United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
UNITED STATES DISTRICT JUDGE
Delano Jeffries, II (“Petitioner”) has filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside
or correct his sentence, doc. 147.
2010, petitioner was embroiled in a bitter child
custody/visitation dispute with the child's mother.
Litigation was pending in the Chancery Court for Knox County
which had been assigned to Chancellor Michael Moyers.
before the trial date, petitioner created a YouTube video
which he linked to his Facebook page in which he made various
threats of violence, including death, directed at Chancellor
Moyers. After those online threats were brought to the
attention of the United States Attorney, petitioner was
indicted by a federal grand jury for violating 18 U.S.C.
§ 875(c), transmitting in interstate commerce a threat
to injure a person, viz., Chancellor
the trial, petitioner attempted to introduce evidence that he
was only “blowing off steam, ” so to speak, and
that he never intended to threaten the chancellor.
He also asked that the court instruct the jury, in
determining whether petitioner conveyed a “true threat,
” that it should first determine petitioner's
subjective intent and that his utterances could not be a true
threat if he did not seriously intend to inflict bodily harm
or did not make the communication with the subjective intent
to effect some change or achieve some goal through
intimidation. His efforts were rebuffed by this court
because the law in the circuit at that time was that a
violation of 18 U.S.C. §875(c) was complete if a
reasonable person would perceive the utterances as a serious
expression of intent to inflict bodily harm in order to
effect some change or achieve some goal through intimidation,
and that the defendant's subjective intent was
irrelevant. United States v. DeAndino, 958 F.2d.
146, 148 (6th Cir. 1992); United States v. Alkhabaz,
104 F.3d. 1492, 1495 (6th Cir. 1997).
was convicted and sentenced to eighteen months'
imprisonment to be followed by three years of supervised
release. Petitioner appealed his conviction to the
Sixth Circuit Court of Appeals, arguing that his subjective
intent should be an element of a violation of §875(c)
and, since it was not proven, his conviction should be
overturned. In an opinion written by Judge Sutton and filed
on August 28, 2012, the Sixth Circuit held that
petitioner's utterances were objectively threatening, and
under the authority of DeAndino and
Alkhabaz, supra, his subjective intent in
making those threats was irrelevant. His conviction
accordingly was affirmed. However, Judge Sutton appended a
dubitante opinion in which he expressed serious
doubt that DeAndino, Alkhabaz and similar cases from
most other circuits, all holding that a defendant's
subjective intent is irrelevant in determining whether a
violation of §875(c) has occurred, were correctly
application to the Supreme Court for the Writ of Certiorari
was denied on October 9, 2013.
PETITIONER'S MOTION, Doc. 147
March 5, 2015, petitioner filed his § 2255 motion,
asserting that since his conviction and affirmance thereof,
the Supreme Court had granted certiorari in
United States v. Elonis, 730 F.3d.321 (3rd Cir.
2013), a case in which the defendant had unsuccessfully
argued before the Third Circuit that a conviction under
§ 875(c) required proof of his subjective intent in
making the threat for which he was charged. Petitioner moved
that his motion be held in abeyance until the Supreme Court
decided Elonis, which this court
granted. At that time, petitioner was on supervised
1, 2015, the Supreme Court issued its opinion in
Elonis which reversed the Third Circuit, holding
that a conviction under 875(c) required proof of the
defendant's intent to transmit a true threat:
In light of the foregoing, Elonis's conviction cannot
stand. The jury was instructed that the Government need prove
only that a reasonable person would regard Elonis's
communications as threats, and that was error. Federal
criminal liability generally does not turn solely on the
results of an act without considering the defendant's
mental state. That understanding “took deep and early
root in American soil” and Congress left it intact
here: Under Section 875(c), “wrongdoing must be
conscious to be criminal.” Morissette, 342
U.S., at 252, 72 S.Ct. 240.
There is no dispute that the 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.
See Tr. of Oral Arg. 25, 56. In response to a question at
oral argument, Elonis stated that a finding of recklessness
would not be sufficient. See id., at 8-9. Neither Elonis nor
the Government has briefed or argued that point, and we
accordingly decline to address it. See Department of
Treasury, IRS v. FLRA, 494 U.S. 922, 933, 110 S.Ct. 1623, 108
L.Ed.2d 914 (1990) (this Court is “poorly
situated” to address an argument the Court of Appeals
did not consider, the parties did ...