United States v. Dierks

• Decision Date: 21 October 2020
• Docket Number: No. 18-2374,18-2374
• Citation: 978 F.3d 585
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Joseph Hilton DIERKS, also known as Joey Dierks, also known as @JosephDierks, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

978 F.3d 585

UNITED STATES of America, Plaintiff - Appellee

v.Joseph Hilton DIERKS, also known as Joey Dierks, also known as @JosephDierks, Defendant - Appellant

No. 18-2374

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2019

Filed: October 21, 2020

Rehearing and Rehearing En Banc Denied December 30, 2020^*

Richard L. Murphy, Timothy Vavricek, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff - Appellee.

Joseph Hilton Dierks, Pro Se.

Heather Quick, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Defendant - Appellant.

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Joseph Dierks was convicted of three counts of transmitting a threatening communication in interstate commerce, 18 U.S.C. § 875(c), based on a series of tweets he directed at United States Senator Joni Ernst. On appeal, he argues that there was insufficient evidence to convict him. He also says that the district court¹ improperly instructed the jury, erred in admitting testimony from a law enforcement officer about the meaning of his tweets, and erred by preventing him from introducing one of his tweets into evidence. We affirm.

I.

On August 15, 2017, the United States Capitol Police started an investigation into threatening tweets that @JosephDierks—a Twitter account controlled by Dierks—tweeted at Senator Ernst. They asked Waterloo, Iowa police to check on him and tell him to stop the threatening tweeting. A Waterloo officer confirmed that Dierks sent the tweets and she warned him that if he continued he might be charged with a crime. Dierks said that he had been trying to get Senator Ernst's attention because he wanted her help to join the Navy. He promised he would "tone it down."

Dierks did not "tone it down." The next day he sent a series of tweets at Senator Ernst's accounts, including the three charged in his indictment:

• u r sn army bitch and I'll @USMC u tf up :)(:

• I'll f u up seriously in my sleep²

• I'll beat ur ass in front of ur widow I promise that

Two days later, FBI Special Agents Thomas Reinwart and Scott Irwin interviewed Dierks. During their discussion, which did not focus specifically on the three charged tweets, Dierks admitted that his tweets could be interpreted as threatening.

The Government charged Dierks with violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce "any communication containing any threat ... to injure the person of another." At trial, in addition to the charged tweets, the Government introduced other tweets that Dierks sent around the same time and Agent Irwin testified about the meaning of some of the tweets. Dierks unsuccessfully tried to introduce another tweet that he thought was exculpatory.

The jury convicted Dierks on all three counts and the district court sentenced him to 72 months in prison.

II.

Dierks first claims there was insufficient evidence to prove that his tweets were "true threats" and not protected by the First Amendment. We review sufficiency of the evidence challenges de novo .³ United States v. Birdine , 515 F.3d 842, 844 (8th Cir. 2008). We view the record in favor of the verdict and resolve evidentiary conflicts accordingly, giving all reasonable inferences to the verdict. United States v. Conway , 754 F.3d 580, 587 (8th Cir. 2014).

A "true threat" is a "statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another." Doe v. Pulaski Cty. Special Sch. Dist. , 306 F.3d 616, 624 (8th Cir. 2002) (en banc). "[T]o decide whether there is sufficient evidence from which the jury can find that a reasonable recipient would interpret a communication as a threat, the communication must be viewed in textual context and also in the context of the totality of the circumstances in which the communication was made." United States v. Mabie , 663 F.3d 322, 331 (8th Cir. 2011) (citation omitted).

Dierks argues his tweets were political statements that, in context, could not be understood as threatening. It is true that we distinguish "political hyperbole" from true threats. Watts v. United States , 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) ; see also id. (when assessing threatening statements we must account for our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" (quoting New York Times Co. v. Sullivan , 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) )). But political context alone will not excuse a threat. See United States v. Bellrichard , 994 F.2d 1318, 1322 (8th Cir. 1993).

Dierks claims he wanted Senator Ernst's help to join the Navy. Although some of his tweets reference the armed forces (e.g., "u r sn army bitch and I'll @USMC u tf up :)(:"), the language he used is not the sort of overstated political hyperbole to which we give wide berth. See, e.g. , Watts , 394 U.S. at 706, 89 S.Ct. 1399 (draft protester could not be prosecuted for saying, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J."). Threatening communications that are not conditional, not clearly political in context, and do not "in any sense contribute to the values of persuasion, dialogue, and the free exchange of ideas," are true threats and fall outside of the First Amendment's protection. Bellrichard , 994 F.2d at 1322.

Dierks's tweets have no readily apparent political valence and the context of the dozens of other tweets Dierks directed at Senator Ernst intensifies their threatening message. On the same morning he sent the charged tweets, Dierks also sent tweets that read: "@joniernst I'll flatline ur ass like @tendoublezero lol," "@senjonernst [sic] i want u to die sorry not sorry," "@SenJoniErnst I'll end u cuz u think u r a man," and "@SenJoniErnst @TENdoubleZERO Ur a bitch deserving death I ask for life." D. Ct. Dkt. 56-7. Alleged political motivation does not overcome this threatening context.

Dierks next argues that his tweets could not be true threats because they do not make sense. The "true threat" doctrine only requires that a jury find that a defendant's statement was serious, not literal or even intelligible. See Virginia v. Black , 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). Even if "a person expresses himself in an outlandish, illogical manner," his statements can be seriously threatening. United States v. Mitchell , 812 F.2d 1250, 1256 (9th Cir. 1987), overruled on other grounds by Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists , 290 F.3d 1058, 1068–70 (9th Cir. 2002) (en banc). Dierks's tweets communicate, with varying degrees of clarity, a desire to hurt Senator Ernst. That it is not perfectly clear what it means to "USMC someone up" does not render the message of harm ambiguous.

Finally, Dierks argues that the Government never proved he transmitted the tweets "for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." Elonis v. United States , 575 U.S. 723, 135 S. Ct. 2001, 2012, 192 L.Ed.2d 1 (2015). We disagree. Dierks was warned before tweeting that his tweets were threats and he later admitted his tweets could be viewed that way. Dierks stresses that he only admitted that his tweets could be viewed as threats, not that he knew they would be viewed that way. However, a jury "can draw inferences about a defendant's intent based on all the facts and circumstances of a crime's commission." Rosemond v. United States , 572 U.S. 65, 78 n.9, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). Dierks's admission, the threatening content of his tweets, and the warning from the Waterloo police officer were enough to allow a reasonable jury to find that he intended his tweets as threats or knew they would be viewed that way. See United States v. Wynn , 827 F.3d 778, 785–86 (8th Cir. 2016) ("It is well established that a jury may infer intent from circumstantial evidence.") (citation omitted).

III.

The district court instructed the jury that, for each charged tweet, it must find (1) "the defendant knowingly transmitted a communication in interstate commerce," (2) "the communication contained a threat to injure another person," and (3) "the defendant intended the communication to be threatening and/or knew it would be considered threatening." D. Ct. Dkt. 55 at 12–14. Dierks finds three errors in these instructions. We review for abuse of discretion and will reverse only if the abuse was not harmless.⁴ United States v. Parker , 871 F.3d 590, 604 (8th Cir. 2017) ; United States v. Dvorak , 617 F.3d 1017, 1026 (8th Cir. 2010).

First, Dierks argues that the district court should have done more to define "threat" for the jury, making it clear that the statute punishes "serious threat[s]—not idle talk, a careless remark, or something said jokingly." D. Ct. Dkt. 43. Although we have affirmed cases where the district court provided a more extensive explanation of the term, we have never required such an instruction. See, e.g. , United States v. Koski , 424 F.3d 812, 820 (8th Cir. 2005). Dierks argues that omitting the proposed explanation precluded him from arguing that his tweets were cries for attention not to be taken seriously. This claim—that he did not intend his threats to be read seriously—is a different way of saying that Dierks lacked the necessary mens rea to violate § 875(c). But, as discussed below, the district court adequately instructed the jury on the mens rea requirement of the statute. In order to find him guilty, the jury must have determined Dierks intended to do more than seek attention.

Second, Dierks argues that the final element of the jury instructions—the mens rea element—should have required the...