United States v. Atrel Howard, Jr.United States v. Atrel Howard, Jr.
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cr-00519-1—Solomon Oliver, Jr., District Judge.
Decided and Filed: January 21, 2020
Before: KETHLEDGE, BUSH, NALBANDIAN, Circuit Judges.
COUNSEL
ON BRIEF: Donald Butler, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
BUSH, J., delivered the opinion of the court in which KETHLEDGE, J., joined, and NALBANDIAN, J., joined in part and in the judgment. NALBANDIAN, J. (pp. 17–25), delivered a separate concurring opinion.
JOHN K. BUSH, Circuit Judge. In our digitized age, enigmatic shorthand flourishes with new forms of written communication—from texts, to Instant Messaging, to Tweets, to Snapchats, to Instagram stories—in which the deciphering of acronyms, initialisms, and emojis can be difficult. But, we still have “old school” forms of communication, like phone calls and voicemails—in which one‘s voice is used and words are not so easily lost in abbreviation or pictorialization. Usually unambiguous speech is fortunate, but sometimes, it can be quite disturbing. The latter is the case here, where thе intent and purpose of a voicemail message came across as chillingly clear.
Atrel Howard Jr. appeals his conviction of transmitting a threat in interstate commerce
I.
On Sunday, November 12, 2017, a man identifying himself as Atrel Howard left the following voicemail for Eric Holder at the former attorney general‘s law firm, Covington & Burling, LLP (Covington), where Holder is now a pаrtner in Washington, D.C.:
Former U.S. Attorney General Eric Holder, I‘m going to kill you. My name is—former U.S. Attorney General Eric Holder, I am going to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted, uh, uh, prisoner by the Common Pleas Court of Cuyahoga County of the State of Ohio, by Judge John Sutula, through the second part of the clause of the double jeopardy law of the United States Constitution stating that a man cannot be put twice in jeopardy of loss of life—I mean a man cannot be put in jeopardy of loss of limb for the same—a man cannot be twice put in jeopardy for a loss of limb for the same charge.
Uh, I started—we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I‘m under unconstitutional United States law as we speak. I was sentenced to 50 months in federal prison for a conviction of the federal offense of—beginning [sic] originally an intеntional assault of a federal agent or employee on the FBI agency premises.
(R. 49: Trial Trans., Lamb, PageID 500–01).
On December 12, 2017, a single-count indictment charged Howard with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, in violation of
The government called Michael Lamb, Covington‘s Director of Security, to testify regarding the standard procedure through which telephone calls received after business hours at the firm are routed to the proper attorney. Based on this process, Lamb testified that it was likely that once Howard made a call to Covington‘s general telephone number, he was provided with instructions from an automated system regarding how to locate Holder‘s extension via buttons on Howard‘s phone. Once he was connected to Holder‘s extension, Lamb explained, Howard would then have been able to leave a voicemail message directly on the former attorney general‘s voicemail. Lamb further testified that, upon completion of every caller‘s message,
United States Secret Service Special Agent Philip Hogan testified that during the criminal investigation, he definitively confirmed Howard‘s identity as the voicemail caller. Hogan made the identification basеd on his work in a previous, unrelated January 2017 investigation, during which he became familiar with Howard‘s voice. Additionally, upon review of telephone records and call logs obtained from the D.C. Metropolitan Police Department and AT&T, Hogan confirmed that the telephone number from which Howard placed the call belonged to Howard‘s father, who is a resident of Cleveland, Ohio. According to Hogan, on Sunday, November 12, 2017—when Howard left the voicemail at issue—five sequential calls were made around 3:30 pm from the Cleveland telephone number of Howard‘s father. The first four calls ranged from about 27 seconds to one minute and 29 seconds. After those calls, there was a fifth call, lasting in total about 3 minutes and 52 seconds, which Hogan testified matched the approximate amount of time it would have taken for Howard to pass through the automated system prompts and leave the one minute and 54 second vоicemail message.
Karen Ford, Howard‘s federal probation officer, also gave testimony that confirmed Howard‘s voice on the voicemail. Ford testified that she had met with Howard, who was under her supervision, approximately one week prior to the November 12 call. At that meeting, Howard indicated that during the upcoming week, he would be staying at the City Mission, as well as with his father, in Cleveland.
Upon the government‘s resting of its case, Howard filed a motion for judgment of acquittal pursuant to
The district court next gave the jury instructions, which began with a full reading of the indictment language related to the
The jury found Howard guilty under
II.
Howard challenges the
A. The Indictment
Howard first challenges the indictment‘s sufficiency, arguing that the text failed to charge an offense, which deprived the lower court of jurisdiction. The indictment read as follows:
On or about November 12, 2017, in the Northern Distriсt of Ohio, Eastern Division, and elsewhere, ATREL HOWARD, did knowingly and willfully transmit in interstate and foreign commerce a communication containing a threat to injure the person of another, to wit: ATREL HOWARD called E.H., a former United States government official known to the grand jury, and left a voicemail threatening to murder E.H., all in violation of Title 18, Section 875(c), United States Code.
(R. 8: Indictment, PageID 14).
Specifically, Howard argues that the indictment language reflected a “reasonable person standard” that violated Elonis, 135 S. Ct. at 2012, where the Supreme Court held that an
Generally, if a proper objection was made below, this court applies a de novo standard to review the sufficiency of an indictment. United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007); United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant
of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). A defendant can challenge the sufficiency of an indictment—on grounds either that the district court lacks jurisdiction or the prosecutor failed to charge an offense—at any time during case proceedings. However, if the defendant fails to raise the challenge at the district court level, then on appeal, “the indictment must be construed liberally in favor of its sufficiency.” Gatewood, 173 F.3d at 986; see also United States v. Duval, 742 F.3d 246, 255 (6th Cir. 2014); United States v. Martin, 526 F.3d 926, 934 (6th Cir. 2008) (holding that a defendant challenges the court‘s jurisdiction when he asserts that the “indictment failed to charge the еlements of a federal offense“).
Furthermore, if there was no indictment-sufficiency objection raised below, then “unless the indictment cannot within reason be construed to charge a crime,” Gatewood, 173 F.3d at 986, a defendant must demonstrate prejudice to prevail, and this court reviews only for plain error. See United States v. Soto, 794 F.3d 635, 649–50 (6th Cir. 2015). Plain-error review requires that the appellant demonstrate that “(1) there is an ‘error‘; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute‘; (3) the error ‘affected the appellant‘s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings‘; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.‘” United States v. Marcus, 560 U.S. 258, 262 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Given that Howard made no objection below to the sufficiency of the indictment, we will apply plain-error review, and we will construe the indictment “liberally in favor of its sufficiency.” Gatewood, 173 F.3d at 986. Therefore, applying plain-error review, and liberally construing the indictment‘s language, we hold it is sufficient under Elonis, as we explain.
Under
The indictment against Howard for a violation of
Nonetheless, Howard maintains that the indictment is defective because the language does not allege that Howard intended to threaten Holder with the voicemail, but rather, that Howard simply
Howard‘s reading of Elonis has not been adopted by courts applying plain-error review. As discussed supra, this court, along with our sister circuits, is willing to “liberally construe” the text when considering the question of whether an indictment‘s language is sufficient. Kuehne, 547 F.3d at 667; see United States v. Gray, 260 F.3d 1267, 1282–83 (11th Cir. 2001) (“[P]ractical, rather than technical, considerations govern the validity of an indictment” (internal quotations and citations omitted)). For example, in Kuehne, our court upheld an indictment in which three counts failed to name the specific drug trafficking crimes that represented the predicate offenses for a charge brought under
Given the functional interpretation favored by our court in Kuehne, an indictment, when read in its entirety, can allege a defendant‘s intent element by way of descriptions of defendant‘s actions—all of which can imply defendant‘s requisite mental state for every element of the crime. See id. This seems true in the case at hand, particularly because we are required to construe the indictment liberally, given Howard‘s failure to object in the district court.
In fact, the indictment in the instant case is even more complete than the one upheld in Kuehne, which was missing a “requisite element” of the defendant‘s crime. Here, the indictment contains all of the elements of an
Accordingly, under the required “liberal” reading of this indictment, we find that the government sufficiently complied with Elonis in the inclusion of the required mens rea оf “knowingly” or “willfully” for Howard‘s
B. The “True Threat” Jury Instruction
Turning now to Howard‘s challenge to the jury instructions at issue, he has a hurdle to overcome because he failed to object to them before the district court. In fact, Howard jointly submitted the instructions with the government.
Usually, if a defendant fails to object to the jury instructions at trial, and she or he jointly submitted the challenged
Nonetheless, we have recognizеd that “‘invited error’ does not necessarily ‘foreclose relief when the interests of justice demand otherwise.‘” United States v. Latham, 358 F. App‘x 661, 664-65 (6th Cir. 2009) (per curiam) (citing United States v. Barrow, 118 F.3d 482, 491 (6th Cir. 1997)). Specifically, “where ‘the government [i]s as much a[t] fault for inviting the error as the defendant’ and ‘the defendant . . . is claiming that his constitutional rights have been violated,’ the interests of justice are not served by a strict application of the waiver doctrine.” Id. (citing United States v. Savoires, 430 F.3d 376, 381 (6th Cir. 2005) (quoting Barrow, 118 F.3d at 491)).
Still, absent this exception, in most circumstances when a defendant fails to object to an improper jury instruction, we review the appellate challenge only for plain error, an inquiry that “requires a finding that, taken as a whole, the jury instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” United States v. Mahbub, 818 F.3d 213, 229 (6th Cir. 2016).
Howard urges us to apply the exception and marshals the Supreme Court‘s directives in Elonis to argue for reversal based on clearly erroneous jury instructions. See Elonis, 135 S. Ct. at 2011. Specifically, Howard argues that the district court violated Elonis by instructing that a violation of
In evaluating whether the communication contained a, quote, true threat, close quote, you should consider whether in light of the context a reasonable person would believe that the statement was a serious expression of an intention to inflict bodily injury . . .
(R. 49: Trial Trans., PageID 564).
Howard claims that the instruction‘s reference to “a reasonable person” contradicts a passage from Elonis, in which the Court explained that the “‘reasonable person’ standard . . . is inconsistent with ‘the conventional requirement for criminal conduct—awareness of some wrongdoing.‘” (Appellant Howard Br. at 32 (citing Elonis, 135 S. Ct. at 2012 (citation omitted))).
While we agree with Howard that in Elonis, the Court did conclude that a mens rea must be read into an
consider “either” Howard‘s “purpose of issuing a true threat” or his “knowledge that the communication would be understood as a true threat“:
For you to find the defendant guilty of Count 1 you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt. A, that the communication was transmitted in interstate commerce; B, that the defendant transmitted the communication either with the purpose of issuing a true threat or with knowledge that the communication would be understood as a true threat; that the communication contained a true thrеat to murder Eric Holder. That‘s C; A, B, and C I just read to you.
(R. 49: Trial Trans., PageID 562–63) (emphasis added).
Importantly, however—and contrary to Howard‘s reading of the case—although Elonis rejected the “reasonable person-negligence” standard for element two of
With this in mind, then, the following instruction provided by the district court in this case was in compliance with Elonis.
In evaluating whether the communication contained a, quote, true threat, close quote, you should consider whether in light of the context a reasonable person would believe that the statement was a serious expression of an intention to inflict bodily injury and whether the statement was made for the purpose of furthering some goal through the use of intimidation.
The government does not have to prove the defendant intended to carry out the threat or was even capable of carrying out the threat at the time it was made. The government is not required to prove the defendant made the targeted individual feel threatened or that the targeted individual even knew about the threat against him.
(R. 49: Trial Trans., PageID 563–64).
In fact, rather than conflict with Elonis, this instruction actually contextualized the subjective-intent requirement handed down by the Supreme Court. That is because the language likely directed jurors to make pragmatic inferences about Howard‘s mens rea at the time he was transmitting the voicemail to Holder, through the more graspable concept of a “reasonable person.” Seе Regaldo Cuellar v. United States, 553 U.S. 550, 567 n.8 (2008) (“[W]here the consequences of an action are commonly known, a trier of fact will often infer that the person taking the action knew what the consequences would be
For these reasons, the jury instructions given by the district court were proper and certainly not in plain error.
C. Sufficiency of the Evidence
Finally, Howard argues that the evidence presented is insufficient to justify his conviction under
We review the district court‘s denial of Howard‘s motion for judgment of acquittal de novo. See United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016). When reviewing the sufficiency of the evidence, we assess whether “аny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Houston, 792 F.3d 663, 669 (6th Cir. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal quotation marks omitted)). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Lowe, 795 F.3d 519, 522–23 (6th Cir. 2015) (quoting United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010)).
As noted, the elements of an
defendant intended the message as a threat.” Elonis, 135 S. Ct. at 2011; Jeffries, 692 F.3d at 478, abrogated in part by Elonis, 135 S. Ct. 2001; see also Doggart, 906 F.3d at 510. Because Howard concedes that the government has provided sufficient evidence to prove element one, we only analyze the government‘s evidence in supporting elements two and three.
i. The Threat
“Pertinent definitions of threat all revolve around a single theme: an expression of an intent to inflict loss or harm.” Doggart, 906 F.3d at 510; see Jeffries, 692 F.3d at 483–84 (Sutton, J., dubitante); see also Elonis, 135 S. Ct. at 2008; id. at 2014 (Alito, J., concurring in part and dissenting in part). In assessing threats, this circuit has relied upon commonly understood dictionary definitions of the word. For example, Doggart referenced a number of widely available sources when explaining how this circuit evaluates “true threats” under various criminal statutes.
[T]he Oxford English Dictionary says: “[T]o declare (usually unconditionally) one‘s intention of inflicting injury upon” a person. 11 Oxford English Dictionary 353 (1933). So does Webster‘s Second: “Law, specif., an expression of an intention to inflict loss or harm on another by illegal means.” Webster‘s New International Dictionary 2633 (2d ed. 1942). And so too does Black‘s: “A communicated intent to inflict harm or loss on another.” Black‘s Law Dictionary 1708 (10th ed. 2014).
Measured by these definitions, Howard‘s voicemail qualified objectively as a “threat.” Indeed, to establish that a threat was made, the government needed to do no more than simply play the audible recording that Howard left on Holder‘s phone. The voicemail began with this vow
Furthermore, in the ensuing sentences of his voicemail, Howard also appears to provide a motive for his desire to “kill” or “murder” Holder. Howard describes himself as an “unconstitutional[ly] convicted prisoner by the Common Pleas Court of Cuyahoga County of the State of Ohio“—a conviction, he seems to suggest, is in violation of the constitutional
prohibition against double jeopardy. Id. Finally, after restating his name at the end of the message, Howard reiterates the perceived injustices against him, which he seems to imply have been perpetrated on Howard by the former attorney general‘s Justice Department. See id.
Despite the chilling nature of the voicemail, Howard maintains that because he had never met Holder, and had no need to threaten him, a reasonable observer would not have understood his message as an “objectively serious expression of an intent to inflict loss or harm.” (Appellant Howard Br. at 5, 42); see Doggart, 906 F.3d at 510. We disagree.
Consider Doggart, where our court found a threat based on the defendant‘s statement to a confidential informant that “those guys . . . [have] to be killed. Their buildings need to be burnt down.” 906 F.3d at 511. In reaching this holding, we determined that “[a] reasonable observer eavesdropping on that conversation would have understood [the] words to be a serious expression of [defendant‘s] intent to inflict harm.” Id. Similarly here, a reasonable person who eavesdropped on Howard‘s voicemail to the former attorney general would have perceived the threat to represent Howard‘s “serious expression of his intent to inflict harm.” Id. Although Howard‘s message may have been somewhat jumbled, “[n]othing about the context of the [voicemail] suggested he was joking,” id., particularly given that he seemed to provide some motive for wanting to kill Holder—his perception of past injustice inflicted upon him by the former attorney general‘s Justice Department. In addition, the fact that Howard made five consecutive calls that afternoon suggests he was not engaged in a “passing fancy“; instead, he was determined to navigate Covington‘s voicemail system in order to deliver his threat directly to the person he wanted to threaten. Doggart, 906 F.3d at 510.
Therefore, viewing the evidence in a light most favorable to the prosecution, it was sufficient for a reasonable jury to conclude that Howard communicated an objective threat to “murder” or “kill” the former attorney general.
ii. Intent of a Threat
Howard challenges the sufficiency of the evidence for element three using similar arguments made in challenging the sufficiency of proof for element two: that the government failed to offer evidence demonstrating his subjective intention of issuing a threat to Holder.
Howard also argues that his “nonsensical diatribe,” should be taken less seriously in comparison to the threats issued by defendants in other cases, such as Elonis, 135 S. Ct. at 2012, and United States v. Elonis, 841 F.3d 589, 600 (3d Cir. 2016) (”Elonis II“). (Appellant Howard Br. at 42-45). Howard further emphasizes that because he had never actually met the former attorney general, he neither “wanted Eric Holder to resolve any type of ends for [him],” nor did he have “any need to express a threat.” (R. 49: Trial Trans, Page ID 546). We find none of these arguments persuasive.
Given that a threat involves a defendant‘s “expression of an intent to inflict
Importantly as well, and as instructed by the district court to the jury, to convict a defendant under
The government does not have to prove the defendant intended to carry out the threat or was even capable of carrying out the threat at the time it was made. The government is not required to prove the defendant made the targeted individual feel threatened or that the targeted individual even knew about the threat against him.
(R. 49: Trial Trans., PageID 564).
This instruction comports with circuit precedent, as we have consistently upheld convictions based on an expression of subjective intention to threaten the victim, even if the threat is not feasible for the defendant to carry out, or the defendant does not have an ability to do so. See United States v. Houston, 683 F. App‘x 434, 439 (6th Cir. 2017). Rather, the standard of evaluating “intent” in relation to threats is appropriately low, given the seriousness of these criminal statutes: if a jury could conclude that the defendant “intended his threats to
influence” a victim or others “through” intimidation, then a “true threat” and the defendant‘s intention can be established. Id. at 439 (“While it is not clear from the record that Houston‘s girlfriend actually doubted whether Houston would follow through on his threats, that fact is irrelevant here because a statement can be found to be a ‘true threat’ even if the defendant lacks the ability to make good on his promised aggression.“); see also United States v. Alkhabaz, 104 F.3d 1492, 1495 (6th Cir. 1997); United States v. Glover, 846 F.2d 339, 344 (6th Cir. 1988).
Considering the following, and viewing the evidence in the light most favorable to the prosecution, we hold that a reasonable jury could have concluded that the contents of Howard‘s voicemail—in which he claimed he was going to “kill” and “murder” Holder after listing the perceived injustices inflicted against him by the former attorney generаl‘s Justice Department—demonstrate his subjective intent to issue a threat to the former attorney general in violation of
III.
To summarize, we hold that (1) the indictment issued to Howard contained all of the essential elements required for the government to allege an
CONCURRING IN PART AND IN THE JUDGMENT
NALBANDIAN, J., concurring in part and concurring in the judgment. I concur with the result the court reaches here, and I concur in the majority‘s disposition of the non-indictment claims.
Howard challenged his indictment‘s sufficiency for the first time on appeal. But
Before the 2014 Amendments to
The question is whether Soto altered this standard. Soto walked through this court‘s pre-2014 treatment of
The Soto court found that the Committee amended
But Soto, by its own terms, did not change this court‘s method for reviewing all untimely
To be fair, although Soto was about misjoinder under
Most recently, a few months ago, this court decided United States v. Rankin, 929 F.3d 399 (6th Cir. 2019). The defendant challenged the sufficiency of his indictment. Id. at 403. He did so “early in the litigation[.]” Id. at 405 n.1. So we reviewed the indictment‘s sufficiency de novo. Id. at 405. But we explained how this court would evaluate an untimely challenge to an indictment‘s sufficiency: “[w]hen the defendant challenges the indictment for the first time after his conviction, the indictment is ‘construed liberally in favor of its sufficiency.‘” Id. at 405 n.1 (quoting Olive, 804 F.3d at 752). And we did not mentiоn plain-error review. Based on these cases, I would liberally construe Howard‘s indictment to resolve the challenge he raises against it for the first time on appeal.3
Even liberally construing the Howard indictment here in favor of its sufficiency, however, I believe it contains error. An indictment is sufficient if it “expressly . . . set[s] forth all the elements necessary to constitute the offence intended to be punished.” Hamling v. United
States, 418 U.S. 87, 117 (1974) (cleaned up). And liberally construed, an indictment contains no error even if it fails to expressly mention every
Howard‘s indictment alleged that:
On or about November 12, 2017, in the Northern District of Ohio, Eastern Division, and elsewhere, ATREL HOWARD, did knowingly and willfully transmit in interstate and foreign commerce a communication containing a threat to injure the person of another, to wit: ATREL HOWARD called E.H., a former United States government official known to the grand jury, and left a voicemail threatening to murder E.H., all in violation of Title 18, Section 875(c), United States Code.
(R. 8, Indictment, PageID 14.)4 No part of Howard‘s indictment—explicitly or otherwise—alleged he had the mens rea necessary for a
One of our pre-Elonis opinions shows this difference. See United States v. DeAndino, 958 F.2d 146 (6th Cir. 1992).
our DeAndino opinion where we upheld an indictment‘s sufficiency based on our pre-Elonis understanding of
In DeAndino, this court considered an indictment charging a
And nothing else in Howard‘s indictment can save it. Howard‘s indictment also charged him with actions “all in violation of Title 18, Section 875(c), United States Code.” But “the words of [
Howard‘s indictment describing Howard‘s statements as “threatening to murder E.H.” also cannot save it. That allegation only characterizes Howard‘s statements as a threat and describes the contents of the Howard‘s alleged threat. It does not, on its face, allege Howard had any specific intent to make the threat. And in fact, the Elonis Court‘s discussion of
Like the example in Elonis, the victim here received a threat. Howard left a voicemail telling E.H. “I am going to murder you.” But the indictment‘s description of the voicemail‘s contents as “threatening to murder E.H.” only does that. It describes the voicemail‘s contents. It does not take the further step required by Elonis and allege that Howard made the voicemail with any specific intent of threatening Holder. It leaves open the possibility that Howard might have made the voicemail with the belief, though the wrong belief, that the message “will be taken as a joke.”
Last, I find that the indictment‘s factual allegations fail tо imply the requisite
The Eleventh Circuit dealt with a near-identical
The indictment in United States v. Khan, 937 F.3d 1042 (7th Cir. 2019), however, was much different than Howard‘s. In Khan, the Seventh Circuit upheld the
The gun is cocked and ready to go. . . . Now I‘m gona [sic] get my revenge, and that involves putting bullets in someone‘s body, so get out of the way or I‘ll literally shoot at them as well and we‘ll end up with a much bigger scenario on our hands. I‘m not leaving America without getting revenge even if it costs me my life. And that‘s that.
Id. at 1048 (alteration in original). In another threat quoted in the indictment, the defendant posted: “I want a high net worth individual to shoot. I want this to be a real human tragedy. . . . Ima [sic] hunt aggressively tonight. Keep an eye out of ideal victims. If I don‘t catch nobody tonite [sic] then another nite [sic].” Id. at 1047–48. The Khan court found that the indictment‘s factual descriptions of the defendant‘s threats “denote[d] purpose,
Like the Martinez and the Khan indictments, Howard‘s indictment does not “explicitly accuse” Howard of intending to send a threat. But in all other respects, Howard‘s indictment is almost identical to the one in Martinez and unlike the one in Khan. Howard‘s indictment contains only one factual allegation, that Howard “threaten[ed] to murder E.H.” The Martinez indictment alleged the defendant‘s email “contained a threat to injure the person of another,” almost identically tracking Howard‘s. Both decisions, while not binding, persuade me that Howard‘s indictment does not “implicitly allege[]” the requisite specific intent.
Even though I believe that the indictment here was defective, I agree that Howard‘s claim fails because harmless error still applies. See Rankin, 929 F.3d at 404; United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580 (6th Cir. 2002). And the error here is harmless.
We have found an indictment‘s failure to charge an element of a crime harmless (1) when the defendant never alleged the indictment‘s failure “prevented [him] from preparing a defense or caused [him] surprise or prejudice” and (2) when the record did not “suggest that [the defendant] was disadvantaged in any way by the indictment‘s alleged deficiency.” Id. (finding the indictment‘s deficiency harmless because it did not cause the defendant to suffer any prejudice and the defendant “ha[d] not even alleged prejudice“).
Howard‘s briefs do not once argue that he suffered any prejudice as a result of the indictment‘s deficiency. (Appellant‘s Br. at 20–27.) He argues that the indictment‘s failure to satisfy Elonis violated his Fifth and Sixth Amendment rights. (Id. at 20.) But he does not lay out how the error and the violation changed the outcome of the criminal proceedings or prejudiced him in any way. He does not, for example, allege that the indictment‘s failure “prevented [him] from preparing a defense or caused [him] surprise or prejudice.”
And the indictment‘s defect did not prevent Howard from preparing a defense at trial. The court and the government repeated early and often that to prove a