38 F.4th 662
8th Cir.2022Background
- Cody Leveke, a registered sex offender who had sought removal from the Iowa registry, sent two emails (subject: “Mass Shooting of the Iowa Legislature”) and an angry voicemail to Iowa State Senator Herman Quirmbach in September 2019 threatening violence against the legislature.
- Leveke’s second email invoked the Second Amendment and said the legislature “deserves a violent response,” and attached a news article about a contemporaneous mass shooting.
- Quirmbach and legislative staff treated the messages as threatening; law enforcement and capitol security were notified.
- Leveke was indicted on two counts of interstate communication of a threat under 18 U.S.C. § 875(c). Trial scheduling was repeatedly delayed by COVID-19 administrative orders; the case was transferred divisions and tried by jury in September 2020.
- A jury convicted Leveke on both counts; the district court sentenced him to 60 months’ imprisonment. Leveke appealed; the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Leveke) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence / true threat | Statements were ambiguous political hyperbole, not true threats | Messages were unambiguous threats communicated directly to the senator; recipients reasonably perceived danger | Affirmed: evidence sufficient; objective threatening nature proven |
| Jury instructions (intent and First Amendment) | Court should have required subjective intent to threaten; instruction improperly omitted objective component and sua sponte First Amendment comment was erroneous | Law requires intent to transmit a threat or knowledge it would be viewed as a threat plus objective determination that communication was threatening; instructions adequate overall | No reversible error; instructions fair and any omission harmless because statements were objectively threatening |
| Indictment sufficiency (pro se claim) | Indictment failed to allege that a reasonable person would interpret the statement as a threat | Indictment tracked §875(c) elements (interstate communication, threat, purpose or knowledge) and fairly informed the defendant | Affirmed: indictment legally sufficient on its face |
| Speedy trial — statutory and constitutional | Court unlawfully used ends-of-justice continuances to postpone jury trials districtwide for COVID; prejudice from nine-month delay | Court relied on districtwide administrative orders and case-specific findings; Leveke did not timely and unambiguously waive jury trial; no prejudice shown | Affirmed: §3161(h)(7) continuances reasonable; Sixth Amendment claim fails (delay not presumptively prejudicial) |
Key Cases Cited
- Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (defines “true threat” and lists factors for recipient’s reasonable interpretation)
- Elonis v. United States, 575 U.S. 723 (2015) (elements of § 875(c) require transmission for purpose of issuing a threat or with knowledge it would be viewed as a threat)
- United States v. Ivers, 967 F.3d 709 (8th Cir. 2020) (speaker’s subjective intent to act is irrelevant to true-threat analysis)
- United States v. Mabie, 663 F.3d 322 (8th Cir. 2011) (government need not prove subjective intent to intimidate to establish true threats)
- United States v. Dierks, 978 F.3d 585 (8th Cir. 2020) (discusses mental-state and objective components of § 875(c))
- United States v. Ganter, 3 F.4th 1002 (8th Cir. 2021) (standard of review for sufficiency of the evidence)
- Barker v. Wingo, 407 U.S. 514 (1972) (Barker factors for Sixth Amendment speedy-trial analysis)
- United States v. Seals, 915 F.3d 1203 (8th Cir. 2019) (circumstantial evidence may support conviction)