UNITED STATES of America, Plaintiff-Appellee, v. Alphonso WYNN, Defendant-Appellant.
No. 15-2008
United States Court of Appeals, Eighth Circuit.
July 1, 2016
Rehearing Denied Aug. 5, 2016.
827 F.3d 778
Submitted: January 15, 2016
Counsel who presented argument on behalf of the appellee was Kristin Huntington Bryant, AUSA, of Little Rock, AR.
The following attorney(s) appeared on the appellee brief; John Ray White, AUSA, of Little Rock, AR.
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
LOKEN, Circuit Judge.
In August 2014, Alphonso Wynn worked for the Veterans’ Administration (now the Department of Veterans Affairs) as a housekeeping aid at the V.A. hospital in Little Rock, Arkansas. On August 24, Wynn called a V.A. Crisis Hotline and said he had a gun and was going to shoot his supervisor due to work-related issues. Wynn was subsequently charged and convicted of transmitting a threat to injure through interstate communications,
We conclude that the district court‘s jury instruction defining the elements of an
I. Background.
On the day in question, Andrew Horton and Albert Moore were Foremen of Housekeeping Aids in the hospital‘s Environmental Management Services department, with supervisory authority over Wynn. When Wynn arrived at work, he expressed frustration to Horton over not receiving more overtime shifts. Horton testified that he told Wynn, “whatever it is that‘s agitated you or [is the] problem here, that‘s the past, and we can‘t change the past. So just do the best you can do for today.” Moore saw Wynn shortly thereafter and heard Wynn say that “he was going to get his .357 [revolver] and blow him away.” Moore responded: “Please don‘t say anything like that, because that kind of talk we can‘t tolerate around here. And if you say it again, I‘ve got to do something about it.”
At about eight a.m., Wynn complained to Horton that a coworker had received overtime. Horton replied, “I have nothing to do with that, and neither should you, because this is something that‘s completely out of our hands. . . . Let it go. Go back to work.” Wynn returned to Horton, dropped his keys on the desk, and said, “Look, I‘m through for the day. I can‘t work anymore.” Horton told Wynn he was needed and if he left work he would be reported as absent without leave (“AWOL“). Wynn said something to the effect of “so be it” and left. Horton reported Wynn AWOL.
Shortly thereafter, Wynn went to the V.A. hospital‘s emergency room. James Alexander, R.N., testified that Wynn complained that he was too stressed to work and that his supervisors were going to report him AWOL. David Schmidt, M.D., testified that Wynn did not appear to be suffering from stress and did not report harmful ideations. Dr. Schmidt told Wynn to take the day off and return for an outpatient psychiatric appointment the following day. At Dr. Schmidt‘s request, Nurse Megan Taylor gave Wynn work-release and discharge notes, which reported a diagnosis of stress and provided information on how to follow up and the Hotline phone number.
At about four p.m., Wynn called the Hotline multiple times. Two nurses working in the acute psychiatric unit of the V.A. hospital in North Little Rock responded to Wynn‘s calls. Nurse Kristen Kemp, who answered the first two calls, testified that Wynn said he “was really stressed-out[,] that he wanted to inflict harm on his supervisor because he was unable to take sick leave and they were going to give him AWOL,” and that Wynn was specific that “[h]e wanted to kill his supervisor.” According to her notes, Wynn told her: “I went outside [the V.A. hospital] for a couple of hours and waited for [my supervisor] to come out and I had a gun.” She testified that Wynn said he “want[ed] to pop a cap in him, bang-bang, pow-pow.” Although Kemp does not report most Hotline calls, she called the police because Wynn would not calm down, refused treat
Wynn soon called the Hotline again. Nurse Thomas Boyd responded. According to notes Boyd made during the call, Wynn stated, “I‘m sitting here with a gun in my face and I don‘t care anymore. I‘m not suicidal but I will shoot the hell out of somebody.” Boyd told Wynn to go to the emergency room. Wynn refused, then stated, “I needed a day off work [due to] stress and when I told my supervisor this, he put me as AWOL. I am going to shoot the hell out of that mother fucker. I might just come back up [to the V.A. hospital] now.” Boyd notified police of Wynn‘s location, which Wynn stated during the call.
II. The 18 U.S.C. § 875(c) Conviction.
Section 875(c) provides that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat . . . to injure the person of another, shall be fined under this title or imprisoned not more than five years.” In Elonis, the Supreme Court held that a violation of this criminal statute requires proof of a mental state that separates wrongful from innocent conduct, a requirement that applies “to the fact that the communication contains a threat.” 135 S.Ct. at 2011. Wynn argues that the district court‘s pre-Elonis instruction did not include this intent element, and the
The government concedes the jury instruction was erroneous under Elonis, which applies as the case is on direct appeal, but argues the error was harmless given the overwhelming evidence of Wynn‘s intent to threaten. See Neder v. United States, 527 U.S. 1, 15 (1999) (“[T]he omission of an element [from the jury instructions] is an error that is subject to harmless-error analysis.“); United States v. Carlson, 787 F.3d 939, 947-49 (8th Cir. 2015); United States v. Cacioppo, 460 F.3d 1012, 1025 (8th Cir. 2006). Wynn argues instruction error that “impermissibly alters the prosecution‘s burden of proof” is never harmless, a contention rejected in Neder. Alternatively, he argues that the trial record contains little evidence of Wynn‘s intent, and certainly not overwhelming evidence. The government replies that, if the evidence of intent to threaten was not overwhelming, it was at least sufficient to warrant a new trial. Wynn counters that the government does not deserve a new trial because it “effectively waived any argument that the evidence adduced at trial was sufficient” by having evidence of Wynn‘s subjective intent excluded through a motion in limine, citing Burks v. United States, 437 U.S. 1 (1978).
These harmless error issues are complex. However, the government stated at oral argument that it agrees to the vacating of Wynn‘s
III. The 18 U.S.C. § 115(a)(1)(B) Conviction.
Section 115(a)(1) provides that “[w]hoever . . . (B) threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under [
A. Was Supervisor Horton a Protected “Official“?
Wynn argues that the person he threatened—Horton—is not protected by
In describing the persons protected,
In Bankoff, after reviewing the complex history of this strangely-worded statute, the Third Circuit concluded “that when
Like the Third Circuit, we turn to the history of these statutes. Section
When Congress enacted
that Congress used “official” in
§ 115 as a general term to incorporate by reference all the “officers,” “employees,” “members,” and “agents” of the federal departments and agencies listed in§ 1114 . By doing so, Congress avoided the need to restate the lengthy list in§ 115 itself. . . . Moreover, we think it implausible that Congress used the term “official” as a limitation on the persons enumerated in§ 1114 , yet declined to define that term or provide any indication as to how courts (or, presumably, juries) were to determine which of the enumerated [personnel] listed in§ 1114 also qualify as “officials.” Id. at 369-70.
Though the interpretive question is not free from doubt, we agree with the Third Circuit‘s analysis. To be sure, Congress has cross-referenced
The interpretive problem is aggravated by the fact that the expansion of
For these reasons, the district court did not err when it denied Wynn‘s motion to dismiss Count One of the indictment and instructed the jury on the elements of “the crime of threatening retaliation against a federal employee.”
B. Was the Jury Properly Instructed?
Wynn argues the district court erred in instructing the jury on the elements of Count One because
C. Was the Evidence Sufficient To Convict?
Wynn argues the evidence was insufficient to convict him of violating
D. The Entrapment Defense.
Wynn argues that the district court erred in refusing to instruct the jury on his entrapment defense. A defendant is entitled to an instruction on the affirmative entrapment defense if sufficient evidence exists from which a reasonable jury could find that government entrapped him. See, e.g., United States v. Kendrick, 423 F.3d 803, 807 (8th Cir. 2005) (quotations omitted). At the close of the evidence, the district court denied Wynn‘s timely request, explaining:
I don‘t think that the entrapment defense applies here. The government did not—no one from the government encouraged or solicited or induced Mr. Wynn to make a threat. They did tell him if he needed help, to call the hotline. But I don‘t think that constitutes entrapment.
We review the denial of a requested entrapment instruction de novo. United States v. Young, 613 F.3d 735, 743-44 (8th Cir. 2010), cert. denied, 562 U.S. 1159 (2011).
“[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in criminal conduct.” Mathews v. United States, 485 U.S. 58, 63 (1988). To warrant an instruction, a defendant alleging entrapment must “show that the government agents implanted the criminal design in his mind and induced him to commit the offense.” Kendrick, 423 F.3d at 807 (quotations omitted). Wynn argues the evidence that Nurse Taylor provided him with the Hotline telephone number was sufficient evidence of government inducement to submit his entrapment defense to the jury. Like the district court, we disagree.
Taylor was a medical professional providing resources to help V.A. patients handle medical emergencies, not a law enforcement officer engaged in criminal detection or prosecution. Nurse Kemp testified that the Hotline exists so that “if a veteran becomes suicidal, homicidal, or [experiences] any kind of crisis, they can call us and try to get help. We try to help them.” Taylor and the Hotline nurses did not induce Wynn to use the Hotline to make criminal threats. At most, Taylor provided Wynn information that gave an opportunity to make threats that violated
Wynn further argues that the district court erred in denying his motion for a judgment of acquittal because he was entrapped as a matter of law. This contention is without merit. When a defendant requests and is properly denied a jury instruction because no reasonable jury
E. The Patient-Psychotherapist Privilege Issue.
Finally, Wynn argues for the first time on appeal that his
For the foregoing reasons, we affirm the