14‐79‐cr United States v. Jordan

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of March, two thousand sixteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 14‐79‐cr

JOSEPH RAY JORDAN, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: Howard S. Master, Michael A. Levy, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: Joseph Ray Jordan, pro se, Terre Haute, Indiana (Michael K. Bachrach, standby counsel, New York, New York).

Appeal from the United States District Court for the Southern District of

New York (Cote, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Following a jury trial in the district court, defendant‐appellant Joseph Ray

Jordan was convicted of interstate transmission of threatening communications,

threatening an internationally protected person, interstate stalking, and witness

tampering, in violation of

(c), 878, 2261A(2), and 1512(b), respectively.

Jordan appeals a judgment entered September 17, 2009, sentencing him principally to

480 monthsʹ imprisonment. We assume the partiesʹ familiarity with the underlying

facts, procedural history, and issues on appeal.

Jordan raises a host of issues, including: (1) whether the district courtʹs

erroneous instruction, in light of Elonis v. United States,

(2015), affected

his substantial rights, (2) the sufficiency of the evidence, (3) whether the district court

erred in evidentiary rulings, (4) misconduct during the prosecutorʹs summation, (5) the

constitutionality of the federal witness tampering statute, (6) violation of his rights to

testify and to counsel, (7) the denial of a bill of particulars on the witness tampering

count, (8) whether jurorsʹ inquiry into Jordanʹs note‐taking warranted a mistrial, (9) the

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effect of uncharged conduct evidence on the indictment, and (10) the reasonableness of

his sentence. We have considered all of Jordanʹs arguments and address the only one

with arguable merit: the instructional error regarding threatening communications in

light of Elonis.

In describing the proof necessary to sustain a conviction for transmitting

threatening communications under

(c), the district court instructed the

jury that ʺ[t]he government is not required to prove that the defendant intended the

communication transmitted to be threatening.ʺ Trial Tr. 902. This instruction was

consistent with then‐governing law, but was rendered erroneous by the Supreme

Courtʹs supervening decision in Elonis,

. In Elonis, the Supreme Court

held that a conviction under the threatening communications statute requires more than

proof ʺthat a reasonable person would regard [the] communications as threats.ʺ

. The Court did not specify the mens rea required under the statute, but made clear

that a simple negligence standard was unconstitutional.

at 2012‐13. The government

acknowledges that, in light of Elonis, the district courtʹs instruction was in error, but

argues that the error was nonetheless harmless.

Where a defendant fails to make a timely objection, we review the

instruction for plain error. See United States v. Nouri,

(2d Cir. 2013).1

1 Where the source of plain error is a supervening decision, we have previously held that a modified plain error rule applies, under which ʺthe government, not the defendant, bears the burden to demonstrate that the error . . . was harmless.ʺ United States v. Henry, 325

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We will overturn a conviction under the plain error rule only if ʺ(1) there is an error; (2)

the error is clear or obvious, rather than subject to reasonable dispute; (3) the error

affected the appellantʹs substantial rights . . . ; and (4) the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.ʺ

(internal quotation

marks and alteration omitted) (quoting United States v. Marcus,

, 262 (2010)).

Where the error in a jury instruction is an omitted element, we conduct a harmless error

analysis to determine whether the error affected an appellantʹs substantial rights.

United States v. Gomez,

(2d Cir. 2009). ʺIn such a case, we ʹconsider the

weight of trial evidence bearing on the omitted element; and if such evidence is

overwhelming and essentially uncontroverted, there is no basis for concluding that the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.ʹʺ Gomez, 580 F.3d at 100‐01 (quoting United States v. Guevara,

,

126‐27 (2d Cir. 2002)). If we conclude that the jury would have rendered the same

verdict beyond a reasonable doubt, the conviction will be sustained. Nouri,

. If the evidence bearing on the element is controverted, however, ʺwe look to ʹ(a)

whether there was sufficient evidence to permit a jury to find in favor of the defendant

F.3d 93, 100 (2d Cir. 2003) (quoting United States v. Outen,

(2d Cir. 2002)). The government argues that, to the extent it is necessary to decide the issue, the modified plain error rule is no longer good law under the reasoning of Johnson v. United States,

(1997). We have consistently found it unnecessary to decide this issue, see, e.g., Nouri,

n.2, or assumed without deciding that the modified plain error rule still applies, see United States v. Mahaffy,

(2d Cir. 2012). It is likewise unnecessary to decide the issue here. Whether the burden lies with the government would not change our view of whether the jury would have returned the same verdict beyond a reasonable doubt.

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on the omitted element, and, if there was, (b) whether the jury would nonetheless have

returned the same verdict of guilty.ʺ

at 140 (quoting United States v. Needham,

(2d Cir. 2010)).

It is clear that the jury would have found Jordan guilty of transmitting

threatening communications had it been properly instructed. This result is evident

from the juryʹs other guilty verdicts. The jury was required to find that Jordan acted

knowingly, willfully, and intentionally to convict Jordan of Count Two (threatening an

internationally protected person) and Count Three (interstate stalking). Because the

same evidence of threats that was used to convict on Count One (threatening

communications) supported Counts Two and Three, there is no doubt that the jury

would have found that Jordan knew that his threatening communications would be

viewed as threats.

The governmentʹs evidence supporting a conviction for Count One

consisted of proof of seven specific threats. Those threats are summarized as follows:

(1) around December 2007, Jordan told the victim via telephone that he would kill her

and ʺtake her off the planetʺ; (2) around December 2007, Jordan told the victimʹs sister

and mother via telephone that he would ʺkill them and wipe all of them off the face of

the earthʺ; (3) around January 2008, Jordan sent a fax to an embassy in the United

Kingdom stating that armed individuals were in London and ʺawaiting [the] right

opportunity to get atʺ the ambassador and her family, possibly with ʺtwo AK‐47sʺ; (4)

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around January 2008, Jordan sent an email to the victim stating that he was ʺconvinced

that [she] need[ed] to be rescuedʺ from her aunt, she would be ʺgrab[bed] and

whisk[ed] awayʺ when it is ʺleast expected,ʺ and there would be ʺno tolerance for

interference from [the ambassador] or her laughable body guardsʺ; (5) around January

2008, Jordan sent a text message to the victim telling her that he was ʺfinally readyʺ to

rescue her and to keep her passport with her at all times because he would ʺstrikeʺ

when it was ʺleast expect[ed]ʺ; (6) around January 2008, Jordan sent a text message to

the victim telling her that the ʺday of rescueʺ was approaching; and (7) around January

2008, Jordan sent a fax to the ambassador stating that ʺworld news that [she would] not

like can occurʺ and that, ʺ[i]n order to be able to go about [her] life in a secure and

comfortable manner and without the need . . . for increased security,ʺ she must

ʺapologizeʺ and ʺprove that the young woman is safe.ʺ Trial Tr. 898‐900.

The last five threats were the same threats supporting Count Two

(threatening an internationally protected person). With respect to Count Two, the jury

was instructed that it needed to find that the defendant made the threat ʺknowingly and

willfully,ʺ and that ʺ[a] threat is made willfully if it is . . . made voluntarily and with the

intent that the word[s] be interpreted by the person to whom they are communicated as

a true threat.ʺ Trial Tr. 903, 906. Jordan was found guilty of Count Two.

The first two threats were part of the evidence supporting Count Three

(interstate stalking). With respect to Count Three, the jury was instructed that, to find

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the defendant guilty, they must find that ʺthe defendant acted knowingly and with the

intent to . . . injure, harass, intimidate or cause substantial emotional distress to [the

victim] or . . . to place [the victim] in a reasonable fear of her death, serious bodily injury

or the death of or serious bodily injury of a member of her immediate family.ʺ Trial Tr.

907‐08. Jordan was found guilty of Count Three.

Therefore, because the jury determined that Jordan acted knowingly with

respect to Counts Two and Three based on the same facts, there is no doubt that it

would have found Jordan guilty of Count One as well. See Nouri,

.

Moreover, the evidence that Jordan knew that his communications would

be interpreted as threats was ʺoverwhelming and essentially uncontroverted.ʺ Gomez,

(quoting Guevara,

). During his relationship with the

victim, Jordan was physically, sexually, and psychologically abusive. After she

escaped, Jordan engaged in a months‐long campaign of terror and harassment of the

victim and her family. His threats were specific, violent, and accompanied by

threatening behavior. His own admissions reveal that his communications were

intended to be threatening. Among many other things, Jordan created a website ‐‐

using the victimʹs name ‐‐ on which he wrote that he had ʺfailed to control [his]

emotions,ʺ ʺhurt [the victim], both physically and emotionally,ʺ ʺreacted with anger,ʺ

and ʺsaid foolish things to some members of her family.ʺ Trial Tr. 749.

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On this record, we conclude that the jury would have found beyond a

reasonable doubt that Jordan knew his communications would be viewed as threats.

Thus, no new trial is warranted. See United States v. Coppola,

(2d Cir.

2012) (ʺ[W]e will reverse only where the charge, viewed as a whole, demonstrates

prejudicial error.ʺ).

We have considered all of Jordanʹs additional arguments and find them to

be without merit. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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