1 Section 875(c) reads: IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-20811

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO MORALES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas, Houston Division

_________________________________________________________________ November 5, 2001

Before KING, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:

Eduardo Morales was an 18-year-old student at Milby High

School in Houston, Texas at the time of the internet communications

at issue. He entered an internet chatroom and, in a conversation

with a stranger in the state of Washington, threatened to shoot and

kill students at Milby High. The stranger alerted the police, who

ultimately traced the communications to Morales. He was indicted

for knowingly and intentionally transmitting in interstate commerce

a threat to injure another in violation of 18 U.S.C. § 875(c). 1 HeWhoever transmits in interstate or foreign commerce any

communication containing any threat to kidnap any person

or any threat to injure the person of another, shall be

fined under this title or imprisoned not more than five

years, or both.

2 Morales testified that he chose to communicate wi th Lees

simply because her screen name was the first one on the chat room

“whisper list.”

2 was convicted by a jury and sentenced to twenty-four months

probation. Based on this court’s earlier decision in U nited States

v. Myers

, 104 F.3d 76, 79 (5th Cir. 1997), we affirm the conviction

of Morales and the district court’s holdings.

I

Morales’s conviction stemmed from an internet conversation

Morales had with Crystal Lees, a 26-year-old mother of two living

in Puyallup, Washington, whom Morales did not know at the time.

B oth Morales and Lees were in a “Young Latinos” chat room whe n

Morales, using the screen name “Fusion_2”, sent an instant message

directed to Lees, who was using the screen name “Crystalita.” 2 The

following exchange via instant messages ensued:

Morales: I will kill

Lees: huh? - me

You will kill what - me

Morales: TEACHERS AND STUDENTS AT MILBY

Lees: Why do you want to do that

Where is Milby?

Morales: CAUSE AM TIRED ......HOUSTON

Lees: are you really going to go and kill people

Who has made you mad

r u ok do you want to talk to me

Morales: YES F NE ONE STANDS N MY WAY WILL SHOT

Lees: r u ok

Morales: I HATE LIVE3

Lees: I am here

Morales: YES MY NAME S ED HARRIS

SEE U N A COUPLE OF MONTHS

Lees alerted the police b ecause she was concerned about the

well-being of Milby High School students. Milby High School’s

principal was informed, and he increased security measures at the

school.

That same day, police traced the screen name “Fusion_2” to a

friend of Morales, who informed the police that Morales had been

using his WebTV internet terminal devi ce. Morales was arrested

after admitting that he was the individual who had parlayed with

Lees in the chat room. However, Morales insisted that he was only

joking. He told police he was trying to joke that he was the ghost

of Ed Harris, whom he mistakenly thought was the assailant at

Columbine High School, who in fact was Eric Harris.

Morales filed a pretrial motion to dismiss the indictment on

First Amendment grounds, arguing that his statements to a distant

third party did not constitute a true threat under Supreme Court

jurisprudence. That motion was denied. During the jury trial,

Morales moved for a judgment of acquittal, asserting again that no

true threat was made because the statements were made to a third

party. He also argued that no evidence established that he made

the statements with the intent to intimidate. Again, the motions

were denied.

Morales then objected to the court’s proposed jury instruction4

t hat the government was not required to prove that Morales

subjectively intended to communicate a threat. The court rejected

his proposed instru ctions that 1) the government must prove that

the defendant has communicated the threat to the target or someone

he intended would communicate the threat to the target, and 2) that

the government must prove that the defendant intended to make a

threat. The jury convicted Morales of the single § 875(c) count,

charging him with knowingly and intentionally transmitting a threat

to injure another. The court thereafter denied Morales’s postverdict motions for judgment of acquittal and a new trial.

On appeal, Morales challenges his conviction on three grounds.

First , Morales argues that his communication was not a “true

threat” given the context in which it was delivered . Second,

M orales asserts that his statements were not actionable under §

875(c) because they were communicated to a third party. Third,

Morales argues that the district court erred by not instructing the

jury that the government must e stablish that Morales intended to

communicate a threat.

II

We review de novo the denials of Morales’s motions for

judgment of acquittal. U nited States v. DeLeon

, 170 F.3d 494, 496

(5th Cir. 1999). “In evaluating the sufficiency of the evidence,

this court asks ‘whether a reasonable trier of fact could have

found that the evidence established the essential elements of the5

crime beyond a reasonable doubt.’ We consider the evidence in the

light most favorable to the verdict, drawing all reasonable

inferences in favor of the verdict. ‘It is well-settled that

credibility determinations are the sole province of the jury.’”

United States v. Cathey

, 259 F.3d 365, 368 (5th Cir. 2001)

(citations omitted).

A

We first address whether Morales’s statements constituted a

“true threat.” In this circuit, a communication is a threat under

§ 875(c) if “in its context [it] would have a reasonable tendency

to create apprehension that its ori ginator will act according to

its ten or.” U nited States v. Myers

, 104 F.3d 76, 79 (5th Cir.

1997), citing United States v. Bozeman

, 495 F.2d 508, 510 (5th Cir.

1 974) (citations and internal quotations omitted). Prosecution

under § 875(c) “requires proof that the threat was made knowingly

and intentionally.” M yers

, 104 F.3d at 79. An act is performed

“knowingly” when it is done voluntarily and intentionally, and not

because o f mistake or accident. S ee id

. “A threat is knowingly

made if the maker of it com prehends the meaning of the words

uttered by him, and a threat is willfully made if in addition to

compreh ending his words, the maker voluntarily and intelligently

utters the words as a declaration of an apparent determination to

carry out the threat.” U nited States v. Pilkington

, 583 F.2d 746,

747 (5th Cir. 1978) (citation omitted).6

H owever, “[b]ecause § 875(c) contains nothing suggesting a

specific intent requirement, it defines only a general intent

offense.” M yers

, 104 F.3d at 81. The Supreme Court has held that

“a statute such as this one, which makes criminal a form of pure

speech, must be int erpreted with the commands of the First

Amendment clearly in mind. What is a threat must be distinguished

from what is constitutionally protected speech.” Watts v. United

States , 394 U.S. 705, 707 (1969).

Before analyzing a defendant’s willfulness or intention, the

Supreme Court has noted that federal statutes prohibiting threats

“initially require[] the Government to prove a true threat.” Id

.

at 708. The Court distinguished “political hyperbole” from a “true

threat,” and recognized the importance of examining statements “in

context” to determine whether they are true threats punishable by

law. I d

. Thus, in M yers we determined that “[i]n order to

convict, a fact finder must determine that the recipient of the incontext threat reasonably feared it would be carried out.” 104

F.3d at 80, citing Bozeman , 495 F.2d at 510.

Morales admitted making the statements. He admitted more,

however: that he did it to see how Lees would react. Morales

further testified that he could see why Lees “would get scared or

why she reacted the way she did.” Morales admitted that he was

aware of a prior incident in which a student at Milby had made3 Mo rales gave conflicting testimony on whether he was aware

that the other student had been charged with a crime as a result of

his statements.

7 threats over the internet, 3 and that he knew it was wrong to do so.

U nder Myers all that is required is gener al intent. 104 F.3d at

81. It is up to the jury to decide whether Morales made the

statements knowingly and intentionally. I d

. at 78. There was

sufficien t evidence to support the jury’s finding that Morales

acted with knowledge and intent.

Additionally, however, the trier of fact must have found that

the communication “in its context would have a reasonable tendency

to create appre hension that its originator will act according to

its tenor.” I d

. at 79. The jury was presented with evidence that

Lees felt apprehension that “Fusion_2” would act on his threat to

kill. Morales repeated his threats to kill several times, and gave

no indication that he was joking. Morales admitted that he

attempted to refer to Eric Harris, one of the perpetrators of the

Columbine High School killings. Thus, his statement in context

cannot be divorced fromthe reality of that tragedy. We should

also observe that the context of Morales’s statement is different

f rom that in W atts

. Unlike W atts

, Morales was not engaged in

political speech as part of a public debate, in which the listeners

laughed in response to Watts’ s comments. S ee Watts

, 394 U.S. at

708. Given these factors and the length of the communication

between Morales and Lees, a reasonable juror could find all the8

facts necessary to make Morales’s communication a “true threat.”

B

Morales contends, however , that his statements cannot, as a

matter of law, constitute a true threat because they were made to

a random third party who had no connection with Milby High School.

Our precedent does not allow for this distinction. For

example, in Myers

, the defendant was a Vietnam veteran with a

history of mental illness. In two telephone conversations he

directly threatened a member of his congressman’s staff. In a

third telephone conversation, Myers communicated a threat against

the Veterans Administration and Congress to an employee of the

Paralyzed Veterans of America (“PVA”). Myers was convicted on

three separate counts of violations of § 875(c) for each individual

p hone call. This court affirmed Myers’s conviction, drawing no

distinction between the threat made to the PVA and two other

threats communicated directly to their targets. M yers

, 104 F.3d at

77-78. Again, the focus was on whether the threat “in its context

would hav e a reasonable tendency to create apprehension that its

originator will act according to its tenor.” M yers , 104 F.3d at

78, quoting Bozeman

, 495 F.2d at 510. It is this character and

context of the threat that is the relevant test. As discussed in

the previous section, the jury found a reasonable tendency to

create such apprehension in this case, and there is no basis for us

to disturb the jury’s findings.4 Morales also challenges the district court’s refusal to

include an instruction requiring the jury to find that Morales

intended for Lees to communicate the threat to its target. This

issue is disp osed of by our addressing direct and third-party

threats.

9 The government notes that it has never been required to show

an intent to communicate the threat to the intended victim under §

875(c). The language of § 875(c) does not require that the threat

be made directly to the intended target; it simply prohibits “any

threat to injure th e person of another” made in interstate

commerce. Moreover, as we have pointed out, our precedent in M yers

does not require that the threat be made directly to the victim.

Based on Myers and the text of § 875(c), we hold that Morales’s

statements are actionable under the federal statute.

III

Morales also challenges the instructions given the jury at the

close of his trial. The jury was instructed, in relevant part:

The Government does not have to prove that the defendant

subjectively intended for the recipient to understand the

communication as a threat. The Government also does not

have to prove that the defendant actually inten ded to

carry out the threat.

Morales objected to this instruction, instead offering that the

jury be instructed that it must find that Morales “understood and

meant [his] words as a threat” and that Morales “sent the words

knowingly and willfully, th at is, intending them to be taken

seriously.” 4

We review the rejection of a requested jury i nstruction for10

abuse of discretion, “affording the trial judge s ubstantial

latitude in tailoring [th e] instructions.” U nited States v.

Turner , 960 F.2d 461, 464 (5th Cir. 1992). The refusal to accept

a requested instruction is reversible error only if the requested

instruction “1) is substantively correct; 2) was not substantively

covered in the charge actually delivered to the jury; and 3)

concerns an imp ortant point in the trial so that the failure to

give it seriously impaired the defendant’s ability to effectively

present a defense.” I d

. Morales’s proposed instructions were not

substantively covered in the actual jury instructions and did

concern an important point in the trial; thus the question is

whether prosecution under § 875(c) requires a showing that the

defendant intended to make a threat.

Again, the Myers decision answers the questio n. There, we

specifically rejected the defendant’s claim that the district court

erred by refusing a jury instruction requiring a finding that Myers

intended his statements to be threats. Noting that “[a]s a

s t raightforward matter of textual interpretation, we will not

presume that a statutory crime requires specific intent in the

absence of language to that effect,” and recognizing that “§ 875(c)

contains nothing suggesting a specific intent requirement,” we held

that the government was not required to prove that the defendant

intended the statements to be threats. Myers , 104 F.3d at 80-81.

The jury instructions rejected here were essentially the same. So11

we can only conclude that, given that § 875(c) requires only

general intent, the district court’s denial of Morales’s requested

jury instruction was not an abuse of discretion.

IV

For the reasons we have explained, the district court did not

err in denying Morales’s motions for judgment of acquittal, nor in

denying Morales ’s requested jury instructions. The judgment of

conviction is therefore

AFFIRMED.