UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Cause No.: 2:14-CR-71

 )

SAMUEL BRADBURY, )

)

Defendant. )

OPINION & ORDER

Samuel Bradbury was convicted last summer of threatening to blow up a county

courthouse and kill various public officials in an online post via Facebook (DE 146.). In

particular, Bradbury was convicted of violating 18 U.S.C. § 844 (e) which prohibits the

malicious conveyance of false information about a threat to kill persons or destroy

property using fire or explosives. (Id.) In essence, the statute is aimed at punishing

people who make phony bomb threats. Bradbury now seeks a new trial. (DE 172.) This

is his second motion for a new trial, the first one having been denied. (DE 149; DE 155.)

At trial, the jury was given Instruction No. 22 which told them that “[t]o act maliciously

means to act intentionally or with deliberate disregard of the likelihood that damage or

injury will result.” (DE 141 at 27.) Bradbury argues that the instruction unlawfully

compelled the jury to return a guilty verdict if it found that Bradbury acted deliberately

or purposefully. (DE 172 at 3–4.) For the reasons below, the motion is denied. 

Under Federal Rule of Criminal Procedure 33(a), a court may “vacate any

judgment and grant a new trial if the interest of justice so requires.” Nevertheless, the
Seventh Circuit has cautioned that “a jury verdict in a criminal case is not to be

overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.” United

States v. Morales, 902 F.2d 604, 605 (7th Cir.1990). Such motions should be granted only

in “extreme cases.” Id.; United States v. Linwood, 142 F.3d 418, 422 (7th Cir.1998). 

Courts are afforded “considerable discretion . . . with respect to the precise

wording of instructions so long as the final result, read as a whole, completely and

correctly states the law.” United States v. Grady, 746 F.3d 846, 848 (7th Cir. 2014) (internal

citation and quotation marks omitted). A conviction will not be overturned “merely

because the addition or removal of several words theoretically could have improved a

defendant’s chance of acquittal.” United States v. Smith, 131 F.3d 685, 688 (7th Cir. 1997);

United States v. Tingle, 183 F.3d 719, 729 (7th Cir. 1999) (“[T]he wording of jury

instructions is not an exact science.”). The real question is “whether the jury was misled

in any way and whether it had [an] understanding of the issues and its duty to

determine those issues.” United States v. Dack, 987 F.2d 1282, 1284 (7th Cir. 1993)

(internal citations and quotation marks omitted). To win a new trial, the defendant must

show that “the jury’s comprehension of the issues [was] so misguided that it

prejudiced” the defendant. Id. Even if a jury instruction was erroneous, “there is still no

need for reversal if after reviewing the record as a whole, ‘the evidence in support of the

verdict is so overwhelming that the same verdict would necessarily be reached absent

the error.’” Id. (quoting Vaughn v. Willis, 853 F. 2d 1372, 1376 (7th Cir. 1988).

Bradbury’s motion renews his objection at trial to Instruction No. 22. (See DE 160

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at 205:24–206:7, 206:13–19.) He argues that the instruction that defined the term

“maliciously” directed the jury to find “that malice would be satisfied simply if Mr.

Bradbury acted intentionally” rather than “intentionally despite a likelihood that

damage or injury will result[.]” (DE 172 at 4.) I’m not sure I understand the new

elaboration. The point of the instruction was to separate statements that are made

intentionally from those that are uttered inadvertently or accidentally. The jury was

instructed that if it found that Bradbury acted intentionally when he said on Facebook

that he was going to kill two police officers, two judges, and blow up a county

courthouse—even if those statements were false—then that would be enough to find

him guilty. This is because uttering those kinds of provocative statements online via

social media is nearly certain to cause a swift response from law enforcement. 

I am not the first to interpret “maliciously” the way I did for purposes of 18

U.S.C. § 844. The Eighth Circuit upheld a nearly verbatim jury instruction for the same

subpart of the statute, section 844(e). See United States v. Williams, 690 F.3d 1056, 1064–65

(8th Cir. 2012) (“A defendant acts maliciously if he acts with intent to vex, annoy, or

injure another or with an intent to do a wrongful act. To act maliciously as the term is

used in these instructions means to act intentionally or with willful disregard of the

likelihood that damage or injury will result.”). 

What’s more, the Seventh and Fifth Circuits have upheld verbatim language in

jury instructions for a different subpart of the statute, section 844(i). See United States

v. Grady, 746 F.3d 846, 848–50 (7th Cir. 2014); United States v. Monroe, 178 F.3d 304, 307–8

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(5th Cir. 1999). And the Third and Fourth Circuits have used similar or verbatim

definitions of “maliciously” for evidentiary purposes under section 844. See, e.g.,

McFadden v. United States, 814 F.2d 144, 146 (3rd Cir. 1987) (section 844(f)); United States

v. Gullett, 75 F.3d 941, 948 (4th Cir. 1996) (section 844(i)). Though these decisions

interpret the term for other parts of 18 U.S.C. § 844, I have little reason to believe that

Congress intended the word “maliciously” to mean one thing in section 844(e) and a

different thing in other parts of section 844. See Farm Mut. Auto Ins. Co. v. C.I.R., 698 F.3d

357, 370 (7th Cir. 2012) (“One of the more reliable canons of construction—the normal

practice—is that a term or phrase is ordinarily given the same meaning throughout a

statute . . . [absent] persuasive evidence from the statutory text, context, or other sources

that different meanings were intended.”) (internal citations omitted). 

Although Bradbury argues that the instruction he wanted is supported by the

Seventh Circuit’s emphasis on “the role ‘harm’ played” in defining“maliciously” in

United States v. McBride, 724 F.3d 754 (7th Cir. 2013), McBride has little bearing here.

There, the government argued that “maliciously” under section 844(i) means “intending

to cause damage or willfully disregarding the likelihood that damage would result from

the defendant’s act[.]” Id. at 759. The circuit court took issue with that definition, but

only where the only possible harm would be to the defendant himself. Id. The court’s

point was that a person doesn’t commit arson by setting fire to his own things in a way

that puts no third parties at risk, so the word “maliciously”as used in the federal arson

statute must mean “deliberately . . . using fire to do a harmful act.” Id. 

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Here, of course, Bradbury was accused and convicted under a different subpart

of the statute—section 844(e). There’s no need to graft the reasoning of McBride onto a

section 844(e) analysis because that section requires that the “defendant conveyed false

information” and thus could never be applied to conduct that did not implicate a third

party. (See DE 141 at 25 (Instruction No. 21 providing the elements that must be proven

to convict under section 844(e)) (emphasis added).) The Seventh Circuit itself reiterated

this distinction—cases where any damage could be only to the defendant and those in

which third parties could be harmed—when it upheld the district court’s use of the

same definition of “maliciously” as I used on grounds that it “allowed the jury to

properly weigh the [defendant’s] intent[.]” See Grady, 746 F.3d at 849.

The jury instruction definition used at Bradbury’s trial is also consistent with

available legislative history on section 844(e), which states that Congress’s goal in

including the word “maliciously” was to “avoid coverage of a number of innocent

situations, and unduly inhibit communication of desirable information[.]” See H.R. Rep.

91-1549, at 4046 (1970). It is simply not possible that Bradbury’s vitriolic post on

Facebook—which, among other things, named and stated an intention to kill two police

officers and two judges and promised to “incinerate” the Tippecanoe County

Courthouse—was the sort of “communication of desirable information” that Congress

hoped to avoid criminalizing. The instructions Bradbury’s jury received “read as a

whole, completely and correctly” stated the law, and I will not undo their verdict.

Finally, even if Bradbury is right that the instruction I gave was unclear, he has

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not shown any prejudice. I think there is little chance that the jury would have acquitted

Bradbury had it been instructed with the additional language that Bradbury now

proposes. Here is how Instruction No. 22 read at trial: “To act ‘maliciously’ means to act

intentionally or with the deliberate disregard of the likelihood that damage or injury

will result.” Although Bradbury objected to Instruction 22 at trial, he did not request the

additional language that he now proposes. In any event, here is the gloss that Bradbury

now says should have been put on the instruction: “To act maliciously means to act

intentionally despite a likelihood that damage or injury would result or with deliberate

disregard of the likelihood that damage or injury will result.” I fail to see how the

altered language of the instruction would have made a difference even if it had been

requested by Bradbury in a timely way and given to the jury at trial. Some things are

plain, and this is one of them: when someone goes on social media and says he is going

to blow up a courthouse, or any building for that matter, that is almost assuredly going

to cause substantial harm by diverting law enforcement resources. The evidence

presented at trial overwhelmingly supports a guilty verdict based on any of the possible

formulations of “maliciously,” and I believe the jury would have convicted Bradbury

even if I’d instructed them as he argues I should have.

Accordingly, Bradbury’s motion for judgment of acquittal, to dismiss or for a

new trial (DE 172) is DENIED. 

SO ORDERED.

ENTERED: January 13, 2016

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s/ Philip P. Simon 

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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