UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 99-40375 Civil Docket #L-98-CR-550-1

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN J. MURILLO,

Defendant-Appellant.

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

September 12, 2000

Before JONES and BENAVIDES, Circuit Judges, and COBB, District Court Judge.*

PER CURIAM:**

Appellant John J. Murillo challenges his conviction and

sentence for transmitting threats in interstate commerce in

violation of

(c). Murillo alleges (1) that his

* District Judge of the Eastern District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. conviction violates the First Amendment or lacks sufficient

evidence; (2) that evidence was admitted in violation of the

psychotherapist-patient privilege; (3) that evidence of other e-

mails was wrongfully admitted against him; and (4) that the court

improperly enhanced his sentence. Having carefully reviewed the

appeal, we find no error or abuse of discretion and accordingly

affirm the judgment and sentence.

As a postal employee in Laredo, Texas, Murillo was

disciplined on several occasions beginning in the summer of 1997.

He freely vented his anger over conflicts at work to co-workers,

fellow union members and postal service management. Murillo

referred to himself by nicknames like “Mad Mex” and “Sacred Member”

in anti-management e-mails to his co-workers and on Internet

postings. In August, 1997, Murillo met voluntarily with a

counselor for the postal service Employee Assistance Program named

Escamilla. During the counseling session, Murillo railed that “If

I had a gun I would Glock out the whole management team” after

Escamilla’s repeated inquiries about his temporary work suspension.

Escamilla, believing this was a potentially serious threat,

reported it to his supervisor, who contacted Murillo’s immediate

supervisor, the target of the threat. Escamilla’s action was

permitted under the counseling confidentiality guidelines. Angry

at this disclosure, Murillo posted an e-mail to a website about the

EAP program in which he castigated Escamilla and repeated the Glock

threat.

2 The culmination of Murillo’s vitriol was a threat

entitled “Death Wish” sent to the home e-mail address of his co-

worker William Espinoza, whom he believed to be a close friend.

Murillo’s prosecution was based on this April 18, 1998 e-mail. The

day before, a Dallas postal worker had shot and killed a co-worker.

The Death Wish e-mail stated:

William they are trying to Make Me Go Postal. This Mexican can only take so much, you kick a dog so much and sooner or later that chain will snap. I have been very patient with them but I am tired and have been making plans, they keep f___ing with me and Judgment Day will come. It will be a shootout at the OK Corral. It is only 4 miles to the Mexican Border. The person in Dallas the chain Snapped. Later from Mad-Mex.

Espinoza forwarded this e-mail to Union supervisors, who

communicated it to Murillo’s supervisors.

The supervisors testified that they took the perceived

threat very seriously in light of Murillo’s previous behavior and

threats. They barred Murillo from the worksite, posted armed

security guards, and were escorted to and from the building. One

supervisor unfamiliar with Murillo’s other e-mails testified in his

defense, as did several co-workers. Among other things, a co-

worker suggested that some of the inflammatory terms in the Death

Wish e-mail were union slang for labor negotiations (“shootout” and

“OK Corral”). Murillo was convicted and sentenced inter alia, to

15 months imprisonment. He has appealed.

3 DISCUSSION

1. First Amendment/Sufficiency.

Murillo contends that his e-mail was protected speech

under the First Amendment as a matter of law and, relatedly, that

there was insufficient evidence of a criminal threat.3

Section 875(c) states:

Whoever transmits in interstate or foreign commerce any communication containing any threat . . . to injure the person of another shall be fined under this title or imprisoned not more than five years, or both.

The threat must be made “knowingly and intentionally,” meaning that

the defendant uttered the threat voluntarily and not by mistake.

United States v. Myers,

(5th Cir. 1997).

A statute like section 875(c), which criminalizes pure

speech, “must be interpreted with the commands of the First

Amendment clearly in mind.” Watts v. United States,

(1969). “What is a threat must be distinguished from what is

constitutionally protected speech.”

Murillo attempts to analogize his case to Watts by

asserting that he was engaging in a form of protected speech

because he was criticizing a government entity, the Postal Service,

his statement was hyperbole not received as a threat by Espinoza,

3 A conviction may be overturned for insufficient evidence only if, viewing the evidence in the light most favorable to the government, a rational trier of fact would not have found the essential elements of the offense beyond a reasonable doubt. United States v. Jaramillo,

(5th Cir. 1995).

4 his statement involved union terminology rather than threats, and

the recipient was his friend. These arguments are without merit.

Watts is fully distinguishable. The Supreme Court

overturned Watts’s conviction because his anti-draft remarks were

made in the context of a political rally against President Johnson,

the crowd laughed in reaction to his statement, and it represented

at bottom a crude, hyperbolic political attack. Watts,

. Unlike the demonstrator in Watts, Murillo was not

criticizing government policy or institutions but the personal

discipline he had received. In the employment context, this court

has held that an employee asserting that he was wrongfully

terminated for engaging in protected speech must show that the

speech relates to a matter of public concern. Vojvodich v. Lopez,

(5th Cir. 1995). Murillo cannot make such

proof. Further, he has not shown that the April 18 e-mail was a

form of hyperbole used in a management/union labor dispute, such

that it would constitute protected speech. At the time of the

Death Wish e-mail, the Union had told Murillo not to send them

further similar communications, and the testimony concerning

whether some of his terms related to labor disputes was equivocal.

Murillo’s final First Amendment argument is that because

the e-mail was a private message not sent to the purported victim,

it must be construed as protected speech rather than a threat. In

support, he cites three district court cases in other circuits.

5 See United States v. Baker,

(E.D.Mich.

1995), aff’d on other grounds sub nom, United States v. Alkhabaz,

(6th Cir. 1997) (private message sent to co-defendant

either did not specify a victim or did not evince a true intent to

carry out the threats); United States v. Bellrichard,

(D. Minn. 1991), aff’d.,

(8th Cir. 1993)

(no evidence that the defendant wished the threat, communicated to

a friend, to reach the judge who was the intended victim, and no

evidence that the friend was likely to transmit it); United States

v. Fenton,

(W.D. Pa. 1998) (threats under

similar statute, made against a United States representative, were

communicated to an insurance adjuster who was not connected to the

representative). These cases are dissimilar from Murillo’s,

because none of them involved communication to a friend who was

also a co-worker and fellow union member, and who was intimately

connected with the workplace and the supervisors who were the focus

of Murillo’s indignation. Murillo’s threat was uttered much closer

to a realistic target. In any event, accepting the defendant’s

explanation of these cases that a subjective intent not to harm

invokes First Amendment protection would conflict with our rule

that section 875(c) is not a specific intent crime. Myers,

.

Although the Death Wish e-mail was not protected by the

First Amendment, there remains Murillo’s challenge to the

6 sufficiency of the evidence. A threat is to be interpreted in

context to determine whether the communication would reasonably

tend to create apprehension that the originator will act in

accordance with the threat. Myers,

. The context of

this communication – Murillo’s building resentment toward his

superiors; his threatened firing; his overt manifestations of

hostility both face-to-face and in other e-mails; his ignoring the

union directive; and the timing of the Death Wish e-mail just after

a postal worker’s murder in Dallas – all support the rationality of

the jury’s verdict.

2. Psychotherapist/Patient Privilege.

Murillo contends that the district court erred in

admitting statements he made to Escamilla and in admitting a

subsequent Internet message by Murillo referring to the counseling

session. Escamilla testified at Murillo’s trial about the

statement, and the October 13 Internet message was also presented

to the jury.

In Jaffee v. Redmond,

(1996), the Supreme

Court held that confidential communications between a licensed

psychotherapist, or licensed social worker and a patient is

privileged. The government assumes that the counseling session

with Escamilla was covered by Jaffee, so this point is not

disputed. The government does assert, however, that insofar as

Escamilla professionally determined that Murillo’s statements

exhibited the “potential for homicidal ideations” and that

7 Murillo’s immediate supervisor could be in danger, EAP guidelines

required him to disclose Murillo’s statements and alert the

supervisor. Thus, no psychotherapist/patient privilege protected

such statements. Jaffee,

n.19. Most likely this is

correct.

In any event, however, Murillo waived the privilege when

he revealed the entirety of the incriminating statement from the

interview to third parties in an Internet posting. A voluntary

disclosure of information which is inconsistent with the

confidential nature of the relationship waives the privilege. See

Industrial Clearinghouse, Inc. v. Browning Mfg. Division of Emerson

Electric Co.,

(5th Cir. 1992); Alldread v.

Granada,

(5th Cir. 1993).

3. Other E-Mails.

Murillo challenges as an abuse of discretion the district

court’s admission of eight e-mails and messages spaced between late

1997 and the period shortly after the Death Wish e-mail. Federal

Rule of Evidence 404(b) permits evidence of other wrongs or acts as

proof of identity, motive and intent, subject to weighing the

evidence’s probative value against unfair prejudice. See United

States v. Zanabria,

(5th Cir. 1996). Rule 404(b)

does not, however, apply where the other acts are inextricably

entwined to the charged crime or are necessary preliminaries to the

crime. Coleman, 78 F.3d at 156. This court reviews evidentiary

8 rulings with respect to intrinsic and extrinsic evidence under an

abuse of discretion standard. United States v. Coleman,

(5th Cir.), cert. denied,

(1996).

In this case, the government was required to prove that

the Death Wish e-mail reasonably caused apprehension in its

recipients, a showing that this court has held established by the

context in which the threat was received. See Myers,

. Thus, the pre-crime messages tended to prove the

reasonableness of management’s fear of the Death Wish e-mail, as

the district court instructed the jury. Similarly, Murillo’s post-

crime e-mails and activities, which included his inquiries about

covering the tracks of his earlier communications, were relevant to

show consciousness of guilt. United States v. Martinez,

(5th Cir. 1999). In these ways, the other e-mails and

communications provided intrinsic evidence of the offense.

Alternatively, because Murillo had stipulated to no facts

before trial, not even to his authorship of the Death Wish e-mail,

the other e-mails were relevant to prove his identity, his intent

to send the criminal e-mail, and his motive. From this standpoint,

the district court committed no abuse of discretion in admitting

the evidence pursuant to Rule 404(b). Further, the court

instructed the jury not to use any of this evidence to judge

Murillo’s character.

4. Sentencing Issues.

9 Murillo challenges both the district court’s factual

findings and legal interpretation of the Guidelines. We review

those determinations according to the usual standards. See United

States v. Goynes,

(5th Cir. 1999). Murillo first

contends that a sentencing enhancement provision (Section

2A6.1(b)(2)), which took effect on November 1, 1997, could not be

used to count conduct occurring before that date as an enhancement

of the offense conduct. The Supreme Court and this court have

recognized, however, that the ex post facto clause does not apply

to aggravating factors of an offense. See Gryger v. Burke,

(1948) (“The sentence . . . is not to be viewed as

either a new jeopardy or additional penalty for the earlier crimes.

It is a stiffened penalty for the latest crime, which is considered

to be an aggravated offense”)); see also United States v. Saenz-

Forero,

(5th Cir. 1994) (same conclusion in Guidelines

context).

Murillo also asserts that the October 13, 1997 Internet

posting and December 18, 1997 e-mail message were not threats as

defined in U.S.S.G. § 2A6.1(b)(2). We disagree, based on

Application Note 2, which refers to prior conduct that is, as here,

substantially and directly connected to the offense. The district

court’s factual findings that the Glock threat and the December 18

e-mail, which stated that Murillo would fix management’s wagon for

10 trying to fire him and that “your wagon will get burned” were

threats were not clearly erroneous.

For the foregoing reasons, the conviction and sentence

are AFFIRMED.

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