IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30701

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ASHTON R. O’DWYER, JR.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CR-34-1

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

In February 2010, the government obtained an indictment against Ashton

O’Dwyer alleging a violation of 18 U.S.C. § 875(c), which criminalizes the

interstate communication of certain threats. The government appeals from the

district court’s dismissal of the indictment. Because the district court correctly

determined that O’Dwyer’s speech was protected by the First Amendment, and

not a true threat, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

September 27, 2011

Lyle W. Cayce

Clerk

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4.

Case: 10-30701 Document: 00511614726 Page: 1 Date Filed: 09/27/2011
No. 10-30701

I. FACTS AND PROCEEDINGS

O’Dwyer sent an e-mail to Sean McGinn, an employee of the bankruptcy

court for the Eastern District of Louisiana. At the time of the e-mail, O’Dwyer

was the debtor in bankruptcy proceedings before Bankruptcy Judge Jerry

Brown. The apparent purpose of O’Dwyer’s e-mail was to obtain leave from

Judge Brown to pay for his anti-depressant medication out of his most recent

Social Security check. The full text of O’Dwyer’s e-mail is as follows:

Well, please convey to Judge Brown my belief that he can “try” to protect

the CRIMINALS Duval, Lemelle and Dennis, but he can’t protect them

from themselves, and the “damage” is already done. As is the case with

Judge Porteous, their impeachment is “just a matter of time”. Also convey

to Judge Brown a reminder that I have been totally without money since

the weekend of January 8, 9, and 10, and that I have been without my

anti-depressant medication, for which I have sought leave to pay

Walgreen’s from my most recent Social Security check, since last weekend. 

I could not sleep last night, which I attribute to the effects of abruptly

stopping my medication on Sunday, the 24 th (my pills “ran out”, and I

have no money to purchase more). Maybe my creditors would benefit from

my suicide, but suppose I become “homicidal”? Given the recent “security

breach” at 500 Poydras Street, a number of scoundrels might be at risk if

I DO become homicidal. Please ask His Honor to consider allowing me to

refill my prescription at Walgreen’s, and allowing me to pay them, which

is a condition for my obtaining a refill. Please communicate this missive

to creditors and their counsel. Thank you.

McGinn contacted the U.S. Marshals after receiving O’Dwyer’s e-mail. About

nine hours later, O’Dwyer was arrested outside his home.

The district court dismissed the indictment on the ground that O’Dwyer’s

“statements are insufficient to warrant submission to a jury to determine if they

are a true threat.” The district court concluded that, read in context, O’Dwyer’s

statements did not constitute a threat as a matter of law. The government

timely appealed.

2

Case: 10-30701 Document: 00511614726 Page: 2 Date Filed: 09/27/2011
No. 10-30701

II. DISCUSSION

We review de novo the district court’s dismissal of an indictment. See

United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009). To uphold dismissal

of the indictment we must determine as a matter of law that no reasonable jury

could find the allegedly criminal statement to be a true threat. See United

States v. Daughenbaugh, 49 F.3d 171, 173 (5th Cir. 1995) (whether a statement

“constitutes a ‘threat’ is an issue of fact for the jury”); United States v. Morales,

272 F.3d 284, 287 (5th Cir. 2001) (applying the reasonable jury standard on

review of a motion for judgment of acquittal).

The First Amendment provides that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Const. amend. I. Nevertheless, the First

Amendment does not protect “true threat[s].” Virginia v. Black, 538 U.S. 343,

359 (2003) (“[T]he First Amendment . . . permits [the government] to ban a ‘true

threat.’”). A communication rises to the level of an unprotected threat, within

the meaning of 18 U.S.C. § 875(c), only if “in its context [it] would have a

reasonable tendency to create apprehension that its originator will act according

to its tenor.” Morales, 272 F.3d at 288 (internal quotation marks omitted).

We agree with the district court that O’Dwyer’s statement is not a true

threat as a matter of law. His statement is hypothetical and conditional:

“[S]uppose I become ‘homicidal’ . . . a number of scoundrels might be at risk if I

DO become homicidal.” See Watts v. United States, 394 U.S. 705, 708 (1969)

(statement not a true threat considering in part its “expressly conditional

nature”). Moreover, as the district court correctly observed, O’Dwyer’s e-mail did

not threaten bodily harm to any particular individual. O’Dwyer made his

allegedly threatening statement in an e-mail transmitted to a bankruptcy court

employee, with a message for Judge Brown, in which he never identified any

individual whom he intended to harm. The most he said was that “a number of

scoundrels might be at risk.” We conclude, based on the language of O’Dwyer’s

3

Case: 10-30701 Document: 00511614726 Page: 3 Date Filed: 09/27/2011
No. 10-30701

statement, and in light of his documented history of using coarse and hyperbolic

language in prior court proceedings, that no reasonable jury could find that

O’Dwyer’s communication constitutes a true threat.

We therefore AFFIRM the district court’s dismissal of the indictment.

4

Case: 10-30701 Document: 00511614726 Page: 4 Date Filed: 09/27/2011