Argued October 29, 2015
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. (7:13-cr-00013-JCT-1). James C. Turk, Senior District Judge.
Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant.
Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Anthony P. Giorno, United States Attorney, Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Before MOTZ, KING, and THACKER, Circuit Judges. Judge Thacker wrote the opinion, in which Judge Motz and Judge King joined.
THACKER, Circuit Judge:
William White (" Appellant" ) believed his ex-wife (" MW" ) owed him money. When she refused to pay, he sent her a series of e-mails, four of which threatened violence if MW did not meet his demands. MW reported the threats to the authorities, and Appellant was eventually charged in a four-count indictment with violating 18 U.S.C. § 875(b), which makes it a felony to
transmit threats in interstate commerce with the intent to extort. After trial, a jury convicted him of three of the charged § 875(b) counts, and one count of the lesser-included offense of transmitting a threat (without the intent to extort), in violation of § 875(c). The district court sentenced Appellant to a 92--month term of imprisonment.
Appellant now asks us to reverse his conviction and vacate his sentence, assigning a number of errors. He maintains he could not have intended to extort MW because she owed him a legitimate debt and alleges more generally that the district court misinstructed the jury on the mens rea requirements for conviction pursuant to § 875(b) and (c). He also complains that the use of an anonymous jury at his trial was improper; asserts that the district court erroneously admitted hearsay evidence; challenges the sufficiency of the evidence presented against him; and disputes both the procedural and substantive reasonableness of his sentence. We are not persuaded that any of Appellant's arguments undermine the jury's verdict or the district court's sentence. We therefore affirm the district court's judgment for the reasons that follow.
This is not Appellant's first brush with the law for making threats, and his prior misadventures set the stage for this case. In 2010, he was charged in the Western District of Virginia for making a threatening telephone call to a university administrator and sending intimidating letters to several tenants in Roanoke who had filed a fair housing complaint against their landlord. A jury convicted him, and the district court imposed a 30-month term of imprisonment.
While he was incarcerated, Appellant's relationship with his now-ex-wife, MW, deteriorated. They eventually separated and MW agreed to pay alimony to Appellant. She made the first two payments in March and April of 2012. Around the same time, in March 2012, we upheld Appellant's conviction on appeal, but remanded the case for resentencing. See United States v. White, 670 F.3d 498, 502-03, 515-16 (4th Cir. 2012).
Appellant was out of prison and on supervised release by that time, so the district court set a resentencing hearing for May 14, 2012. Appellant didn't show. Instead, he fled, absconding to Mexico with an acquaintance named Sabrina Gnos. When MW learned Appellant was on the lam, she stopped making the alimony payments, at least in part because she feared that doing so would amount to aiding a fugitive. Appellant's subsequent attempts to persuade MW to resume making the payments form the basis of the indictment in this case.
Appellant sent MW the following messages, which form Counts I, II, and III of the indictment at issue here, between May 27th and May 29th:
May 27, 2012 (Count I): I've had an offer from a loan shark in Roanoke to split the money you owe me 50/50. He will send someone to beat your ass if you don't pay, and I will give him half for that service. I would rather we found some way to peacefully work things out so I had continuing contact with my daughter and you faced up to your obligations to me. If I don't hear from you soon, I will just let the guy know you owe me $500 and let him take
care of it. If you won't face up to what you've done, someone has to hold you accountable.
May 28, 2012 (Count II): If I were to allow myself to be arrested, you have proven that you will take [our daughter] from me forever and that the federal government will assist you with this. So, rather than be arrested, I will remain free, and if you attempt you are going to have the living shit beat out of you -- to start with. You don't seem to have any sense of right or wrong and only seem to respond to the threat of legal or physical force. The things you do upset a lot of people, and I have a lot of friends who think nothing of taking out on you the things you have done to me.
May 29, 2012 (Count III): Later on someone will be in touch with you. You owe me two alimony payments and $85 in fees, which is being called $500. I would strongly recommend you have the $500 when you are contacted -- or you will probably be hospitalized.
Appellant also asked Gnos for help finding someone in Virginia to pressure MW into making the payments. On June 2, 2012, Gnos, who was by that time cooperating with the Federal Bureau of Investigation (" FBI" ), recorded the following conversation:
GNOS: Ah, you said you wanted, you wanted to start off with a phone call and see how that works. Are you . . .
APPELLANT: I think that's probably best, um, I mean, that's easiest. You said you didn't know anybody that would actually go there and just tell her to give them the fucking money.
J.A. 730. The following day brought more of the same:
APPELLANT: I assume you're still, ah, working on the deal with my ex-wife up there.
GNOS: Yeah, it's not that easy.
APPELLANT: Honestly, it is really easy. Right now you just need to find someone to get on the phone and pick up, pick up a throw phone and call her up and say you're gonna pay the fucking money or I'm gonna fuck you up.
Id. at 733. Appellant followed up again on June 4th:
APPELLANT: So, anyways, but, yeah, ah, well, I just thought I'd, ah, check in with you. Have you got any solution for getting some money out of my ex-wife?
GNOS: No I've been sick. I haven't been talking to anybody on the phone.
APPELLANT: All right, well, it's kind of important. . . . I'm not kidding. You can probably pay somebody ten bucks to just scream some fucking obscenities into the phone and get what she, get five hundred bucks out of her. But I do need somebody to lean on her and get that money, so, if you can't do it, I got to talk to somebody else up there.
Id. at 737.
Finally, on June 7, 2012, after Gnos failed to find a solution, the indictment alleges Appellant sent MW a final warning, charged in Count IV:
June 7, 2012 (Count IV): I would very much like to avoid an incident in which something violent potentially happens to you around the baby. Will you make some agreement to settle the issues with the money and with my access to my daughter? If I don't hear from you within 24 hours, then what follows will
be on you-I've done everything I can to work this out peacefully.
The following day, June 8, 2012, Appellant was arrested in Mexico and eventually deported to the United States. On February 7, 2013, he was indicted in the Western District of Virginia and charged with four counts of violating 18 U.S.C. § 875(b) on the basis of the e-mails set forth above. As relevant here, the statute penalizes " [w]hoever, with intent to extort from any person . . . any money . . ., transmits in . . . foreign commerce any communication containing any threat to . . . injure the person of another[.]" 18 U.S.C. § 875(b).
Before trial, Appellant moved to dismiss the indictment, arguing that it failed as a matter of law because he had a legal right to the alimony payments he demanded. The district court denied the motion. At the Government's request, and over Appellant's objection, the case proceeded to trial before an anonymous jury.
At trial, Gnos testified in detail about Appellant's activities during his escape to Mexico. She noted that Appellant frequently used a Toshiba laptop during the trip and that Appellant explained he was using software to disguise the computer's Internet Protocol (" IP" ) address. Gnos also testified that, after she returned to Virginia, she continued to communicate with Appellant, check his mail, and wire him money. At her father's urging, Gnos explained, she eventually contacted authorities and agreed to record her telephone conversations with Appellant. The Government played several of those recordings for the jury, including the clips from early June, described above, in which Appellant repeatedly asked Gnos to find someone to lean on MW so that she would resume making the disputed alimony payments. The court also received into evidence a handwritten note Gnos made of a call with Appellant, which had not been recorded. According to Gnos's note, the tenor of the call was much like the others; Appellant told her, " OK - if phone call dont [ sic ] work - we will have to have someone fuck her up!" J.A. 727.
Other testimony implicated Appellant as the author of the e-mails charged in the indictment. FBI Agent David Church testified that the e-mails to MW originated from an e-mail address, firstname.lastname@example.org, that Appellant had previously used. Church also explained that Appellant bragged on his Facebook account of using an IP anonymizer much like the technology Gnos testified Appellant had described to her. And Church testified that Appellant's Facebook account registered activity very near in time to the moments when threatening e-mails were sent to MW, and that both the Facebook activity and e-mails originated from the same (albeit anonymized) IP address.
MW testified that the e-mails made her fearful for her safety and the safety of her daughter. For example, she testified that, after receiving the May 27, 2012 e-mail, she went to the local police station to ask for a protective order. She also shared the e-mails with the United States Marshals Service and the FBI, and ...