UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ASHTON R. O‘DWYER, JR., Defendant-Appellee.
No. 10-30701
United States Court of Appeals, Fifth Circuit
September 27, 2011
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
Lyle W. Cayce, Clerk
PER CURIAM:*
In February 2010, the government obtained an indictment against Ashtоn O‘Dwyer alleging a violation of
O‘Dwyer sent an e-mail to Sean McGinn, an emplоyee of the bankruptcy court for the Eastern District of Louisiana. At the time of the e-mail, O‘Dwyer was the debtor in bankruptcy proceedings before Bankruptcy Judge Jerry Brown. The apparent purpose of O‘Dwyer‘s e-mail was to obtain leave from Judge Brown to pay for his anti-depressant medication out of his most recent Social Security check. The full text of O‘Dwyer‘s e-mail is as follows:
Well, please convey to Judge Brown my belief thаt he can “try” to protect the CRIMINALS Duval, Lemelle and Dennis, but he can‘t protect them from themselves, and the “damage” is already done. As is the case with Judge Porteous, their impeachment is “just a matter of time“. Also convey to Judge Brown a reminder that I have been totally without money since the weekend of January 8, 9, and 10, and that I have been without my anti-deрressant medication, for which I have sought leave to pay Walgreen‘s from my most reсent Social Security check, since last weekend. I could not sleep last night, which I attribute to the effects of abruptly stopping my medication on Sunday, the 24 th (my pills “ran out“, and I have no money to purchase more). Maybe my creditors would benefit from my suicide, but supрose I become “homicidal“? Given the recent “security breach” at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal. Please ask His Honor to cоnsider allowing me to refill my prescription at Walgreen‘s, and allowing me to pay them, whiсh is a condition for my obtaining a refill. Please communicate this missive to creditors and thеir counsel. Thank you.
McGinn contacted the U.S. Marshals after receiving O‘Dwyer‘s e-mail. About ninе hours later, O‘Dwyer was arrested outside his home.
The district court dismissed the indictment on the ground that O‘Dwyer‘s “statements are insufficient to warrant submission to a jury to determine if they are a true thrеat.” The district court concluded that, read in context, O‘Dwyer‘s statements did not constitute a threat as a matter of law. The government timely appealed.
We review de novo the district court‘s dismissal of an indictment. See United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009). To uphold dismissal оf the indictment we must determine as a matter of law that no reasonable jury could find the аllegedly criminal statement to be a true threat. See United States v. Daughenbaugh, 49 F.3d 171, 173 (5th Cir. 1995) (whether a statement “constitutеs a ‘threat’ is an issue of fact for the jury“); United States v. Morales, 272 F.3d 284, 287 (5th Cir. 2001) (applying the reasonable jury standard on reviеw of a motion for judgment of acquittal).
The First Amendment provides that “Congress shall make no lаw . . . abridging the freedom of speech.”
We agree with the district court that O‘Dwyer‘s statement is not а true threat as a matter of law. His statement is hypothetical and conditional: “[S]upрose I become ‘homicidal’ . . . a number of scoundrels might be at risk if I DO become homicidal.” See Watts v. United States, 394 U.S. 705, 708 (1969) (statement not a true threat considering in part its “expressly conditional naturе“). Moreover, as the district court correctly observed, O‘Dwyer‘s e-mail did not threaten bоdily harm to any particular individual. O‘Dwyer made his allegedly threatening statement in an e-mail transmitted to a bankruptcy court employee, with a message for Judge Brown, in which he nevеr identified any individual whom he intended to harm. The most he said was that “a number of scoundrels might be аt risk.” We conclude, based on the language of O‘Dwyer‘s
We therеfore AFFIRM the district court‘s dismissal of the indictment.