UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT D. STEWART, JR., aka Robert Wilson Stewart, Bob Stewart, Defendant-Appellant.
No. 03-10662
D.C. No. CR-03-00061-HDM
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed August 23, 2005
420 F.3d 1007
Before: Diarmuid F. O‘Scannlain, Robert E. Cowen, and Carlos T. Bea, Circuit Judges.
Argued and Submitted December 7, 2004—San Francisco, California
Howard D. McKibben, District Judge, Presiding
Opinion by Judge Bea
*The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation.
Thomas E. Haney, Esq., argued the cause for the appellant.
Patrick Schneider, Esq., Office of the U.S. Attorney, argued the cause for the appellee; Paul Charlton, Michael T. Morrissey, and Soo C. Song, Office of the U.S. Attorney, were also on the brief.
OPINION
BEA, Circuit Judge:
We are asked to determine whether certain words, spoken under certain circumstances, constitute criminal threats of harm against a federal judge and are not protected by the First Amendment. We are also asked to determine what quantum of evidence the Government must present to establish that a defendant, who solicited another person to murder a federal judge, had the required criminal intent for the other person to commit the murder.
FACTS
Robert D. Stewart, Jr. appeals his convictions and sentence for threatening to murder a federal judge (Count 1), soliciting the murder of a federal judge (Count 4), and making material false statements to government agents investigating the threats and solicitation (Counts 2 and 3).1 At trial, the Government elicited the following testimony:
Shortly after Stewart‘s arrival at the prison, Stewart stated to Weiss that “[FBI] agents should be like strung up on light posts.” Weiss asked him if he was serious, and Stewart responded, “[W]ell, it would be a nice thing.” Stewart also asked Weiss if he “knew somebody that could have somebody done away with.”
Stewart‘s statements wavered between targeting FBI agents or a judge, but then became specific: U.S. District Judge Roslyn O. Silver, who had presided at Stewart‘s earlier trial. Weiss testified Stewart stated “he wanted to string the motherfucker up and cut her throat, his throat, and make it like a copycat so that people would do the same thing.”3 Stewart offered Weiss weapons and $100,000 as a reward if Weiss
Weiss agreed with Agent Barton and Special Agent Gallante to record secretly a conversation with Stewart, using a hidden digital recorder provided by the FBI. Weiss met with Stewart and recorded their conversation.4 During the meeting, Stewart asked if Weiss “could do it,” meaning whether Weiss could “do the hit.” Stewart offered weapons to be given as compensation to Weiss‘s brother-in-law to perform the hit (Weiss had invented a fictitious brother-in-law who would do the killing), and $100,000 to Weiss as a reward for arranging the hit. Stewart stated his sister had access to the weapons and could deliver them to Weiss‘s brother-in-law. Stewart stated the Aryan Brotherhоod was also targeting the judge and would contribute money “to go in on the hit,” and he again mentioned the “copycat” murder strategy. Stewart then described the victim as fifty-five years old, with blonde hair, having the name of “Silver,” and located in Phoenix, Room 624. Weiss asked Stewart how he wanted the killing done, and Stewart made a cutting motion with his finger across his throat. After the meeting, Weiss immediately delivered the recording to Agent Barton and Special Agent Gallante.
Special Agent Gallante then interviewed Stewart twice. During the first interview, Special Agent Gallante told Stewart he had reason to believe Stewart was involved in a conspiracy to harm a federal judge. Stewart responded: “I‘m not involved in anything like that, and especially I wouldn‘t want to harm my judge, Judge Silver, because I‘m appealing my case . . . .” Special Agent Gallante asked Stewart whether he said “anything that could even be misinterpreted as a threat to a judge.” Stewart denied saying anything, but mentioned he had overheard the Aryan Brotherhood “wanted to harm Judge Silver because she had sentenced one of their associates.”
Judge Silver also testified for the Government. She presided over Stewart‘s previous criminal trial, in which Stewart was convicted and sentenced to prison for the federal firearm offenses. Judge Silver testified that during the previous trial, Stewart was initially respectful and polite, but as the trial progressed, his demeanor turned to what Judge Silver described as anger or “smoldering rage.” She testified Stewart‘s change in demeanor was precipitated by her not permitting Stewart to pursue a рarticular line of defense, i.e., that the federal government had no jurisdiction or authority over Stewart. Judge Silver stated she never received any threats directly from Stewart but was so informed by the U.S. Marshals Service and the FBI. She also stated that, at the time Stewart spoke to Weiss, a reasonable description of her would be fifty-six years old, female, with blonde hair, and that her courtroom was on the sixth floor of the Phoenix courthouse, room number 604 or 624.
Following the Government‘s case-in-chief, Stewart brought a motion for judgment of acquittal on all counts, which the district court denied. Stewart then testified in his defense and denied making any threats regarding Judge Silver or soliciting her murder. Several character witnesses also testified Stewart had a reputation for truthfulness. The jury then found Stewart
DISCUSSION
Stewart raises multiple challenges to his convictions. We address each in turn.
I. Multiplicity of the Indictment
As a preliminary matter, Stewart contends Counts 1 and 4 are multiplicitous, and thus that his convictions on both counts violate the Double Jeopardy Clause. He makes the same claims as to Counts 2 and 3. The district court rejected both sets of claims in its denial of Stewart‘s motion to dismiss.
[1] The claim that an indictment has resulted in multiplicitous convictions is reviewed de novo. United States v. Vargas-Castillo, 329 F.3d 715, 718-19 (9th Cir. 2003). An indictment is multiplicitous when it charges multiple counts for a single offensе, producing two penalties for one crime and thus raising double jeopardy questions. Id. However, two counts within an indictment are not multiplicitous if “each separately violated statutory provision requires proof of an additional fact which the other does not.” Id.; see United States v. Stearns, 550 F.2d 1167, 1172 (9th Cir. 1977) (“Congress has the power to establish that a single act constitutes more than one offense, at least as long as each offense requires proof of a fact the other does not.“). We turn to the first claim of “multiplicity.”
Count 1 alleged Stewart threatened to murder Judge Silver with the intent to impede, intimidate, or retaliate against her on account of the performance of her official duties, in violation of
Whoever . . . (B) threatens to assault, kidnap, or murder . . . a United States judge . . . with intent to impede, intimidate, or interfere with such . . . judge . . . while engaged in the performance of official duties, or with intent to retaliate against such . . . judge . . . on account of the performance of official duties, shall be punished . . . .
However, Count 4 alleged Stewart solicited another person to murder Judge Silver, in violation of
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned . . . .
[2] Count 1 required proof Stewart threatened to murder Judge Silver; the participation of Weiss was unnecessary. On the other hand, Count 4 required proof Stewart solicited Weiss to murder Judge Silver; proof Stewart made a threat against her was unnecessary. Thus, both counts required proof of a fact the other did not. Counts 1 and 4 are not multiplicit-
B. Counts 2 and 3 — Making material false statements to FBI agents
Stewart also argues Counts 2 and 3 are multiplicitous because they derive from identical false statements he made in response to identical questions from Special Agent Gallante.
[3] We have previously held that, under section 1001(a)(2), “where identical false statements, in either oral or written form, are made in response to identical questions, the declarant may be convicted only once.” United States v. Olsowy, 836 F.2d 439, 443 (9th Cir. 1988). This is so because the repetition of a false statement by a declarant does not further impair the operations of the government beyond the initial violation, and a contrary rule would permit thе government to pile on multiple convictions by repeatedly asking a declarant the same question. Id. at 442-43. We later refined the Olsowy holding into a two-element test. The government may charge separate violations for identical false statements under section 1001(a)(2) if: (1) the declarant was asked the same question and gave the same answer; and (2) the later false statement further impaired the operations of the government. United States v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988).
A comparison of the two cases helps to illuminate our analysis. In Olsowy, the defendant received a Social Security check, which was endorsed and cashed. 836 F.2d at 440. The defendant later claimed he had never received the check. The same government agent interviewed the defendant twice
Unlike Olsowy, Salas-Camacho reached the opposite result. There, the defendant was crossing the United States-Mexico border. 859 F.2d at 789. He was asked by a primary customs inspector whether he was bringing anything back with him from Mexico. Id. The defendant answered “No.” Id. The primary inspector referred the defendant to a secondary inspector who asked the dеfendant what he was bringing back from Mexico. Id. The defendant replied he had nothing to declare. Id. Through a computer search, the secondary investigator at the border learned the defendant earlier had illegally imported steroids. The defendant then admitted he had illegal steroids in his truck. The defendant was convicted of, inter alia, two counts of making false statements in violation of section 1001(a)(2). Id. We held the counts were not multiplicitous because the defendant‘s denial to the secondary inspector further impaired the operations of the government. Id. at 791. We reasoned both inspectors had different duties: the primary inspector to make a preliminary determination whether an entrant should be allowed over the border, and the secondary inspector
to conduct a more searching еxamination, including, as in this case, a computer search to determine any prior violations. Both the primary and the secondary customs inspectors, in making their respective determinations and discharging their respective duties,
rely on information obtained from the entrant. Where, as here, the entrant makes a false statement to both inspectors, the ability of both officials to carry out their respective functions is impaired.
We agree with Stewart that the facts here are more like Olsowy than Salas-Camacho. The same FBI agent asked Stewart twice whether he had threatened a federal judge, and Stewart made identical denials both times. Although Stewart mentioned the Aryan Brotherhood during the first interview and Weiss during the second interview, the FBI already had that information by virtue of the recording and Weiss‘s participation.
[4] Special Agent Gallante‘s testimony did not establish any additional impairment to his investigation because of the second interview. Special Agent Gallante testified that, after the first interview, the government “had every man on alert” in an attempt to thwart any attempt to harm Judge Silver. After the second interview, the government interviewed Stewart‘s family members to trace the weapons to be used as payment. But again, at the time of Stewart‘s second denial, the FBI already had the information leading to those areas of investigation. Thus, it cannot be said Stewart‘s second denial “further impaired the operations of the government.” See id. Hence, Counts 2 and 3 were indeed multiplicitous, and the district court erred in not entering an acquittal on either Count 2 or 3. We therefore rеverse Stewart‘s conviction as to Count 3.
II. Sufficiency of the Evidence
Where a defendant moves for acquittal at the close of the government‘s evidence, we review de novo whether sufficient evidence exists to support a guilty verdict. United States v. Carranza, 289 F.3d 634, 641 (9th Cir. 2002). In reviewing for
A. Count 1 — Threatening to murder a federal judge
Stewart contends there is insufficient evidence to support his conviction on Count 1 for threatening to kill Judge Silver. Because Stewart‘s threats were spoken words, he also claims error through violation of his First Amendment rights.
To resolve Stewart‘s claim, we undertake a two-step analysis to assess the sufficiency of the evidence for convictions regarding threats. First, we determine whether the verdict is supported by sufficient evidence. See United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). If sufficient evidence is found, we then review de novo “whether the facts as found by the jury establish the core constitutional fact, in this case, a ‘true threat.’ ” Id.
1. Sufficiency of the evidence on Count 1
[5] Stewart‘s conviction under
[7] Further, Judge Silver testified she was a judge in the federal court system, that she presidеd over Stewart‘s earlier trial which resulted in Stewart‘s conviction for federal firearm offenses, and that Stewart exhibited anger and “smoldering rage” toward her during the trial. The anger was precipitated by Judge Silver not permitting Stewart to pursue a particular line of defense. Those facts are sufficient to establish the five elements under section 115(a)(1)(B).
However, Stewart also argues section 115(a)(1)(B) requires a defendant to communicate the threat directly to the intended target, which concededly did not occur here. The district court rejected this argument, finding the statute contained no such requirement.6
[8] We agree with the district court for several reasons.
[9] Second, we have previously suggested no such requirement is included in the statute. In United States v. Chase, 340 F.3d 978 (9th Cir. 2003) (en banc), we affirmed the defendant‘s conviction under section 115(a)(1)(B) for threatening a federal law enforcement officer. Id. at 993. The defendant discovered the FBI was about to execute a search warrant at his home, and he told a telephone operator at his psychiatrist‘s office that “there are FBI Marshals that are on their way out to get me and if that happens, people are going to die.” Id. at 980. We did not discuss whether section 115(a)(1)(B) required a direct threat to the proposed target. Yet we favorably cited a portion of the earlier three-judge panel opinion, id. at 992-93, which had apprоvingly quoted from the district court‘s jury instruction that “[i]t is not required that the defendant communicate the alleged threats to the objects of the alleged threats.” United States v. Chase, 301 F.3d 1019, 1030-31 (9th Cir. 2002) (three-judge panel opinion).
[10] Third, other circuits to have considered this issue also have not required as an element that the defendant communicate the threat directly to the intended target. See United States v. Martin, 163 F.3d 1212, 1215-18 (10th Cir. 1998) (affirming the defendant‘s conviction for threatening a law enforcement officer even though the threats were only heard by the defendant‘s associate (who recorded the threats and reported them to law enforcement), and holding that the threats did not have to be directed to the target but only had to be received by a third party); United States v. Raymer, 876 F.2d 383, 391 (5th Cir. 1989) (affirming the defendant‘s conviction on two counts of threatening a federal probation officer even though the officer never directly received the threats, and holding that actual receipt of the threats by the proposed target was not required under the statute).
2. “True threats” for purposes of the First Amendment
[12] A core purpose of the First Amendment “is to allow ‘free trade in ideas’ — even ideas that the overwhelming majority of people might find distasteful or discomforting.” Virginia v. Black, 538 U.S. 343, 358 (2003). Yet the First Amendment does not provide absolute protectiоn to all types of expression; notable for our purposes here, the First Amendment does not protect so-called “true threats.” Id. at 359.
[13] In defining a “true threat,” our precedent has generally called for application of an objective test. That is, a statement is a “true threat” if “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.” Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058, 1074 (9th Cir. 2002) (en banc) (quoting Orozco-Santillan, 903 F.2d at 1265). We have utilized some form of that objective test for over thirty years. See Roy v. United States, 416 F.2d 874 (9th Cir. 1969) (holding that for purposes of
[14] Yet in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005), our holding suggested the objective “true threat” defi-
Cassel stated, however, that it did not address “the question of what effect our holding has on other specific statutes that we have previously held do not require the government to prove subjective intent.” Id. at 633 n.8.
Moreover, by its express language, section 115(a)(1)(B) contains a specific intent element: it punishes only threats made regarding enumerated officials with the intent to impede, intimidate, interfere with, or retaliate against such officials on account of the оfficials’ performance of official
[15] Resolution of the issue whether to apply the objective or subjective “true threat” definition for purpоses of section 115(a)(1)(B) is further complicated by our recent decision in United States v. Romo, No. 04-30131, 2005 WL 1560266 (9th Cir. July 5, 2005). There, in affirming the defendant‘s conviction under
The recent decision in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005), does not change our view. Cassel leaves untouched the reasonable person analysis for presidential threats because it did not address whether statutes like 18 U.S.C. § 871(a) require intent. Because Romo has not raised First Amendment issues and Cassel does not alter the analysis of
presidential threats, we employ the decades-old approach to analyzing threats under 18 U.S.C. § 871(a).
Romo, 2005 WL 1560266, at *6 n.6 (internal citations omitted).
[16] We are not fully convinced that Romo properly distinguished Cassel, or that Romo‘s continued use of the objective “true threat” definition is consistent with Black‘s subjective “true threat” definition. Nonetheless, we need not decide whether the objective or subjective “true threat” definition should apply here.8 That is because the evidence establishes that Stewart‘s statement was a “true threat” under either definition and thus is not protected by the First Amendment.
Under the objective definition, Stewart‘s statement that he wanted to target a judge and “string the motherfucker up and cut her throat, his throat, and make it like a copycat so that people would do the same thing,” combined with an offer to provide weapons and money reward, can reasonably be interpreted as a serious expression of intent to harm or assault the target; here, a federal judge. See Orozco-Santillan, 903 F.2d at 1265-66 (affirming the defendant‘s conviction under
Under the subjective definition — which asks whether “the speaker subjectively intended the speech as a threat,” Cassel, 408 F.3d at 633 — section 115(a)(1)(B) requires that Stewart have made the statement with the specific intent to impede, intimidate, interfere with, or retaliate against Judge Silver on account of the performance of her official duties.9 We determined supra there was sufficient evidence presented to the jury to establish the existence of such specific intent, and that in turn is sufficient to show Stewart “subjectively intended the speech as a threat.” See id.; id. at 637 n.14 (“The defendant might, of course, threaten to bring about the injury indirectly — for example, by having a third party harm the victim.“).
[17] Accordingly, under either the objective or subjective “true threat” definition, Stewart‘s statements were “true
B. Count 2 — Making material false statements to FBI agents
Stewart also argues there is insufficient evidence to support his conviction on Count 2 for making material false statements to Special Agent Gallante. We reject this argument.
[18]
Stewart also contends there is insufficient evidence to support his conviction on Count 4. Specifically, Stewart argues there was insufficient corroboration of his intent under
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned . . . .
We have not before examined the meaning of the term “circumstances strongly corroborative of that intent.” We review the construction and interpretation of a statute de novo. United States v. Ventre, 338 F.3d 1047, 1052 (9th Cir. 2003). We turn first to the plain meaning of the statute because, if we can interpret clearly its meaning from the statutory text, resort to legislative history is unnecessary. Id.
Section 373(a) punishes a person who solicits another person to engage in felonious conduct that includes the use, attempted use, or threatened use of physical force against property or against the person of another in violation of federal law, with the intent the other person engage in the conduct. The statute, through the use of the word “and,” also requires that the solicitation occur “under circumstances strongly corroborative of that intent.”
The plain meaning of the phrase “circumstances strongly corroborative of that intent” thus shows that section 373(a) requires the government to present evidence of facts accompanying the solicitation strongly confirming that the defendant actually intended the solicited person to engage in the solicited violent crime. See United States v. Korab, 893 F.2d 212, 215 (9th Cir. 1989) (noting section 373(a) is focused upon punishing persons “who make[ ] a serious effort to induce another person to commit a crime of violence,” regardless of “whether or not the crime of violence is actually committed“); United States v. Gabriel, 810 F.2d 627, 635 (7th Cir. 1987) (noting a violation of section 373(a) requires “the surrounding circumstances in general must indicate that the solicitor is serious that the person solicited actually carry out the crime.“). Such corroborating evidence could consist of discussions or planning between the defendant and the person solicited regarding the crime to be committed, offers of payment, or the providing of information regаrding the description or location of the proposed victim.
III. Sentencing
[20] Because we reverse Stewart‘s conviction on Count 3, we remand to the district court for re-sentencing. See United States v. Bennett, 363 F.3d 947, 955-56 (9th Cir. 2004) (“When a defendant is sentenced on multiple counts and one of them is later vacated on appeal, the sentencing package comes ‘unbundled.’ The district court then has thе authority to put together a new package reflecting its considered judgment as to the punishment the defendant deserved for the crimes of which he was still convicted.“) (internal quotation marks omitted). On remand, the district court should re-sentence Stewart in light of the new advisory sentencing guidelines system mandated by United States v. Booker, 125 S. Ct. 738 (2005).14
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.