from the United States District Court for the Northern
District of Oklahoma (No. 4:16-CR-00134-CVE-1)
L. Derryberry, Assistant Federal Public Defender (Julia L.
O'Connell, Federal Public Defender, and William P.
Widell, Jr., Assistant Federal Public Defender, with him on
the briefs), Tulsa, Oklahoma, for Defendant-Appellant.
Alam, Assistant United States Attorney (Loretta F. Radford,
Acting United States Attorney, with her on the brief), Tulsa,
Oklahoma, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, HOLMES, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
A. Stevens was indicted on 10 counts of interstate
communication with intent to injure under 18 U.S.C. §
875(c) for posting 10 messages on the Tulsa Police
Department's ("TPD") online "Citizen
Complaint" form. The messages discussed committing
violence against specific members of the TPD or TPD officers
generally. Mr. Stevens moved to dismiss the indictment on
First Amendment grounds, arguing his messages were not true
threats. The district court denied the motion because a
reasonable jury could construe the messages to be true
threats. Mr. Stevens pled guilty to five counts conditioned
on his right to appeal the denial of his motion, which he has
district court properly denied Mr. Stevens's motion. A
reasonable jury could understand his messages to be true
threats. Exercising jurisdiction under 28 U.S.C. § 1291,
September 16, 2016, TPD Officer Betty Shelby shot and killed
Terence Crutcher, an African-American. The shooting made
national headlines and reignited a heated debate over law
enforcement's use of force against minorities.
days after the shooting, Mr. Stevens, a Connecticut resident,
sent the first of multiple anonymous messages to the TPD via
an online form the public could use to complain about the
TPD. This first message read:
[Message No. 1, sent on September 19, 2016, at 6:18 P.M.]
The psychotic pile of s--- who MURDERED the unarmed civilian
who broke down is going to be executed, as are ALL psychotic
s---bags you and other PDs hire across this Nation who murder
unarmed civilians. They are all going to be killed.
ROA Vol. 1 at 31. Over the next three days, Mr. Stevens
submitted nine more messages.
with the Federal Bureau of Investigation traced the messages
to Mr. Stevens's residence. They interviewed Mr. Stevens,
who confessed to sending the messages.
jury indicted Mr. Stevens on 10 counts of interstate
communication with intent to injure in violation of 18 U.S.C.
§ 875(c). He moved to dismiss the indictment, alleging
the First Amendment protected his statements because they
were not true threats. The district court denied Mr.
Stevens's motion, finding that a reasonable jury could
understand his messages to be true threats. United States
v. Stevens, No. 16-CR-0134-CVE, 2016 WL 7442657, at *2
(N.D. Okla. Dec. 27, 2016).
Stevens next entered into a plea agreement. He pled guilty to
five of the 10 counts, but reserved the right to appeal the
district court's denial of his motion.Following the
guilty plea, the district court sentenced Mr. Stevens to 12
months in prison, followed by three years of supervised
release. He now appeals the district court's denial of
his motion to dismiss the indictment.
Standard of Review
review the . . . denial of a motion to dismiss an indictment
for an abuse of discretion." United States v.
Ambort, 405 F.3d 1109, 1116 (10th Cir. 2005). "An
error of law is per se an abuse of discretion, "
United States v. Lopez-Avila, 665 F.3d 1216, 1219
(10th Cir. 2011), and we review legal questions de novo,
see United States v. Pauler, 857 F.3d 1073, 1075
(10th Cir. 2017).
a reasonable jury could find Mr. Stevens's statements to
be true threats is a question of law. "[I]f there is no
question that a defendant's speech is protected by the
First Amendment, the court may dismiss the charge as a matter
of law." United States v. Wheeler, 776
F.3d 736, 742 (10th Cir. 2015) (quotations and citations
omitted). But, "absent an unusual set of facts, the
question whether statements amount to true threats is a
question generally best left to a jury." Id.
(quotations and citations omitted). If the court determines a
"reasonable jury could find that the  communication[s]
constitute . . . true threat[s], " then it may deny
the defendant's motion to dismiss. United States v.
Stock, 728 F.3d 287, 298 (3d Cir. 2013). Because the
district court here refused to dismiss the indictment because
a jury could find Mr. Stevens's messages to be true
threats, we review its ruling de novo.
Elements of a § 875(c) Offense
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 ...