United States v. Loren Francis Bellrichard

completely standing upon damages has failed to to seek un- district.2 Schanou Schanou how the maintenance of this demonstrate der 1983.3 injure, policy continued to or even threatened Thus, injure, to Jace or himself. after III. distribution, May grade sixth 1989 bible above, For the reasons discussed we va- challenged connection between Jace and the cate the order the district court and re- practice simply too tenuous for Schanou mand thе case to district court with instruc- standing damages as a have recover complaint.4 tions to dismiss the allegedly result of the unconstitutional school light policy. Viewing board the record in the Schanou, think

most favorable to we do not has satisfied the Article III Schanou damages

standing requirements to sue for

resulting from the school district’s mainte- policy nance of the bible distribution America, UNITED STATES of years preceding filing four of this lawsuit Plaintiff-Appellee, injury-in-fact. because he has not shown an Valley Forge, 454 See U.S. at (holding plaintiffs identify any failed BELLRICHARD, Loren Francis personal injury suffered them as conse- Defendant-Appellant. error). quence alleged constitutional No. 94-3439. Schempp recognize While and Steele parents personal cognizable have a interest Appeals, United States Court children, religious in the education of their Eighth Circuit. holding the Steele on mootness and the Rob- March 1995. Submitted holding standing erts remind us this Accordingly, derivаtive in interest is nature. Aug. Decided 1995. logically impossible parent we think it is for Rehearing Suggestion Rehearing for infringement to assert the unconstitutional En Sept. Banc Denied 1995.* parental alleged interest when the uncon- policy way stitutional or conduct in no direct-

ly directly or threatens affects affect his or contrary understanding

her children. A significant expansion in a

would result

parental standing. We do not believe that

Schempp or Steele intended such broad specific

definition. Absent facts demonstrat-

ing continuing or direct effect threatened allegedly ‍​‌​‌‌​‌‌​​​​‌‌​​​‌​‌​​‌​‌​​‌​​​​​​‌‌‌‌​‌‌​‌​‌‌​‌‍policy unconstitutional on his himself,

child or the mere fact that Schanou’s

son was once a student in a school district yearly

which allows bible distribution to fifth

grade students after school does nоt confer carefully challenge 2. We have reviewed the record includ- him maintenance of the bible transcripts deposition However, the entire of Schanou's policy May distribution after deposition and the evidence that cither Schanou or his son feared exposure of his son. We have found no simply satisfy Schanou has failed to this burden. distribution, yearly bible or that express opinion 4.We no to the as constitutionali- withdrew Schanou his son from the school dis- ty policy of the school district’s because we have exposure trict in order to avoid to the bible disposed present reaching case without consistently distribution. Schanou has main- challenge. merits of the constitutional tained, throughout litigation, that he with- May objec- drew his son in 1990 because of his * Arnold, Sheppard Judge, Morris Circuit policy, policy tion to the continued to affect and not because the grant suggestion rehearing en bаnc. might affect his son. or Murphy, Judge, part Circuit took no in the con- allege 3. Schanou well have been able to sideration or decision of this case. parental standing upon facts which would confer U.S; Office, Attorney’s Fisher, D.

Dennis ND, for-plaintiff-appellee. Fargo, Bellrichard, pro se. Francis Loren II, Minneapolis, Ostgard, Erwin James defendant-appellant. MN, for MAGILL, (D.Minn.1992) (Bellrichard’s Judge, Before Circuit R. JOHN convictions). GIBSON, Judge, appealed, Circuit Senior Bellrichard Bellrichard, ARNOLD, MORRIS Cirсuit we affirmed. United States v. SHEPPARD (8th Cir.) (Bellrichard I), Judge. 994 F.2d 1318 cert. — denied, -, 337, 114 U.S. 126 GIBSON, Judge. (1993). JOHN R. Senior Circuit L.Ed.2d 282 Vega began De la receiving the letters appeals Loren Francis Bellrichard from which led to Bellrichard’s instant convictions mailing his conviction of 17 of counts threat- shortly after arrest on the first ening in communications violation of 18 1991, charge shortly in (1988). and sometime there- § 876 U.S.C. Bellrichard was con- Judge Murphy began receiving after threat- mailing threatening victed of communications ening letters. The of letters consisted some Attorney to the Assistant United States who letters, postcards lengthy '275 individual and prosecuted him in an earlier case and contained direct and indirect threats to and judge district court who tried the earlier kill, Judge Murphy burn and bomb lade and argues case. Bellrichard that his conviction Vega. The letters continued even after Bell- (1) grounds: should be reversed on two serving richard commenced his sentence for district court1 committed in reversible error the 1991 convictions. refusing give specific unanimity instruc- (2) tion; threatening and communications 1994, In March Bellrichard was indicted abridges speech statute free violation twenty-four delivering threatening counts of the First Amendment to the United States communications on the based letters mailed Constitution. He argues also that the dis- Judge Murphy Vega, and la between de (1) by: trict court erred in him April trial, January 1991 and 1994. At all of finding engaged that he in conduct evidenc- evidence, the letters were introduced into n carry an intent to out his threats and Judge Murphy and both Vega and de la applying provided the six-level increase receiving being testified about the letters and by Sentencing United States Guidelines concerned and fearful aas result of the let- 2A6.1(b)(l) (Nov.1994); applying and Clarke, was-imprisoned ters. William who multiple adjustment group count to a of with Bellrichard at the Terre Haute federal counts of conviction which consisted of of- prison, testified that Bellrichard com- made already fense conduct used enhance a to him Judge Murphy ments about and a previous sentence. We affirm the conviction prosecutor, female whose name Clarke could imposed by and the sentence not recall. Clarke testified that after the court. indictment was returned the instant case upset” “he [Bellrichard] real and “said 1991, In September and October Bellrich- judge he shоuld kill them pros- [the and ard 14 mailing was tried on counts of threat ecutor] himself.” ening communications and two counts of damaging buildings explosive with an device. Bellrichard testified and stated he was Bellrichard, F.Supp. only United States v. 779 trying point 454 to make that he had the (D.Minn.1991). right say to, The case was tried before anything absolute he wanted Judge Murphy, then Chief District Diana persuade powerful and to people these Attorney Assistant just. United States Elizabeth become morе merciful He said his Vega prosecutor. de la was the Id. at 456. petition intention was to for redress of his acquitted grievances Bellrichard was previous two bomb for his convictions. He counts, but mailing expressed convicted five counts of concerns over trends toward fas- threatening communications. Id. Bellrich- cism the United States and his beliefs ard Judge Murphy concerning was sentenced after va political the current and social 460; cated one of the convictions. conditions. He denied intention to cause Bellrichard, F.Supp. United States v. prosecutor 263 the physical or the to fear BATTEY, Dakota, 1. The sitting by designation. HONORABLE RICHARD H. South Judge Chief United States District for the District Judge Murphy mailed Bellriehard anything to cards to do harm, planning denied in the Vega. None of the counts la and de for the prosecutor retaliation judge or portions of the specified which indictment making the He denied 1991 convictions. threatening constituted postcards letters or judge and to Clarke statements However, long-es “a killed, he should communications. or that should prosecutor an law the criminal rule of tablished kill them. act, specify which overt need not indictment two and approximately trial lasted The named, the means among several took jury deliberations days, and the one-half Schad crime was committed.” jury found The of time. equal amount Arizona, counts guilty seventeen Bellriehard opin (plurality L.Ed.2d 555 court The district him of acquitted seven. 7(c)(1). returning In ion); Fed.R.Crim.P. months. eighty-seven of imposed a sentence “ may jurors be ‘different general verdicts evidence, pieces of persuaded different I. upon the bottom they agree even when the First, that contends Bellriehard ” 631-32, (quot at 2497 111 S.Ct. Id. at line.’ error judge committed reversible district 433, Carolina, 494 U.S. McKoy North they could jurors that instructed the when he 108 L.Ed.2d language within disagree about which each “[Tjhere (1990) (Blаckmun, J., concurring)). threat, they long so as a letter constituted jury reach general requirement nois taken as the agreed that letter unanimously factual issues preliminary the agreement on threatening. whole was a 632, 111 the vefdict.”' underlie which deliberations, Battey Judge During jury at 2497. jury asked: the which note a from received Furthermore, court’s instruc- that juror Battey: one believes If Judge of the language the is consistent with tion threatening, a and is a letter part one threatening communications statute. The a differ- jurors believe couple of the other part: in relevant provides statute rest of the threatening, and the ent is part part of a yet a different jurors believe any deposits [in knowingly so Whoever all threatening, then do we letter is depository or authorized post office ver- threatening the and is the letter that [by delivered to be or causes matter] mail agree on have to all guilty, or we is do dict di- аccording to the Service the Postal letter in the threatening sentence the same any ... communications thereon] rection guilty? be for it to designating or a name or without with any thereto, to Battey addressed Judge mark question, subscribed response to the In containing ... person and jury other the that: informed person of the address- injure the to threat a rea- beyond unanimously find You must another, be fined under shall ee or you are letter the doubt that sonable five than more imprisoned not title or in defined a threat as considering contains both. years, or you While instructions. the Court’s the lan- parts of as to various disagree added). order In (emphasis § 876 18 U.S.C. you consider used, must nonetheless guage would argument, we accept Bellrichard’s to whole, letter the whole since as the letter term use the statute’s have read parts. sum of its of the the result isolated aas reference “communications” Battey’s Judge re- argues that Bellriehard a communica- in contained words phrases or in a jury’s resulted question sponse to the a as tion, the communication than to rather right to his a unanimous violated that verdict contrary to reading Such whole. 31(a). Fed.R.Crim.P.- See verdict. theAs statute. meaning of plain out, or a letter commu- pointed district case the present The indictment of its the sum the result nication “is twenty-four counts with charged Bellriehard message comprehend сommunications, In order parts.” threatening mailing communication, one a letter or contained post- twenty-four of the letters based on Furthermore, argue Bellrichard does not must consider the letter or communication as overbroad, vague that the statute is ex- a whole. interpreted the cept as the district court judge’s original The district instructions statute this case. As we have concluded statute, quoted language prop- that the district court’s instruction was that, convict Bellrichard of addition stated er, reject argument we also statute, violating jury had to find vague instruction the statute as rendered (2) willfully; knowingly that: he or mailed applied. communication; the communication injure. contained a threat Both the dis- II. judge’s original

trict instructions and his an- jury’s question swer to the instructed the Second, argues Bellrichard unanimously agree must statute, threatening communications Bellrichard committed the essential elеments abridges speech free ‍​‌​‌‌​‌‌​​​​‌‌​​​‌​‌​​‌​‌​​‌​​​​​​‌‌‌‌​‌‌​‌​‌‌​‌‍in viola U.S.C. crime, including existence of Supreme tion of the First The Amendment. injure. Nothing threat more was re- “ rejected appar Court has the ‘viewthat quired. ently variety limitless of conduct can be la (5th Holley, United States v. 942 F.2d 916 “speech” person engag beled whenever the Cir.1991), a case which Bellrichard relies ing thereby express in the conduct intends to ” — upon heavily, inapposite. Holley, In Mitchell, is the an idea.’ Wisconsin v. U.S. perjury court reversed a conviction because -, -, 2194, 2199, 124 113 S.Ct. L.Ed.2d jury might interpret- O’Brien, feared that the have (quoting 436 v. United States ed the mean 367, 376, 1673, 1678, district instruction to court’s 391 U.S. 88 20 required unanimously (1968)). that I, were not L.Ed.2d In 672 Bellrichard we agree on the ultimate factual issue the rejected argument, Bellrichard’s that the let case, Holley knowingly which was whether that ters were the basis for his 1991 convic made a false and material declaration while protected by tions were the First Amend Holley, under oath. 942 F.2d at 929. In the ment. 994 F.2d at 1324. We commented case, jurors present although the have pro no “[t]he First Amendment affords disagreed portions as to which of particular tection utter to those who direct threats of threatening, letters were we have no reason persons.” force and violence toward other jury unanimously 1322; Paul, believe did not City v. R.A.V. St. 505 of issue, on the ultimate factual 377, 388, 120 postcard (1992) (“threats was whether each letter or was a L.Ed.2d 305 of violence are threatening Amеndment”). Thus, communication violation of 18 outside the First the § U.S.C. prohibition mailing statute’s on the of threat ening communications does not violate the argues Bellrichard also the district First Amendment. permitted court’s instruction his conviction in Amendment, violation of the First and ren- III.

dered the statute under which he was con- unconstitutionally vague applied. victed as Third, Bellrichard asserts that the finding sentencing We have that the district court court’s at concluded district that he properly “engaged evidencing instructed the to what in ... conduct an intent as was required carry clearly in order for them to convict Bell- out his errone threat[s]” ous, that, therefore, violating threatening applica riehard of the communi- the court’s 2A6.1(b)(l) opinion, improper. § cations statute. In section II of this tion of USSG was threatening finding the we conclude that communica- “We review the district court’s of unconstitutionally application tions statute does not facts for clear error and its of the Thus, novo, abridge speech. guidelines giving ar- the free facts de due gument application the district court’s instruction deference to the district court’s Saknikent, guidelines.” him in violation of the caused to be convicted United States v. (8th Cir.1994). First Amendment is without merit. 30 F.3d to car- evidenced an intent 2A6.1(b)(l) conduct if a vio- richard’s ’provides § USSG threats, court ry his the district threatening out communications lation of the A at trial. evidencing upon' presented an relied evidence any conduct “involved statute threat,” “findings judge may the offense make carry such court out district intent to trial presented six levels from at increased should be based evidence level concluding In twelve. exhibits or though level of no additional phase base offense even appropriate sentencing level increase testimony that the six are introduced case, court stated: present phase.” Id. threaten- language of the upon the based communications, conduct IV. fellow the statements defendant Fourth, argues that Bellrichard and the continued communications inmate erroneously multiple applied court district contin- have threatening tones which adjustment. We review count after, trial -leads Court ued even application interpretation and court’s district preponderance- conclude that particular set of terminology to a guideline in- does evidence the conduct evidence Manuel, 912 States v. facts de novo. United contained carry the threats out tent Cir.1990). (8th 204, 206 F.2d ... the communications within n Sentencing Guideline United States case, only United one cites Bellrichard 3Dl.l.(a) (Nov.1994) provides: § (11th Philibert, Cir. F.2d

States imposition (a) 1991), has convicted court’s a defendant been in which district When count, USSG shall: increase under the court six-level more one than Philibert, 2A6.1(b)(1) In reversed. resulting in convic- Group the counts applied the six-level sentencing judge “[t]he Closely Re- Groups of tion into distinct express find increase, any not make but did applying the (“Groups”) by lated Counts in ‘engaged appellant had the ing that §in specified 3D1.2. rules carry out evidencing an intent conduct (2) applica- level the Determine offense Upon its own Id. at such threat.’” rules Group by applying the each ble to record, conclud court the examination § specified in 3D1.3. suрported a section no evidence ed that (3) offense lev- combined the Determine Thus, 2A6.1(b)(l) the increase. Id. six-level togeth- Groups taken to all applicable el trial with for new the case a court remanded in specified the rules by applying er that, was a new if there specific direction § 3D1.4. apply conviction, not court should district the multiple count applied the evi The district court additional unless increase the six-level with USSG aсcordance adjustment in Id. dence was submitted. two level 3Dl.l.(a), was a the result us, court district the In the case before level. offense in increase expressly the evidence fully considered the basis appropri- was were increase ‍​‌​‌‌​‌‌​​​​‌‌​​​‌​‌​​‌​‌​​‌​​​​​​‌‌‌‌​‌‌​‌​‌‌​‌‍The communications a found that six-level in sup- indictment 12 of through 1 the court’s conclusion for Counts The ate. district Thus, no as the basis we see also present were used evidence. case ported justice” еn- district court’s concluding that the “obstruction level for for basis .two his for sentencing clearly at erroneous. Bellriehard’s finding was hancement Bellrichard, F.Supp. 801 convictions. 1991 argu reject Bellriehard’s alsoWe district contends that at 266. Bellrichard failing to in court erred ment that based on upon counts court’s reliance “A formal hearing. evidentiary grant upon in Judge Murphy relied conduct same however, not, ex sentencing hearing is justice” “obstruction him a levеl giving two government by which means clusive sentencing places his 1991 at enhancement evidentiary United burden].” [its meet jeopardy. him double (8th Cir.), Fetlow, 243, 250 21 F.3d States — U.S. -, States, — 456, 130 In v. United U.S. -, Witte denied, S.Ct. 115 cert. 2199, 2205, L.Ed.2d 351 -, 132 115 S.Ct. Bell- (1994). concluding that In 365 L.Ed.2d 1052

(1995), respect, I that the court’s argued, after case With believe decided Arizona, 624, “rejected Supreme the claim that reliance on Schad v. 501 U.S. Court jeopardy principles prose (plu- a later double bar 111 115 L.Ed.2d 555 S.Ct. punishment activity rality opinion), misplaced. or for criminal The issue there cution activity general guilty has been considered at where was whether a verdict sentencing separate Witte for crime.” charges premeditated murder alternative guilty marijuana charge, plead to a federal felony single in a murder contained Witte, sentencing the district court upheld. 111 count could be Id. at S.Ct. uncharged criminal conduct as could, considered at 2496. The said that it but Court Sentencing ours, “relevаnt conduct” under the case has no relevance to since here at -, at Guidelines. Id. 115 S.Ct. 2203. only charged in each count. A one crime is the criminal con Witte was later indicted for quoted plurality of the Court Schad which the district court considered as Carolina, duct McKoy v. North 494 U.S. him for “relevant conduct” his 1227, 1236, L.Ed.2d 369 108 marijuana Id. The district court conviction. (Blackmun, J., concurring), to the effect that “ grounds dismissed the indictment on the jurors may persuaded by dif- ‘different Jeopаrdy violated the Double Clause evidence, pieces ferent even when ” Amendment, Fifth but the Fifth Circuit Schad, agree upon the bottom line.’ at -, Appeals reversed. Id. Court of 631-32, at 2497. But that is S.Ct. affirming, Supreme at 2204. In S.Ct. permissible only if which the the facts on “[bjecause reasoned that consideration If, Court jurors disagree inconsequential. are determining of relevant conduct in a defen instance, half the believes that defen- legislatively within the autho dant’s sentence burglary by entering a build- dant committed punishment range does not constitute rized ing with a chisel and the other half believes conduct, punishment for that the instant knife, key, that he or she entered with a or prosecution Jeop violate the Double does not instrument, agree all or some other but ardy imposi prohibition against the Clause’s par- did not have the relevant the defendant multiple punishments for the tion of same enter, unanimity ty’s permission to then the -, at 2209. offеnse.” violated, ju- requirement is not because all illegal employed rors means were rejected argument Supreme The Court entry. to effect the That is not our case. argument is the same now advanced Witte analogous charge a Our case is that a by compels reject Bellrichard. Witte us to houses, burgled and defendant two different argument. jeopardy double hardly suppose do to that a verdict it reasons, foregoing affirm the For the we jury upheld could be unless the was instruct- judgment of the district court. unanimously ed that it had to with respect particular burglary a before it ARNOLD, Circuit MORRIS SHEPPARD respect it. could convict with dissenting. Judge, 358, 364, Winship, response In In re The district court’s instruction in 1068, 1072-73, (1970), jurors’ quite explicit question 25 L.Ed.2d 368 to the was am- Supreme process biguous unresponsive quandary. held that to their Court due true, said, requires “proof beyond certainly judge as the that in a reasonable doubt of It is jury every necessary apprоpriate fact to constitute the crime ease the “must consider whole,” charged.” by if with which is It is the letter as a [the defendant] that, court, also familiar law a federal a meant that one cannot take statements out context, finding supplies unanimous in a defen their because context mean- must be ing, meaning . guilty dant before he or she can be convicted. and the of the defendant’s 31(a). apparent It was the factual at hand. See Fed.R.Crim.P. sеems statements issue jurors difficulty to me that we do not know whether the But that was not the jurors particular They disagreed agreed experiencing. in this case all were as to not, language threatening. language (presumably If did whether certain context) entirely legally threatening. pos- was not It then defendant convicted. is thought that one jurors some here that sible AEROTRONICS, INC., Appellee, was threat- of a letter sentence

paragraph or was. thought that another ening others v. thought that some simply means But that at one a crime committed CORPORATION, that defendant ABEX PNEUMO thought that others place and time and one Appellant. place. another time and at another he did so No. 94-3430. crimes, events and distinct distinct These are by ‍​‌​‌‌​‌‌​​​​‌‌​​​‌​‌​​‌​‌​​‌​​​​​​‌‌‌‌​‌‌​‌​‌‌​‌‍houses different owned burglaries at like Appeals, Court United States person. the same Eighth Circuit. charge against recast The court has May 1995. Submitted characterizing “ultimate defendant Aug. each lеtter or Decided “whether factual issue” as threatening communication.” was a postcard factual issue ultimate respect,

With conceived, was whether case, properly postcard letter or language in each

certain threat.

constituted Holley, of United States

I find case (5th Cir.1991), point entirely on F.2d 916 the court held convincing. There required sever- when

unanimity instruction perjurious in charged as are

al statements See id. in an indictment.

single count saying Holley court was

928-29. What the cannot unanimity requirement

was that expedient of simple by the circumvented having under lied with

charging a defendant testimony. What during his sometime

oath analogous, precisely here is allows

the court essentially on a conviction upholds made a threat has

charge a defendant preci- is not the That in a letter.

somewhere 31(a) envisions. that Fed.R.Crim.P. ‍​‌​‌‌​‌‌​​​​‌‌​​​‌​‌​​‌​‌​​‌​​​​​​‌‌‌‌​‌‌​‌​‌‌​‌‍sion of the letters at all

I have had a look defen- the basis of formed

postcards that convictions, say cannot

dant’s generating capable of not of them was

one opinion

the kind of difference I there- experiencing. that it was

reported reverse respectfully dissent

fore

the convictions.

Case Details

Case Name: United States v. Loren Francis Bellrichard

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 22, 1995

Citation: 62 F.3d 1046

Docket Number: 94-3439

Court Abbreviation: 8th Cir.