United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
J. LEON HOLMES, District Judge.
A jury found Alphonso Wynn guilty of one count of threatening a federal official in violation of 18 U.S.C. § 115 and one count of transmitting threatening communications in interstate commerce in violation of 18 U.S.C. § 875(c). Wynn has moved for a new trial pursuant to Federal Rule of Criminal Procedure 33(a). In his motion for a new trial, Wynn argues that the evidence is insufficient to support his conviction because the government did not prove that a true threat was made and that his conviction must be set aside because the First Amendment protects his speech. Wynn also argues that this Court erred in the jury instructions because the instructions did not require proof of Wynn's intent to act on his threat nor did the instructions require that the intended victim of the threat be made aware of it and placed in fear. For the following reasons, Wynn's motion for a new trial is denied.
Wynn was an employee at the Veterans Administration Hospital. On Sunday, August 24, 2014, Andrew Horton was working at the V.A. as a supervisor with authority over Wynn. Tr. 43. According to Horton's testimony, Wynn told Horton that he wasn't going to work and was leaving. Tr. 44. In response, Horton told Wynn that Horton would carry him AWOL [absent without leave] and did so when Wynn left. Tr. 45.
Wynn went to the V.A. emergency room. Nurse James Alexander testified that Wynn's main complaint was that he was too stressed out to work and had been placed on AWOL. Tr. 52. Alexander also testified that Wynn did not appear overly stressed out. Tr. 54. David Schmidt, the physician who treated Wynn in the E.R., testified that Wynn appeared "very relaxed." Tr. 63. Upon discharge, Wynn was given a work release note and a crisis hotline telephone number to call if he had thoughts of hurting himself or others. Tr. 75-76. Wynn returned and presented the note from the E.R. to Horton and left. Tr. 47-49.
The telephone number given to Wynn reaches a crisis hotline that veterans may call if they become suicidal or homicidal or otherwise confront a crisis. Tr. 82. Unit 3-K of the V.A. system is an acute psychiatric unit under lock and key. Tr. 80-81. Nurses on that unit are responsible for answering crisis hotline calls outside of normal business hours, such as on Sundays. Tr. 82. Nurses Kristen Kemp and Thomas Boyd both work in the 3-K unit and were working on Sunday, August 24, 2014.
Kemp spoke with Wynn on the crisis hotline twice. Tr. 88. Kemp testified that Wynn sounded angry and was ranting but was clear in what he said. Tr. 93-94. She took notes, introduced as Government Exhibit 2, which said:
This patient called the local crisis hotline number having complaints of homicidal ideation toward his supervisor. Patient reports he is an employee who works for EMS in Little Rock. Patient states, "I just needed a day off because I am stressed and I have the time. My supervisor said he was going to AWOL me. I went outside for a couple hours and waited for him to come out and I had a gun."
Kemp also testified that aside from the note, she remembered Wynn saying "I want to kill that MF" and "I want to pop a cap in him, bang-bang, pow-pow." Tr. 88.
Kemp testified that Wynn said he had a gun, a specific target and wanted to kill his supervisor. Id. She also testified she doesn't always call the V.A. Police regarding threats because she can diffuse the situation and calm the caller down. Tr. 89. However, Kemp stated that Wynn never calmed down, sounded angry and seemed to "accelerate." Id. Kemp also testified that the fact that Wynn had the means to carry out the threat also made her believe it was a credible threat. Tr. 89-90. Kemp contacted the V.A. Police. Tr. 89.
Boyd testified that when he took another call from Wynn on the crisis hotline, Wynn told him that Wynn had a pistol. Tr. 97. Boyd also testified that Wynn gave him a location, which he provided to V.A. Police. Tr. 99. Boyd testified that the police were notified because Wynn made a specific threat against his supervisor and he had a means to carry out the threat. Id.
V.A. Chief of Police Toni Hightower testified she was notified of the threat on August 24, 2014. Tr. 119. She testified it was very specific in nature because it was against a specific person and Wynn stated he had a gun. Tr. 119. At that time, the V.A. instituted I.D. checks at the hospital and notified the North Little Rock Police Department. Tr. 120. The North Little Rock Police Department was dispatched to Wynn's last known location, but he was not found. Tr. 121. The V.A. Police finally made contact with Wynn on Tuesday, August 26, 2014 when he entered the V.A. Tr. 125.
Federal Rule of Criminal Procedure 33(a) provides that, upon the defendant's motion, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." In considering a motion for new trial, a district court may weigh the evidence, judge the credibility of witnesses, and grant a new trial even if the verdict is supported by substantial evidence. United States v. Amaya, 731 F.3d 761, 764 (8th Cir. 2013).
If the [district] court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.
United States v. Malloy,
614 F.3d 852, 862 (8th Cir. 2010) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). Nevertheless, the court's discretion to grant a new trial is not unlimited. United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002). The authority granted to district courts under Rule 33 must be exercised "sparingly and with caution." Id. (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)); see also Amaya, 731 ...