Dakota. Jongewaard filed a motion in limine seeking to prevent Schmidt and Richard Jongewaard from testifying about an incident that occurred in September 2004 in which Larry caused Richard to fear for his life. Jongewaard also objected to Richard's testimony regarding the call he received from Schmidt at about 12:30 a.m. on September 24, 2007, in which Schmidt told Richard about Larry's threat. The district court denied Jongewaard's motion in limine insofar as it related to the September 2004 incident and overruled his objection relating to the phone conversation between Schmidt and Richard. At the close of the Government's case-in-chief, Jongewaard moved for a judgment of acquittal, which the district court denied. Jongewaard was convicted and sentenced to 60 months' imprisonment, the top of the advisory sentencing guidelines range.

II. DISCUSSION

Jongewaard's principal argument is that the Government failed to allege or prove an essential element of 18 U.S.C. § 875(c); namely, that the relevant interstate communications were made to effect some change or achieve some goal through intimidation. The dispositive question is whether § 875(c) actually contains such a requirement. This is a question of law that we would ordinarily review de novo. See, e.g., United States v. Yockel, 320 F.3d 818, 822 (8th Cir.2003). However, because Jongewaard did not raise this issue before the district court, our review is for plain error. See, e.g., United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir.1996). Under the plain error standard, the defendant bears the burden of showing that an obvious error affected his substantial rights. United States v. New, 491 F.3d 369, 378 (8th Cir.2007). We have discretion to correct such an error "if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

Jongewaard insists that his proposed requirement that an allegedly unlawful communication be made to effect some change or achieve some goal is an element of § 875(c) rather than a limitation derived from the First Amendment or some other constitutional source.² Our inquiry therefore begins and ends with the unambiguous text of the statute. See Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) ("It is well established that `when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000))).

Section 875(c) provides that "[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." According to Jongewaard, the legislative history of § 875(c) shows that Congress intended to criminalize only a subcategory of threats aimed at inducing the person being threatened to act in a certain manner. This assertion is contrary to the statutory text, which prohibits transmitting in interstate commerce any threat to injure the person of another. The ordinary meaning of the term "threat" is not limited to statements made to effect some change or achieve some goal. See Black's Law Dictionary 1519 (8th ed.2004) (defining "threat" as "[a] communicated intent to inflict harm or loss on another or on another's property, esp. one that might diminish a person's freedom to act voluntarily or with lawful consent"); Webster's Third New International Dictionary 2382 (2002) (defining "threat" as "an expression of an intention to inflict evil, injury, or damage on another usu. as retribution or punishment for something done or left undone"). Rather, a statement constitutes a threat if it expresses an intention to inflict harm, loss, evil, injury, or damage on another, regardless of whether the person making the threat has a discernible purpose for communicating such an intention.

The plain language of § 875(c) thus criminalizes a broad spectrum of threats to injure the person of another, ranging from threats that are a means to achieving some tangible end, to threats that serve no discernible purpose other than intimidation for its own sake. Jongewaard cannot plausibly argue that Congress used "threat" as a term of art (i.e., to refer to a subcategory of goal-oriented threats), that the inclusion of the adjective "any" was a scrivener's error, or that the meaning of "any threat" is ambiguous. Since Jongewaard has not shown that the statute is ambiguous or that enforcing the statute as written would produce absurd results, we need not consider the legislative history of § 875(c). See In re Operation of Mo. River Sys. Litig., 418 F.3d 915, 918 (8th Cir.2005) ("Absent some ambiguity in the statute, we have no occasion to look to legislative history." (quoting Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1032 (8th Cir.2003))).

Jongewaard also relies on a controversial decision in which the Sixth Circuit held that "a communication objectively indicating a serious expression of an intention to inflict bodily harm cannot constitute a threat unless the communication ... is conveyed for the purpose of furthering some goal through the use of intimidation." United States v. Alkhabaz, 104 F.3d 1492, 1495 (6th Cir.1997); see generally Jennifer E. Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283, 309-11 (2001). For the reasons set out above, we reject the premise that a communication qualifies as a threat under § 875(c) only if it is a means to an end other than intimidation for its own sake. Cf. Alkhabaz, 104 F.3d at 1501 (Krupansky, J., dissenting) ("[The] statutory language commands only that the ... communication must contain any threat to kidnap or physically injure any person, made for any reason or no reason."). No other circuit has adopted the Sixth Circuit's narrow interpretation of § 875(c), and we decline to do so.³

Jongewaard's reliance on United States v. Bellrichard, 779 F.Supp. 454 (D.Minn. 1991), aff'd, 994 F.2d 1318 (8th Cir.1993), is likewise misplaced. In Bellrichard, Judge Murphy posed a series of hypotheticals designed to illustrate the significance of the constitutionally mandated "true threat" analysis in the context of a prosecution under 18 U.S.C. § 876. See id. at 459. Since Jongewaard expressly disclaims any challenge to his conviction under the First Amendment, Bellrichard is inapposite. Besides, Bellrichard did not suggest that a true threat must be made to effect some change or achieve some goal through intimidation.

Based on the foregoing analysis, we hold that Jongewaard's proposed change-or-goal requirement is not an element of § 875(c). Because the Government was not required to allege in the indictment or prove at trial that the relevant interstate communications were made to effect some change or achieve some goal through...