UNITED STATES of America, Plaintiff-Appellee, v. Clifford Leon HOUSTON, Defendant-Appellant.
No. 14-5295
United States Court of Appeals, Sixth Circuit
Decided and Filed: July 9, 2015
792 F.3d 663
Argued: June 17, 2015
We conclude that Martinez does not extend to cases in which the underlying habeas claim is ineffective assistance of counsel during juvenile transfer proceedings. This is consistent with our holding in Hodges, in which we declined to extend the Martinez exception to excuse the procedural default of ineffective assistance of initial appellate counsel claims. See Hodges, 727 F.3d at 531.
CONCLUSION
The judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
Before: SUTTON, GRIFFIN, and WHITE, Circuit Judges.
OPINION
SUTTON, Circuit Judge.
A grand jury indicted Clifford Leon Houston for transmitting a threat in interstate commerce.
I.
Clifford Houston is not unacquainted with law enforcement or criminal defense lawyers. His most recent round of trouble began in 2006, when Houston participated in a shoot-out that ended with the death of a sheriff‘s deputy and his ride-along. Facing first-degree and felony murder charges, Houston obtained the services of an attorney, James F. Logan. To secure payment for Logan‘s representation, Houston‘s father executed a deed of trust on the family property, granting Logan an interest in the Houstons’ land. The first trial ended in a mistrial, the second in an acquittal. Houston was not as grateful as one might expect. He did not pay his fees. That prompted Logan to foreclose on part of the Houston property, making the attorney and client neighbors and making the client unhappy.
It was not long before Houston was back in jail, this time awaiting trial on a firearms offense. While in jail, Houston heard that Logan had visited his family‘s property (now partly Logan‘s property), and did not take it well. As overheard by an official from the Blount County Sheriff‘s Office, Houston went into “a complete rage.” R. 293 at 148. The official heard Houston say something about “killing them all.” Id. at 142. Then, in a variation on Shakespeare‘s often-misinterpreted dictum, he said: “When me and my brother get out, we‘re going to go to that law firm and kill every last one of them.” Id. at 143. The next day, Houston placed a phone call to his girlfriend, Pat Honeycutt. Here is part of what he said:
HOUSTON: I‘ll kill that motherf[* *]er [referring to Logan] when I get out. Hey, I ain‘t kidding! I ain‘t akidding! They can record it! They can do whatever the hell they want! That motherf[* *]er opens up my house, I‘ll kill his ass! When I get out of this motherf[* *]er, he‘s dead!
. . .
HOUSTON: The only thing [Logan]‘s gonna get from me is a f[* *]ing bullet! That‘s the only thing that son of a b[* * *] gonna get from me! That‘s the only damn thing! They better get somebody to lock that son of a b[* * *] up! ‘Cause I‘ve got some-
thing for Mr. damn Logan! You let me get out of this motherf[* *]er in any shape, form, or fashion, and he‘s got a damn problem! . . .
HOUSTON: You tell any of my family, you tell Cody, you tell Rachel, any of them, to kill that son of a b[* * *]!
. . . Any of my, any of my people has got my permission to kill that son of a b[* * *]!
HONEYCUTT: They ain‘t gonna do that. I mean, they ain‘t gonna shoot nobody.
HOUSTON: Well, I ain‘t got no damn problem with it. I ain‘t got no damn problem with it.
Trial Ex. 1.
A federal grand jury indicted Houston for making these threats. See
II.
After Houston filed this appeal, the Supreme Court decided Elonis v. United States, — U.S. —, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015). Elonis reversed a similar conviction under
The first order of business is to determine whether harmless-error review or plain-error review applies to this argument. Harmless-error review applies when the defendant preserves the objection at trial, and plain-error review applies when he does not.
Appellate courts have discretion to correct unobjected-to mistakes at trial if there is (1) an error (2) that is plain, (3) that “affected the [party‘s] substantial rights,” and (4) that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Houston meets each requirement.
One: the instruction was erroneous. It permitted the jury to return a criminal conviction based on a negligent state of mind: “A statement is a true threat if it was made under such circumstances that a reasonable person hearing the statement would understand it as a serious expression of intent to inflict injury.” R. 294 at 28. That is precisely what Elonis proscribes. 135 S.Ct. at 2011. As the Court explained: “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct—awareness of some wrongdoing.‘” Id. (citations omitted). And having liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence.” Id. And having liability turn on a “reasonable person” standard, we would add, permits criminal convictions premised on mistakes—mistaken assessments by a speaker about how others will react to his words. If a legislature wishes to criminalize negligent acts—and especially negligent utterances—it should say so explicitly; the criminalization of “threats” in “interstate commerce” does nothing of the sort.
Two: the error was plain. At the time of trial, it is true, our cases required a negligence instruction under this statute. See United States v. Jeffries, 692 F.3d 473, 478 (6th Cir. 2012); United States v. Alkhabaz, 104 F.3d 1492, 1494-96 (6th Cir. 1997); United States v. DeAndino, 958 F.2d 146, 148-50 (6th Cir. 1992). But we gauge the obviousness of an error from the perspective of “the time of appellate consideration,” not from the perspective of the time of trial. Henderson v. United States, — U.S. —, 133 S.Ct. 1121, 1130-31, 185 L.Ed.2d 85 (2013). Under that test, the trial judge‘s error was plain, as Elonis demonstrates.
Three: the error affected substantial rights. There is a “reasonable probability” that the jury would have returned an acquittal had it been required to find a higher degree of intent, see United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010)—no matter whether recklessness by itself will suffice or whether some form of knowledge or purpose also is required, as the Court declined to decide in Elonis. 135 S.Ct. at 2012-13. Anyone listening to Houston‘s recorded diatribe (and we have had the pleasure) could plausibly think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening). That would be a fair, though not a necessary, interpretation. Recognizing that Houston was speaking with his girl-
United States v. Miller, 767 F.3d 585 (6th Cir. 2014), reinforces this conclusion. There, too, the trial court mistakenly instructed the jury about the state of mind needed to convict the defendant. Id. at 589. There, too, the error became clear after trial due to intervening Supreme Court authority. Id. at 591-93. And there, too, we held that the error was not harmless. Id. at 594. In explaining our decision, we noted that “[m]otive was the key issue the defendants presented to the jury, and they presented enough evidence to support a finding in their favor on this score.” Id. Because the instructional error related to “the state of mind of the defendants” and because that is invariably a “thorny issue,” we concluded that the jury was best equipped to sort it out. Id. at 600; see also Morissette v. United States, 342 U.S. 246, 274-76, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Dudley, 451 F.2d 1300, 1303 (6th Cir. 1971). A similar conclusion applies here.
Nor does it make a difference that Miller was a harmless-error case. In this case, as in Miller, the instructional error relates to the paradigmatic jury question in a criminal proceeding: the defendant‘s state of mind. Confirming the point, the prosecutor in Houston‘s case devoted nearly three-quarters of his closing argument to trying to show that Houston‘s statements were real threats—that “a reasonable person who hears the communication [would] interpret it as serious.” R. 294 at 11. The government‘s (understandable) emphasis on the negligence standard, together with the all-important nature of state-of-mind arguments in most criminal trials, tells us all we need to know about this error: An instruction premised on the correct standard reasonably could have led to a different verdict.
Four: the trial court‘s error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736. As these open-ended terms suggest, this prong of the test is fact intensive and does not lend itself to clear rules. See Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see also United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Given the importance of this instruction to Houston‘s case, the importance of state-of-mind instructions in “threat” cases in general, and the oddity of permitting a criminal conviction to stand based on a reasonable-person—which is to say, negligence—standard, we conclude that this conviction should be reversed. See Olano, 507 U.S. at 736; United States v. Castano, 543 F.3d 826, 833-37 (6th Cir. 2008). Houston deserves the opportunity to face a jury that has
In Elonis, it bears adding, the defendant did not preserve a statutory challenge to the jury instructions at trial or before the Third Circuit. Only after the Supreme Court added the statutory-interpretation question to the case at the certiorari stage did Elonis address the issue and thereby obtain a foothold for reversing his conviction. Elonis v. United States, — U.S. —, 134 S.Ct. 2819 (2014). Houston deserves the same opportunity.
The government resists this conclusion on the ground that recklessness satisfies the intent element of
Even if recklessness turns out to be the correct standard, moreover, it is by no means obvious that a reasonable jury necessarily would convict. The question would be whether Houston “consciously disregard[ed]” the risks of his behavior or whether his consuming rage prevented him from processing those risks.
Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), adds nothing new to the inquiry. It held that failure to instruct the jury on an element of the offense—materiality—was harmless error. Id. at 15-20. But appellate judges are better equipped to assess materiality than to evaluate states of mind based on a cold record. The defendant in Neder “did not, and apparently could not, bring forth facts contesting the omitted element,” id. at 19—something that is not true in this case, where the defendant has plenty to work with in contesting the mental-state determination.
III.
That leaves one loose end. Houston challenges the sufficiency of the evidence to support his conviction, a challenge we must address because a sufficiency-based reversal would preclude retrial under the Double Jeopardy Clause. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Before addressing this argument, a brief digression is in order. Do we measure the sufficiency of the evidence to con-
Houston argues that there was insufficient evidence that his statements qualified as a threat. As noted, the jury instructions defined a threat as a statement “made under such circumstances that a reasonable person hearing the statement would understand it as a serious expression of intent to inflict injury.” R. 294 at 28. A reasonable jury could find that Houston‘s statements met this standard given his harsh language, aggressive tone, and graphic descriptions of his desire to harm Logan. Houston adds that there was insufficient evidence that his threat traveled in interstate commerce, because he dialed his girlfriend (who had a Tennessee number) from a Tennessee jail. But the government presented evidence that calls from the Blount County Jail (where Houston was located) are routed through a server in Louisiana. A reasonable jury thus could conclude that Houston‘s threat traveled in interstate commerce.
For these reasons, we reverse Houston‘s conviction and remand the case for further proceedings.
JEFFREY S. SUTTON
UNITED STATES CIRCUIT JUDGE