United States v. Leveke

• Decision Date: 21 June 2022
• Docket Number: 21-1335
• Citation: 38 F.4th 662
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Cody Ray LEVEKE, also known as Cody Meyer, also known as Cody Ray Meyers, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

38 F.4th 662

UNITED STATES of America, Plaintiff - Appellee

v.Cody Ray LEVEKE, also known as Cody Meyer, also known as Cody Ray Meyers, Defendant - Appellant

No. 21-1335

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2022

Filed: June 21, 2022

Jason T. Griess, MacKenzie Benson Tubbs, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Iowa, Des Moines, IA, for Plaintiff - Appellee.

Cody Ray Leveke, Marion, IL, Pro Se.

Heather Quick, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Iowa, Cedar Rapids, IA, for Defendant - Appellant.

Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Following a series of trial delays due to the COVID-19 pandemic, a jury convicted Cody Leveke of two counts of interstate communication of a threat, in violation of 18 U.S.C. § 875(c). The district court¹ sentenced him to a term of 60 months in prison. Leveke appeals and we affirm.

I. BACKGROUND

Leveke, a registered sex offender, spent the better part of a decade trying to be removed from the Iowa sex offender registry. In 2009, Iowa State Senator Herman Quirmbach agreed to try and help Leveke, who was then residing in Arizona. Senator Quirmbach repeatedly introduced bills to amend the law to allow out-of-state offenders the same opportunity as in-state offenders to petition for removal from the Iowa registry; however, his efforts were unsuccessful.

On September 3, 2019, Leveke sent Senator Quirmbach two emails with the subject line, "Mass Shooting of the Iowa Legislature," and left a voicemail on the senator's home phone. In his first email, Leveke complained about law enforcement unfairly targeting him and an invalid law being "still on the books." He wrote, "I'm angry enough to pull a mass shooting down at the State House." Leveke asserted the legislature was in violation of the Constitution and requested an explanation for the "illegal behavior" as well as the names of those responsible for "holding the bill up." He told Senator Quirmbach that those responsible "should live in fear."

About an hour later, Senator Quirmbach received an angry voicemail on his home phone from Leveke. Among other things, Leveke told Quirmbach that the senator could not violate the Constitution and get away with it. Concerned by the email and voicemail, Senator Quirmbach immediately notified law enforcement and the senate minority leader's office. Legislative administrative staff member, Debbie Kattenhorn, then informed the entire Iowa Legislature and capitol security about Leveke's messages.

That evening, Senator Quirmbach received a second email from Leveke under the same subject line of "Mass Shooting of the Iowa Legislature." This time, Leveke "order[ed]" the "Iowa Legislature to stand down with any attempts to violate the civil rights of anyone" and demanded that the existing law be taken off the books. He wrote that he believed the Second Amendment exists "so we can kill politicians" for not acting in accordance with the law. Leveke further stated that "the legislature deserves a violent response at this point." He also attached an article about a mass shooting in Texas that had been reported just hours before.

Leveke was indicted with two counts of interstate communication of a threat, in violation of 18 U.S.C. § 875(c). The course of the prosecution was impacted by the COVID-19 pandemic. Leveke's trial, originally set for March 30, 2020, in the Central Division of the Southern District of Iowa, was cancelled on March 16, 2020, when the court issued an administrative order postponing all jury trials in the Southern District of Iowa from March 16, 2020, until May 4, 2020, on ends of justice grounds related to the pandemic and attendant health risks. See U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-3-P (Mar. 16, 2020) (citing 18 U.S.C. § 3161(h)(7)(A) ).

While Leveke made a number of pro se requests to have his case proceed to trial, the relief he was seeking was not entirely plain. At one point, he moved for a bench trial while reserving his right to a jury trial. During a status conference, Leveke demanded a jury trial. Subsequently, he consented to a bench trial but conditioned his consent upon certain circumstances and simultaneously insisted on preserving his right to a jury trial. A couple months later, Leveke indicated he wanted a bench trial but refused to waive his right to a jury trial. Leveke requested his case be moved to another division that was conducting jury trials. Ultimately, the district court transferred Leveke's case to the Eastern Division and ordered a jury trial to commence on September 29, 2020.

Leveke's jury trial took place on September 29, 2020. Pursuant to a series of administrative orders, no jury trials were allowed in the Central Division—where Leveke's case was originally set to take place—until October 12, 2020. See, e.g., U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-19-P (Sept. 3, 2020). The court, after consulting with the United States Attorney, Federal Public Defender, and others, agreed the delay was proper given that "the number of new cases of COVID-19 in the Central Division ha[d] risen to the highest levels to date." Id. Each time the court delayed Leveke's jury trial, it found the time was excludable under the Speedy Trial Act.

The jury found Leveke guilty, and he was sentenced to a term of 60 months’ imprisonment. Leveke appealed and the clerk appointed counsel to represent him.

II. DISCUSSION

1. Sufficiency of the Evidence

At trial, Senator Quirmbach and Kattenhorn testified that they believed Leveke's messages posed a real and imminent threat. Leveke also testified, claiming his statements were hyperbole and he had no intention of killing anyone. He told the jury that his messages were meant to get the attention of the Iowa Legislature. On appeal, Leveke contends the government did not have sufficient evidence to prove he made "true threats" because his statements were ambiguous and/or political hyperbole.

"We review the sufficiency of the evidence de novo , viewing the evidence and credibility determinations in the light most favorable to the jury's verdict and reversing only if no reasonable jury could have found the defendant guilty." United States v. Ganter, 3 F.4th 1002, 1004 (8th Cir. 2021). "A conviction may be based on circumstantial as well as direct evidence. The evidence need not exclude every reasonable hypothesis except guilt." United States v. Seals, 915 F.3d 1203, 1205 (8th Cir. 2019) (quoting United States v. Tate, 633 F.3d 624, 628 (8th Cir. 2011) ) (internal quotation marks omitted).

This Court has defined a "true threat" as "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 Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc). When determining whether a reasonable recipient would have found the communication conveyed an intent to cause harm or injury, the factfinder may consider:

1) the reaction of those who heard the alleged threat; 2) whether the threat was conditional; 3) whether the person who made the alleged threat communicated it directly to the object of the threat; 4) whether the speaker had a history of making threats against the person purportedly threatened; and 5) whether the recipient had a reason to believe that the speaker had a propensity to engage in violence.

Id. at 623.

Our precedent establishes that the speaker does not have to intend to carry out the threat in order for the speech to fall outside of the First Amendment's protections. See United States v. Ivers, 967 F.3d 709, 720 (8th Cir. 2020) (noting whether the defendant had any intention of acting on the threat is irrelevant); United States v. Mabie, 663 F.3d 322, 333 (8th Cir. 2011) ("The government need not prove that Mabie had a subjective intent to intimidate or threaten in order to establish that his communications constituted true threats.").

Contrary to Leveke's argument that his statements were mere political hyperbole, a jury could have reasonably concluded that Leveke's messages constituted a true threat of present or future violence and that he intended to communicate a threat. Section 875(c) is violated if the government proves the defendant communicated a true threat and "transmitted [that] communication for the purpose of issuing a threat or with knowledge that the communication would be viewed as a threat." United States v. Dierks, 978 F.3d 585, 591 (8th Cir. 2020) (quoting Elonis v. United States, 575 U.S. 723, 740, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015) ) (cleaned up). Here, Leveke's statements were neither ambiguous nor ambivalent. Leveke explicitly threatened to conduct a mass shooting of the Iowa Legislature for the lawmakers’ alleged constitutional violation. He communicated his intent directly to Senator Quirmbach. Leveke expressed a belief that the Second Amendment was created so politicians (and perhaps others) may be killed for failing to act in accordance with the law. Both Senator Quirmbach and Kattenhorn testified that they found Leveke's statements to be threatening and frightening. Leveke testified that he wrote his emails to get the Senate's attention to provoke action. Leveke's statements were objectively threatening, and neither ambiguous nor political hyperbole. The evidence is sufficient to satisfy the elements required for convictions under § 875(c).

2. Jury Instructions

Leveke contends the jury instructions were erroneous because (1) they failed to define a "true threat" as a statement made by a defendant only when he subjectively intends to threaten the victim(s), (2) they did not require the jury to consider whether the statements were objectively "true threats," and (3) the court issued a sua sponte instruction regarding the First Amendment.

Before the district court, Leveke raised only one of these...