United States of America v. Robert Phillip Ivers
No. 19-1563
United States Court of Appeals For the Eighth Circuit
July 23, 2020
Appeal from United States District Court for the District of Minnesota
Submitted: May 15, 2020
Filed: July 23, 2020
Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
Following a jury trial, Robert Ivers was convicted of one count of threatening to murder a federal judge, in violation of
I.
“We recount the relevant testimony and other evidence presented at trial in the light most favorable to the jury‘s verdict.” United States v. Shavers, 955 F.3d 685, 688 n.2 (8th Cir. 2020).
A.
In February 2015, Ivers filed a lawsuit in Minnesota state court against a life insurance company, which was then removed to federal court and eventually assigned to Judge Wilhelmina M. Wright of the District of Minnesota. See Ivers v. CMFG Life Ins. Co., No. 15-cv-1577-WMW-BRT (D. Minn. filed Mar. 23, 2015). In September 2016, Judge Wright entered an order granting summary judgment in favor of the life insurance company on all but one of Ivers‘s claims. The following month, Ivers mailed Judge Wright a packet of various
Although the case had been scheduled for a settlement conference before Magistrate Judge Becky R. Thorson, the conference was cancelled. And because neither party demanded a jury trial, the case was instead set for a bench trial before Judge Wright. In November 2016, Ivers sent a letter to the court, demanding “a jury trial or [his] fucking money.” In that letter he also stated: “I smell a rat! Somebody needs to explain to me what the fuck is going on!?”
Ivers‘s communications were forwarded to the United States Marshals Service (USMS). Deputy Marshal Jeffrey Hattervig started investigating Ivers and learned that Ivers had previously threatened a Minnesota state court judge who presided over a separate civil action filed by Ivers. Ivers was later charged in state court with stalking and making terroristic threats, and following a trial, he was convicted of stalking. At the time of his statements to Judge Wright, he was on probation for this offense. Hattervig spoke with Ivers when he appeared at the federal courthouse for a pretrial hearing on January 4, 2017. Although Ivers was cordial and mentioned to Hattervig that his statements to Judge Wright were intended to speed up the proceedings, he signaled his frustration with the defendant life insurance company and stated that he did not want to “carry that hurt around inside” and that he would “be a walking bomb” if he did not vent his frustrations. Although he told Hattervig that he would accept the result of the trial, Hattervig remained concerned about Ivers‘s lack of remorse for his prior statements. This prompted the USMS to provide increased security at the trial, and Hattervig warned Ivers that sending threatening communications could be a crime.
Following trial, judgment was entered in favor of the life insurance company. Ivers later sent letters to Chief Judge John R. Tunheim and Magistrate Judge Thorson in which he requested a new trial and asserted that Judge Wright acted with bias against Ivers in disposing of the case. He later sent the same letter to Judge Wright and additional copies to Chief Judge Tunheim, Magistrate Judge Thorson, and the Clerk of Court. On the envelopes of some of those letters, he wrote notes stating that:
“I was cheated by one of your federal judges and I demand redress.” On the letter to Judge Wright, Ivers wrote: “You cheated me and I will not stop smearing your name until I get redress.” Ivers also called Chief Judge Tunheim‘s chambers to voice his displeasure with Judge Wright‘s decision and request that Chief Judge Tunheim take action. When Ivers was informed that the proper course of action would be to appeal his case to this Court, Ivers “was not happy with that” and mentioned that he “was crazy mad, and he didn‘t know what to do with it.” Ivers again described himself as a “walking bomb because he was so frustrated.” Chief Judge Tunheim‘s staff, concerned about Ivers‘s fixation on Judge Wright, contacted the USMS. A few days later, Ivers sent another round of letters, addressing one to “Corrupt Judge Wright” and demanding that she “pay attention.” Copies of the letters to Chief Judge Tunheim, Magistrate Judge Thorson, and the Clerk of Court included a statement on the envelopes that said: “Judge Wright is a Corrupt! [sic] Judge.”
B.
Ivers later filed a second lawsuit against the life insurance company. See Ivers v. CMFG Life Ins. Co., No. 17-cv-5068-PJS-DTS (D. Minn. filed Nov. 9, 2017). This case was initially assigned to District Judge Patrick J. Schiltz and Magistrate Judge David T. Schultz. Magistrate Judge Schultz initially found that Ivers‘s complaint failed to state a claim for relief and referred Ivers to the District of Minnesota‘s Pro Se Project, which matches pro se litigants with private attorneys, to allow Ivers to obtain help in filing an amended complaint. Ivers was later matched with Attorney Anne Rondoni Tavernier, who was assisted by Attorney Lora Friedemann, a more experienced attorney at Rondoni Tavernier‘s firm.
Attorneys Rondoni Tavernier and Friedemann determined that Ivers did not have a claim against the life insurance company. They scheduled a call with Ivers to apprise him of their legal conclusions and to inform him that they would not be taking his case. In the first part of the approximately 30-minute call, Attorneys Rondoni Tavernier and Friedemann discussed the pending lawsuit and explained that Ivers would likely be unsuccessful due to the rulings made by Judge Wright in the earlier lawsuit. As they started to discuss the prior lawsuit, Ivers became angry, and he started to yell and use profane language. He started ranting about Judge Wright, and Attorney Friedemann transcribed parts of what he said, including the following statements: “This fucking judge stole my life from me.“; “I had overwhelming evidence.“; “Judge ‘stacked the deck’ to make sure I lost this case.“; “Didn‘t read the fine print and missed the 30 days to seek a new trial—and ‘she is lucky.’ I was ‘going to throw some chairs.‘“; and “You don‘t know the 50 different ways I planned to kill her.” The attorneys did not speak while Ivers was ranting, and after Ivers stopped speaking, the attorneys concluded the call. Both attorneys were frightened by what Ivers had said, and Attorney Friedemann would later describe it as “a death threat against Judge Wright.”
C.
Ivers was later indicted for threatening to murder a federal judge, in violation of
II.
Ivers first argues that the “threat statements” he made on the call with Attorneys Rondoni Tavernier and Friedemann were protected by the attorney-client privilege. This included his declaration that “You don‘t know the 50 different ways I planned to kill her.” The scope of an evidentiary privilege is a mixed question of fact and law which this Court reviews de novo. See United States v. Ghane, 673 F.3d 771, 779-80 (8th Cir. 2012). We review the district court‘s factual findings underlying the privilege for an abuse of discretion and its legal conclusions de novo. See United States v. Smith, 383 F.3d 700, 706 (8th Cir. 2004). As the party seeking to assert the privilege, Ivers has the burden of showing that the privilege applies, Bouschor v. United States, 316 F.2d 451, 456 (8th Cir. 1963), and must show that the statements at issue were “made for the purpose of facilitating the rendering of legal services to the client.” United States v. Spencer, 700 F.3d 317, 320 (8th Cir. 2012).
“The Federal Rules of Evidence provide that evidentiary privileges ‘shall be governed by the principles of the common law . . . in the light of reason and experience.‘” United States v. Jicarilla Apache Nation, 564 U.S. 162, 169 (2011) (alteration in original) (quoting
is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer‘s being fully informed by the client.
However, “[p]rivileges, as exceptions to the general rule, are not lightly created nor expansively construed, for they are in derogation of the search for truth.” In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997) (internal quotation marks omitted). Accordingly, the attorney-client privilege is narrowly construed and “protects only those disclosures—necessary to obtain informed legal advice—which might not have been made absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976); see also Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977) (“While the privilege, where it exists, is absolute, the adverse effect of its application on the disclosure of truth may be such that the privilege is strictly construed.“).
Threats of violence are not statements that fall under the scope of the attorney-client privilege. The Supreme Court has held that “[a] defendant who informed his counsel that he was arranging to bribe or threaten witnesses or members of the jury would have no ‘right’ to insist on counsel‘s . . . silence.” Nix v. Whiteside, 475 U.S. 157, 174 (1986). Indeed, this type of communication is not made for the “purpose of facilitating the rendering of legal services[,]” Spencer, 700 F.3d at 320, but rather, is usually done to harass, intimidate, coerce, warn, or frighten the intended victim of the threat or a person who hears the threat. Therefore, we agree with the Ninth Circuit‘s observation that a “[defendant‘s] threats to commit violent acts against [alleged victims are] clearly not communications in order to obtain legal advice.” United States v. Alexander, 287 F.3d 811, 816 (9th Cir. 2002).2
Here, there is no dispute that Ivers enjoyed an attorney-client relationship with Attorneys Rondoni Tavernier and Friedemann or that parts of their telephone call were protected by the attorney-client privilege. Instead, the only issue is whether Ivers‘s threat statements, made towards the end of the call, are protected by the privilege.
The threat statements at issue were not protected by the attorney-client privilege, and we hold that they were properly received into evidence. Again, while the communications made in the first part of the call were indisputably for the purpose of obtaining legal services, as they concerned the merits of Ivers‘s lawsuit and the attorneys’ opinions as to Ivers‘s prospects for
Although Ivers spends much of his brief discussing the “predominant-motivation” and “sole-motivation” tests for the attorney-client privilege, arguing that these tests demonstrate that the statements were privileged, this argument is without merit.3 Ivers‘s argument concerning the predominant-motivation and sole-motivation tests is based on the incorrect assumption that the entire conference call with Attorneys Rondoni Tavernier and Friedemann was privileged. But courts routinely decide which specific communications between a client and his attorneys are privileged, and they often segregate privileged and non-privileged communications in particular conversations or documents. See, e.g., Alexander, 287 F.3d at 815; In re Grand Jury Proceedings, 841 F.2d 230, 233 (8th Cir. 1988). That some parts of the call were privileged does not mean that the entire call was privileged. The first part of the call in which Ivers was actually receiving legal advice is easily severable from the second part of the call, in which Ivers ranted about and threatened Judge Wright.
For these reasons, we see no error in the district court‘s determination that the threat statements in Ivers‘s call with Attorneys Rondoni Tavernier and Friedemann were not privileged.4
III.
Next, Ivers asserts that there was insufficient evidence presented at trial to prove that he made a “true threat” of present or future harm towards Judge Wright. “[W]e will review the sufficiency of the evidence to sustain a conviction de novo, viewing the evidence in the light most favorable to the jury‘s verdict and reversing the verdict only if no reasonable jury could have found the defendant guilty
“As a general matter, the First Amendment prohibits governmental actors from directing what persons may see, read, speak, or hear. Free speech protections do not extend, however, to certain categories or modes of expression, such as obscenity, defamation, and fighting words.” Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 621-22 (8th Cir. 2002) (en banc) (internal citation omitted). “True threats” are unprotected speech. Id. at 622. But “[w]hat is a [true] threat must be distinguished from what is constitutionally protected speech.” Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam).
To determine what constitutes a “true threat,” “[the fact-finder] must view the relevant facts to determine whether the recipient of the alleged threat could reasonably conclude that it expresses a determination or intent to injure presently or in the future.” Pulaski Cnty. Special Sch. Dist., 306 F.3d at 622 (internal quotation marks omitted); see also United States v. Mabie, 663 F.3d 322, 333 (8th Cir. 2011) (noting that the “government need not prove that [defendant] had a subjective intent to intimidate or threaten,” rather, it must show “that a reasonable person would have found that [defendant‘s] communications conveyed an intent to cause harm or injury“). This is for the fact-finder to determine “in the context of the totality of the circumstances in which the communication was made.” United States v. Bellrichard, 994 F.2d 1318, 1323 (8th Cir. 1993). Relevant factors include:
1) [T]he reaction of those who heard the alleged threat; 2) whether the threat was conditional; 3) whether the person who made the alleged threat communicated it directly to the object of the threat; 4) whether the speaker had a history of making threats against the person purportedly threatened; and 5) whether the recipient had a reason to believe that the speaker had a propensity to engage in violence.
Pulaski Cnty. Special Sch. Dist., 306 F.3d at 623.
Ivers argues that the evidence was insufficient to demonstrate a true threat against Judge Wright because his statements did not evince a present or future intent to harm Judge Wright. In particular, Ivers focuses on the fact that his statements to Attorneys Rondoni Tavernier and Friedemann, and in particular, his statement that “You don‘t know the 50 different ways I planned to kill her,” used the past tense, suggesting he lacked the intent to cause any present or future harm. Ivers also asserts that his language was intentionally exaggerated and hyperbolic and that he reasonably believed everything he said to his attorneys would remain confidential.
Although Ivers‘s brief focuses on the statements he made during his call with his attorneys, it is important to note that his fixation with, and anger towards, Judge Wright preceded the call by roughly two years. Indeed, during his first lawsuit, Ivers engaged in a campaign of sending threatening or intimidating communications to Judge Wright and others. Specifically, Ivers sent her a warning in which he stated that he was “becoming a very dangerous person” and later demanded “a jury trial or [his] fucking money.” He also sent letters to Judge Wright and other judges in the District of Minnesota in which he demanded a new trial, calling Judge Wright corrupt, and stating that he would “smear her name.” He later described himself to Chief Judge Tunheim‘s staff and Deputy Marshal Hattervig as a “walking bomb.” When confronted by Hattervig
Contrary to Ivers‘s arguments, a jury could have reasonably concluded that, under the totality of the circumstances, Ivers‘s comments constituted a “true threat” of present or future violence. Ivers explicitly threatened Judge Wright‘s life during his call with Attorneys Rondoni Tavernier and Friedemann—it was reasonable to interpret his statement that “You don‘t know the 50 different ways I planned to kill her” as a death threat. During the call, Ivers began ranting about Judge Wright, and his tone and manner of speaking were threatening and of “barely controlled rage.” He made other troubling statements, including the following: “This fucking judge stole my life from me,” and “I was going to throw some chairs.” Similarly, when deputy marshals later confronted Ivers about the call, he initially refused to speak with them; shouted at them; referred to Judge Wright by a racial epithet; stated that Judge Wright was “that fucking judge who stole” his life, money, and future; and confirmed that he remained “crazy fucking angry.” Even after Ivers‘s sister explained to him that the deputy marshals were only there to confirm that he did not actually mean to threaten the life of a federal judge, Ivers refused to retract his statements or assuage the fears of law enforcement.
It is important to note the effect of Ivers‘s statements and letters on those who heard or read them. See United States v. J.H.H., 22 F.3d 821, 827 (8th Cir. 1994) (“Evidence showing the reaction of the victim of a threat is admissible as proof that a threat was made.“). At trial, several government witnesses testified that they found Ivers‘s statements to be threatening and frightening. Attorney Friedemann testified that she interpreted Ivers‘s statements as “a death threat against Judge Wright” and that nothing from the call indicated to her that Ivers had abandoned his plans to kill Judge Wright. Attorney Rondoni Tavernier testified that, based on the intensity of Ivers‘s anger, she was even worried for her own safety. Similarly, Deputy Marshal Wooton stated that he was concerned about the statements and that Ivers‘s conduct suggested that he could act on his threat.
Accordingly, because of the intensity of Ivers‘s expressed anger towards Judge Wright, his tone and demeanor, his prior conduct, his history of letters and communications to Judge Wright and others, and Judge Wright‘s prior rulings in Ivers‘s first lawsuit, the jury could reasonably infer a true threat of present or future harm from, among other statements, Ivers‘s comment that he “planned to kill [Judge Wright].”
Finally, we find unpersuasive Ivers‘s remaining arguments that there was insufficient evidence to sustain the verdict. Although we acknowledge that Ivers made some of his statements in the call using the past tense, this fact is not, by itself, dispositive in light of the “textual context and also in the context of the totality of the circumstances.” Bellrichard, 994 F.2d at 1323. Similarly, that Ivers believed his
For the foregoing reasons, we conclude that sufficient evidence supports the jury‘s verdict.
IV.
Ivers also claims that the district court erred in instructing the jury on Count 1, threatening to murder a federal judge, in violation of
First, we find unpersuasive Ivers‘s argument that the district court erred by failing to instruct the jury that Ivers must have subjectively intended his statement to be a threat in order to convict him of Count 1. Ivers relies heavily on Elonis v. United States, 135 S. Ct. 2001 (2015), in which the Supreme Court held that
135 S. Ct. at 2010 (“[W]e read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” (internal quotation marks omitted)).
Second, we reject Ivers‘s argument that the district court erred by incorrectly defining “threat” for Counts 1 and 2 because it failed to specifically include a temporal requirement that the threat convey present or future harm. See Pulaski Cnty. Special Sch. Dist., 306 F.3d at 622 (noting that a true threat is one that conveys an intent to cause present or future harm). Instruction No. 10 informed the jury that “[a]n expression to injure in the past may be circumstantial evidence of intent to injure in the present or future.” Moreover, Ivers repeatedly argued to the jury that he could not be convicted for a past threat, that “[a] threat is now or in the future[,]” and that he lacked any future intent to harm Judge Wright. He also cross examined several witnesses about the distinction between the words “plan” and “planned,” further demonstrating that the jury heard both argument and evidence concerning the distinction between past threats and threats of present or future harm. See Penry v. Johnson, 532 U.S. 782, 800 (2001) (observing that jury instructions should be reviewed in the context of the comments made by the government and defense counsel and “with a commonsense understanding . . . in the light of all that has taken place at the trial” (internal quotation marks omitted)). In light of Instruction No. 10 and the defense‘s arguments and evidence at trial, there was a sufficient basis from which the jury could infer that a threat must evince an intent to harm someone in the present or future. See United States v. Pereyra-Gabino, 563 F.3d 322, 329 (8th Cir. 2009) (noting that “jury instructions need not be technically perfect or even a model of clarity” (internal quotation marks omitted)). Accordingly, the district court did not abuse its discretion in failing to instruct the jury on the temporal requirement of a true threat with the specificity suggested by Ivers.
V.
Finally, Ivers contends that the cumulative effect of the district court‘s errors deprived him of a right to a fair trial. “We may reverse where the case as a whole presents an image of unfairness that has resulted in the deprivation of a defendant‘s constitutional rights, even though none of the claimed errors is itself sufficient to require reversal.” United States v. Montgomery, 635 F.3d 1074, 1099 (8th Cir. 2011) (quoting United States v. Samples, 456 F.3d 875, 887 (8th Cir. 2006)). Because we find that Ivers has not shown that the district court erred with respect to his first three issues on appeal, his cumulative error argument must fall. See United States v. Anderson, 783 F.3d 727, 751 (8th Cir. 2015).
VI.
For these reasons, we affirm the judgment of the district court.