US v. Bellrichard, Crim. No. 4-91-25.

• Decision Date: 27 November 1991
• Docket Number: Crim. No. 4-91-25.
• Citation: 779 F. Supp. 454
• Parties: UNITED STATES of America, Plaintiff, v. Loren Francis BELLRICHARD, Defendant.
• Court: U.S. District Court — District of Minnesota

779 F. Supp. 454

UNITED STATES of America, Plaintiff, v. Loren Francis BELLRICHARD, Defendant.

Crim. No. 4-91-25.

United States District Court, D. Minnesota, Fourth Division.

November 27, 1991.

COPYRIGHT MATERIAL OMITTED

Elizabeth de la Vega, Asst. U.S. Atty., for plaintiff.

Scott Tilsen, Federal Public Defender, Minneapolis, Minn., for defendant.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

On October 9, 1991, following a four week trial, the jury returned a verdict finding defendant guilty on counts 4, 7, 9, 14, and 16 of mailing threatening communications in violation of 18 U.S.C. § 876, not guilty on nine other counts of mailing threatening communications, and not guilty on two counts of damaging buildings with an explosive device in violation of 18 U.S.C. § 844(i). Before the court are defendant's motions for a judgment of acquittal on the counts of conviction pursuant to Fed. R.Crim.P. 29, for a new trial pursuant to Fed.R.Crim.P. 33, and for an arrest of judgment pursuant to Fed.R.Crim.P. 34. The parties have briefed these motions and, in response to the direction of the court, have submitted supplemental briefs on the issue of third party threats.

Defendant's motion for judgment of acquittal under Rule 29 focuses on the sufficiency of the evidence. Such a motion should only be granted "where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged." United States v. Bredell, 884 F.2d 1081, 1082 (8th Cir.1989). The essential elements of the crime may be proven by circumstantial as well as direct evidence, and the evidence need not exclude every reasonable hypothesis except guilt. Id.

A motion for a new trial under Rule 33 should be granted if the evidence weighs sufficiently heavily against the verdict so that a serious miscarriage of justice may have occurred. United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980). The court need not view the evidence in the light most favorable to the verdict, but may weigh the evidence and evaluate the credibility of witnesses. Id. The authority to grant new trials "should be used sparingly and with caution." Id. Defendant raises various grounds for a new trial: the weight of the evidence, the court's decision not to supplement the jury instructions in response to a question from the jury, the overbreadth of 18 U.S.C. § 876 in light of the First Amendment, and the joinder of counts one and two (use of explosives) with counts three through sixteen (mailing threatening communications).

Defendant moves for an arrest of judgment under Rule 34 on the grounds that the offenses charged do not state an offense against the United States and violate the First Amendment, and that the court did not have jurisdiction over the offenses charged.

Defendant's motion for judgment of acquittal on counts 4, 7, 9, and 16 should be denied. There is evidence supporting the existence of each of the essential elements of the crimes charged. There is no dispute that the defendant wrote and mailed these four communications. He contends, however, that the writings do not express true threats, an essential element of the crime. The court has reviewed the language of each of these communications, and determines that a jury reasonably could conclude that they contain true threats; i.e., that there is language in each expressing an apparent intention to inflict bodily injury upon the addressees. See United States v. Neavill, 868 F.2d 1000, 1005-06 (8th Cir.1989); Martin v. United States, 691 F.2d 1235, 1240 (8th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983). The First Amendment also does not preclude conviction on these counts as will be discussed later.

Defendant's motion for a new trial on counts 4, 7, 9, and 16 should also be denied. Under the standards for Rule 33, the evidence does not weigh against the verdict. While there is room for different interpretations of certain phrases used by the defendant, the weight of the evidence supports the jury's verdict on each count. See Martin v. United States, supra, 691 F.2d at 1240 (question of whether language constitutes a threat is usually an issue of fact for jury). The jury was instructed on the relevance of the First Amendment in assessing whether the language constituted a threat or protected speech. The jury was also instructed that real threats should be distinguished from idle talk, something said in a joking manner, or exaggerated or extravagant statements. The jury was called upon to apply these instructions in deciding whether the defendant's language was mere political hyperbole or warnings of God's potential retaliation, as he contended. The evidence does not weigh against the conclusion that a reasonable recipient of these communications, familiar with the context, would interpret the language as threats.

Defendant's other grounds for a new trial on these counts are also unavailing. In response to a question from the jury, the court specifically referred it to the instructions as a whole. This is not a basis for a new trial. See United States v. Beverly, 913 F.2d 337, 357 (7th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 766, 112 L.Ed.2d 786 (1991). The Eighth Circuit has rejected defendant's argument that the statute is overbroad under circumstances similar to those found here, where the First Amendment was raised as a defense to charges that a communication contained both denunciation of the judicial process and explicit threats. United States v. Lincoln, 589 F.2d 379, 382 (8th Cir.1979). There is no basis for a new trial on these grounds.¹ Finally, the joinder of counts one and two with counts three through sixteen did not prejudice the defendant in presenting his defense such that a new trial is warranted. The jury was instructed to consider each count separately. Indeed, the jury acquitted the defendant on the bombing counts and nine of the fourteen counts of mailing threatening communications, indicating that it followed the instructions. In addition, evidence relating to the alleged bombings would have been admissible if the counts had been severed since it would have been relevant to the context in which the communications were sent. See United States v. Jones, 880 F.2d 55, 63 (8th Cir.1989). The court concludes that defendant's motion for a new trial should be denied as to counts 4, 7, 9, and 16.

Count 14 is another matter. This count involves an alleged threat by the defendant against two judges in a postcard he mailed to Tammy Hoeper, a high school student in Austin, Minnesota. The postcard, mailed May 3, 1989, stated in relevant part:

I sent Bill Nierengarten anonymously 2 pieces of correspondence in April asking him specifically to go lightly in sentencing Tony Holtorf. Obviously the demented, crooked bastard did not listen to me. The reason I sent them to him anonymously is because the crook would have had me jailed had I signed them. They already framed me once. They better not try it again or else God will blow up both those judges' houses again with them along with it. (emphasis in original).

Nierengarten was one of the judges involved in the defendant's earlier harassment conviction in state court. His house had been destroyed by explosion and fire in 1988. The postcard to Tammy Hoeper was sent shortly after damage to the home of another judge who had been involved in defendant's prior criminal case and sentence. Hoeper was the girlfriend of Tony Holtorf, a juvenile who had been handled as an adult and about whom the defendant had written to judges. The evidence at trial showed that the defendant felt a certain solidarity with Holtorf and Hoeper as fellow victims of the system.

There is a serious question whether the statute may be applied to this mailing consistent with the First Amendment. The statute extends to any "threat to injure the person of the addressee or of another." Since the defendant mailed a postcard to Ms. Hoeper which contains language similar to that found threatening in counts 4, 7, 9, and 16, it would, at first glance, seem reasonable to apply the statute to this card. The distinction between the mailings in count 14 and the other counts of conviction is that the mailing in count 14 discussed consequences to third parties rather than the addressees. A key issue is whether this distinction should make a difference on defendant's motion for judgment of acquittal. How far may the statutory phrase "or of another" be constitutionally extended? While the legal issues related to this count were briefly addressed at the time of trial, the court requested further briefs after the filing of the post-trial motions.

Although the question of whether the language used constitutes a threat is usually an issue of fact for the jury, Martin v. United States, supra, 691 F.2d at 1240, the context of the communication containing the language is relevant to whether a threatening communication has been mailed under 18 U.S.C. § 876. The standard for submitting the charge to the jury is objective and contextual: "If a reasonable recipient, familiar with the context of the communication, would interpret it as a threat, the issue should go to the jury." Id. See also United States v. Barcley, 452 F.2d 930, 933-34 (8th Cir.1971) (context of communication as between dissatisfied client and his attorney showed language could not have been threat, judgment of acquittal directed); Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (context in which language was used showed it was political hyperbole, not a true threat).

The communicative context of speech regulated by 18 U.S.C. § 876 implicates First Amendment concerns. The statute regulates speech. The defendant's speech in this case frequently related to the conduct of public officials in their public duties. Communications...