United States v. Waller

• Decision Date: 24 August 2012
• Docket Number: No. 12–1036.,12–1036.
• Citation: 689 F.3d 947
• Parties: UNITED STATES of America, Plaintiff–Appellee v. James Clay WALLER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

689 F.3d 947

UNITED STATES of America, Plaintiff–Appellee

v.James Clay WALLER, Defendant–Appellant.

No. 12–1036.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2012.

Filed: Aug. 24, 2012.

Scott Tilsen, FPD, Cape Girardeau, MO, for appellant.

Larry H. Ferrell, USA, Cape Girardeau, MO, for appellee.

Before SMITH, BEAM, and SHEPHERD, Circuit Judges.

PER CURIAM.

James Clay Waller pleaded guilty to one count of knowingly transmitting in interstate commerce, via the Internet, a communication containing a threat to injure the person of another, in violation of 18 U.S.C. § 875(c). The district court ¹ sentenced Waller to 60 months' imprisonment, applying a vulnerable victim enhancement under U.S.S.G. § 3A1.1(b)(1) and varying upwards under 18 U.S.C. § 3553(a) after considering Waller's culpability in the alleged murder ² of his wife. On appeal, Waller challenges his sentence. For the reasons that follow, we affirm.

I. Background

On July 26, 2011, Cheryl Brenneke contacted the Cape Girardeau County, Missouri Sheriff's Department concerning a threat to kill her. The threat appeared as a post on a website dedicated to followingdevelopments in the June 1, 2011 disappearance of her younger sister and Waller's estranged wife, Jacque Waller (“Jacque”). The threat was found under a discussion entitled, “Police Search for Missing Jackson Woman,” post number “4164.” The post stated: “You are dead I promise If those kids get hurt, your fault, accident, nobodys fault. Your dad threaten clay, I know he's all talk, I will get you 5, 10, 25 years from now. You have it coming.” The threat made Brenneke fear for her life and caused her to take precautions to protect herself, her family, and Jacque's three children.³ Brenneke believed at the time that Waller had murdered her sister and was now threatening to kill her.

Federal authorities learned that the threat originated from a computer located at Plaza Pawn, a pawn shop, in Cape Girardeau, Missouri. Authorities executed a federal search warrant and seized the computer. Surveillance cameras in Plaza Pawn verified that Waller was the sole operator of the computer at the time that the threat was posted.

An indictment charged Waller with knowingly transmitting in interstate commerce, via the Internet, a communication containing a threat to injure the person of another, in violation of 18 U.S.C. § 875(c). Waller pleaded guilty to the one-count indictment, and a presentence report (PSR) followed.

The PSR recommended a base-offense level of 12 and a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, resulting in a total offense level of ten. With a criminal history category of I, the PSR calculated a Guidelines-range sentence for Waller of 6 to 12 months' imprisonment. The government objected to the PSR. First, the government argued that two levels should be added to Waller's base-offense level under U.S.S.G. § 3A1.1(b)(1) because Waller knew or should have known that the victim of the offense was a vulnerable victim. Second, the government sought upward departures under U.S.S.G. § 4A1.3(a) and § 5K2.0 because (a) Waller's “criminal[-]history category substantially underrepresent[ed] the seriousness of [his] criminal history or the likelihood that [he would] commit other crimes,” and (b) “there exist[ed] aggravating circumstances, of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines, that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that described.” Finally, the government argued that, under the factors specified in § 3553(e), an upward variance was also justified.

At sentencing, the government offered Exhibit A, a 23–page sworn affidavit of FBI Special Agent Brian W. Ritter. Special Agent Ritter investigated Waller's threat to Brenneke and also served as a lead investigator into the June 1, 2011 disappearance of Jacque. The affidavit detailed evidence collected in the instant offense, evidence collected in Jacque's disappearance, and evidence of Waller's prior misdeeds. Twenty-four exhibits accompanied Special Agent Ritter's affidavit, which included sworn statements to law enforcement authorities, official police reports, and official court documents supporting the content of Special Agent Ritter's affidavit. The government provided the affidavit and exhibits to Waller's counsel in advance of the sentencing hearing. Waller did not object to the government's introduction, and the court's consideration, of the affidavit or the exhibits.

The government called Brenneke to testify. Brenneke testified that the state court had placed Jacque's and Waller's three minor children into her and her husband's care. The state court had denied Waller visitation with the children. According to Brenneke, Jacque married Waller in 1993. Brenneke and Jacque became “extremely close” in 2004.

Brenneke further testified that in June 2010, Jacque told Brenneke that Jacque was contemplating leaving Waller. But Jacque said “that she was afraid that Clay Waller would kill her if she left.” Jacque told Brenneke

that Clay told her that he was unhappy and that he wanted—and he was thinking about a divorce, and she said, Oh, you're unhappy. That works out really well, because I've been thinking the same thing.

And ... then all of a sudden he was kidding. And he got irate and ... drug [Jacque] into the house by the hair of the head. The kids witnessed this. He threw her against a wall and knocked some pictures off....

* * *

And he had went outside to get a gun or something, or [Jacque] thought he was leaving. She locked the door. And he kicked the door in. And [Jacque] told [Brenneke] that [Waller] said that divorcing him would be a death sentence.

According to Brenneke, Jacque was “very upset about it.”

Brenneke testified that from July 2010 to March 2011, Jacque “continue[d] to confide in [her] that [Waller] was continuing to threaten her.” Brenneke encouraged Jacque to leave Waller, telling Jacque that Waller was “all talk.” But Jacque indicated to Brenneke that she believed the threats “to be very serious.”

In March 2011, Jacque separated from Waller, and Jacque and the children moved in with Brenneke and her husband. While Jacque was at work, Brenneke and her family cared for the children. Jacque continued to confide in Brenneke that Waller “was continuing to threaten her life,” a topic they discussed daily. According to Brenneke, Jacque “was scared to death.” On one occasion, Waller told Jacque, “You think you're safe up there at your sister's. Well, you're not. I'll just wait for you to have to go to town and get you going to the grocery store.” Jacque was afraid. “[S]he would not sit on the couch without the curtains being closed for fear he would snipe her from the woods....” Waller told Jacque that “if he could not have her nobody would.” He said that “[n]obody else was going to raise his kids.” Waller told Jacque that “[i]t would be a death sentence to divorce him.”

Brenneke “begged [Jacque] to go to the police,” but Jacque insisted that going to the police would “just make it worse.” Jacque told Brenneke that she was “documenting everything at work.”

Brenneke testified that, prior to her disappearance on June 1, 2001, Jacque began dating another man, and the two were planning to move in together. Three days before Jacque disappeared, Jacque told Brenneke that she had informed Waller about her new relationship. Jacque told Brenneke, “I just can't do it anymore. If he's going to kill me, he's going to kill me. I can't live like that anymore. That's not living.”

On June 1, 2011, Jacque left to attend a meeting at a lawyer's office in Cape Girardeau where she and Waller were to sign divorce papers. Jacque told Brenneke that she would pick up her son, who had been visiting with his father, on the way home from the meeting. At 3:50 p.m. that afternoon, Jacque called Brenneke and told her that she just got out of the lawyer's office, and said that “[a]ll [she had] to do [was] run by and grab [her son] from [Waller's] house, and [would] be straight home.” Brenneke expected Jacque to be home around 5:30 p.m. When she did not arrive as expected, Brenneke began calling and texting her. Jacque did not respond. Jacque's boyfriend was also unable to contact Jacque. Brenneke called her parents and told them “they had a problem.” Unable to reach Jacque, Brenneke then called and texted Waller. After unsuccessfully trying to call and text him on several occasions, she left a message on Waller's phone, stating that if she did not hear from him within ten minutes, she would call the police. Waller immediately called her back and stated that the last time he had seen Jacque was at the lawyer's office. He told Brenneke that he had talked Jacque into letting him keep their son a few more days, which Brenneke did not believe. Brenneke frantically went downstairs and told her husband that “[h]e has killed her. I know he's killed her.” Brenneke stated that there was never a doubt in her mind from that moment on June 1, 2011, that “[Waller] murdered my sister.”

Brenneke reported Jacque as a missing person to the Jackson, Missouri Police Department. Brenneke also reported that Jacque had told her that Waller had threatened to kill her and their three children before and that she was worried.

Investigators soon verified that on June 1, 2011, at approximately 3:00 p.m., Jacque met with Waller at their divorce lawyer's office. After the meeting, Jacque telephoned her boyfriend and told him that she was on her way to Waller's house in Jackson, Missouri, to pick up her son. That telephone conversation lasted until she arrived at Waller's residence, ending at 4:05 p.m. No one except Waller has seen or heard from Jacque since her arrival at Waller's residence.

A diary on Jacque's work computer contained summaries of some of the...