IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-20969

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RANDALL LEROY MYERS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

January 14, 1997

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Randa ll Myers appeals his conviction of, and sentence for,

three counts of interstate transmission of threatening communications. We affirm the conviction but remand for resentencing.

I.

Myers is a Vietnam veteran with a history of mental illness.

In 1981, he was diagnosed with Post-Traumatic Stress Disorder

(“PTSD”) and classified by the Veterans Admin istration as 100%

disabled. He also suffers from bipolar or “manic-depressive”

disorder, for which he has been prescribed lithium, and diabetes,1 This was not the first t ime Myers had spoken with Shore. At trial,

Shore testified that they had ha d between 14 and 16 conversations in the six

months prior to March 1995, most of which concerned veterans’ affairs.

2 for which he takes injections of insulin. As he readily concedes,

failure to take his medication sometimes leads him to become easily

agitated.

In March 1995, Myers’s wife discovered a lump in her breast

that she feared might be cancerous. When Myers inquired with the

Veterans Administration about medical coverag e for the tests and

treatment she would need, he discovered that his benefits required

him to pay a $150 deductible and covered only 75% of his wife’s

expenses beyond that amount. Unable to afford the copayment, Myers

became convinced that his disabled veteran status entitled his wife

to full coverage of her medical expenses.

Myers first attempted to negotiate this full coverage by

calling the toll-free number for CHAMPVA, the organization

administering his health benefits. After repeatedly failing to get

through to CHAMPVA, however, he turned his attention to his

congressman, William Archer. Myers phoned Archer’s Washington,

D.C., office from his Houston residen ce and spoke with Andrew

Shore, a member of Archer’s staff. Shore agreed to contact CHAMPVA

on Myers’s behalf but was unable to obtain the coverage Myers

wanted. 1

On March 22, 1995, Myers became dissatisfied with the response

he was getting from Arch er’s office and telephoned Shore again.

According to Shore, Myers was extremely emotional during this

conversation, at various points cry ing, screaming, and yelling.3

Myers told Shore that if his wife died, he “would take matters into

his own hands” and that Shore “should be sure to have plenty of

body bags around.” As one might expect, these statements caused

Archer’s staff serious concern. The office contacted the FBI,

which installed a recording device on Shore’s phone.

On March 24, Myers called again. This time the entire

conversation was recorded, including the following exchange:

Shore: The other day[,] Randy, you talked about body bags

and ...

Myers: Right and ...

Shore: ... And not being ...

Myers:

... And I’m still talking about body bags because

if you do nothing what do you expect.

Shore: I don’t, what should I expect?

Myers: I am going to get retribution for my and my family’s suffering. You can take that to the bank.

Shore: What does that mean? I mean what do you ...

Myers: What it means, I’ll do what, ah, like we said in

Nam, whatever it takes.

Later in the conversation, Myers told Shore that he had a friend in

Seattle who had TOW missiles, and spoke of “coming up there to

die.”

On April 7, Myers made a call to Carole Carrick, an employee

of the Washin gton, D.C., office of the Paralyzed Veterans of

America. Carrick took notes of the conversation and testified at

trial that Myers sounded “angry” and had spoken to her in “a very

loud voice.” According to Carrick, Myers threatened the “VA and4

Congress with damage severe enough to make the explosion in the

World Trade Center look like a picnic,” and announced his intention

to confront Archer on videotape. Myers also told Carrick that he

was “head of the militia in this area” and made reference to AK-47

rifles being shoved into the faces of congressmen. Understandably

concerned, Carrick informed Archer’s office of the conversation.

A grand jury indicted Myers on three counts of interstate

transmission of threatening communications in violation of

18 U.S.C. § 875(c). Count one stemmed from his statements to Shore

on March 22 to the effect that if his wife died, Shore “should be

sure to have plenty of body bags around.” Count two stemmed from

the references during the March 24 conversation to “body bags” and

doing “whatever it takes” to get even with the government. Count

three stemmed from his statements to Carric k on April 7 that he

would cause the VA and Congress sufficient damage “to make the

explosion in the World Trade Center look like a picnic.”

A jury found Myers guilty on all three counts. He was

sentenced to two concurrent twelve-month prison terms and to three

three-year terms of supervised release, two of them concurrent and

the third consecutive to the other two.

II.

Myers’s first claim is that there was insufficient evidence as

to all three counts of his conviction because the government failed

to prove that he made the threats voluntarily. He argues that

evidence of his psychological problems demonst rated that he was5

unable to control his actions, which in turn compels the conclusion

that he acted involuntarily.

We review de novo the denials of Myers’s motions for judgment

of acquittal. United States v. Sanchez , 961 F.2d 1169, 1179 (5th

Cir.), c ert. denied

, 506 U.S. 918 (1992). We will affirm the

jury’s verdict if a reasonable trier of fact could conclude from

the evidence that the elements of the offense were established

beyond a reasonable doubt, viewing the evidence in the light most

favorable to the verdict and drawing all reasonable inferences from

the evidence to support the verdict. U nited States v. Lewis

,

92 F.3d 1371, 1380-81 (5th Cir. 1996), petition for cert. filed

(U.S. Dec. 16, 1996) (No. 96-7151); United States v. Gaytan

,

74 F.3d 545, 555 (5th Cir.), cert. denied , 117 S. Ct. 77 (1996).

Our review of the sufficiency of the evidence does not include a

review of the weight of the evidence or of the credibility of the

witnesses. U

nited St ates v. Garcia , 995 F.2d 556, 561 (5th Cir.

1993). Moreover, the evidence “need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent wit h every

conclusion except that of guilt.” U nited States v. Lopez

, 74 F.3d

575, 577 (5th Cir.), cert. denied , 116 S. Ct. 1867 (1996).

Title 18 U.S.C. § 875(c) provides that “[w]hoever transmits in

interstate or foreign co mmerce 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.” In this circuit, § 875(c) “requires

proof that th e threat was made knowingly and intentionally.”6

United States v. Bozeman

, 495 F.2d 508, 510 (5th Cir. 1974), cert.

denied

, 422 U.S. 1044 (1975). Pursuant to the Fifth Circuit

Pattern Jury Instructions, the district court charged the jury that

an act is done “knowingly” when it is done voluntarily and

intentionally, and not because of mistake or accident.

Our review of the record leads us to conclude that the

government did present sufficient evidence to establish that Myers

made his threats voluntarily. Two experts, Dr. Archie Blackburn

and Dr. Seth Silverman, testified that Myers consciously chose to

stop taking his medication during the time that he made the

threats. This alone could have allowed the jury to conclude that

he acted voluntarily, for if he knew that discontinuing his

medication might lead to such behavior and consciously chose to do

so anyway, his resulting actions could not be characterized as

involuntary. To be sure, Myers presented expert testimony that his

statements were involuntary. None of the experts was present

during any of Myers’s phone calls, however, and it was squarely

within the province of the jury to weigh their testimony accordingly.

The jury could also have inferred voluntariness from the tone

and content of Myers’s conversations with Shore and C arrick.

Numerous remarks during those conversations indicate that Myers was

aware both of himself and of his actions: When talking to Shore,

for example, he off ered to be “civil” if allowed to speak with

Archer; with Carrick, he gave considered responses to some of her

questions. A rational trier of fact could have found that the2 Myers appears to suggest that his conviction on count two violated his

double jeopardy rights. Beyond the bare assertion in his appellate brief that

he “basically has been convicted twice for the same offense,” however, Myers has

neither briefed nor otherwise presented any discussion on this point, and nothing

(continued...)

7 evidence established voluntariness beyond a reasonable doubt.

III.

In a separate insufficient evidence argument, Myers contends

that count two was what he calls a “cheap shot,” because it was

Shore rather than Myers who initiated talk of “body bags” during

the March 24 conversation. Specifically, Myers contends that any

threatening statements he made on March 24 were simply reiterations

of his March 22 statements and that he was prompted by Shore to

repeat these threats. Because of this, he argues, count two is

completely duplicative of count one.

This argument is meritless. In this circuit, a communication

is a t hreat under § 875(c) if “in its context [it] would have a

reasonable tendency to create apprehension that its originator will

act according to its tenor.” Bozeman , 495 F.2d at 510 (citations

and internal quotations omitted). The evidence was more than

sufficient to show that the March 24 statements met this test.

A communication does not lose its status as a § 875(c) threat

merely by virtue of the defendant's having previously uttered

similar words . For us to hold otherwise, as Myers urges, would

effectively give people free license to recycle threats after their

initial communication. That is not the law in any circuit, and we

decline so to hold. 2(...continued)

in the record indicates that he raised it prior to trial under F ED

. R. C RIM

. P.

12(b)(2). Whatever double jeopardy claims he might have had have therefore been

waived. See Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993).

8 IV.

Myers next contends that he was unfairly prejudiced by Carole

Carrick’s testimony regarding his involvement in a militia group.

Without objection from the defense, C arrick testified that Myers

told her he was “the head of the militia in this area and there are

other militias all over the country and you’re going to very soon

start seeing them taken actions that are really going to be

serious.” As a threshold matter, Myers asserts that these

statements were not relevant to any of the issues before the jury.

Moreover, he argues, because his trial occurred a short time after

the April 1995 bombing of the Oklahoma City federal building, it

was unfairly prejudici al and thus plainly erroneous for the

district court to have admitted them.

As Myers concedes, his failure to object to this testimony at

trial means that he must show plain error. S ee F ED

. R. C RIM

. P.

52(b). Under the plain error standard, we correct forfeited errors

only if (1) there was error, (2) the error was plain, and (3) it

affected the defendant’s substantial ri ghts. U nited States v.

Calverley

, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert.

denied

, 115 S. Ct. 1266 (1995); Unite d States v. Olano , 507 U.S.

725, 730-37 (1993). Even where an error meets these requirements,

however, we will not exercise our discretion to correct it unless

it “seriously affect[s] the fairness, integrity, or public9

rep utation of judicial proceedings.” C alverley

, 37 F.3d at 164

(quoting United States v. Atkinson , 297 U.S. 157, 160 (1936)).

The district did not err, and certainly did not commit plain

error, in admitting Carrick’s testimony. B ozeman instructs us that

whether a statement amounts to a threat under § 875(c) depends on

its context. B ozeman

, 495 F.2d at 510. In order to convict, a

factfinder must determine that the recipient of the in- context

threat reasonably feared it wou ld be carried out. I d

. It was

entirely appropriate, then, for the jury to consider the context of

Myers’s threat, for the context w as directly relevant to how

Carrick perceived the threat. Indeed, it probably would have been

inappropriate for the jury not to consider these statements.

Wit hout citation to F E D

. R. E VID

. 403, Myers also argues that

the “militia” remarks were unfairly prejudicial. Given that these

statements were directly relevant to one of the core issues in this

case, we do not believe that their probative value was substantially outweighed by the danger of unfair prejudice, and instead we

conclude that it was not plain error to admit them.

V.

Myers next argues that the district court erred in refusing a

proposed instruction that would have required the jury to find that

he intended his statements to be threats. As Myers notes, whether

this instruction correctly states the law depends on whether

§ 875(c) offenses require specific or general intent. The courts

of appeals are divided on this issue, and our circuit has never10

directly addressed the question.

We review the district court’s refusal to give the requested

jury instruction for abuse of discretion. U nited States v. Thomas

,

12 F.3d 1350, 1365 (5th Cir.), cert. denied

, 511 U. S. 1095, a nd

cert. den ied , 511 U.S. 1114 (1994). Recognizing the substantial

latitude that district courts have in formulating a jury charge, we

reverse only if t he requested instruction (1) was substantially

correct; (2) was not substantially covered in the charge as a

whole; and (3) concerned an important point in the trial, the

omission of which ser iously impaired the defendant’s ability to

present an effective defense. United States v. Aggarwal , 17 F.3d

737, 743 (5th Cir. 1994); United States v. Gray , 96 F.3d 769, 775

(5th Cir. 1996); United States v. Townsend , 31 F.3d 262, 270 (5th

Cir. 1994), cert. denied , 115 S. Ct. 773 (1995).

As previously noted, the threshold issue in this determination

is whether Myers’s requested instruction was correct, which in turn

hinges on whether § 875(c) defines a general or specific intent

crime. Although this normally would be a simple inquiry, the

absence of any explicit mens rea requirement from § 875(c)’s text

appears to have produced some confusion in the courts. The

majority view, represented by cases from the Third , Fourth, and

Sixth Circuits, is that a § 875(c) violation requires only general

intent. S ee United States v. Himelwright

, 42 F.3d 777, 783 ( 3 d

Cir. 1994); United States v. Darby

, 37 F.3d 1059, 106 6 (4th Cir.

1994), cert. denied

, 115 S. Ct. 1826 (1996); United States v.

DeAndino

, 958 F.2d 146, 149 (6th Cir.), cert. denied

, 505 U.S. 12063 See United States v. King

, 920 F. Supp. 1078, 1079-80 (C.D. Cal. 1996)

(suggesting that Twine conflicts with both United States v. Sirhan

, 504 F.2d 818

(9th Cir. 1974), and United States v. Da vis , 876 F.2d 71 (9th Cir.), c ert.

denied , 493 U.S. 861 (1989)).

11 (1992). The Ninth Circuit, in contrast, has at least once taken

the position that an § 875(c) conviction requires a showing of

specific intent, i.e., that the defendant intended his statement to

be perceived as a threat. S ee United States v. Twine

, 853 F.2d

676, 679- 80 (9th Cir. 1988). Like us, the other eight courts of

appeals have not previously confronted this issue.

Myers hesitantly urges us to adopt the Ninth Circuit’s holding

in Twine . We confess to being somewhat baffled by his arguments.

Although he variously des cribes the Ninth Circuit’s reasoning as

“strained,” “result[-]oriented,” and “a bit of boot strapping,” he

nonetheless asks us to follow it “[i]f only for public policy

reasons.” At one point Myers even attempts to argue that we should

adopt Twine ’s interpretation of § 875(c) because the defendant in

that case had a mental illness, whereas the defendants in the cases

decided by other circuits did not.

Upon a careful reading of both Twine and the caselaw of this

c ircuit, we conclude that Myers’s characterization of T wine is

accurate. T wine is something of an outlier within the Ninth

Circuit’s jurisprudence, and its continued validity has been

questioned on the ground that it conflicts with both prior and

subsequent Ninth Circuit decisions. 3 We find the decisions of the

Third, Fourth, and Sixth Circuits considerably more persuasive, and

consequently we decline to hold that § 875(c) requires specific4 I n this respect, the instant case is easily distinguishable from those in

which we read a statute as requiring specific intent because its text expressly

applies a scienter requirement to each element of the offense or to “violation” of

the statute as a whole. S ee, e.g., United States v. Ahmad

, 101 F.3d 386,

___ (5th

Cir. 1996).

12 intent.

Fortunately, we need not delve into p ublic policy to reach

t his result. As a straightforward matter of textual interpretation, we will not presume that a statutory crime requires specific

intent in the absence of language to that effect. S ee Un ited

States v. Hicks

, 980 F.2d 963, 974 (5th Cir.) (citing United States

v. Lewis

, 780 F.2d 1140, 1143 (4th Cir. 1986)), cert. denied

,

508 U.S. 941 (1993). 4 Because § 875(c) contains nothing suggesting

a specific intent requirement, it defines only a general intent

offense. This in turn means that the district court’s instructions

were not erroneous, and the government need not show specific

intent in order to prove a violation of § 875(c).

VI.

Mye rs’s final argument is that the district court erred in

upwardly departing from the Sentencing Guidelines and ordering that

some of his terms of supervis ed release run consecutively.

Specifically, he contends that 18 U.S.C. § 3624(e) does not

authorize the “stacking” of supervised release terms and that the

commentary to U.S.S.G. § 5G1.2 in fact expressly prohibits such

consecutive terms. The government now concedes that this argument

is correct, so we vacate Myers’s sentence with respect to all three

counts and remand for resentencing.13

For the reasons stated above, the judgment of conviction is

AFFIRMED, and the case is REMANDED for resentencing.