United States v. Justin Credico
17-1422
| 3rd Cir. | Dec 18, 2017Background
- Justin Credico made hundreds of calls to the FBI over years; on Feb. 4, 2014 he left eight voicemail messages for Special Agent Joseph Milligan that contained graphic threats to kill and sexually assault Milligan, another agent, and agents’ family members.
- Milligan played the messages on Feb. 6, 2014, had Special Agent Kevin Lewis record them onto a cassette, removed the record tabs, and brought the cassette to prosecutors.
- Credico was charged with four counts under 18 U.S.C. § 115(a)(1) for threatening federal agents and their immediate family members.
- At a Starks evidentiary hearing the government presented testimony (including Milligan and FBI agents) to authenticate the cassette; Credico presented expert testimony criticizing the recording method and arguing possible tampering.
- The district court admitted the tape; a jury convicted Credico on all counts. He appealed, challenging (1) admissibility/authenticity and chain of custody of the cassette, (2) sufficiency of intent under § 115(a)(1), and (3) certain jury instructions. The Third Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility / authenticity of cassette under Starks | Gov’t: produced sufficient foundation and witness testimony to show recording accurately reproduced Milligan’s voicemail inbox | Credico: tape was recorded in suboptimal way, possible alteration; Milligan could not recall an innocuous detail | Court: No abuse of discretion; Starks factors met and lack of tampering evidence dispositive |
| Chain of custody sufficiency | Gov’t: testimony traced custody reasonably; tape had contemporaneous markings and removed tabs | Credico: gaps in custody and expert could not preclude tampering | Court: gaps go to weight not admissibility; reasonable probability of no material alteration; jury could consider defects |
| Sufficiency of intent under §115(a)(1) | Gov’t: Credico acted with subjective intent to retaliate against agents because he believed they caused his expulsion | Credico: agents never actually took official action, so he could not have intended to impede or retaliate for official duties | Court: mens rea is subjective belief; Credico admitted threats were made because he believed agents were involved — sufficient for conviction |
| Jury instructions — conditional threats & Elonis impact | Credico: requested instruction that conditional or non-specific threats are not "true threats"; also sought instruction requiring subjective intent per Elonis | Credico: threats were conditional and Elonis requires subjective mens rea | Court: refusal to give conditional-threat instruction not error—conditionality is not dispositive; district court already gave subjective-intent instruction so Elonis issue moot |
Key Cases Cited
- United States v. Starks, 515 F.2d 112 (3d Cir. 1975) (tape-recording admissibility factors and need for clear-and-convincing foundation)
- United States v. Green, 556 F.3d 151 (3d Cir. 2009) (standard of review for evidentiary rulings)
- United States v. Rawlins, 606 F.3d 73 (3d Cir. 2010) (chain-of-custody gaps affect weight, not automatic exclusion)
- United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir. 2013) (standard for sufficiency review)
- United States v. Kosma, 951 F.2d 549 (3d Cir. 1991) (contextual approach to determining true vs. conditional threats)
- Elonis v. United States, 135 S. Ct. 2001 (2015) (interpreting scienter requirement in a different federal threats statute)