UNITED STATES of America, Plaintiff-Appellee v. David Eugene NICKLAS, Defendant-Appellant.
No. 12-3028.
United States Court of Appeals, Eighth Circuit.
Submitted: April 10, 2013. Filed: April 26, 2013.
713 F.3d 435
In Enge v. John Hancock Mut. Life. Ins. Co., 183 Minn. 117, 236 N.W. 207, 210 (1931), the insured “advised the agent that he had ‘a bum right lung‘“; the agent replied that “that made no difference.” The court held that the agent‘s statement “confirm[ed] Enge‘s justifiable presumption that his answers were being correctly recorded.” Enge, 236 N.W. at 210. The court found that the “bum right lung” statement put the agent on notice that the insured had tuberculosis, making the company liable on the policy, despite no reference to a bad right lung or tuberculosis in the application. Id. at 209. A reasonable jury could similarly find that Yang put the agent on notice that she had Hepatitis B.
WSLAC contends that the telephone conversation transcript demonstrates that Yang made willfully false or intentionally misleading statements before the policy was issued. WSLAC‘s policy, in a section labeled “Limits on Our Contesting this Policy,” declares: “No statement will be used in contesting this policy or any rider unless it is in an application or supplemental application and a copy of such application is attached to this policy.” Neither a transcript of the telephone conversation nor the recording itself was attached to the application or the policy. WSLAC argues that the transcript was rightfully considered by the district court because “the transcript is not being used to contest the Policy, but is only being used to show that Ms. Yang had indeed been asked the questions found in the Application.”
“[T]he term ‘contest’ is generally interpreted to mean some action taken in a judicial proceeding to cancel the policy or prevent its enforcement.” Suskind v. N. Am. Life & Cas. Co., 607 F.2d 76, 80 (3d Cir.1979). WSLAC is using the transcript to cancel the policy and prevent its enforcement by demonstrating that Yang made willfully false or intentionally misleading statements. This violates the words of WSLAC‘s policy. The transcript therefore should not have been considered.
A reasonable jury could conclude that Yang gave truthful answers about her medical condition and that the agent recorded them incorrectly. It could also conclude that Yang did not examine the application. The disputed facts are material because there is a genuine issue whether Yang knew of misrepresentations in the application. Summary judgment was not appropriate.
* * * * * *
The judgment of the district court is reversed, and the case remanded.
Conner Eldridge, AUSA, Fort Smith, AR, for appellee.
Angela Lorene Pitts, AFPD, Fayetteville, AR, for appellant.
BYE, Circuit Judge.
A jury found David Nicklas guilty of transmitting a facsimile communication containing a threat to injure in violation of
I
Sometime in 2008, Nicklas claims he received a vision that the mob purchased a property on his behalf in Rogers, Arkansas (the Rogers property). Following his vision, Nicklas wrote a series of letters to several people demanding they give him the deed to the Rogers property. The people Nicklas contacted included the developer of the Rogers property; the prosecutor for Benton County, Arkansas; the agent in charge of the Federal Bureau of Investigation (FBI) office in Little Rock, Arkansas; and the Inspector General of the Department of Justice in Washington, D.C. In these letters, Nicklas claimed he was personally responsible for costing organized crime over $1 billion, took credit for all the terrorists housed in Guantanamo Bay, and said he saved over 7,000 teenage girls who were kidnaped by the mob for prostitution and pornography. Nicklas claimed the mob placed the Rogers property in his name to implicate him in the mob‘s illegal activities, while at the same time claiming the mob intended to use the property as a drug and prostitution house.
Nicklas sent a total of four letters to the Inspector General. The third letter, which Nicklas faxed to the Inspector General on September 28, 2008, contained a threat to kill FBI agents. Specifically, the letter stated the following:
Dear sir. I understand the FBI is under attack nationwide. Agents are being killed in a number of cities and a major task force is trying to figure out why. Remember what I told you last week. Tom Duvall, Gambino crime boss, gave you a message. For each day I do not receive the deed to my property which you are illegally holding, an FBI agent will die. The deadline is noon of each day. The FBI satellite office in Fayetteville, Arkansas has the deed. Any other questions? Sincerely, David E. Nicklas.2
On November 19, 2008, a federal grand jury returned an indictment charging Nicklas with transmitting a facsimile communication containing a threat to injure in violation of
During the trial, Nicklas offered an instruction on the definition of reasonable doubt. The district court rejected Nicklas‘s proffered instruction and gave the jury the following instruction:
A reasonable doubt is a doubt based on reason and common sense and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
Based upon the evidence presented at trial, which included the text of the September 28 fax to the Inspector General as well as testimony indicating government authorities treated the letter as a serious threat, the jury found Nicklas guilty. He filed a timely appeal. On appeal, he claims the district court erred when it allowed the government to redact the word “willfully” from the indictment. He also contends the evidence was insufficient to support the verdict. Finally, he contends the district court abused its discretion when it rejected his proffered instruction on reasonable doubt.
II
We first review the challenge to the district court‘s order granting the government‘s motion to strike the word “willfully” from the indictment. Nicklas contends
Although the Eighth Circuit has addressed this same issue for an analogous charge under
Undaunted by the deck of circuit precedent stacked heavily against him, Nicklas argues his fate is controlled by a Supreme Court decision. In Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), the Supreme Court addressed a Virginia statute that made it a felony to burn a cross on a highway or other public place “with the intent of intimidating any person or group.”
In United States v. Jeffries, the Sixth Circuit addressed the same argument Nicklas makes and concluded Black‘s First Amendment “true threat” analysis did not apply to the mens rea the government must establish to prove a violation of
Black does not work the sea change that Jeffries proposes. The case merely applies—it does not innovate—the principle that “[w]hat is a threat must be distinguished from what is constitutionally protected speech.” Watts [v. United States], 394 U.S. [707,] at 707, 89 S.Ct. 1399 [(1969)]. It says nothing about imposing a subjective standard on other threat-prohibiting statutes, and indeed had no occasion to do so: the Virginia law itself required subjective “intent.” The problem in Black thus did not turn on subjective versus objective standards for construing threats. It turned on overbreadth—that the statute lacked any standard at all. The prima facie evidence provision failed to distinguish true threats from constitutionally protected speech because it “ignore[d] all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate,” and allowed convictions “based solely on the fact of cross burning itself.” Id. at 365, 367.
692 F.3d 473, 479-80 (6th Cir.2012). The Sixth Circuit reasoned the general intent crime set forth in
We agree with the sound reasoning in Jeffries, and now join the other circuits that have concluded
Nicklas next contends the evidence was insufficient to support his conviction, even if
To sustain a conviction under
The government contends the statement Nicklas made in the September 28 fax—“For each day I do not receive the deed to my property which you are illegally holding, an FBI agent will die“—was alone sufficient to sustain the jury‘s conviction. In addition, the government presented evidence placing the letter in context. The government called the developer of the Rogers property as a witness, and he informed the jury one of the letters he received from Nicklas said “Do not let the FBI influence your decision [to give me the deed] ... I will take care of them.” The government also called the Benton County Prosecuting Attorney‘s assistant as a witness, and she told the jury one of the eight letters sent to her boss accusing the county of wrongfully holding the deed to the Rogers property said “Tell the FBI to take a flying leap into hell.” The government also introduced evidence of the extensive investigation the FBI initiated as a result of the September 28 fax, from which a jury could reasonably infer the FBI took the matter very seriously. Based on these facts, we conclude the evidence was sufficient to support the jury‘s verdict.
Finally, Nicklas challenges the district court‘s failure to give his proffered
III
We affirm the judgment of the district court.