United States v. Howard

• Citation: 947 F.3d 936
• Decision Date: 21 January 2020
• Docket Number: No. 18-4213,18-4213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Atrel E. HOWARD, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

947 F.3d 936

UNITED STATES of America, Plaintiff-Appellee,

v.Atrel E. HOWARD, Jr., Defendant-Appellant.

No. 18-4213

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 21, 2020

JOHN K. BUSH, Circuit Judge.

In our digitized age, enigmatic shorthand flourishes with new forms of written communication—from texts, to Instant Messaging, to Tweets, to Snapchats, to Instagram stories—in which the deciphering of acronyms, initialisms, and emojis can be difficult. But, we still have "old school" forms of communication, like phone calls and voicemails—in which one’s voice is used and words are not so easily lost in abbreviation or pictorialization. Usually unambiguous speech is fortunate, but sometimes, it can be quite disturbing. The latter is the case here, where the intent and purpose of a voicemail message came across as chillingly clear.

Atrel Howard Jr. appeals his conviction of transmitting a threat in interstate commerce to murder former U.S. Attorney General Eric Holder in violation of 18 U.S.C. § 875(c).¹ The issues before us are (1) whether the government violated Howard’s Fifth and Sixth Amendment rights and deprived the district court of jurisdiction by omitting the essential mens rea element as required by Elonis v. United States , 575 U.S. 723, 135 S. Ct. 2001, 192 L.Ed.2d 1 (2015) ; (2) whether the district court erred in instructing the jury as to what type of communication would constitute a "true threat" under § 875(c) ; and (3) whether the government presented sufficient evidence to support Howard’s conviction. For the reasons explained below, none of these arguments have merit. We therefore AFFIRM the judgment of conviction.

I.

On Sunday, November 12, 2017, a man identifying himself as Atrel Howard left the following voicemail for Eric Holder at the former attorney general’s law firm, Covington & Burling, LLP (Covington), where Holder is now a partner in Washington, D.C.:

Former U.S. Attorney General Eric Holder, I’m going to kill you. My name is – former U.S. Attorney General Eric Holder, I am going to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted, uh, uh, prisoner by the Common Pleas Court of Cuyahoga County of the State of Ohio, by Judge John Sutula, through the second part of the clause of the double jeopardy law of the United States Constitution stating that a man cannot be put twice in jeopardy of loss of life — I mean a man cannot be put in jeopardy of loss of limb for the same — a man cannot be twice put in jeopardy for a loss of limb for the same charge.

Uh, I started — we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional United States law as we speak. I was sentenced to 50 months in federal prison for a conviction of the federal offense of — beginning [sic ] originally an intentional assault of a federal agent or employee on the FBI agency premises.

(R. 49: Trial Trans., Lamb, PageID 500–01).

On December 12, 2017, a single-count indictment charged Howard with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, in violation of § 875(c). The jury trial commenced on July 26, 2019.

The government called Michael Lamb, Covington’s Director of Security, to testify regarding the standard procedure through which telephone calls received after business hours at the firm are routed to the proper attorney. Based on this process, Lamb testified that it was likely that once Howard made a call to Covington’s general telephone number, he was provided with instructions from an automated system regarding how to locate Holder’s extension via buttons on Howard’s phone. Once he was connected to Holder’s extension, Lamb explained, Howard would then have been able to leave a voicemail message directly on the former attorney general’s voicemail. Lamb further testified that, upon completion of every caller’s message, Covington’s central voicemail system creates an audio file in Outlook email. The system then saves the message to the server connected to the office where the attorney being called is located—for Holder, the Washington, D.C. office. Often, according to Lamb, Covington’s central server also is able to identify the caller’s name, number, and location. It did so in this case, identifying the caller of the November 12, 2017 voicemail as Atrel Howard, and the location where the call originated as a telephone with an area code assigned to Cleveland, Ohio.

United States Secret Service Special Agent Philip Hogan testified that during the criminal investigation, he definitively confirmed Howard’s identity as the voicemail caller. Hogan made the identification based on his work in a previous, unrelated January 2017 investigation, during which he became familiar with Howard’s voice. Additionally, upon review of telephone records and call logs obtained from the D.C. Metropolitan Police Department and AT&T, Hogan confirmed that the telephone number from which Howard placed the call belonged to Howard’s father, who is a resident of Cleveland, Ohio. According to Hogan, on Sunday, November 12, 2017—when Howard left the voicemail at issue—five sequential calls were made around 3:30 pm from the Cleveland telephone number of Howard’s father. The first four calls ranged from about 27 seconds to one minute and 29 seconds. After those calls, there was a fifth call, lasting in total about 3 minutes and 52 seconds, which Hogan testified matched the approximate amount of time it would have taken for Howard to pass through the automated system prompts and leave the one minute and 54 second voicemail message.

Karen Ford, Howard’s federal probation officer, also gave testimony that confirmed Howard’s voice on the voicemail. Ford testified that she had met with Howard, who was under her supervision, approximately one week prior to the November 12 call. At that meeting, Howard indicated that during the upcoming week, he would be staying at the City Mission, as well as with his father, in Cleveland.

Upon the government’s resting of its case, Howard filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, which the district court denied. Howard then testified on his own behalf. He denied leaving the voicemail message, and insisted that he would never have threatened a former attorney general in this manner. Howard also claimed that although he and Holder had never met, the former attorney general did in fact like Howard. Upon resting the defense’s case, Howard renewed his motion for judgment of acquittal, which the district court again denied. See Fed. R. Crim. P. 29.

The district court next gave the jury instructions, which began with a full reading of the indictment language related to the § 875(c) offense. Neither party objected at trial to any of the instructions. In fact, they were jointly proposed by the parties.

The jury found Howard guilty under § 875(c), and he was sentenced to a 30-month sentence for his § 875(c) offense, and a 24-month concurrent sentence for his supervised release violation.

II.

Howard challenges the § 875(c) conviction on three grounds: (1) the initial indictment omitted the essential mens rea element of an § 875(c) offense, based on the Supreme Court’s ruling in Elonis , 135 S. Ct. 2001 ; (2) the district court plainly erred in its jury instructions when directing jurors to evaluate Howard’s issuing of a "true threat" to Holder based on a reasonable person standard; and (3) the government failed to present sufficient evidence to support Howard’s conviction for issuing a "true threat" to Holder under § 875(c). We address each argument in turn below.

A. The Indictment

Howard first challenges the indictment’s sufficiency, arguing that the text failed to charge an offense, which deprived the lower court of jurisdiction. The indictment read as follows:

On or about November 12, 2017, in the Northern District of Ohio, Eastern Division, and elsewhere, ATREL HOWARD, did knowingly and willfully transmit in interstate and foreign commerce a communication containing a threat to injure the person of another, to wit: ATREL HOWARD called E.H., a former United States government official known to the grand jury, and left a voicemail threatening to murder E.H., all in violation of Title 18, Section 875(c), United States Code.

(R. 8: Indictment, PageID 14).

Specifically, Howard argues that the indictment language reflected a "reasonable person standard" that violated Elonis , 135 S. Ct. at 2012, where the Supreme Court held that an § 875(c) violation requires proof that a "defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." According to Howard, the prosecution had to do more than simply allege that Howard "knowingly and willfully left the voicemail" at issue; the indictment also needed to state, Howard contends, that he "intended to threaten or knew the voicemail would be interpreted as threatening" by Holder.² (Appellant Howard Br. at 16).

Generally, if a proper objection was made below, this court applies a de novo standard to review the sufficiency of an indictment. United States v. McAuliffe , 490 F.3d 526, 531 (6th Cir. 2007) ; United States v. Gatewood , 173 F.3d 983, 986 (6th Cir. 1999). "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). A defendant can challenge the sufficiency of an indictment—on grounds either that the district court lacks jurisdiction or the prosecutor failed to charge an offense—at any time during case proceedings. However, if the defendant...