827 F.3d 778
8th Cir.2016Background
- In Aug. 2014, Alphonso Wynn, a VA housekeeping aid, called the VA Crisis Hotline multiple times saying he had a gun and would kill his supervisor after work-related disputes; hotline nurses notified police.
- Wynn was charged and convicted of (1) transmitting a threat via interstate commerce, 18 U.S.C. § 875(c), and (2) threatening a federal employee with intent to retaliate, 18 U.S.C. § 115(a)(1)(B).
- At trial the district court sentenced Wynn to time served; Wynn appealed both convictions raising multiple challenges (jury instructions, sufficiency of evidence, entrapment, and privilege).
- After the Supreme Court decided Elonis (mental state required for § 875(c)), the court concluded the § 875(c) jury instruction omitted the required mens rea; the government conceded that the § 875(c) conviction must be vacated if the § 115 conviction stands.
- The panel upheld the § 115(a)(1)(B) conviction: it held Wynn’s supervisor qualified as a protected federal "official/person" under the statute, the jury was properly instructed on the required intent to retaliate, the evidence supported conviction, entrapment instruction was not warranted, and the psychotherapist-patient privilege did not apply.
Issues
| Issue | Wynn's Argument | Government's Argument | Held |
|---|---|---|---|
| §875(c) mens rea / jury instruction | Instruction omitted the intent element required by Elonis; conviction must be reversed | Instruction error conceded as to Elonis; government argued harmless error or new trial if needed | Instruction was erroneous under Elonis; government agreed to vacate §875(c) if §115 upheld — court remanded to vacate §875(c) |
| Scope of §115(a)(1)(B) protected person (is supervisor protected?) | Horton (foreman) not a protected "official" under §115; word "official" narrows §1114 cross-reference | §115’s cross-reference to §1114 incorporates the officers/employees protected by §1114; Bankoff supports broad reading | Court adopted Bankoff: §115 covers federal employees identified in §1114; district court rightly denied dismissal |
| Mens rea and jury instruction for §115(a)(1)(B) | §115 requires proof of intent to threaten (like Elonis) and jury instruction was deficient | §115 requires subjective intent to retaliate plus objective true-threat element; instruction tracked that requirement | Court held the instruction properly required intent to retaliate and defined threat as a "true threat"; no error |
| Entrapment instruction request | Wynn: nurse giving Hotline number and circumstances show government inducement; jury should have been instructed on entrapment | Government: nurses provided help/opportunity, not inducement or creative governmental design | Court held evidence showed only opportunity/facilities, not inducement; denial of entrapment instruction proper |
| Patient–psychotherapist privilege | Calls to VA Crisis Line were privileged communications; admission violated privilege | No evidence nurses were licensed psychotherapists or calls were confidential treatment communications | Court found privilege not shown (no licensed psychotherapist, no evidence calls were confidential treatment communications); no plain error |
Key Cases Cited
- Elonis v. United States, 135 S. Ct. 2001 (Sup. Ct.) (mens rea required to separate true threats from protected/innocent speech)
- Neder v. United States, 527 U.S. 1 (Sup. Ct.) (omission of an element in jury instructions is subject to harmless-error analysis)
- United States v. Bankoff, 613 F.3d 358 (3d Cir. 2010) (§115’s reference to §1114 incorporates the broad class of officers/employees covered by §1114)
- United States v. Turner, 720 F.3d 411 (2d Cir. 2013) (§115 has objective true-threat element and subjective intent-to-retaliate element)
- Mathews v. United States, 485 U.S. 58 (Sup. Ct.) (entrapment requires government inducement plus defendant lack of predisposition)
- Jaffee v. Redmond, 518 U.S. 1 (Sup. Ct.) (psychotherapist–patient privilege protects confidential therapeutic communications)
- Feola v. United States, 420 U.S. 671 (Sup. Ct.) (historical expansion of federal protections for offenses against federal employees)
- Sherman v. United States, 356 U.S. 369 (Sup. Ct.) (entrapment occurs when criminal design is the product of government creative activity)