NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0180n.06
Case No. 16-5007
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CLIFFORD LEON HOUSTON, aka Leon Houston, Defendant-Appellant. ____________________________________/ ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: MERRITT, KETHLEDGE, and WHITE, Circuit Judges. MERRITT, Circuit Judge. Defendant-Appellant Cliffo rd Leon Houston appeals his conviction of transmitting a threat to injure his attorney in violation of 18 U.S.C. § 875(c). 1 On appeal, Houston first challenges th e district court’s jury instructi ons because they did not require the Government to prove that he knew that th e communication at issue would be transmitted “in interstate commerce.” Alternatively, he argues that the United States did not produce sufficient evidence to justify a conviction under 18 U.S.C. § 875(c). For the reasons articulated below, we AFFIRM the judgment of the district court.

1 The text of 18 U.S.C. § 875(c) reads: “Whoever tran smits 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.” Throughout this opinion, we refer to the element that the communication be transmitted “in interstate or foreig n commerce” as § 875(c)’s “jurisdictional element.”Case No. 16-5007, United States v. Houston

- 2 - I. Background This is Houston’s second appeal before this court in this case. In his first appeal, this court reversed Houston’s conviction due to a def ective jury instruction and remanded for further proceedings. United States v. Houston , 792 F.3d 663, 670 (6th Cir. 2015). Houston was again convicted after a new trial, and he now appeals from his latest conviction. Because the proof offered at the subsequent trial was substantially iden tical to the proof offered at the first trial, we rely upon the earlier panel’s stat ement of relevant facts: Clifford Houston is not unacquainted with law enforcement or criminal defense lawyers. His most recent ro und of trouble began in 2006, when Houston participated in a shoot-out that ended w ith the death of a sheriff’s deputy and his ride-along. Facing first-de gree and felony murder charges, Houston obtained the services of an attorney, James F. L ogan. To secure payment for Logan’s representation, Houston’s father executed a deed of trust on the family property, granting Logan an interest in the Houstons’ land. Th e first trial ended in a mistrial, the second in an acquittal. Houston was not as grateful as one might expect. He did not pay his fees. That pr ompted Logan to foreclose on part of the Houston property, making the attorney and client neighbors and making the client unhappy. It was not long before Houston was back in jail, this time awaiting trial on a firearms offense. While in jail, H ouston heard that Logan had visited his family’s property (now partly Logan’s pr operty), and did not take it well. As overheard by an official from the Blount County Sheriff’s Office, Houston went into “a complete rage.” The official heard Houston say something about “killing them all.” Then, in a variation on Shakes peare’s often-misinterpreted dictum, he said: “When me and my brother get out, we’re going to go to that law firm and kill every last one of them.” The next day, Houston placed a phone call to his girlfriend, Pat Honeycutt. Here is part of what he said: HOUSTON: I’ll kill that mother f[* * *]er [referring to Logan] when I get out. Hey, I ain’t kidding! I ain’ t akidding! They can record it! They can do whatever the hell they want! That motherf[* * *]er opens up my house, I’ll kill his ass! When I get out of this motherf[* * *]er, he’s dead!

. . . HOUSTON: The only thing [Logan]’s gonna get from me is a f[* * *]ing bullet! That’s the only th ing that son of a b[* * * *] gonna get from me! That’s the only damn thing! They better get somebody to lock that son of a b [* * * *] up! ‘Cause I’ve gotCase No. 16-5007, United States v. Houston

- 3 - something for Mr. damn Logan! You let me get out of this motherf[* * *]er in any shape, form, or fashion, and he’s got a damn problem!

. . . HOUSTON: You tell any of my family, you tell Cody, you tell Rachel, any of them, to kill that s on of a b[* * * *]! . . . Any of my, any of my people has got my permis sion to kill that son of a b[* * * *]! HONEYCUTT: They ain’t gonna do that. I mean, they ain’t gonna shoot nobody. HOUSTON: Well, I ain’t got no damn problem with it. I ain’t got no damn problem with it. Id. at 665-66 (internal citations omitted). Further, Houston told Honeycutt: I want you to get in the news . . . . I want people to know that son of a b[* * * *] don’t own nothin’. He ain’t sellin’ not hin’, and whoever buys it, they just throw’d their money in the damn wind! Because I’m comin’ home, and I’m goin’ to my property, and whoever’s th ere, they got a damn problem! A few additional facts from the second tr ial are necessary to properly understand Houston’s claims in this appeal. First, the Un ited States put on proof that Houston’s call to Honeycutt was routed from the jail where he was being held pre-trial to a computer server in Louisiana and then back to Tennessee as part of the jail’s contract for provision of telephone services to inmates; Houston was unaware that his calls to Honeycutt were routed out of the State of Tennessee. Second, stickers on the inmate telephones made clear that the calls could be recorded and that jail officers coul d listen in on inmates’ conversations. A jury convicted Houston of violating 18 U.S. C. § 875(c) after his first trial, but this court reversed that conviction beca use the trial judge’s ju ry instructions ran afoul of the Supreme Court’s decision in Elonis v. United States , 135 S. Ct. 2001 (2015). Houston , 792 F.3d at 667. We then remanded the case for retrial. Id. at 670. At his second trial, Houston argued that § 875(c), as interpreted by the Supreme Court
in Elonis , requires the United States to prove th at he knew that his communication wasCase No. 16-5007, United States v. Houston

- 4 - transmitted “in interstate commerce.” The district court rejected this argument and provided the jury with the following instruction on the jurisdic tional element of the offense: “To transmit something in interstate commerce merely means to send it from a place in one state to a place in another state. The government is not required to prove th at the defendant actu ally knew that the communication would be transmitted across state lin es.” The jury again convicted Houston of making a threat in violation of 18 U.S.C. § 875(c). This appeal followed. II. Analysis Houston raises three claims on appeal. First, he argues that the district court misapplied Elonis when it instructed the jury that the United States was not required to prove that Houston knew the phone calls in question would be transmitte d across state lines. Second, he argues that the United States failed to produc e sufficient evidence to support the jury’s conclusion that his statements amounted to a “true threat” as requi red under 18 U.S.C. § 875(c) . Finally, he argues that the Government failed to pr oduce sufficient evidence to justify the jury’s finding that his communications ever actually crossed state lines. For the reasons stated below, we reject each of these arguments and affirm the judgment of the district court.
A. No Mens Rea Requirement for the Ju risdictional Element Houston first claims that the district court’s jury instructions incorrectly stated that the United States was not required to prove any culpable mental st ate with respect to § 875(c)’s jurisdictional element. We review challenges to jury instructions only for abuse of discretion. United States v. Eaton , 784 F.3d 298, 306 (6th Cir. 2015). Si nce Houston challenges the district court’s interpretation of the statute, we ask whet her the instruction issued by the district court “fails accurately to reflect the law.” United States v. Rios , 830 F.3d 403, 431 (6th Cir. 2016)Case No. 16-5007, United States v. Houston

- 5 - (quoting United States v. Ross , 502 F.3d 521, 527 (6th Cir. 2007) (internal quotation marks omitted)). The plain text of § 875(c) offers no guidance on the question of the me ntal state that must be proven in order to secure a conviction. Inde ed, the Supreme Court only recently clarified the requisite mens rea with respect to th e “threat” element of that statute. Elonis , 135 S. Ct. at 2012. While the Elonis Court did not discuss the mens rea requirement applic able to § 875(c)’s jurisdictional element, l ong-settled law relieves the prosecution from any obligation to prove that the defendant was aware of the facts giving rise to federal ju risdiction unless those facts are relevant to “separating legal i nnocence from wrongful conduct.” 2 United States v. X-Citement Video, Inc. , 513 U.S. 64, 72-73 (1994); United States v. Feola , 420 U.S. 671, 673 n.1, 676-79, 676 n.9, 685 (1975). This court has applied that principle to the jurisdictional elements of several federal criminal statutes. See United States v. Baird , 403 F. App’x 57, 63 (6th Cir. 2010) (possessing stolen goods); United States v. Chambers , 441 F.3d 438, 450 (6th Cir. 2006) (transporting child pornography). And other circuits have done the same w ith the specific statute at issue here. United States v. Whiffen , 121 F.3d 18, 23 (1st Cir. 1997), abrogated on other grounds by Elonis , 135 S. Ct. 2001; United States v. Darby , 37 F.3d 1059, 1067 (4th Cir. 1994), abrogated on other grounds by Elonis , 135 S. Ct. 2001. Houston’s conduct was no more or less “wrong ful” because his communication crossed state lines. Had Houston’s phone ca ll remained entirely within th e State of Tennessee, he would still have been subject to pr osecution in state court. See Tenn. Code Ann. § 39-17-308 (criminalizing knowing threats made over the telephone ). Unlike the threat element at issue in Elonis , the jurisdictional element of § 875(c) does nothing to separate “legal innocence from

2 Congress obviously retains authority to expressly condition criminal liability on the defendant’s knowledge of the facts supporting federal jurisdiction. See Feola , 420 U.S. at 676-79, 676 n.9. No such express requirement, however, appears in § 875(c).Case No. 16-5007, United States v. Houston

- 6 - wrongful conduct.” X-Citement Video , 513 U.S. at 73. Houston’s words became criminal once he spoke them with knowledge that they would be percei ved as a “true threat.” See Elonis , 135 S. Ct. at 2012; United States v. Alkhabaz , 104 F.3d 1492, 1495 (6th Cir. 1997), abrogated in part by Elonis , 135 S. Ct. 2001. The route the words took once they left his mouth is only relevant to determine where, not if, he w ould be subject to prosecution. See Feola , 420 U.S. at 685 (“The concept of criminal intent does not extend so far as to require that the acto r understand not only the nature of his act but also its consequence for the choice of a judicial forum.”). Accordingly, we hold that the district court’ s jury instructions were proper because conviction under § 875(c) does not require any showing th at Houston knew that his co mmunications would be routed across state lines. B. Sufficient Evidence Supports Houston’s Conviction Houston also argues that the evidence against him is insufficient to justify his conviction under § 875(c) on two grounds. First, he claims th at the United States fa iled to prove that his statements rose to the le vel of a “true threat.” Second, he clai ms that the United States failed to present sufficient evidence to justify the jury’s finding that his statements actually traveled in interstate commerce. When reviewing a challenge to the suffi ciency of the evid ence supporting a jury conviction, we view the facts in the light most favorable to th e prosecution and ask whether “ any rational trier of fact could have found the e ssential elements of th e crime beyond a reasonable doubt.” Houston , 792 F.3d at 669 (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979) (internal quotation marks omitted)). We hold that the evidence presented at trial was sufficient to justify the jury’s findings on both questions.Case No. 16-5007, United States v. Houston

- 7 - 1. Houston’s Statements Were “True Threats” Houston argues on appeal that no rational ju ry could have found that his statements to Honeycutt amounted to a “true threat” against L ogan since Honeycutt did not interpret his words as a serious threat. Viewed in context, am ple evidence supports the finding that Houston’s words were a serious expression of his intent to physically harm Logan in order to stop him from exercising control over various pi eces of land. Accordingly, we do not disturb the jury’s finding that Houston’s statements am ounted to a “true threat.” “True threats” enjoy no protect ion under the First Amendment. Virginia v. Black , 538 U.S. 343, 359 (2003) (citing Watts v. United States , 394 U.S. 705, 708 (1969) (per curiam)). A statement rises to the level of a “true threat” when it amounts to “a serious expression of an intention to inflict bodily harm” and is “conv eyed for the purpose of furthering some goal through the use of intimidation.” Alkhabaz , 104 F.3d at 1495. A statement need not be communicated to the targeted individual in order to constitute a “true threat.” See id. For example, in United States v. Jeffries , the defendant posted a vide o to YouTube threatening a judge and shared that video with twenty-nin e Facebook users, but not the judge. 692 F.3d 473, 477 (6th Cir. 2012), abrogated in part by Elonis , 135 S. Ct. 2001. We affirmed the defendant’s conviction, and in doing so, approv ed the district court’s instruc tion that “it [was] not relevant that [the judge] even viewed the communication.” Id. The record makes clear that Houston told hi s girlfriend that he wanted Logan dead. Specifically, he made the following statements about his intentions towards Logan over the phone: “I’ll kill that motherf[* * *]er.” “The on ly thing [Logan]’s gonna get from me is a f[* * *]ing bullet.” “When I get out . . . he’s dead!” “[ A]ny of my people has got my permission to kill that son of a b[* * * *]!” All the while, he assured his girlfriend of his seriousness ofCase No. 16-5007, United States v. Houston

- 8 - purpose, saying, “I ain’t akidding! They can record it!” Further, Houston’s tone during the call reflects an intense and visceral anger toward L ogan that a reasonable jury could interpret as indicating that Houston sincer ely intended to kill Logan. That evidence was supplemented by the testim ony of a prison guard who stated that, the day before the recorded phone call, he overheard Houston, alone in his jail cell, say, “When me and my brother get out, we’re going to go to that law firm and kill every last one of them.” The guard further testified that H ouston made this and similar st atements in a tone conveying “absolute rage.” A reas onable jury could take this as furt her evidence that Houston was serious when he made threats in his phone conve rsation with Honeyc utt the following day. Houston argues that his statements were not “true threats” under § 875(c) since the recipient, Honeycutt, did not believe that he would follow through on his statements. A reasonable jury could find that Houston’s statem ents amounted to a threat against Logan. Houston stated that he wanted to kill Logan as s oon as he got out of jail and that he did not care who heard him saying so, knowing full well that his call was being recorded. He instructed his girlfriend to tell his family members to shoot Lo gan on sight if Logan appeared on the property. Houston also told his girlfriend that he wanted the record ing of their call played in court, and that she should get his disput e with Logan “in the news” in orde r to deter prospective buyers with knowledge that they would have “a damn problem” with Houston once he was released. A jury could reasonably conclude that Houston intende d his threats to influe nce Logan or others through intimidation, and therefore that Houston made a “true threat.” Alkhabaz , 104 F.3d at 1495. While it is not clear from the record th at Houston’s girlfriend actually doubted whether Houston would follow through on his threats, 3 that fact is irrelevant here because a statement can

3 On appeal, Houston suggests that his statements were not “true threats” unde r § 875(c) because Honeycutt “did not believe [them] to be a serious threat.” Appellant Br. at 29. That characterization of their interactions is not entirelyCase No. 16-5007, United States v. Houston

- 9 - be found to be a “true threat” even if the de fendant lacks the ability to make good on his promised aggression. See United States v. Glover , 846 F.2d 339, 344 (6th Cir. 1988). The available evidence was sufficient to pe rmit a reasonable jury to conclude that Houston’s statements evinced a serious intent to inflict bodily harm upo n Logan and that those statements were uttered in order to intimidate Logan into surrendering hi s lawful possession of various pieces of real propert y. Accordingly, we uphold the ju ry’s verdict that Houston’s statements amounted to “tru e threats” under § 875(c). 2. Houston’s Communication Travel ed in Interstate Commerce Finally, Houston attacks the sufficiency of the evidence supporting the jury’s finding that his communication was transmitted in interstate commerce. Unrebutted testimony indicates that the phone call at issue was rout ed from Tennessee to Louisiana and then back to Tennessee as part of the jail’s contract fo r provision of inmate telephone se rvices. Contrary to Houston’s assertions on appeal, an employ ee of the phone service contractor indicated on both direct and cross-examination that computer servers in Louisiana actually placed the call to Houston’s girlfriend in Tennessee after verifying that his a ccount contained sufficient funds to pay for the call. Accordingly, we affirm the jury’s finding that the statements at issue were transmitted in interstate commerce. III. Conclusion We hold that the United States had no oblig ation to prove that Houston knew that his threats would be transmitted “in interstate comme rce” to convict Houston of violating 18 U.S.C. § 875(c). We further hold that there was sufficie nt evidence to justify the jury’s findings that

accurate. While it is true that Hone ycutt said, “They ain’t gonna do that. I mean, they ain’t gonna shoot nobody,” that was a response to Houston’s request that she tell his family to shoot Logan. The statement does not necessarily mean that Honeycutt did not believe that Houston’ s threats to kill Logan himself were not serious.Case No. 16-5007, United States v. Houston

- 10 - Houston’s statements were “true threats” and that they were transmitted in interstate commerce. Accordingly, we AFFIRM the judgment of the district court.