United States v. Walker

• Decision Date: 23 November 2011
• Docket Number: No. 10–1092.,10–1092.
• Citation: 665 F.3d 212
• Parties: UNITED STATES of America, Appellee, v. Jeffrey Martin WALKER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

665 F.3d 212

UNITED STATES of America, Appellee,

v.Jeffrey Martin WALKER, Defendant, Appellant.

No. 10–1092.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 2011.Decided Nov. 23, 2011.

Jonathan Shapiro, with whom Alexandra Deal and Stern, Shapiro, Weissberg & Garin, LLP were on brief, for appellant.

Marshal D. Morgan, Assistant United States Attorney, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa and Luke Cass, Assistant United States Attorneys, were on brief, for appellee.

Before BOUDIN, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

A jury convicted defendant-appellant Jeffrey Martin Walker on charges of interstate stalking, cyberstalking, and mailing a threatening communication. On appeal, he challenges both the verdict and the ensuing sentence, presenting (among other issues) three questions of first impression in this circuit. Two of these questions involve statutory interpretation and the third involves the operation of Federal Rule of Criminal Procedure 12(e). After careful consideration of compendious briefing and well-marshaled arguments, we reject the appeal.

I. BACKGROUND

We rehearse the facts in the light most agreeable to the verdict, consistent with record support. United States v. Stevens, 640 F.3d 48, 49 (1st Cir.2011).

The appellant and his wife, Amy Walker, lived together with their pre-teen son, A.M.W., until their relationship soured. As with many such tales, there is an element of “he said, she said” regarding the cause of the discord. Amy says that the appellant had been physically and emotionally abusive; the appellant says that the marriage went downhill once the couple moved from Michigan to Puerto Rico so that Amy could accept a position as a court reporter.

The family moved to Puerto Rico in 2006, and Amy left the marital domicile in August of 2007. For the first few months after the separation, A.M.W. lived with his father in Puerto Rico. In December 2007, Amy repaired to the Puerto Rico family court, complaining that the appellant had prevented her from having any contact with her son and, in the bargain, was threatening to take the boy back to Michigan. Responding to Amy's entreaty, the family court barred the appellant from taking A.M.W. out of Puerto Rico.

The appellant defied the court's order and returned to Michigan with A.M.W. The court ordered him to bring the boy back. When he ignored that decree, the court found him in contempt and issued a warrant for his arrest. Meanwhile, the appellant obtained a temporary custody order from a Michigan court.

As the rift between the spouses deepened, Amy began receiving harassing and threatening e-mails. These communiqués were laced with derogations such as “whore” and “bitch” and contained threats to harm Amy if she continued her battle for custody.¹ Although the e-mails originated from A.M.W.'s e-mail account, A.M.W. testified that his father had composed them. Amy corroborated this identification, testifying that she inferred the appellant's authorship from certain habitual misspellings and turns of phrase.

Around this same time, the appellant threatened to “blow [A.M.W.'s] head off” with a shotgun. The appellant's brother, Jack, heard the threat and called the police. Alarmed by this development, Amy flew to Michigan and succeeded in obtaining a custody order from the court there. The Michigan court allowed Amy and her son to reside in Puerto Rico after Amy's supervisor at work, Chief Judge José Fusté of the United States District Court for the District of Puerto Rico, offered assurances that Amy would return to Michigan should subsequent proceedings require her presence.

Amy's return to Puerto Rico did not allay her trepidation. To keep tabs on her estranged husband's whereabouts, Amy surreptitiously used her knowledge of his password to monitor his e-mails. In this way, she learned that the appellant had contacted a militaristic website asking for pointers on wielding a knife in close combat. She also learned that the appellant had asked the author of a religious tome whether a man could commit premeditated murder and still be saved. Amy testified that these communications exacerbated her fears that the appellant intended to kill her and her young son.

Other actions during this period demonstrated the appellant's increasing desperation. For example, in the spring of 2008, he engaged in an extended correspondence with a private investigator in Puerto Rico. Although the appellant never hired the man, the relevant e-mails make it plain that the appellant wanted help in learning where his wife and son were living. In April, the appellant telephoned Amy's sister and described in gruesome detail how he would murder both his wife and his son if he lost the ongoing custody battle. Amy's sister related the threat to Amy. That summer, the appellant engaged in a long online chat with a counselor at New Hope ministries, a Christian counseling center. During this chat, he expressed his resolve to harm Amy and stated that he could have her killed for “a few hundred dollars.”

On the day before he made these statements, the appellant had purchased a one-way airline ticket to Puerto Rico. Upon viewing the appellant's planned itinerary in his in-box, Amy became frightened and contacted the authorities. On the day of the flight to Puerto Rico—August 23, 2008—agents of the Federal Bureau of Investigation (FBI) greeted the appellant at the Luis Muñoz Marín International Airport, arrested him as he deplaned, and charged him with criminal contempt (for defying the earlier orders of the Puerto Rico family court). In due course, the appellant received a ninety-day prison sentence.

While incarcerated, the appellant composed a letter to Amy, exhorting her to pray lest God harm her or A.M.W. Given the rancorous background of their relationship, Amy interpreted the appellant's jumbled prose as a threat. The appellant also wrote to one Tony Walker (a friend, but not a relative) about a fellow inmate's offer to kill Amy for him. In that letter, the appellant stated that he did not “know if [he] said yes to [the fellow inmate] or not.” The appellant also wrote that “[i]f a man or woman would have done what my wife and brother did to me, I would have killed them.” Tony viewed these comments as constituting a threat on Amy's life and informed her of them.

Before the criminal contempt sentence expired, a federal grand jury sitting in the District of Puerto Rico returned an indictment against the appellant. The indictment charged him with one count of interstate stalking, ten counts of cyberstalking (each count emanating from a particular communication), and two counts of mailing threatening letters. See 18 U.S.C. §§ 2261A(1)-(2), 876(c). After a twelve-day trial, a jury convicted the appellant on the interstate stalking count, four cyberstalking counts, and one “threatening letter” count. It acquitted him on the remaining counts.

The district court denied the appellant's motion for acquittal, Fed.R.Crim.P. 29, and imposed a 137–month incarcerative sentence. This timely appeal ensued. In it, the appellant is ably represented by new counsel.

II. ANALYSIS

The appellant musters a long list of remonstrances. We address below each of the various elements of this asseverational array.

A. Venue.

The appellant's first contention is that the district court committed reversible error when it denied his pretrial motion for a change of venue. The crux of this contention is that it was unfair to try him in the same courthouse where Amy worked as a court reporter. He muses that the jurors may have given extra credence to Amy's testimony because of her position and because of testimony that Judge Fusté (then the chief judge of Puerto Rico's federal district court) had “vouched” for Amy in the Michigan custody proceedings and had encouraged her to contact the FBI when she learned of the appellant's planned trip to Puerto Rico.² Based on these atmospherics, the appellant maintains that his motion to change venue should have been granted and the case transferred to, and tried in, some other district.

We review a district court's denial of a motion for a change of venue for abuse of discretion. See United States v. Pérez–González, 445 F.3d 39, 46 (1st Cir.2006). An abuse of discretion occurs “when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales.” United States v. Nguyen, 542 F.3d 275, 281 (1st Cir.2008). Within this rubric, a material error of law is invariably an abuse of discretion. United States v. Snyder, 136 F.3d 65, 67 (1st Cir.1998).

Venue requirements for criminal cases are set by statute. See 18 U.S.C. §§ 3232–3244; see also U.S. Const. amend. VI. Where, as here, those requirements are satisfied, the choice of venue is in the first instance a matter of prosecutorial discretion. The district court, however, may overrule that choice in certain narrowly circumscribed circumstances. As a general rule, a court must transfer a case to another district if an unacceptable level of prejudice against the defendant is likely to mar a trial in the original district. Fed.R.Crim.P. 21(a). This requires prejudice so great that the defendant cannot receive a fair trial. Id. A court also may transfer a criminal case to another district “for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.” Fed.R.Crim.P. 21(b).

The appellant's initial claim implicates Rule 21(a)—the mandatory transfer provision. This provision has been applied almost exclusively in cases in which pervasive pretrial publicity has inflamed passions in the host community past the breaking point. See, e.g., United States v. Angiulo, 497 F.2d 440, 440–42 (1st Cir.1974) (per curiam). Here,...