United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1026

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United States of America, *

*

Appellee, *

*

v. *

*

Marlys Floyd, *

*

Appellant. *

___________ Appeals from the United States

District Court for the Northern

No. 06-1028 District of Iowa.

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United States of America, *

*

Appellee, *

*

v. *

*

Rebecca Pippert, *

*

Appellant. *

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Submitted: May 17, 2006

Filed: August 21, 2006

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1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

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Before MURPHY, BEAM, and SMITH, Circuit Judges.

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BEAM, Circuit Judge.

In these consolidated criminal appeals, Pippert and Floyd (collectively,

"Defendants") appeal their convictions and sentences for mailing threatening

communications, 18 U.S.C. § 876. We affirm both the convictions and sentences.

I. BACKGROUND

Floyd and Pippert, who is Floyd's daughter, admit that they sent a copy of an

article about United States District Court Judge Joan Lefkow's murdered family to a

lawyer, two judges, and the district court connected to various litigation previously

involving the Floyd family in the Iowa state court system. The handwritten words "Be

Aware Be Fair" appeared on the article. Defendants did not sign their names or

include a return address on the envelopes. They were caught due to good detective

work by the recipients of the letters, and the fact that the Floyds were known as

prolific letter writers in connection with their litigation. When confronted by

authorities, both Pippert and Floyd admitted to sending the letters, but denied that they

intended to threaten or intimidate the recipients. However, at trial, Defendants were

not allowed to present evidence of their actual intent in sending the letters. The district

court ruled, in limine, that because intent to threaten was not an element of the

offense, such evidence was not relevant and therefore inadmissible. The district court1

also refused to instruct the jury that intent to threaten was an element of the offense.

Upon conviction, the district court sentenced Floyd to 33-months'

imprisonment, and Pippert to 36-months' imprisonment. Both sentences are within
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the guidelines range, but Pippert was given a two-level increase for obstruction of

justice. In this regard, the district court found that Pippert gave perjured testimony at

trial.

Defendants challenge the district court's decision that the government was not

required to prove that they intended to threaten the recipients with the mailing. They

also allege there was insufficient evidence that the communication was a threat, and

that the district court should have granted their motion for judgment of acquittal on

this issue rather than submitting it to the jury. Finally, Defendants assert that their

sentences should be vacated.

II. DISCUSSION

We review the district court's jury instructions and evidentiary rulings for an

abuse of discretion. United States v. Florez, 368 F.3d 1042, 1044 (8th Cir. 2004);

United States v. Carr, 67 F.3d 171, 175 (8th Cir. 1995). We review the district court's

denial of a motion for judgment of acquittal in the light most favorable to the

government, reversing only if no reasonable jury could have concluded beyond a

reasonable doubt that defendants were guilty of the charged offense. United States v.

Whitfield, 31 F.3d 747, 749 (8th Cir. 1994).

A. Intent

Defendants contend that the district court erred in refusing to instruct the jury

that intent to threaten the recipients was an element of an 18 U.S.C. § 876 offense.

Section 876(c) makes it unlawful for anyone to "knowingly" use the United States

mail service to send a communication "containing . . . any threat to injure the person

of the addressee or of another." Our circuit precedent requires that the government

prove two things in a section 876 case: "(1) that the defendant wrote a threatening

letter and (2) that the defendant knowingly caused the letter to be forwarded by the
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United States mail." United States v. Lincoln, 589 F.2d 379, 381 (8th Cir. 1979). The

statute requires only that the sender intended to mail the letter containing a threat, not

that the sender intended to threaten the recipient. See United States v. Koski, 424 F.3d

812, 817 (8th Cir. 2005) ("The intent of the sender is not an element of the offense.");

United States v. Patrick, 117 F.3d 375, 377 (8th Cir. 1997) (rejecting the defendant's

argument that he could not have intended the letters to be a threat of injury by noting

that "Patrick's subjective intent is irrelevant"); Whitfield, 31 F.3d at 749 n.4 ("[T]he

gravamen of a § 876 violation is the making of the threat; the maker's subjective

intentions are irrelevant.").

Notwithstanding this precedent, Defendants argue, based on Virginia v. Black,

538 U.S. 343 (2003), that the district court erroneously did not require the government

to prove that they intended to threaten the recipients of the communications. In Black,

the Court examined a Virginia statute criminalizing cross-burning with the intent to

intimidate. At the criminal trial, the jury had been allowed to infer the defendants had

the requisite intent to intimidate by virtue of the fact that they had burned the cross.

The Court held that the act of burning the cross, by itself, could not be considered

prima facie evidence of intent to intimidate. Id. at 364-65. In walking the fine line

between the First Amendment right to express oneself by burning a cross, and the

commonwealth's right to prohibit threatening and intimidating activity, the Court

found that the government must prove that the activity was a "true threat" to prove

intent. Id. at 359. The Court defined "true threat" as one in which "the speaker means

to communicate a serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals," whether or not the speaker

actually intended to carry out the threat. Id. at 359-60.

The statute at issue in Black explicitly required proof of intent to intimidate.

The Court found that the statute was constitutional, so long as the government was not

allowed to use the cross-burning act itself as prima facie evidence that the actor
2

We rejected a First Amendment challenge to a section 876 conviction in United

States v. Bellrichard, 994 F.2d 1318, 1321 (8th Cir. 1993). In effect, perhaps

Defendants, by their arguments and citation to Black, mean to make a First

Amendment argument here. However, they do not couch their arguments as a First

Amendment challenge in briefing, nor did they do so to the district court. For this

reason we are also unpersuaded by Defendants' citation to United States v. Cassel, 408

F.3d 622 (9th Cir. 2005), wherein the Ninth Circuit upheld the defendant's First

Amendment challenge to a statute prohibiting interference with a federal land sale by

intimidation, 18 U.S.C. § 1860. The Cassel court held that Black required the

government to prove that the defendant had intended to intimidate potential land

buyers. 408 F.3d at 633. 

3

The statute is somewhat ambiguous with regard to what the word "knowingly"

modifies. Section 876 provides criminal penalties for "whoever knowingly so

deposits or causes to be delivered . . . any communication . . . containing . . . any threat

to injure the person of the addressee or of another." 18 U.S.C. § 876(c). Arguably, the

"knowingly" language could modify all the elements of the statute–requiring that the

sender not only "knowingly" used the mails to send the letter, but also that the sender

"knew" that the letter contained threatening language. See, e.g., Liparota v. United

States, 471 U.S. 419, 424-25 (1985) (holding that the rule of lenity required the Court

to construe ambiguous statute so that the word "knowingly" modified both the

prohibition against the "transfer" of food stamps, and the "violation of the law"

elements). 

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intended to intimidate or threaten. Instead, the government was required to prove that

the actor actually so intended. Id. at 359-63.

There has been no First Amendment challenge in this case,2

 and on that basis

alone, Black is distinguishable. And, our panel is bound by Koski, decided two years

after Black, which specifically noted that the intent of the sender is not an element of

a section 876(c) offense. 424 F.3d at 817. If the reasoning in Koski is faulty in light

of Black, our panel cannot address it–only the en banc court can do so.3

 

So, based on existing Eighth Circuit precedent, the district court did not err in

refusing to instruct the jury that the government must prove Defendants intended to
4

Defendants also challenge the district court's ruling in limine that they could

not present evidence regarding what their subjective intent was in mailing the articles.

However, because such evidence is not relevant for conviction of the offense, see

Koski, 424 F.3d at 817, the district court correctly excluded such evidence.

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threaten the recipients, and the government met its burden of proving that Defendants

intended to send the letters. In fact they admit doing so. The core issue for

Defendants is whether the letters were, in fact, threatening.4

B. True Threat

Defendants argue there was insufficient evidence that the letters were truly

threatening, and as such, the district court should have granted the motion for

judgment of acquittal and not sent the issue to the jury. In evaluating threats under 18

U.S.C. § 876, a district court should submit the issue for jury determination "'[i]f a

reasonable recipient, familiar with the context of the communication, would interpret

it as a threat.'" Whitfield, 31 F.3d at 749, (quoting United States v. Bellrichard, 994

F.2d 1318, 1323 (8th Cir. 1993)) (alteration in original). The district court's duty in

this kind of case is to be the evidentiary gatekeeper, the same as in every other

criminal case where there is a motion for judgment of acquittal. The district court

does not decide that a particular communication is a threat as a matter of law, but

whether there is sufficient evidence for a jury to decide that a reasonable recipient

would interpret it as a threat. Bellrichard, 994 F.2d at 1323. If, at that point, the

evidence is sufficient, it is up to the jury to decide whether the language in the

communication at issue was a threat. Martin v. United States, 691 F.2d 1235, 1240

(8th Cir. 1982).

In order to decide that issue, in Bellrichard, we noted that the communication

must be viewed in "textual context and also in the context of the totality of the

circumstances in which the communication was made." 994 F.2d at 1323. In this

case, the totality of the circumstances were these: Judge Lefkow's family had very
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recently been murdered when the article was written and subsequently mailed, and all

of the recipients were either judges or worked closely with judges in the Iowa state

legal system. The article itself, sent in an envelope with no return address, probably

would have been enough evidence of a threat to send the issue to the jury. But when

the words "Be Aware Be Fair" are added to the equation, the question is not so

difficult.

Defendants argue that the communication is ambiguous, and therefore they

should have prevailed on their motion for judgment of acquittal, citing United States

v. Barcley, 452 F.2d 930 (8th Cir. 1971). In Barcley, a disgruntled prison litigant sent

a letter to his attorney. In the letter, the client noted his dissatisfaction with counsel's

services in perfecting an appeal, and stated that "as soon as I can get this case situated

around in the position I want you are the first S.O.B. that will go." Id. at 932. We

held that because the letter was equally susceptible of both a threatening and nonthreatening interpretation, the government must present additional evidence to remove

the ambiguity before the question could go to the jury. Id. at 933.

The Bellrichard defendant made a similar "ambiguity" argument based on

Barcley. In rejecting this claim, we noted that the issue before us on appeal was

"whether the government made a submissible case" that the vitriolic letters sent by

Bellrichard could be objectively viewed as threatening. Bellrichard, 994 F.2d at 1323.

Bellrichard was a prolific letter writer, directing his wrath toward government officials

such as the county attorney, the police, and various judges. The text of many of these

letters is recounted in Bellrichard, 994 F.2d 1318, but a representative sample includes

the following: "All I can say is that God will strike all of you dead while I'm in jail.

Shitheads like you-all God eventually destroys! God bless you. Don't ever fuck with

me again and God will let you live." Id. at 1321 n.7. Because there were material

differences between the circumstances in each case, and in the content of the letters

Bellrichard sent and the one that Barcley sent to his attorney, we found that the district

court correctly submitted the issue to the jury. Id. at 1323.
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We reject Defendants' ambiguity arguments on a similar basis (though we do

not suggest that the communications at issue here compare favorably with the letters

in Bellrichard). The Barcley letter was written, signed, and sent by a prisoner

unhappy with his appointed appellate counsel. The anonymous, photocopied

newspaper articles, about a judge's murdered family, with the aforementioned phrase

written on top and sent to judicial officers, are quite different in both content and

context. The district court did not err in finding that the government made a

submissible case on whether the communications contained a threat. Accordingly, we

affirm Defendants' convictions.

C. Sentencing

Pippert and Floyd both concede that the district court correctly calculated their

guidelines sentence ranges, and sentenced them within those ranges. Pippert

challenges her two-level enhancement for obstruction of justice and also challenges

the district court's refusal to give her a reduction for acceptance of responsibility or

aberrant behavior. Both Pippert and Floyd challenge their sentences as unreasonable.

Obstruction

In determining whether an obstruction enhancement should be applied, the

district court must review the evidence and find, by a preponderance of the evidence,

that the defendant gave "false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of confusion, mistake, or

faulty memory." United States v. Ziesman, 409 F.3d 941, 956 (8th Cir.), cert. denied,

126 S. Ct. 579 (2005) (internal quotation omitted). 

The district court added the obstruction enhancement because Pippert told

police, and testified, that she only sent the article to the attorney and judges because

she wanted them to know what had happened to Judge Lefkow's family, and she was
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not sure they would have read the paper. She also said that her failure to put a return

address on the envelope was not to conceal her identity. At sentencing, the district

court found that both of those statements were perjured statements, about a material

issue, and not as a result of confusion, mistake, or faulty memory.

The district court's credibility determination on this matter can be reversed only

upon a showing of clear error. United States v. Galaviz-Luna, 416 F.3d 796, 800 (8th

Cir.), cert. denied, 126 S. Ct. 814 (2005). A defendant who testifies in her own behalf,

and then gets convicted, is obviously not automatically subject to the obstruction

enhancement. United States v. Holt, 969 F.2d 685, 688 (8th Cir. 1992). Rather, the

district court must independently find that the defendant has committed perjury by

intentionally giving false testimony about a material issue. Galaviz-Luna, 416 F.3d

at 800. It is a close question here, but the district court clearly felt that Pippert crossed

a line. Based on our standard of review, we cannot say that the district court clearly

erred in so deciding.

Acceptance of responsibility

Because we find that the obstruction enhancement was proper, we likewise

cannot reverse the district court's refusal to grant the acceptance adjustment, absent

extraordinary circumstances. United States v. Campos, 362 F.3d 1013, 1016 (8th Cir.

2004). Pippert put the government to its burden at trial, and went to trial to contest

her guilt, not just to raise the legal issue about when the government has to prove

intent. See United States v. Smith, 40 F.3d 933, 935-36 (8th Cir. 1994) (holding that

acceptance reduction should not apply to a defendant who puts the government to its

burden at trial by denying the factual elements of guilt). No extraordinary

circumstances warrant the acceptance reduction. We affirm the district court's refusal

to grant Pippert an adjustment for acceptance of responsibility.
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Aberrant behavior

Pippert alleges that she was entitled to a departure for aberrant behavior because

she is a law-abiding and God-fearing citizen. However, these are characteristics the

guidelines already take into account (lack of criminal history), United States v. Wind,

128 F.3d 1276, 1278 (8th Cir. 1997), or cannot be taken into account (religion),

United States v. DeShon, 183 F.3d 888, 890 (8th Cir. 1999). Accordingly, we affirm

the district court's refusal to depart on these bases.

Reasonableness

Finally, Floyd and Pippert argue that their sentences are unreasonable. A

sentence is unreasonable when the district court has relied significantly on

impermissible factors, failed to account for permissible factors, or otherwise

committed a clear error of judgment. United States v. Haack, 403 F.3d 997, 1004 (8th

Cir.), cert. denied, 126 S. Ct. 276 (2005). Both defendants concede that their sentence

was within the guidelines range, which makes the sentences presumptively reasonable.

United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006). At sentencing, the

district court went through the section 3553(a) factors and determined that a variance

from the advisory guidelines range was not warranted. We agree with this analysis,

and find that their respective sentences are reasonable.

III. CONCLUSION

We affirm the district court.

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