967 F.3d 709
8th Cir.2020Background
- Ivers sued a life insurer; Judge Wilhelmina Wright granted summary judgment on most claims. Afterward Ivers sent Judge Wright and other court personnel angry letters and notes (e.g., “I am becoming a very dangerous person,” “walking bomb”).
- Ivers later called two attorneys from the District’s Pro Se Project; during a ~30-minute call the attorneys advised he lacked a viable claim, and near the end Ivers ranted for ~10 minutes and said, among other things, “You don’t know the 50 different ways I planned to kill her.”
- The attorneys reported the statements to the court and marshals; marshals investigated, observed Ivers’s continued agitation, prior conviction for threatening a state judge, and his refusal to retract or show contrition.
- A grand jury indicted Ivers on (1) threatening to murder a federal judge (18 U.S.C. §115(a)(1)(B)) and (2) interstate transmission of a threat (18 U.S.C. §875(c)). At an evidentiary hearing the district court ruled the threat statements were not protected by attorney-client privilege (it severed non-privileged threats from privileged legal advice portions). A jury convicted on both counts.
- On appeal Ivers challenged (a) application of attorney-client privilege, (b) sufficiency of evidence of a “true threat,” (c) alleged errors in jury instructions (mens rea and temporal element), and (d) cumulative error. The Eighth Circuit affirmed.
Issues
| Issue | Ivers' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether statements on the attorneys’ call were protected by the attorney‑client privilege | The entire call was privileged; the threat remark was made in the context of seeking legal advice and thus protected | Threats are not communications made to obtain legal advice; the threatening portion was severable and not privileged | Not privileged; threat statements were admissible because they were not made for the purpose of obtaining legal advice and occurred after the advice portion of the call |
| Whether evidence was sufficient to prove a “true threat” of present or future harm | Statements (including use of past tense) were hyperbolic, confidential to counsel, and did not show present/future intent | Totality of circumstances (history of threats, demeanor, prior conviction, reactions of recipients) supported a reasonable finding of a true threat | Sufficient evidence supports the verdict; a reasonable jury could find a true threat under the totality of circumstances |
| Whether jury should have been instructed that §115 requires a subjective intent that the statement be a threat | Elonis requires subjective intent to threaten; jury should have been so instructed | §115’s mens rea is limited to intent to retaliate for official acts (no separate subjective intent-to-threat element); Wynn controls | No error; government need only prove a true threat made with intent to retaliate for official duties, not a subjective intent that the statement be a threat |
| Whether jury instructions failed to require that a “threat” convey present or future harm | Instructions omitted explicit temporal language; jury needed to be told a threat must be present/future | Instruction noted that past expressions may be circumstantial evidence of present/future intent and defense argued the temporal distinction to the jury | No abuse of discretion; instructions (read with argument and evidence) adequately allowed jury to consider temporal element |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (explains purpose and scope of attorney‑client privilege)
- Fisher v. United States, 425 U.S. 391 (1976) (privilege narrowly construed; protects disclosures necessary for legal advice)
- Jicarilla Apache Nation v. United States, 564 U.S. 162 (2011) (Federal Rules direct privileges be governed by common‑law principles)
- Nix v. Whiteside, 475 U.S. 157 (1986) (threats/bribery to witnesses or jurors are not covered by attorney‑client protection in criminal context)
- United States v. Alexander, 287 F.3d 811 (9th Cir. 2002) (threats to commit violent acts are not communications to obtain legal advice)
- Pulaski County Special Sch. Dist. v. Doe, 306 F.3d 616 (8th Cir. 2002) (defines “true threats” and factors for assessing them)
- United States v. Bellrichard, 994 F.2d 1318 (8th Cir. 1993) (threat evaluation requires textual context and totality of circumstances)
- United States v. Wynn, 827 F.3d 778 (8th Cir. 2016) (§115 mens rea is intent to retaliate for official acts, not a separate subjective intent‑to‑threat requirement)