United States v. Williamson

• Citation: 903 F.3d 124
• Decision Date: 10 August 2018
• Docket Number: No. 15-3018,15-3018
• Parties: UNITED STATES of America, Appellee v. Jeffrey Henry WILLIAMSON, Also Known as Jeff Williamson, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

903 F.3d 124

UNITED STATES of America, Appellee

v.Jeffrey Henry WILLIAMSON, Also Known as Jeff Williamson, Appellant

No. 15-3018

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2017

Decided August 10, 2018

Richard K. Gilbert, appointed by the court, argued the cause and filed briefs for appellant.

Jeffrey H. Williamson, pro se, filed briefs for appellant.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Frederick W. Yette, Assistant U.S. Attorneys.

Before: Garland, Chief Judge, and Rogers and Srinivasan, Circuit Judges.

Opinion for the Court filed by Circuit Judge Srinivasan.

Srinivasan, Circuit Judge:

Jeff Henry Williamson was convicted of threatening to murder a federal law enforcement officer. Williamson raises several challenges to his conviction and sentence in this appeal. We reject most of his challenges, except that we remand the case to the district court to give Williamson access to jury-commission records as required by 28 U.S.C. § 1867.

I.

This case arises out of a 911 phone call Williamson made on June 19, 2014. In the call, Williamson threatened to murder a special agent of the Federal Bureau of Investigation named Brian Schmitt. Soon after, Williamson was charged with making a threat against a federal law enforcement officer "with intent to retaliate against such ... officer on account of the performance of official duties." 18 U.S.C. § 115(a)(1)(B).

Williamson chose to represent himself, and the case proceeded to trial. At trial, the government sought to show that the threatening 911 phone call was the culmination of Williamson’s longstanding obsession with Agent Schmitt, which dated back to a 2005 interaction between Schmitt and Williamson in Denver. In that interaction, Schmitt was involved in issuing Williamson a misdemeanor ticket for making harassing phone calls to the local FBI field office. Over the next three months, Schmitt was involved in issuing Williamson two additional tickets for making similar calls.

At trial, the government introduced evidence that, before the June 19, 2014, call at issue in this case, Williamson made a number of phone calls in which he had mentioned Schmitt. For example, on June 2, 2014, Williamson left fourteen messages for an Assistant U.S. Attorney in the District of Columbia. In his messages, Williamson complained about being harassed by FBI agents while he was in Washington, D.C., mentioning Schmitt by name several times. Williamson also referenced the tickets Schmitt had been involved in issuing him in Denver in 2005 and 2006. The series of messages became increasingly angry and threatening. In the last message, Williamson said that he would "smash the f— out of" the FBI agents he believed were harassing him, and "plead not guilty by reason of entrapment." Suppl. App. 414.

One week later, on June 9, Williamson called the office of FBI Agent Steven Olson, the agent who supervised Schmitt in Denver. Williamson told Olson’s assistant to "tell Brian Schmitt and Steve Olson that I am going to hunt them down and kill them." Suppl. App. 86. Williamson then said something to the effect that he was going to "pop them in the heads and blow them away." Id.

Ten days later, on June 19, Williamson issued the threat giving rise to his charge and conviction in this case. In a call to a 911 line, Williamson left a message in which he repeatedly stated that he would shoot FBI Agent Brian Schmitt "in his f—in head." United States v. Williamson , 83 F.Supp.3d 394, 399 (D.D.C. 2015).

At trial, Williamson admitted that he "did make the threat." App. 318. But he argued that he lacked the requisite intent to commit the crime because he had not issued the threat in retaliation against Schmitt for "the performance of official duties." 18 U.S.C. § 115(a)(1)(B). Rather, Williamson alleged, Schmitt and other FBI agents had been harassing him over a period of years for his political activism and that the harassment continued until Williamson made the 911 call. Williamson argued that he made the threat merely to stop the harassment. As a result, Williamson contended, he had not violated 18 U.S.C. § 115(a)(1)(B).

Williamson also sought to argue that he had been entrapped into making the threat. He suggested that Schmitt’s purpose for harassing him was to induce him to commit a crime. The district court denied discovery on entrapment and declined to issue an entrapment instruction, concluding that Williamson "failed to ‘proffer sufficient evidence from which a reasonable jury could find entrapment.’ " App. 159 (quoting Mathews v. United States , 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ).

The jury convicted Williamson of making a threat in violation of 18 U.S.C. § 115(a)(1)(B). The district court sentenced him to 96 months of imprisonment. See Williamson , 83 F.Supp.3d at 395.

On appeal, Williamson’s appointed counsel has submitted briefs challenging Williamson’s conviction and sentence. This court granted Williamson leave to file supplemental pro se briefs, in which he has advanced the same arguments pressed by his appointed counsel and also offered several additional ones.

II.

There are four arguments Williamson advances both through his appointed counsel and in his pro se briefs. First, he contends that the indictment was legally insufficient because it did not fairly inform him of the charged offense. Second, he argues that the district court erred in declining to instruct the jury on his proposed entrapment defense. Third, he submits that the district court improperly denied him access to jury-commission records. Fourth, he contends that the district court abused its discretion in several ways in sentencing him to 96 months of imprisonment.

We agree that Williamson was entitled to inspect jury-commission records under 28 U.S.C. § 1867, and therefore remand the case on that ground. We reject the three remaining arguments.

A.

To be sufficient under the Constitution, an indictment "need only inform the defendant of the precise offense of which he is accused so that he may prepare his defense and plead double jeopardy in any further prosecution for the same offense." United States v. Verrusio , 762 F.3d 1, 13 (D.C. Cir. 2014) ; see United States v. Resendiz-Ponce , 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). Federal Rule of Criminal Procedure 7(c) effectuates that understanding, requiring an indictment to contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." To meet those requirements, "[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (citation and internal quotation marks omitted).

The Supreme Court’s decision in Resendiz-Ponce is illustrative. There, the government indicted the defendant for attempted reentry into the United States in violation of 8 U.S.C. § 1326(a). The statute bars certain "alien[s]" from "attempt[ing] to enter ... the United States." 8 U.S.C. § 1326(a)(2). The indictment echoed the statutory language, while adding a time and place of the charged offense, stating: "On or about June 1, 2003," the defendant "attempted to enter the United States of America at or near San Luis in the District of Arizona." 549 U.S. at 105, 127 S.Ct. 782. The Court explained that, by using the statutory language and specifying the time and place of the offense, the indictment gave the defendant fair notice of the charge against which he would need to defend himself, and also enabled him to protect himself against future prosecution for the same offense. Id. at 108, 127 S.Ct. 782. In short, the case exemplified the understanding that "an indictment parroting the language of a federal criminal statute is often sufficient." Id. at 109, 127 S.Ct. 782.

The indictment in this case is much like the one upheld in Resendiz-Ponce . Here, the statute makes it a crime to "threaten[ ] to assault ... or murder" a "Federal law enforcement officer ... with intent to retaliate against" the "officer on account of the performance of official duties." 18 U.S.C. § 115(a)(1)(B). As in Resendiz-Ponce , the indictment echoes the operative statutory text while also specifying the time and place of the offense (as well as the identity of the threatened officer): "On or about June 19, 2014, within the District of Columbia, defendant ... did threaten to assault and murder a Federal law enforcement officer, that is, Brian Schmitt, a Special Agent with the Federal Bureau of Investigation, with intent to retaliate against such ... officer on account of the performance of his official duties." App. 47. And just as in Resendiz-Ponce , by parroting the statutory language and specifying the time and place of the offense and the identity of the threatened officer, the indictment adequately informed Williamson about the charge against him so that he could prepare his defense and protect his double-jeopardy rights.

Williamson contends that the indictment was insufficient because it did not identify particular "official duties" performed by Schmitt that motivated Williamson’s threat. The Court in Resendiz-Ponce rejected a similar argument. The defendant there, observing that the elements of the attempted-reentry offense include the commission of an overt act, contended that the indictment was deficient because it failed to allege any specific overt act he had performed. 549 U.S. at 109, 127 S.Ct. 782. The Court, though, thought it was enough for the indictment to allege the performance of an overt act in general (which the indictment had implicitly done by alleging an attempt to enter the United States), and that there was...