APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:12-CR-00138-WJM-1).
O. Dean Sanderford, Assistant Federal Public Defender (and Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.
James C. Murphy, Assistant United States Attorney (and John F. Walsh, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.
Before KELLY, BALDOCK, and EBEL, Circuit Judges.
KELLY, Circuit Judge.
Kenneth Wheeler was convicted of two counts of transmitting a threat in foreign commerce under 18 U.S.C. § 875(c) based on Facebook posts that called upon his " religious followers" to carry out violent acts. Count One of the indictment referenced Mr. Wheeler's " wrath commands" to kill law enforcement officers and children. 1 R. 27. Count Two referenced Mr. Wheeler's instructions to kill law enforcement officers, politicians, judges, district attorneys, public defenders and their children. Id. at 28. Mr. Wheeler was sentenced to forty months' imprisonment on each count to run concurrently, and three years' supervised release on each count, also to run concurrently. On appeal, Mr. Wheeler argues that his convictions must be reversed because: (1) the jury was not properly instructed that it had to find Mr. Wheeler had a subjective intent to threaten in order to convict; and (2) the evidence was insufficient to support a finding that Mr. Wheeler transmitted a " true threat." We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse for a new trial because the jury was not properly instructed. We are not persuaded that the evidence was insufficient to convict.
Mr. Wheeler has strong anti-government views and became angry at certain police officers in Grand Junction, Colorado, because of, among other things, a DUI arrest that he viewed as a set-up. On March 12, 2012, Mr. Wheeler, while in Italy, posted a statement to his Facebook page urging his " religious followers" to " kill cops. drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines" and provided names. Gov't Ex. 8g. Four days later, on March 16, 2012, Mr. Wheeler posted again from Italy: " to my religious followers and religious operatives. if my dui charges are not dropped, commit a massacre in the stepping stones preschool and day care, just walk in and kill everybody." Id. Mr. Wheeler lived two to three blocks away from the Stepping Stones daycare center.
In addition, the government introduced evidence of a third Facebook post by Mr. Wheeler on March 17, 2012, his " last mean update, once i can't do this in america." Id. In this post, which was not the basis of a charge, Mr. Wheeler stated that " in my faith revenge is the only commandment." Id.
Each post appeared as a " status update" on Mr. Wheeler's page, which a Facebook
custodian explained is " when a user posts what they are thinking or how they are feeling on their own wall to share with their friends and family." 3 R. 220-21. According to Facebook's records, Mr. Wheeler's status updates could be viewed by his " friends and networks." Id. at 224. There is no evidence Mr. Wheeler was a member of any " networks" at the times he posted the status updates. But, two officers testified that they viewed Mr. Wheeler's Facebook page on March 16 and thought he had friends listed on the page. Further, Facebook records indicated that on March 17, Mr. Wheeler removed ten Facebook friends, which suggests that he had these friends when he posted the March 12 and March 16 status updates.
After his arrest, Mr. Wheeler told the police that he thought he had deleted all of his Facebook friends prior to posting the status updates. The district judge, who listened to a recording of Mr. Wheeler's interview, believed Mr. Wheeler was operating under the " mistaken belief" that nobody would see his Facebook posts. Id. at 562. Mr. Wheeler further explained that he had no " religious followers" ; indeed, the district court found " no evidence in the record at all from which anyone can reasonably conclude that such individuals ever existed." Id. at 550. When the police asked Mr. Wheeler why he made the posts, he said, " I was just basically trying to stick it to the man and say f*** you." Id. at 292. When Mr. Wheeler was asked how he would feel if somebody had carried out his orders, he responded that he " would probably have a wide spectrum of mixed emotions" ; he would " feel bad if people got hurt," but also would " want to point [his] middle finger at--in the face of people--certain people and say, That's what you get for all of the terrorism that you did to me." Id. at 293.
One of the individuals referenced in Mr. Wheeler's posts came across the posts on Facebook. The man knew Mr. Wheeler because he worked as a bouncer at a pub Mr. Wheeler frequented. He testified that, in his experience, Mr. Wheeler was " loud and mouthy," but had not been violent. Id. at 181-82. Nevertheless, the posts worried him and he called the police. He did not interpret the posts to be a joke and could not understand how anybody would. The other individuals mentioned in Mr. Wheeler's posts were notified by the police. One of the men, an employee at the same bar, testified that the posts made him concerned for his safety. He knew that Mr. Wheeler was " not right in the head," and was concerned because " there are other people in the world that I don't necessarily trust." Id. at 207.
One of the threatened police officers lived right next to the Stepping Stones preschool and testified that he had " never seen something like this" in his eight years in law enforcement and that it was " chilling" and " crossed the line." Id. at 299. When he told his wife of the threats, she wanted " to go out and, you know, get comfortable using a firearm." Id. at 300. Another officer knew Mr. Wheeler and thought he was " a nut to the point where he was violent and could be a danger to [his] family." Id. at 305. This officer went to his church and children's school to warn the pastor and teachers about the posts and made sure that his wife was armed. A third officer spent the day patrolling the area around Stepping Stones daycare.
Mr. Wheeler was charged under 18 U.S.C. § 875(c), which states in relevant part: " Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or
both." At trial, Mr. Wheeler submitted two proposed instructions on the elements of the offense, both which required the jury to find that " Mr. Wheeler understood and meant the words as a true threat." 1 R. 360-61. The government objected to the proposed instruction, arguing that it " improperly makes 18 U.S.C. § 875(c) a specific intent crime rather than the general intent crime that it is." Doc. 142 at 1. It asserted that only the Ninth Circuit required subjective intent to threaten and that the Tenth Circuit had rejected such an approach. Id. at ...