Decided: January 7, 2016
The Fourth Circuit affirmed the jury verdict convicting the defendant of three counts in violation of 18 U.S.C. § 875(b), and one count in violation of § 875(c). Additionally, the Fourth Circuit affirmed the district court’s 92-month term of imprisonment.
White, the defendant, has previously been imprisoned for making threatening phone calls and sending intimidating letters. During his incarceration, his relationship with his now-ex-wife, MW, deteriorated and led to a separation in which MW agreed to pay White alimony. While White was temporarily out of prison on supervised release, he fled to Mexico with an acquaintance named Sabrina Gnos. After MW learned that White had fled the country, she stopped making the alimony payments for fear that she would be aiding a fugitive. White then attempted to persuade MW to continuing the payments and became the basis of the indictment in this case. White sent several emails demanding that his alimony payments be made, or he was going to have someone use physical force to harm MW. He even asked Gnos to help him find someone to help force her to make these payments. White was then arrested in Mexico and was deported to the United States. He was charged with four counts of violating 18 U.S.C. § 875(b), which penalizes “[w]hoever, with intent to extort from any person…any money…,transmits in…foreign commerce any communication containing any threat to…injure the person of another[.]” At trial, despite the testimony from Gnos, White claimed that he did not send those emails. The jury returned a verdict finding him guilty of violating § 875(b) on three counts and violating § 875(c) on another count, which is a lesser crime than § 875(b) that does not require the person making the threat to have the “intent to extort.” The trial judge sentenced White to 92 months in prison, at the low end of the United States Sentencing Guidelines range.
On appeal, White attacks the legal requirements for conviction pursuant to § 875(b) and (c). White argues that the indictment against him was legally deficient and should have been dismissed because he could not have intended to extort alimony payments to which he was legally entitled.
First, the Fourth Circuit looked at the § 875(c) conviction. The district court instructed the jury that it could convict White pursuant to § 875(c) if he transmitted a true threat in interstate commerce, without regard to his subject intent. However, according to the Supreme Court, in Elonis v. United States, a conviction pursuant to § 875(c) requires: (1) that the defendant knowingly transmitted the communication in interstate or foreign commerce; (2) that the defendant subjectively intended for the communication as a threat; and (3) that the content of the communication contained a “true threat” to kidnap or injure. Even though the district court omitted the issue as to whether White sent the email containing the threat with the knowledge that the communication would be viewed as a threat, the Fourth Circuit found this error to be harmless. Because the record contained no evidence that would rationally lead a jury to conclude the sender of the email intended to do anything other than threaten the recipient, and because the jury concluded beyond a reasonable doubt that White was the sender, the district court’s error in instructing the jury was harmless.
Next, the Fourth Circuit reviewed White’s three § 875(b) convictions. Similar to § 875(c), this statute prohibits the transmission in interstate or foreign commerce of threats to kidnap or injure; however, it also requires the threatening communication to be sent “with intent to extort from any person…any money or thing of value.” The Fourth Circuit held that the intent to extort for purposes of § 875(b) is the intent to procure something of value through the use of a wrongful threat to kidnap or injure the person of another. Therefore, the Fourth Circuit concluded that one cannot have the intent to scare someone into relinquishing property or something of value by communicating a wrongful threat to kidnap or injure without also intending the communication to be threatening. Here, since the jury charge required the finding that White intended to threaten MW to induce her to pay the alimony, there was no error in the instruction. White also argued that he could not have intended to extort MW because he had a “claim of right” to the alimony payments. Again, the intent to extort is the intent to procure something of value through the use of a wrongful threat to kidnap or injure the person of another. The key word is “wrongful.” The Fourth Circuit stated the “claim of right” defense applies to “legitimate economic threats” and not threats of violence. Therefore, the legal framework was proper.
Further, the Fourth Circuit found no abuse of discretion in the district court’s use of an anonymous jury due to White’s prior convictions reflecting his willingness to use threats and personal information to intimidate people involved in judicial proceedings. The district court took appropriate safeguards to protecting White’s right to a fair trial by instructing the jurors that the anonymity was to prevent the press from communicating with them during trial. Additionally, the Fourth Circuit determined the admittance of the Gnos notes into evidence created a harmless error, even if the notes were determined to be inadmissible hearsay. Here, the weight of all of the evidence was sufficient for a jury to convict White on all of the charges, and the district court’s denial of White’s motion for judgment of acquittal was appropriate.
Finally, White argued that his sentencing was unreasonable. He first asserts that the district court erred in applying the two-level enhancement for obstruction of justice, rendering his sentence procedurally unreasonable. Second, White claimed his sentence was substantively unreasonable because the district court improperly considered his political views. Third, White contended that the district court erred by failing to group his counts of conviction under § 3D1.2 of the Sentencing Guidelines. However, the Fourth Circuit found no merit in each of these arguments, and the 92-month sentence, on the low end of the Sentencing Guidelines was appropriate. Even though there were a few harmless errors from the district court, the Fourth Circuit ended by stating, “A defendant is entitled to a fair trial, not a perfect one.” Here, White received a fair trial, and there was no reason to disturb the jury’s verdict or the district court’s sentence.
Austin T. Reed