United States of America v. Atrel Howard, Jr.

Cleveland, Ohio - Criminal defense lawyer represented defendant with appealing his conviction of transmitting a threat in interstate commerce to murder former U.S. Attorney General Eric Holder charge.

On Sunday, November 12, 2017, a man identifying himself as Atrel Howard left the

following voicemail for Eric Holder at the former attorney general's law firm, Covington

& Burling, LLP (Covington), where Holder is now a partner in Washington, D.C.:

Former U.S. Attorney General Eric Holder, I'm going to kill you. My name is –

former U.S. Attorney General Eric Holder, I am going to murder you. My name

is Atrel Howard. We had spoken in February of 2010. I was a United States

unconstitutional convicted, uh, uh, prisoner by the Common Pleas Court of

Cuyahoga County of the State of Ohio, by Judge John Sutula, through the second

part of the clause of the double jeopardy law of the United States Constitution

stating that a man cannot be put twice in jeopardy of loss of life — I mean a man

cannot be put in jeopardy of loss of limb for the same — a man cannot be twice

put in jeopardy for a loss of limb for the same charge.

Uh, I started — we had spoken. My name is Atrel Howard of Cleveland, Ohio.

If you get this message you need to realize that I'm under unconstitutional United

1

18 U.S.C. § 875(c) states the following: "Whoever transmits in interstate or foreign commerce any

communication containing any threat to kidnap any person or any threat to injure the person of another, shall be

fined under this title or imprisoned not more than five years, or both.”

No. 18-4213 United States v. Howard Page 3

States law as we speak. I was sentenced to 50 months in federal prison for a

conviction of the federal offense of — beginning [sic] originally an intentional

assault of a federal agent or employee on the FBI agency premises.

(R. 49: Trial Trans., Lamb, PageID 500–01).

On December 12, 2017, a single-count indictment charged Howard with the knowing and

willful transmission in interstate commerce of a communication containing a threat to injure

another, in violation of § 875(c). The jury trial commenced on July 26, 2019.

The government called Michael Lamb, Covington's Director of Security, to testify

regarding the standard procedure through which telephone calls received after business hours at

the firm are routed to the proper attorney. Based on this process, Lamb testified that it was

likely that once Howard made a call to Covington's general telephone number, he was provided

with instructions from an automated system regarding how to locate Holder's extension via

buttons on Howard's phone. Once he was connected to Holder's extension, Lamb explained,

Howard would then have been able to leave a voicemail message directly on the former attorney

general's voicemail. Lamb further testified that, upon completion of every caller's message,

Covington's central voicemail system creates an audio file in Outlook email. The system then

saves the message to the server connected to the office where the attorney being called is

located––for Holder, the Washington, D.C. office. Often, according to Lamb, Covington's

central server also is able to identify the caller's name, number, and location. It did so in this

case, identifying the caller of the November 12, 2017 voicemail as Atrel Howard, and the

location where the call originated as a telephone with an area code assigned to Cleveland, Ohio.

United States Secret Service Special Agent Philip Hogan testified that during the criminal

investigation, he definitively confirmed Howard's identity as the voicemail caller. Hogan made

the identification based on his work in a previous, unrelated January 2017 investigation, during

which he became familiar with Howard's voice. Additionally, upon review of telephone records

and call logs obtained from the D.C. Metropolitan Police Department and AT&T, Hogan

confirmed that the telephone number from which Howard placed the call belonged to Howard's

father, who is a resident of Cleveland, Ohio. According to Hogan, on Sunday, November 12,

2017––when Howard left the voicemail at issue––five sequential calls were made around

No. 18-4213 United States v. Howard Page 4

3:30 pm from the Cleveland telephone number of Howard's father. The first four calls ranged

from about 27 seconds to one minute and 29 seconds. After those calls, there was a fifth call,

lasting in total about 3 minutes and 52 seconds, which Hogan testified matched the approximate

amount of time it would have taken for Howard to pass through the automated system prompts

and leave the one minute and 54 second voicemail message.

Karen Ford, Howard's federal probation officer, also gave testimony that confirmed

Howard's voice on the voicemail. Ford testified that she had met with Howard, who was under

her supervision, approximately one week prior to the November 12 call. At that meeting,

Howard indicated that during the upcoming week, he would be staying at the City Mission, as

well as with his father, in Cleveland.

Upon the government's resting of its case, Howard filed a motion for judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29, which the district court denied.

Howard then testified on his own behalf. He denied leaving the voicemail message, and insisted

that he would never have threatened a former attorney general in this manner. Howard also

claimed that although he and Holder had never met, the former attorney general did in fact like

Howard. Upon resting the defense's case, Howard renewed his motion for judgment of acquittal,

which the district court again denied. See Fed. R. Crim. P. 29.

The district court next gave the jury instructions, which began with a full reading of the

indictment language related to the § 875(c) offense. Neither party objected at trial to any of the

instructions. In fact, they were jointly proposed by the parties.

The jury found Howard guilty under § 875(c), and he was sentenced to a 30-month

sentence for his § 875(c) offense, and a 24-month concurrent sentence for his supervised release

violation.

II.

Howard challenges the § 875(c) conviction on three grounds: (1) the initial indictment

omitted the essential mens rea element of an § 875(c) offense, based on the Supreme Court's

ruling in Elonis, 135 S. Ct. 2001; (2) the district court plainly erred in its jury instructions when

No. 18-4213 United States v. Howard Page 5

directing jurors to evaluate Howard's issuing of a "true threat” to Holder based on a reasonable

person standard; and (3) the government failed to present sufficient evidence to support

Howard's conviction for issuing a "true threat” to Holder under § 875(c). We address each

argument in turn below.

A. The Indictment

Howard first challenges the indictment's sufficiency, arguing that the text failed to charge

an offense, which deprived the lower court of jurisdiction. The indictment read as follows:

On or about November 12, 2017, in the Northern District of Ohio, Eastern

Division, and elsewhere, ATREL HOWARD, did knowingly and willfully

transmit in interstate and foreign commerce a communication containing a threat

to injure the person of another, to wit: ATREL HOWARD called E.H., a former

United States government official known to the grand jury, and left a voicemail

threatening to murder E.H., all in violation of Title 18, Section 875(c), United

States Code.

(R. 8: Indictment, PageID 14).

Specifically, Howard argues that the indictment language reflected a "reasonable person

standard” that violated Elonis, 135 S. Ct. at 2012, where the Supreme Court held that an

§ 875(c) violation requires proof that a "defendant transmits a communication for the purpose of

issuing a threat, or with knowledge that the communication will be viewed as a threat.”

According to Howard, the prosecution had to do more than simply allege that Howard

"knowingly and willfully left the voicemail” at issue; the indictment also needed to state,

Howard contends, that he "intended to threaten or knew the voicemail would be interpreted as

threatening” by Holder.2

(Appellant Howard Br. at 16).

Generally, if a proper objection was made below, this court applies a de novo standard to

review the sufficiency of an indictment. United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir.

2007); United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999). "[A]n indictment is

sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant

2

In making this argument, Howard draws parallels between his claim and that made by the defendant in

Elonis, 135 S. Ct. at 2011. Namely, Howard suggests that, as in Elonis, the government here failed to allege a

"conscious wrongdoing,” as required to state a violation of § 875(c). (Appellant Howard Br. at 1).

No. 18-4213 United States v. Howard Page 6

of the charge against which he must defend, and, second, enables him to plead an acquittal or

conviction in bar of future prosecutions for the same offense.” Hamling v. United States,

418 U.S. 87, 117 (1974). A defendant can challenge the sufficiency of an indictment—on

grounds either that the district court lacks jurisdiction or the prosecutor failed to charge an

offense—at any time during case proceedings. However, if the defendant fails to raise the

challenge at the district court level, then on appeal, "the indictment must be construed liberally in

favor of its sufficiency.” Gatewood, 173 F.3d at 986; see also United States v. Duval, 742 F.3d

246, 255 (6th Cir. 2014); United States v. Martin, 526 F.3d 926, 934 (6th Cir. 2008) (holding that

a defendant challenges the court's jurisdiction when he asserts that the "indictment failed to

charge the elements of a federal offense”).

Furthermore, if there was no indictment-sufficiency objection raised below, then "unless

the indictment cannot within reason be construed to charge a crime,” Gatewood, 173 F.3d at 986,

a defendant must demonstrate prejudice to prevail, and this court reviews only for plain error.

See United States v. Soto, 794 F.3d 635, 649–50 (6th Cir. 2015). Plain-error review requires that

the appellant demonstrate that "(1) there is an 'error'; (2) the error is 'clear or obvious, rather

than subject to reasonable dispute'; (3) the error 'affected the appellant's substantial rights, which

in the ordinary case means' it 'affected the outcome of the district court proceedings'; and

(4) 'the error seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.'” United States v. Marcus, 560 U.S. 258, 262 (2010) (quoting Puckett v. United

States, 556 U.S. 129, 135 (2009)).

Given that Howard made no objection below to the sufficiency of the indictment, we will

apply plain-error review, and we will construe the indictment "liberally in favor of its

sufficiency.” Gatewood, 173 F.3d at 986. Therefore, applying plain-error review, and liberally

construing the indictment's language, we hold it is sufficient under Elonis, as we explain.

Under Rule 7(c)(1) of the Federal Rules of Criminal Procedure, an indictment is required

to include "a plain, concise, and definite written statement of the essential facts constituting the

offense charged.” In evaluating criminal indictments, this court has deemed an indictment

sufficient if it "fully, directly, and expressly . . . set[s] forth all the elements necessary to

constitute the offense intended to be punished.” United States v. Kuehne, 547 F.3d 667, 696

No. 18-4213 United States v. Howard Page 7

(6th Cir. 2008) (quoting United States v. Douglas, 398 F.3d 407, 411 (6th Cir. 2005)). "In

particular, the indictment must: (1) 'set out all of the elements of the charge[d] offense and must

give notice to the defendant of the charges he faces[,]' and (2) 'be sufficiently specific to enable

the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same

crime based on the same facts.'” Id. (quoting Douglas, 398 F.3d at 413).

The indictment against Howard for a violation of 18 U.S.C. § 875(c) satisfies these

requirements. "Section 875(c) punishes the transmission in interstate commerce of 'any

communication containing . . . any threat to injure the person of another.' To convict a person

under this law, the government must prove that: (1) the defendant sent a message in interstate

commerce; (2) a reasonable observer would view the message as a threat; and (3) the defendant

intended the message as a threat.” United States v. Doggart, 906 F.3d 506, 510 (6th Cir. 2018);

see Elonis, 135 S. Ct. at 2011; see also United States v. Jeffries, 692 F.3d 473, 478 (6th Cir.

2012). The indictment tracks these elements and includes the name of the defendant ("Atrel

Howard”) and the specific date of Howard's offense ("November 12, 2017”). (R.8: Indictment,

PageID 14); see United States v. Anderson, 605 F.3d 404, 411 (6th Cir. 2010); Kuehne, 547 F.3d

at 696. The indictment also specifies the victim of the offense ("E.H.”––Eric Holder), the means

of interstate communication (a "voicemail”), and the location in which defendant committed the

crime (the "Northern District of Ohio, Eastern Division”). (R.8: Indictment, PageID 14). These

allegations were "sufficiently specific” so as to provide Howard "protection against double

jeopardy.” See Kuehne, 547 F.3d at 696 (finding the indictment sufficiently specific because

language provided protection against double jeopardy as the counts specified particular dates on

which the offenses occurred and the type of drugs that were involved in each transaction).

Nonetheless, Howard maintains that the indictment is defective because the language

does not allege that Howard intended to threaten Holder with the voicemail, but rather, that

Howard simply "left the voicemail knowingly and willfully.” (Appellant Howard Br. at 22).

This omission, Howard argues, violates the Supreme Court's direction in Elonis, when the Court

claimed it was insufficient under § 875(c) to "[h]ave[] liability turn on whether a 'reasonable

person' regards the communication as a threat—regardless of what the defendant thinks.” (Id. at

23) (citing Elonis, 135 S. Ct. at 2011)).

No. 18-4213 United States v. Howard Page 8

Howard's reading of Elonis has not been adopted by courts applying plain-error review.

As discussed supra, this court, along with our sister circuits, is willing to "liberally construe” the

text when considering the question of whether an indictment's language is sufficient. Kuehne,

547 F.3d at 667; see United States v. Gray, 260 F.3d 1267, 1282–83 (11th Cir. 2001)

("[P]ractical, rather than technical, considerations govern the validity of an indictment” (internal

quotations and citations omitted)). For example, in Kuehne, our court upheld an indictment in

which three counts failed to name the specific drug trafficking crimes that represented the

predicate offenses for a charge brought under 18 U.S.C. § 924(c)(1)—a "requisite element” of

the charge itself. Omission of this element alone did not undermine the sufficiency of the

indictment because when "liberally construed,” the "indictment [could] be read to allege a

crime.” Kuehne, 547 F.3d at 696.

Given the functional interpretation favored by our court in Kuehne, an indictment, when

read in its entirety, can allege a defendant's intent element by way of descriptions of defendant's

actions––all of which can imply defendant's requisite mental state for every element of the

crime. See id. This seems true in the case at hand, particularly because we are required to

construe the indictment liberally, given Howard's failure to object in the district court.

In fact, the indictment in the instant case is even more complete than the one upheld in

Kuehne, which was missing a "requisite element” of the defendant's crime. Here, the indictment

contains all of the elements of an § 875(c) charge, with Howard's mens rea named explicitly as

"knowingly and willfully.” (R.8: Indictment, PageID 14). It is true, as Howard notes, that these

states of mind are not placed directly in front of the word "threat.” Nonetheless, a reasonable

reading of the indictment's text in its entirety, accompanied by consideration of the additional

factual details found in the remainder of the language, leads one to infer that the words modify

all parts of the charge. Therefore, a reasonable reader could conclude that Howard "willfully and

knowingly” transmitted the voicemail "for the purpose of issuing a threat, or with knowledge

that the [voicemail] [would] be viewed as a threat.” Elonis, 135 S. Ct. at 2013. This reasonable

reading is entirely in compliance with the Supreme Court's directive in Elonis. See id.

Accordingly, under the required "liberal” reading of this indictment, we find that the

government sufficiently complied with Elonis in the inclusion of the required mens rea of

No. 18-4213 United States v. Howard Page 9

"knowingly” or "willfully” for Howard's § 875(c) violation. See id. As such, no plain error

occurred.

B. The "True Threat” Jury Instruction

Turning now to Howard's challenge to the jury instructions at issue, he has a hurdle to

overcome because he failed to object to them before the district court. In fact, Howard jointly

submitted the instructions with the government.

Usually, if a defendant fails to object to the jury instructions at trial, and she or he jointly

submitted the challenged instruction with the government to the district court, appellate review is

precluded under the invited-error doctrine. See United States v. Sharpe, 996 F.2d 125, 129 (6th

Cir. 1993) ("The doctrine of 'invited error' refers to the principle that a party may not complain

on appeal of errors that he himself invited or provoked the court or the opposite party to

commit.” (citation omitted)); see also United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991)

("Under the invited-error doctrine, an error that is caused by the actions of the complaining party

will cause reversal 'only in the most exceptional situation.'” (citations omitted)).

Nonetheless, we have recognized that "'invited error' does not necessarily 'foreclose

relief when the interests of justice demand otherwise.'” United States v. Latham, 358 F. App'x

661, 664–65 (6th Cir. 2009) (per curiam) (citing United States v. Barrow, 118 F.3d 482, 491 (6th

Cir. 1997)). Specifically, "where 'the government [i]s as much a[t] fault for inviting the error as

the defendant' and 'the defendant . . . is claiming that his constitutional rights have been

violated,' the interests of justice are not served by a strict application of the waiver doctrine.'”

Id. (citing United States v. Savoires, 430 F.3d 376, 381 (6th Cir. 2005) (quoting Barrow,

118 F.3d at 491)).

Still, absent this exception, in most circumstances when a defendant fails to object to an

improper jury instruction, we review the appellate challenge only for plain error, an inquiry that

"requires a finding that, taken as a whole, the jury instructions were so clearly erroneous as to

likely produce a grave miscarriage of justice.” United States v. Mahbub, 818 F.3d 213, 229 (6th

Cir. 2016).

No. 18-4213 United States v. Howard Page 10

Howard urges us to apply the exception and marshals the Supreme Court's directives in

Elonis to argue for reversal based on clearly erroneous jury instructions. See 135 S. Ct. at 2011.

Specifically, Howard argues that the district court violated Elonis by instructing that a violation

of § 875(c) could be based on only a negligent mens rea. In this regard, Howard challenges the

following instruction:

In evaluating whether the communication contained a, quote, true threat, close

quote, you should consider whether in light of the context a reasonable person

would believe that the statement was a serious expression of an intention to inflict

bodily injury . . .

(R. 49: Trial Trans., PageID 564).

Howard claims that the instruction's reference to "a reasonable person” contradicts a passage

from Elonis, in which the Court explained that the "'reasonable person' standard . . . is

inconsistent with 'the conventional requirement for criminal conduct—awareness of some

wrongdoing.'” (Appellant Howard Br. at 32 (citing Elonis, 135 S. Ct. at 2012 (citation

omitted))).

While we agree with Howard that in Elonis, the Court did conclude that a mens rea must

be read into an § 875(c) violation in order to "separate wrongful conduct from 'otherwise

innocent conduct,'” Elonis, 135 S. Ct. at 2010 (quoting Carter v. United States, 530 U.S. 255,

269 (2000)), we disagree with Howard's application of Elonis to the facts at hand. Certainly,

Elonis prohibited a negligence scienter from "support[ing] a conviction under Section 875(c),”

135 S. Ct. at 2014, holding instead that only a mens rea of "willfulness” or a mens rea of

"knowledge” will support a conviction. Id. at 2012–13 (concluding "[t]he mental state

requirement in Section 875(c) is satisfied if the defendant transmits a communication for the

purpose of issuing a threat, or with knowledge that the communication will be viewed as a

threat”).3

But, there was no violation of Elonis in this case. The district court here complied

with Elonis when it instructed as to element two of § 875(c), given it requested that jurors

3Note, that the Court declined to decide whether a mens rea of recklessness suffices for liability under

§ 875(c).

No. 18-4213 United States v. Howard Page 11

consider "either” Howard's "purpose of issuing a true threat” or his "knowledge that the

communication would be understood as a true threat”:

For you to find the defendant guilty of Count 1 you must be convinced that the

government has proved each and every one of the following elements beyond a

reasonable doubt. A, that the communication was transmitted in interstate

commerce; B, that the defendant transmitted the communication either with the

purpose of issuing a true threat or with knowledge that the communication would

be understood as a true threat; that the communication contained a true threat to

murder Eric Holder. That's C; A, B, and C I just read to you.

(R. 49: Trial Trans., PageID 562–63) (emphasis added).

Importantly, however––and contrary to Howard's reading of the case––although Elonis

rejected the "reasonable person-negligence” standard for element two of § 875(c), see 135 S. Ct.

at 2012–13, the Supreme Court did not alter the framework in which jurors should evaluate a

"true threat” under element three. Therefore, following Elonis, the elements of an § 875(c)

violation should be understood largely in the same way as before that decision, with only the

addition of defendant's subjective intent requirement in element two: (1) the defendant sent a

message in interstate commerce; (2) the defendant intended the message as a threat; and (3) a

reasonable observer would view the message as a threat. See Elonis, 135 S. Ct. at 2011; Jeffries,

692 F.3d at 478, abrogated in part by Elonis, 135 S. Ct. 2001; see also Doggart, 906 F.3d at 510

(emphasis added).

With this in mind, then, the following instruction provided by the district court in this

case was in compliance with Elonis.

In evaluating whether the communication contained a, quote, true threat, close

quote, you should consider whether in light of the context a reasonable person

would believe that the statement was a serious expression of an intention to inflict

bodily injury and whether the statement was made for the purpose of furthering

some goal through the use of intimidation.

The government does not have to prove the defendant intended to carry out the

threat or was even capable of carrying out the threat at the time it was made. The

government is not required to prove the defendant made the targeted individual

feel threatened or that the targeted individual even knew about the threat against

him.

(R. 49: Trial Trans., PageID 563–64).

No. 18-4213 United States v. Howard Page 12

In fact, rather than conflict with Elonis, this instruction actually contextualized the

subjective-intent requirement handed down by the Supreme Court. That is because the language

likely directed jurors to make pragmatic inferences about Howard's mens rea at the time he was

transmitting the voicemail to Holder, through the more graspable concept of a "reasonable

person.” See Regaldo Cuellar v. United States, 553 U.S. 550, 567 n.8 (2008) ("[W]here the

consequences of an action are commonly known, a trier of fact will often infer that the person

taking the action knew what the consequences would be and acted with the purpose to bring

them about.”); see also United States v. Clemons, 738 F.3d 1, 12 (1st Cir. 2013) ("It is rare that a

jury would find that a reasonable speaker would have intended a threat under the particular facts

of a case but that a competent defendant would not.”).

For these reasons, the jury instructions given by the district court were proper and

certainly not in plain error.

C. Sufficiency of the Evidence

Finally, Howard argues that the evidence presented is insufficient to justify his conviction

under § 875(c) because the government failed to prove (1) that a reasonable observer would have

viewed his voicemail as a "true threat,” or (2) that he intended the message to be a "true threat”

to Holder.

We review the district court's denial of Howard's motion for judgment of acquittal de

novo. See United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016). When reviewing

the sufficiency of the evidence, we assess whether "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Houston, 792 F.3d

663, 669 (6th Cir. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal

quotation marks omitted)). "Circumstantial evidence alone is sufficient to sustain a conviction

and such evidence need not remove every reasonable hypothesis except that of guilt.” United

States v. Lowe, 795 F.3d 519, 522–23 (6th Cir. 2015) (quoting United States v. Algee, 599 F.3d

506, 512 (6th Cir. 2010)).

As noted, the elements of an § 875(c) violation are "(1) the defendant sent a message in

interstate commerce; (2) a reasonable observer would view the message as a threat; and (3) the

No. 18-4213 United States v. Howard Page 13

defendant intended the message as a threat.” Elonis, 135 S. Ct. at 2011; Jeffries, 692 F.3d at

478, abrogated in part by Elonis, 135 S. Ct. 2001; see also Doggart, 906 F.3d at 510. Because

Howard concedes that the government has provided sufficient evidence to prove element one, we

only analyze the government's evidence in supporting elements two and three.

i. The Threat

"Pertinent definitions of threat all revolve around a single theme: an expression of an

intent to inflict loss or harm.” Doggart, 906 F.3d at 510; see Jeffries, 692 F.3d at 483–84

(Sutton, J., dubitante); see also Elonis, 135 S.Ct. at 2008; id. at 2014 (Alito, J., concurring in part

and dissenting in part). In assessing threats, this circuit has relied upon commonly understood

dictionary definitions of the word. For example, Doggart referenced a number of widely

available sources when explaining how this circuit evaluates "true threats” under various

criminal statutes.

[T]he Oxford English Dictionary says: "[T]o declare (usually unconditionally)

one's intention of inflicting injury upon” a person. 11 Oxford English Dictionary

353 (1933). So does Webster's Second: "Law, specif., an expression of an

intention to inflict loss or harm on another by illegal means.” Webster's New

International Dictionary 2633 (2d ed. 1942). And so too does Black's:

"A communicated intent to inflict harm or loss on another.” Black's Law

Dictionary 1708 (10th ed. 2014).

Doggart, 906 F.3d at 510.

Measured by these definitions, Howard's voicemail qualified objectively as a "threat.”

Indeed, to establish that a threat was made, the government needed to do no more than simply

play the audible recording that Howard left on Holder's phone. The voicemail began with this

vow made to the former attorney general: "I'm going to kill you. I am going to murder you.”

(R. 49: Trial Trans. Lamb, PageID 500–01). Howard could not have been any clearer in his

threat.

Furthermore, in the ensuing sentences of his voicemail, Howard also appears to provide a

motive for his desire to "kill” or "murder” Holder. Howard describes himself as an

"unconstitutional[ly] convicted prisoner by the Common Pleas Court of Cuyahoga County of the

State of Ohio”—a conviction, he seems to suggest, is in violation of the constitutional

No. 18-4213 United States v. Howard Page 14

prohibition against double jeopardy. Id. Finally, after restating his name at the end of the

message, Howard reiterates the perceived injustices against him, which he seems to imply have

been perpetrated on Howard by the former attorney general's Justice Department. See id.

Despite the chilling nature of the voicemail, Howard maintains that because he had never

met Holder, and had no need to threaten him, a reasonable observer would not have understood

his message as an "objectively serious expression of an intent to inflict loss or harm.” (Appellant

Howard Br. at 5, 42); see Doggart, 906 F.3d at 510. We disagree.

Consider Doggart, where our court found a threat based on the defendant's statement to a

confidential informant that "those guys . . . [have] to be killed. Their buildings need to be burnt

down.” 906 F.3d at 511. In reaching this holding, we determined that "[a] reasonable observer

eavesdropping on that conversation would have understood [the] words to be a serious

expression of [defendant's] intent to inflict harm.” Id. Similarly here, a reasonable person who

eavesdropped on Howard's voicemail to the former attorney general would have perceived the

threat to represent Howard's "serious expression of his intent to inflict harm.” Id. Although

Howard's message may have been somewhat jumbled, "[n]othing about the context of the

[voicemail] suggested he was joking,” id., particularly given that he seemed to provide some

motive for wanting to kill Holder—his perception of past injustice inflicted upon him by the

former attorney general's Justice Department. In addition, the fact that Howard made five

consecutive calls that afternoon suggests he was not engaged in a "passing fancy”; instead, he

was determined to navigate Covington's voicemail system in order to deliver his threat directly

to the person he wanted to threaten. Doggart, 906 F.3d at 510.

Therefore, viewing the evidence in a light most favorable to the prosecution, it was

sufficient for a reasonable jury to conclude that Howard communicated an objective threat to

"murder” or "kill” the former attorney general.

ii. Intent of a Threat

Howard challenges the sufficiency of the evidence for element three using similar

arguments made in challenging the sufficiency of proof for element two: that the government

failed to offer evidence demonstrating his subjective intention of issuing a threat to Holder.

No. 18-4213 United States v. Howard Page 15

Howard also argues that his "nonsensical diatribe,” should be taken less seriously in comparison

to the threats issued by defendants in other cases, such as Elonis, 135 S. Ct. at 2012, and

United States v. Elonis, 841 F.3d 589, 600 (3d Cir. 2016) ("Elonis II”). (Appellant Howard Br.

at 42–45). Howard further emphasizes that because he had never actually met the former

attorney general, he neither "wanted Eric Holder to resolve any type of ends for [him],” nor did

he have "any need to express a threat.” (R. 49: Trial Trans, Page ID 546). We find none of these

arguments persuasive.

Given that a threat involves a defendant's "expression of an intent to inflict loss or

harm,” it seems apparent that Howard's declaratory statements, where he pledges to both

"murder” and "kill” Holder—both of which preceded his detailed description of the injustices

inflicted upon him by the Justice Department—imply the requisite mens rea under Elonis of

either "willfully” or "knowingly” issuing a threat to the former attorney general. See 135 S. Ct.

2001. Howard argues that evidence of his subjective intent is rebutted by (1) the fact he

identified himself on the voicemail prior to threatening Holder; and (2) the fact that he placed the

telephone call all the way from Cleveland, Ohio. But these defenses are irrelevant, given the

unmistakable seriousness of the voicemail message.

Importantly as well, and as instructed by the district court to the jury, to convict a

defendant under § 875(c):

The government does not have to prove the defendant intended to carry out the

threat or was even capable of carrying out the threat at the time it was made. The

government is not required to prove the defendant made the targeted individual

feel threatened or that the targeted individual even knew about the threat against

him.

(R. 49: Trial Trans., PageID 564).

This instruction comports with circuit precedent, as we have consistently upheld

convictions based on an expression of subjective intention to threaten the victim, even if the

threat is not feasible for the defendant to carry out, or the defendant does not have an ability to

do so. See United States v. Houston, 683 F. App'x 434, 439 (6th Cir. 2017). Rather, the

standard of evaluating "intent” in relation to threats is appropriately low, given the seriousness of

these criminal statutes: if a jury could conclude that the defendant "intended his threats to

No. 18-4213 United States v. Howard Page 16

influence” a victim or others "through” intimidation, then a "true threat” and the defendant's

intention can be established. Id. at 439 ("While it is not clear from the record that Houston's

girlfriend actually doubted whether Houston would follow through on his threats, that fact is

irrelevant here because a statement can be found to be a 'true threat' even if the defendant lacks

the ability to make good on his promised aggression.”); see also United States v. Alkhabaz,

104 F.3d 1492, 1495 (6th Cir. 1997); United States v. Glover, 846 F.2d 339, 344 (6th Cir. 1988).

Considering the following, and viewing the evidence in the light most favorable to the

prosecution, we hold that a reasonable jury could have concluded that the contents of Howard's

voicemail––in which he claimed he was going to "kill” and "murder” Holder after listing the

perceived injustices inflicted against him by the former attorney general's Justice Department––

demonstrate his subjective intent to issue a threat to the former attorney general in violation of

§ 875(c).

To summarize, we hold that (1) the indictment issued to Howard contained all of the

essential elements required for the government to allege an § 875(c) violation; (2) the district court’s “true threat” jury instruction under § 875(c) was not in error; and (3) the government offered sufficient evidence establishing the three elements of an § 875(c) threat offense.



Consequently, we AFFIRM the judgment of the district court in full