121 F.

3d 18

UNITED STATES, Appellee,

v.
Kevin WHIFFEN, Defendant-Appellant.
No. 97-1036.

United States Court of Appeals,

First Circuit.
Heard June 4, 1997.
Decided Aug. 29, 1997.

Bjorn Lange, Assistant Federal Defender, for defendant-appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M.
Gagnon, United States Attorney, and Peter E. Papps, First Assistant
United States Attorney, were on brief for appellee.
Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and
BOUDIN, Circuit Judge.
TORRUELLA, Chief Judge.

Defendant-appellant Kevin Whiffen ("Whiffen") was tried and convicted on

four counts of transmitting threatening communications in interstate commerce
in violation of 18 U.S.C. 875(c). Whiffen now appeals, arguing that the
indictment failed to allege an offense, that the court should have granted his
motion under Rule 29 of the Federal Rules of Criminal Procedure for a
judgment of acquittal on all counts, and that the court erred in its jury
instructions. We affirm.

I. Background
2

In 1993, Whiffen, a resident of New Hampshire, was driving a car that was
involved in a two-vehicle accident in Rhode Island. The other car was insured
by Allstate Insurance ("Allstate"). Allstate paid a claim to its insured and
sought reimbursement from Whiffen in the amount of approximately $11,000.
The claim was eventually turned over to Universal Fidelity Corporation

("UFC"), located in Florida, for collection. On October 11, 1995, UFC sent a
letter to Whiffen, informing him that the New Hampshire Division of Motor
Vehicles had been notified of his failure to pay and warning that if he failed to
pay the claim within thirty days, he risked losing his license.
3

On October 17, 1995, Whiffen returned a telephone call from Kelly Terrell
("Terrell"), a UFC collector. During the call, Whiffen was "very belligerent,"
and when Terrell stated that she could have Whiffen's license suspended,
Whiffen said that "the building will go boom." At that point, Terrell
disconnected the line.

Several minutes later, Whiffen called back. The call was transferred to Terrell,
and Whiffen told her that "the building will go boom."

Whiffen called back a third time, speaking on this occasion with Anna Walls
("Walls") of UFC. He asked that a message be relayed to Terrell that "buildings
go boom boom."

On the evening of October 17, 1995, Walls' supervisor, Mark Gallo ("Gallo"),
called Whiffen to confirm the name of his attorney and to ask him to pay his
bill. Gallo asked Whiffen if he intended to drive to Florida and blow up the
building. Whiffen responded that he had friends in Florida who would "take
care of it for him."

As a result of Whiffen's statements, UFC closed their file on Whiffen and

returned the account to Allstate. On October 29, 1995, Whiffen telephoned
Allstate's Bedford, New Hampshire office. The call was automatically
transferred to Sheryl Johnson, a manager at Allstate's St. Petersburg, Florida
office. Whiffen told her that "Allstate had better stop messing with me or else
I'm going to blow up their building."

II. The Requisite Intent

8

Although Whiffen makes several claims on appeal, all of them turn on the
question of whether the threats made by Whiffen constitute threats to the
person of another. In order to resolve this question, we must determine the
intent necessary for conviction under section 875.

The centerpiece of Whiffen's appeal is the claim that 18 U.S.C. 875(c) is a

specific intent crime. In other words, in order to obtain a conviction, the
government must prove that the defendant intended his communication to be

received as a threat. In support of this view, Whiffen cites United States v.

Twine, 853 F.2d 676 (9th Cir.1988). In Twine, the Ninth Circuit concluded that
"the showing of an intent to threaten, required by 875(c) ... is a showing of
specific intent." Id. at 680.
10

Other circuits, however, disagree with Twine.1 In United States v. DeAndino,

958 F.2d 146 (6th Cir.1992), for example, the Sixth Circuit concluded that "
875(c) does not require specific intent in regard to the threat element of the
offense, but only general intent." Id. at 150. Under a general intent standard,
whether a communication is a "true threat" is determined objectively from all
the surrounding facts and circumstances, rather than from the defendant's
subjective purpose. A general intent standard has also been adopted by three
other circuits. See United States v. Myers, 104 F.3d 76, 81 (5th Cir.1997),
United States v. Himelwright, 42 F.3d 777, 782-83 (3d Cir.1994), United States
v. Darby, 37 F.3d 1059, 1063-66 (4th Cir.1994), cert. denied, 514 U.S. 1097,
115 S.Ct. 1826, 131 L.Ed.2d 747 (1995). The test espoused in these cases is
stated in Darby:

11 establish a violation of section 875(c), the government must establish that the
[T]o
defendant intended to transmit the interstate communication and that the
communication contained a true threat. Whether a communication in fact contains a
true threat is determined by the interpretation of a reasonable recipient familiar with
the context of the communication. The government does not have to prove that the
defendant subjectively intended for this recipient to understand the communication
as a threat.
12

Darby, 37 F.3d at 1066. Our sister circuits have also considered what
constitutes a "true threat" under other federal threat statutes. See United States
v. Fulmer, 108 F.3d 1486, 1491 (1st Cir.1997) (collecting cases).

13

Although the intent requirement of section 875(c) has not previously been
decided by this court, we recently had occasion to determine the requisite intent
under a different threat statute, 18 U.S.C. 115(a)(1)(B), which criminalizes
threats directed at federal agents.

14

In determining what constitutes a "true threat," the Fulmer panel found the
governing standard to be "whether [the defendant] should have reasonably
foreseen that the statement he uttered would be taken as a threat by those to
whom it is made." Fulmer, 108 F.3d at 1491. This test takes into consideration
the context in which the remark was made and avoids the risk that an otherwise
innocuous statement might become a threat if directed at an unusually sensitive
listener. This approach also protects listeners from statements that are

reasonably interpreted as threats, even if the speaker lacks the subjective,

specific intent to threaten, or, as would be more common, the government is
unable to prove such specific intent which, by its nature, is difficult to
demonstrate.
15

For these reasons, we believe that the logic of Fulmer, which considered 18
U.S.C. 115(a)(1)(B), applies with full force to 18 U.S.C. 875, and we adopt
the same standard for the latter statute. In doing so, we are also aligning
ourselves with the majority view of our sister circuits, as discussed supra.
Having established that section 875(c) requires only a general intent, we are
able to engage each of Whiffen's specific claims.

III. Failure to Allege an Offense

16

Whiffen's first claim of error relates to his pre-trial motion, under Rule 12(b)(2)
of the Federal Rules of Criminal Procedure, to dismiss the indictment for
failure to allege an offense. Whiffen was charged with violation of 18 U.S.C.
875(c) which prohibits the transmission in interstate commerce of "any threat to
injure the person of another." The indictment alleges that Whiffen made such a
communication when he stated that "[y]our building will go boom"; "the
building will go boom"; "buildings go boom"; and "Allstate had better stop
messing with me or else I'm going to blow up their building."

17

On appeal, Whiffen argues that his motion to dismiss should have been granted
on the grounds that the indictment "fails to allege 'unequivocal, unconditional
and specific expressions of intention immediately to inflict injury' to another
person." Brief of Appellant at 7 (quoting United States v. Kelner, 534 F.2d
1020, 1027 (2d Cir.1976)).

18

Having determined that specific intent is not the standard under which
Whiffen's statements should be judged, it is clear that the failure to allege
specific intent is not grounds for dismissal. "[A]n indictment is sufficiently
particular if it elucidates the elements of a crime, enlightens a defendant as to
the nature of the charges against which she must defend, and enables her to
plead double jeopardy in bar of future prosecutions for the same offense."
United States v. Sepulveda, 15 F.3d 1161, 1192 (1st Cir.1993); see also
Fed.R.Crim.P. 7(c)(1). Although the four counts contain slightly different
wording, we present only Count I, which is representative of the other counts.
Count I states that:

19 or about October 17, 1995, in the District of New Hampshire, the defendant,
On
Kevin Whiffen knowingly and willfully transmitted in interstate commerce between

Farmington, New Hampshire and Tampa, Florida, a communication containing a

threat to injure Kelly Terrell and other employees of Universal Fidelity Corporation,
Tampa, Florida, to wit, "Your building will go boom." All in violation of Title 18,
United States Code, Section 875(c).
20

It is our view that the indictment states the offense for which Whiffen has been
convicted. The elements of the crime are elucidated and the indictment is
sufficient to plead double jeopardy should future prosecutions be brought
against Whiffen for the same offense. The indictment basically tracks the
language of section 875(c), which states: "Whoever transmits in interstate or
foreign commerce any communication containing ... any threat to injure the
person of another, shall be fined under this title and imprisoned for not more
than five years, or both." 18 U.S.C. 875(c). We find the indictment to be
sufficient. See Darby, 37 F.3d at 1063.

21

Appellant also argues that the indictment is inadequate because it "alleges

threats that a building or buildings would 'go boom.' ... It does not allege that
any person would be present or hurt by any such explosion." Brief of Appellant
at 6. The indictment does, however, allege that each of the threats was a threat
to injure the person of another. In Count I, for example, it is stated that the
communication contained "a threat to injure Kelly Terrell and other employees
of Universal Fidelity Corporation." Whiffen's argument appears to be that
threats to blow up the building are, as a matter of law, not threats against a
person. Like the district court, we are unwilling to conclude that his words did
not contain a threat to injure a person. One possible interpretation of a threat to
blow up a building is that the building will be blown up with people inside.
Such an interpretation would lead to the conclusion that the threat was a threat
against those who work in the building. Alternatively, such a threat may be
interpreted as a threat to blow up the building only when it is empty. Under this
interpretation, Whiffen's statement would not constitute a threat against a
person. The proper interpretation of Whiffen's remarks, however, is a question
of fact and, therefore, appropriately left for the jury. We cannot conclude that
the interpretation preferred by Whiffen is, as a matter of law, the correct one.

22

Whiffen argues that we must interpret section 875(c) narrowly in order to avoid
violation of his First Amendment rights. In support, he cites Watts v. United
States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), in which the
defendant was accused of threatening the President. The primary concern of the
Court in Watts was the protection of constitutionally protected political speech.
See id. at 706-08, 89 S.Ct. at 1400-02. Whiffen does not claim that his
statements were a form of political speech.

23

In any event, a true threat is not protected by the First Amendment. See Fulmer,
108 F.3d at 1492-93; United States v. Orozco-Santillan, 903 F.2d 1262, 1265
(9th Cir.1990). For this reason, a conviction upon a finding that the statements
were true threats would not violate Whiffen's constitutionally protected right to
speech.

IV. Judgment of Acquittal

24

Whiffen also appeals the denial of his motion, under Rule 29 of the Federal
Rules of Criminal Procedure, for a judgment of acquittal on all counts. We
review the district court's ruling deferentially, considering the evidence "in the
light most compatible with the verdict, resolv[ing] all credibility disputes in the
verdict's favor, and then reach[ing] a judgment about whether a rational jury
could find guilt beyond a reasonable doubt." United States v. Taylor, 54 F.3d
967, 974 (1st Cir.1995).

25

Whiffen claims that even under this deferential standard, the evidence "failed to
prove a true threat to injure 'the person of another.' " Brief of Appellant at 8.
This argument is, ultimately, a claim that the words spoken--on which there is
no dispute--did not constitute a true threat. Specifically, Whiffen argues that
"any reasonable person familiar with the context of those statements could not
find beyond a reasonable doubt that they were true threats under 875(c). They
were frustrated, inarticulate, and empty words." Brief of Appellant at 10.

26

There is no dispute that Whiffen made the statements, there is disagreement

only with respect to their proper interpretation. Whether or not Whiffen's
statements were true threats is determined by applying the Fulmer test
discussed above. At trial, the government presented testimony that Terrell
notified two supervisors about Whiffen's call, and informed Stacie Thompson,
the person responsible for incoming mail, to "be very careful with any packages
coming in from this area because there was a bomb threat." Tr., April 9, 1996,
at 41. Both Terrell and Walls testified that this was the only bomb threat they
had ever received while working in claims collection. Walls, who has fifteen
years experience in third party collections, testified that by Whiffen's third call
she was afraid. Joseph Suozzo, a claim manager in Allstate's Bedford, New
Hampshire office, testified that, in reaction to the phone calls from Whiffen, a
security guard was hired for the Bedford office and the claim against Whiffen
was not pursued. This evidence regarding the reaction of the listeners is not
conclusive, but it does suggest that at least these individuals perceived the
statements to be threats.

27

Faced with this evidence, as well as the content of the statements and other

27

Faced with this evidence, as well as the content of the statements and other
contextual information, a reasonable jury could have found that the defendant
should have reasonably foreseen that the statement he uttered would be taken as
a threat by those to whom it was made. For that reason, we affirm the denial of
Whiffen's motion for judgments of acquittal on all counts.

28

With respect to count four, Whiffen argues that he was unaware that his in-state
call was re-routed to Florida. His lack of knowledge, however, does not
constitute a defense. "[W]hile the Government was required to prove that [the
defendant]'s phone call crossed a state line (a fact not in dispute here), the
Government did not need to prove that [the defendant] knew of the interstate
nexus." Darby, 37 F.3d at 1067.

V. Jury Instructions
29

Finally, Whiffen challenges the jury instructions. He claims error in the district
court's failure to instruct the jury that violation of section 875(c) is a specific
intent crime. In our discussion of this issue, supra section II, we determined that
section 875(c) is a general intent crime. The failure to provide instructions to
the effect that it is a specific intent crime, therefore, cannot be error.

30

Whiffen makes the additional argument that the jury instructions failed to meet
the requirements of Fulmer. We turn, therefore, to consider whether the
requirements set forth in that opinion, which we have determined apply in this
case, were satisfied by the district court.

31

Fulmer instructs that "the appropriate standard under which a defendant may be
convicted for making a threat is whether he should have reasonably foreseen
that the statement he uttered would be taken as a threat by those to whom it is
made." Fulmer, 108 F.3d at 1491.

32

The jury instructions actually given in the instant case were:

33 sustain its burden with regard to the second element the government must prove
To
beyond a reasonable doubt that the communication contained a threat. A threat is a
serious statement or communication expressing an intention to inflict bodily injury
upon another person which, under the surrounding circumstances, and in context,
would cause apprehension in a reasonable person that the person making the threat
will act on it. A criminal threat must be distinguished from words used as mere idle
or careless talk, hyperbole, exaggeration, or something said in a joking manner.
Those are not threats within the meaning of the statute involved in this case. In other
words, the communication must be unconditional and a true threat or one properly

perceived by a reasonable person as a real or genuine threat to injure another. The

government has the burden of proving beyond a reasonable doubt that an ordinary
reasonable person, familiar with the context and circumstances surrounding the
communication, would interpret the communication as a genuine threat to injure
another person.... The government is not required to prove that the defendant
subjectively intended the recipient to understand the communication was a threat,
nor need to prove that the defendant intended to or was actually able to carry out the
threat made. [T]he government must prove that the threat was an unequivocal and
unconditional expression of intent to cause bodily injury to another person and
would cause a reasonable person in the recipient's circumstances to fear that he, she
or another person faced an imminent risk of bodily injury.
34

Tr. 9/5/96, at 14-15.

35

Comparing the instructions given to those required under the Fulmer analysis,
we see that the district court instructions failed to inform the jury that it must
consider whether the defendant could reasonably have foreseen that the
statement would be taken as a threat. The instructions given indicate that it is
sufficient if the communication would cause apprehension in a reasonable
listener. In light of Fulmer, this focus on the recipient of the threat rather than
the defendant could be viewed as error, although we note in fairness to the
district court that Fulmer was decided some months after the trial in this case.
In any event, in this case, as in many others, the distinction is without practical
importance.

36

We do not reverse a conviction based on an error in the jury instructions if "it is

highly probable that the error did not contribute to the verdict." United States v.
Cudlitz, 72 F.3d 992, 999 (1st Cir.1996). An error that is certain to have had no
significant impact on the jury is harmless.

37

The facts of this case are such that the instructions required under Fulmer and
the instructions actually given in this case are functionally equivalent. In
certain situations, as in Fulmer, there may be information known to the listener,
but not to the speaker (or vice versa), that would cause a reasonable listener to
perceive a statement as an expression of an intent to injure despite the fact that a
reasonable speaker would not view it as such. That is not the case here. It is not
possible that the words spoken by Whiffen were reasonably understood by the
employees of UFC and Allstate as an expression of an intent to injure, and yet
such an outcome would not have been foreseen by a reasonable speaker in
Whiffen's position. This is so because, unlike in Fulmer, Whiffen did not
employ language that held a different meaning for him than it did for the
listeners.

38

We conclude, therefore, that the imperfection in the jury instructions could not
have affected the verdict. The error was harmless.

VI. Conclusion
39

For the reasons stated herein, we affirm the judgment of the district court.

Even within the Ninth Circuit there is some question about the continuing
validity of Twine. See United States v. King, 920 F.Supp.1078, 1079-80
(C.D.Cal.1996) (suggesting that Twine conflicts with both prior and subsequent
Ninth Circuit precedent)