United States v. Ivers

967 F.3d 709

UNITED STATES of America, Plaintiff - Appellee

v.Robert Phillip IVERS, Defendant - Appellant

No. 19-1563

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2020

Filed: July 23, 2020

Rehearing and Rehearing En Banc Denied September 21, 2020

Counsel who presented argument on behalf of the appellant was Brett Douglas Kelley, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Brett Douglas Kelley, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Emily Anne Polachek, AUSA, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Emily Anne Polachek, AUSA, of Minneapolis, MN.

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following a jury trial, Robert Ivers was convicted of one count of threatening to murder a federal judge, in violation of 18 U.S.C. § 115(a)(1)(B), and one count of interstate transmission of a threat to injure the person of another, in violation of 18 U.S.C. § 875(c). The district court¹ sentenced Ivers to 18 months imprisonment with three years of supervised release to follow. Ivers appeals his conviction, arguing that the statements at issue were privileged, that there was insufficient evidence suggesting that he made a true threat of present or future harm, that the district court erred in instructing the jury, and that the district court's cumulative errors deprived him of his right to a fair trial. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

"We recount the relevant testimony and other evidence presented at trial in the light most favorable to the jury's verdict." United States v. Shavers, 955 F.3d 685, 688 n.2 (8th Cir. 2020).

A.

In February 2015, Ivers filed a lawsuit in Minnesota state court against a life insurance company, which was then removed to federal court and eventually assigned to Judge Wilhelmina M. Wright of the District of Minnesota. See Ivers v. CMFG Life Ins. Co., No. 15-cv-1577-WMW-BRT, 2015 WL 13667066 (D. Minn. filed Mar. 23, 2015). In September 2016, Judge Wright entered an order granting summary judgment in favor of the life insurance company on all but one of Ivers's claims. The following month, Ivers mailed Judge Wright a packet of various court-related materials on which Ivers had written notes. These notes included statements such as "I do not know where I am fucking sleeping tonight! Think about it!"; "I am sick and tired of this fucking bullshit!"; "I want my fucking money ...."; "I will not negotiate!!!"; "Have I made myself clear!!!"; "I am in dire fucking straits!"; and "I am becoming a very dangerous person!!!"

Although the case had been scheduled for a settlement conference before Magistrate Judge Becky R. Thorson, the conference was cancelled. And because neither party demanded a jury trial, the case was instead set for a bench trial before Judge Wright. In November 2016, Ivers sent a letter to the court, demanding "a jury trial or [his] fucking money." In that letter he also stated: "I smell a rat! Somebody needs to explain to me what the fuck is going on!?"

Ivers's communications were forwarded to the United States Marshals Service (USMS). Deputy Marshal Jeffrey Hattervig started investigating Ivers and learned that Ivers had previously threatened a Minnesota state court judge who presided over a separate civil action filed by Ivers. Ivers was later charged in state court with stalking and making terroristic threats, and following a trial, he was convicted of stalking. At the time of his statements to Judge Wright, he was on probation for this offense. Hattervig spoke with Ivers when he appeared at the federal courthouse for a pretrial hearing on January 4, 2017. Although Ivers was cordial and mentioned to Hattervig that his statements to Judge Wright were intended to speed up the proceedings, he signaled his frustration with the defendant life insurance company and stated that he did not want to "carry that hurt around inside" and that he would "be a walking bomb" if he did not vent his frustrations. Although he told Hattervig that he would accept the result of the trial, Hattervig remained concerned about Ivers's lack of remorse for his prior statements. This prompted the USMS to provide increased security at the trial, and Hattervig warned Ivers that sending threatening communications could be a crime.

Following trial, judgment was entered in favor of the life insurance company. Ivers later sent letters to Chief Judge John R. Tunheim and Magistrate Judge Thorson in which he requested a new trial and asserted that Judge Wright acted with bias against Ivers in disposing of the case. He later sent the same letter to Judge Wright and additional copies to Chief Judge Tunheim, Magistrate Judge Thorson, and the Clerk of Court. On the envelopes of some of those letters, he wrote notes stating that: "I was cheated by one of your federal judges and I demand redress." On the letter to Judge Wright, Ivers wrote: "You cheated me and I will not stop smearing your name until I get redress." Ivers also called Chief Judge Tunheim's chambers to voice his displeasure with Judge Wright's decision and request that Chief Judge Tunheim take action. When Ivers was informed that the proper course of action would be to appeal his case to this Court, Ivers "was not happy with that" and mentioned that he "was crazy mad, and he didn't know what to do with it." Ivers again described himself as a "walking bomb because he was so frustrated." Chief Judge Tunheim's staff, concerned about Ivers's fixation on Judge Wright, contacted the USMS. A few days later, Ivers sent another round of letters, addressing one to "Corrupt Judge Wright" and demanding that she "pay attention." Copies of the letters to Chief Judge Tunheim, Magistrate Judge Thorson, and the Clerk of Court included a statement on the envelopes that said: "Judge Wright is a Corrupt! [sic] Judge."

Ivers's post-trial conduct prompted Deputy Marshals Hattervig and Farris Wooton to visit with Ivers at his residence to discuss his letters and calls. In particular, they were concerned about "the aggressive nature of [Ivers's] letters, the fixation on Judge Wright, the repeated mailings to multiple people, calling her corrupt, and the increased agitation against Judge Wright, coupled with the phrase ‘walking bomb.’ " Hattervig and Wooton hoped that Ivers would "show some contrition and say, okay, I realize that I crossed the line and I won't do it anymore." However, Ivers did not do that. Instead, he refused to retract his statements, remained visibly angry, and confirmed that he remained a "ticking time bomb." Ivers also told Hattervig and Wooton to inform the federal judges in the Twin Cities that he was "out of his fucking mind crazy" and mentioned that he was "glad they took [his letters and calls] seriously." Regarding Judge Wright, Ivers told Hattervig and Wooton "that fucking judge—you know, if she's scared and she's fearful, it's not my problem. She made her bed." Ivers remained upset with Judge Wright for "snatch[ing]" the life insurance policy at issue in the lawsuit "right out from under ... [him]." Ivers concluded the conversation by again reiterating that "[he] possibly could be a walking bomb." When Hattervig left his business card in an attempt to prompt Ivers to call him instead of court personnel if Ivers was angry, Ivers refused the card and again stated that: "[I]f they're living in fear, too fucking bad. It's what they deserve."

B.

Ivers later filed a second lawsuit against the life insurance company. See Ivers v. CMFG Life Ins. Co., No. 17-cv-5068-PJS-DTS (D. Minn. filed Nov. 9, 2017). This case was initially assigned to District Judge Patrick J. Schiltz and Magistrate Judge David T. Schultz. Magistrate Judge Schultz initially found that Ivers's complaint failed to state a claim for relief and referred Ivers to the District of Minnesota's Pro Se Project, which matches pro se litigants with private attorneys, to allow Ivers to obtain help in filing an amended complaint. Ivers was later matched with Attorney Anne Rondoni Tavernier, who was assisted by Attorney Lora Friedemann, a more experienced attorney at Rondoni Tavernier's firm.

Attorneys Rondoni Tavernier and Friedemann determined that Ivers did not have a claim against the life insurance company. They scheduled a call with Ivers to apprise him of their legal conclusions and to inform him that they would not be taking his case. In the first part of the approximately 30-minute call, Attorneys Rondoni Tavernier and Friedemann discussed the pending lawsuit and explained that Ivers would likely be unsuccessful due to the rulings made by Judge Wright in the earlier lawsuit. As they started to discuss the prior lawsuit, Ivers became angry, and he started to yell and use profane language. He started ranting about Judge Wright, and Attorney Friedemann transcribed parts of what he said, including the following statements: "This fucking judge stole my life from me."; "I had overwhelming evidence."; "Judge ‘stacked the deck’ to make sure I lost this case."; "Didn't read the fine print and missed the 30 days to seek a new trial—and ‘she is lucky.’ I was ‘going to throw some chairs.’ "; and "You don't know the 50 different ways I planned to kill her." The attorneys did not speak while Ivers was ranting, and after Ivers stopped speaking, the attorneys concluded the call. Both attorneys were frightened by what Ivers had said, and Attorney Friedemann would later describe it as "a death threat against Judge Wright."

Following the call, and after consulting with their firm's ethics advisors, Attorneys Rondoni Tavernier and Friedemann contacted the coordinator of the Pro Se Project to inform her that Ivers "made a threat against Judge Wright." The coordinator, in turn, informed Judge Wright. The USMS was also alerted, and deputy marshals were sent to speak with Ivers. Ivers, however, refused to speak with the deputies and...