U.S. v. Myers, No. 95-20969

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before HIGGINBOTHAM, SMITH and BARKSDALE; JERRY E. SMITH
• Citation: 104 F.3d 76
• Parties: 46 Fed. R. Evid. Serv. 377 UNITED STATES of America, Plaintiff-Appellee, v. Randall Leroy MYERS, Defendant-Appellant.
• Docket Number: No. 95-20969
• Decision Date: 14 January 1997

Page 76

104 F.3d 76 46 Fed. R. Evid. Serv. 377 UNITED STATES of America, Plaintiff-Appellee,
v.
Randall Leroy MYERS, Defendant-Appellant. No. 95-20969. United States Court of Appeals,
Fifth Circuit. Jan. 14, 1997.

Page 77

David R. Millard, III, Paula Camille Offenhauser, U.S. Attorney's Office, Houston, TX, for plaintiff-appellee.

Kyle B. Johnson, Houston, TX, for defendant-appellant.

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

Before HIGGINBOTHAM, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Randall Myers appeals his conviction of, and sentence for, three counts of interstate transmission of threatening communications. We affirm the conviction but remand for resentencing.

I.

Myers is a Vietnam veteran with a history of mental illness. In 1981, he was diagnosed with Post-Traumatic Stress Disorder ("PTSD") and classified by the Veterans Administration as 100% disabled. He also suffers from bipolar or "manic-depressive" disorder, for which he has been prescribed lithium, and diabetes, for which he takes injections of insulin. As he readily concedes, failure to take his medication sometimes leads him to become easily agitated.

In March 1995, Myers's wife discovered a lump in her breast that she feared might be cancerous. When Myers inquired with the Veterans Administration about medical coverage for the tests and treatment she would need, he discovered that his benefits required him to pay a $150 deductible and covered only 75% of his wife's expenses beyond that amount. Unable to afford the copayment, Myers became convinced that his disabled veteran status entitled his wife to full coverage of her medical expenses.

Myers first attempted to negotiate this full coverage by calling the toll-free number for CHAMPVA, the organization administering his health benefits. After repeatedly failing to get through to CHAMPVA, however, he turned his attention to his congressman, William Archer. Myers phoned Archer's Washington, D.C., office from his Houston residence and spoke with Andrew Shore, a member of Archer's staff. Shore agreed to contact CHAMPVA on Myers's behalf but was unable to obtain the coverage Myers wanted. ¹

On March 22, 1995, Myers became dissatisfied with the response he was getting from Archer's office and telephoned Shore again. According to Shore, Myers was extremely

Page 78

emotional during this conversation, at various points crying, screaming, and yelling. Myers told Shore that if his wife died, he "would take matters into his own hands" and that Shore "should be sure to have plenty of body bags around." As one might expect, these statements caused Archer's staff serious concern. The office contacted the FBI, which installed a recording device on Shore's phone.

On March 24, Myers called again. This time the entire conversation was recorded, including the following exchange:

Shore: The other day[,] Randy, you talked about body bags and ...

Myers: Right and ...

Shore: ... And not being ...

Myers: ... And I'm still talking about body bags because if you do nothing what do you expect.

Shore: I don't, what should I expect?

Myers: I am going to get retribution for my and my family's suffering. You can take that to the bank.

Shore: What does that mean? I mean what do you ...

Myers: What it means, I'll do what, ah, like we said in Nam, whatever it takes.

Later in the conversation, Myers told Shore that he had a friend in Seattle who had TOW missiles, and spoke of "coming up there to die."

On April 7, Myers made a call to Carole Carrick, an employee of the Washington, D.C., office of the Paralyzed Veterans of America. Carrick took notes of the conversation and testified at trial that Myers sounded "angry" and had spoken to her in "a very loud voice." According to Carrick, Myers threatened the "VA and Congress with damage severe enough to make the explosion in the World Trade Center look like a picnic," and announced his intention to confront Archer on videotape. Myers also told Carrick that he was "head of the militia in this area" and made reference to AK-47 rifles being shoved into the faces of congressmen. Understandably concerned, Carrick informed Archer's office of the conversation.

A grand jury indicted Myers on three counts of interstate transmission of threatening communications in violation of 18 U.S.C. § 875(c). Count one stemmed from his statements to Shore on March 22 to the effect that if his wife died, Shore "should be sure to have plenty of body bags around." Count two stemmed from the references during the March 24 conversation to "body bags" and doing "whatever it takes" to get even with the government. Count three stemmed from his statements to Carrick on April 7 that he would cause the VA and Congress sufficient damage "to make the explosion in the World Trade Center look like a picnic."

A jury found Myers guilty on all three counts. He was sentenced to two concurrent twelve-month prison terms and to three three-year terms of supervised release, two of them concurrent and the third consecutive to the other two.

II.

Myers's first claim is that there was insufficient evidence as to all three counts of his conviction because the government failed to prove that he made the threats voluntarily. He argues that evidence of his psychological problems demonstrated that he was unable to control his actions, which in turn compels the conclusion that he acted involuntarily.

We review de novo the denials of Myers's motions for judgment of acquittal. United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992). We will affirm the jury's verdict if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict. United States v. Lewis, 92 F.3d 1371, 1380-81 (5th Cir.1996), petition for cert. filed (U.S. Dec. 16, 1996) (No. 96-7151); United States v. Gaytan, 74 F.3d 545, 555 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996). Our review of the sufficiency of the evidence does not include a review of the weight of the evidence or of the

Page 79

credibility of the witnesses. United States v. Garcia, 995 F.2d 556, 561 (5th Cir.1993). Moreover, the evidence "need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt." United States v. Lopez, 74 F.3d 575, 577 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1867, 134 L.Ed.2d 964 (1996).

Title 18 U.S.C. § 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." In this circuit, § 875(c) "requires proof that the threat was made knowingly and intentionally." United States v. Bozeman, 495 F.2d 508, 510 (5th Cir.1974), cert. denied, 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696 (1975). Pursuant to the Fifth Circuit Pattern Jury Instructions, the district court charged the jury that an act is done "knowingly" when it is done voluntarily and intentionally, and not because...