U.S. v. Sovie

• Decision Date: 18 August 1997
• Docket Number: D,No. 614,614
• Citation: 122 F.3d 122
• Parties: 47 Fed. R. Evid. Serv. 781 UNITED STATES of America, Appellee, v. Mark Steven SOVIE, a/k/a Mark Beashaw, Defendant-Appellant. ocket 96-1276.
• Court: U.S. Court of Appeals — Second Circuit

Page 122

122 F.3d 122

47 Fed. R. Evid. Serv. 781

UNITED STATES of America, Appellee, v. Mark Steven SOVIE, a/k/a Mark Beashaw, Defendant-Appellant.

No. 614, Docket 96-1276.

United States Court of Appeals Second Circuit.

Argued Dec. 2, 1996.

Decided Aug. 18, 1997.

J. Scott Porter, Syracuse, NY, for Defendant-Appellant.

Charles E. Roberts, Assistant United States Attorney, Northern District of New York, Syracuse, NY (Thomas J. Maroney, United States Attorney, Northern District of New York, of counsel), for Appellee.

Before WINTER, Chief Judge, OAKES and NEWMAN, Circuit Judges.

WINTER, Chief Judge:

Mark Steven Sovie appeals from his conviction after a jury trial before Judge Pooler. The jury convicted Sovie of violating 18 U.S.C. § 875(c) by threatening his former girlfriend, Sherry Dominie, and her son, Ricky, in a series of interstate phone calls made on May 5, 1995. The jury acquitted Sovie on a second count charging a violation of the same law through a series of phone calls made on May 6, 1995. We affirm Sovie's conviction. However, we vacate the six-level enhancement under U.S. Sentencing Guideline § 2A6.1(b)(1) for evincing an intent to carry out threats and remand for resentencing.

BACKGROUND

Sovie's arrest on May 15, 1995, marked the end of a five-year period during which he and Dominie had a relationship that both parties have referred to as an "odyssey of abuse." The couple began dating in 1990, with Sovie first beating Dominie on her birthday, one month after they met. A pattern in which the two moved from state to state developed. At each locale, Dominie would report physical abuse to local police and would try to separate from Sovie. Inevitably, Sovie would find her, they would reunite, and the two would then move on to another state to allow Sovie to avoid pending abuse charges. They lived in Wyoming, Oregon, California, Minnesota, Montana, New York, and Florida. In September 1994, Dominie broke up with Sovie and moved back to her home in St. Lawrence County, New York. However, they continued to talk by telephone, with Sovie threatening to beat and kill her. The couple also spent nearly a week together in December 1994. The threatening phone calls continued--sometimes as many as 40 to 50 calls a day. Finally, in April 1995, Dominie reported the calls to the FBI.

On May 5, 1995, FBI Agent Timothy Dwyer provided Dominie with a tape recorder and two cassette tapes. On that day and the next, Dominie recorded four and a half hours of conversation involving 22 separate phone calls. At the time of the calls on May 5 and 6, Sovie was in Florida and sought to persuade Dominie to join him there. The persuasion was not friendly and included passages such as the following threat by Sovie:

Either get on the bus in the mornin' or you're gonna find somebody dead up there in New York.... You're gonna be dead and in a fuckin' casket....Sherry you're a dead motherfucker. You're just a walkin' dead woman.... No, Sherry. You ain't on that bus, I'm gonna kill you. Got it? One way or another. You're dead.

Sovie also threatened Dominie's son, Ricky, during the May 5 calls:

Ricky I'm gonna fuckin' hurt you so motherfuckin' bad you're gonna wish you were dead! You understand me.... Rick, I'll pound you right to fuckin' death you keep stickin' your nose in my business! ... You get ready for a beatin' of your fuckin' life.

On May 10, 1995, federal agents obtained an arrest warrant for Sovie. However, they could not locate him and instructed Dominie to tell Sovie that she wanted to meet with him. She arranged with Sovie to meet on May 15 at the Greyhound bus station in Syracuse, New York. On that day, Sovie altered the plans and called the bus company to state that he would meet Dominie at the Greyhound station in Watertown, New York. FBI agents arrested Sovie one block from the Watertown station.

At trial, the tapes were played for the jury, and Sovie was convicted under 18 U.S.C. § 875(c) for the threats made during the May 5 calls. Judge Pooler sentenced Sovie to 55 months imprisonment, to be followed by three years of supervised release. The sentence included a two-level enhancement for obstruction of justice pursuant to Guideline § 3C1.1 and a six-level enhancement for conduct evincing an intent to carry out a threat pursuant to Guideline § 2A6.1(b)(1).

DISCUSSION

On appeal, Sovie challenges his conviction and sentence on the grounds that: (i) the recorded statements do not constitute "true threats" conveying the "imminent prospect of execution," as required by caselaw interpreting Section 875(c); (ii) the district court erred in admitting evidence that Sovie had abused two former wives; (iii) the district court erred in not including a provocation defense in its charge to the jury and/or in not allowing Sovie to raise this defense during trial; (iv) the tape recordings were improperly admitted because of alleged tampering, and/or the scope of testimony concerning tampering was improperly restricted; (v) the multiple threats made over the course of May 5 and 6, 1995, were improperly grouped in two counts; (vi) the district court improperly rejected a request that Sovie undergo an examination to determine whether he was competent to stand trial; and (vii) both sentencing enhancements were erroneous.

A. Sovie's Statements as "True Threats"

Section 875(c) provides:

Whoever 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.

Under our caselaw, it is not enough to show the use of language that is literally threatening. Rather, to support a conviction, the government must show a "true threat," one that "on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.1976). "The test is an objective one--namely, whether an ordinary, reasonable recipient who is familiar with the context of the [threat] would interpret it as a threat of injury." United States v. Malik, 16 F.3d 45, 49 (2d Cir.1994) (internal quotation marks and citation omitted) (interpreting 18 U.S.C. § 876, companion statute to Section 875(c) that proscribes threats mailed via U.S. Postal Service). Finally, it is "not necessary for the Government to prove that [the defendant] had a specific intent or a present ability to carry out his threat, but only that he intended to communicate a threat of injury through means reasonably adapted to that purpose." Kelner, 534 F.2d at 1023 (citation omitted).

Sovie argues that the threats contained in the May 5 phone calls are not "true threats" because they lacked the necessary immediacy. However, the evidence was sufficient to allow the jury to conclude that Sovie's threats did convey "an imminent prospect of execution." Kelner, 534 F.2d at 1027. For example, referring to his demand that Dominie take a bus to Florida the very next day, Sovie said, "You ain't on the bus, I'm gonna kill you. Got it?"

Sovie also argues that the volatile nature of Sovie's and Dominie's relationship, which involved the mutual use of violent and abusive language, undermines the seeming immediacy of the May 5 threats. However, although the jury might have reached that conclusion, it could also reasonably conclude the opposite, particularly given the history of actual physical abuse of Dominie by Sovie. For example, it is undisputed that Sovie "beat Dominie at least once a week for almost five years," Brief of Appellant at 7, a history that would justify any reasonable person, aware of the context, not taking the May 5 threats lightly. In short, there was sufficient evidence that Sovie's statements were "true threats" under Section 875(c).

B. Evidence of Sovie's Abuse of Other Women

At trial, Sovie's two ex-wives testified about the physical abuse and battering they had suffered during their respective relationships with him. Sovie argues that the testimony was improperly admitted because it was not relevant to the charges in the instant case. However, Dominie testified that Sovie had informed her of his abuse of his prior wives. Her testimony tended to prove two critical elements of the crime: first, that Dominie reasonably perceived Sovie's phone calls as true threats, see Malik, 16 F.3d at 49; see also United States v. Aman, 31 F.3d 550, 553 (7th Cir.1994) (defining threat requirement of Section 876 as "a statement in the context or under circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm") (internal quotation marks and citation omitted); and, second, that Sovie intended to "communicate a threat of injury," Kelner, 534 F.2d at 1023. The testimony of the former wives that such abuse actually occurred importantly corroborated Dominie's testimony regarding what Sovie had told her about that abuse, and it was not an abuse of discretion for the district court to admit the testimony of Sovie's ex-wives.

C. The Provocation Defense

Sovie claims that Dominie provoked his threats by threatening Sovie himself in numerous conversations, including the ones on May 5 and 6, 1995. From this factual premise, Sovie argues that the district court erred by not including a "provocation defense" in the jury charge and by not allowing defense counsel to argue the provocation defense to the jury.

Insofar as Sovie claims that provocation is a justification or excuse constituting a legal defense to the crime, we disagree. In discussing the defenses of duress and necessity, the Supreme Court has noted that "[u]nder any definition of these defenses one principle remains constant: if there was a reasonable,...