United States v. Edward Killingsworth, Jr. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0058n.06
Case No. 21-3028
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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FILED
UNITED STATES OF AMERICA, Feb 01, 2022
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DEBORAH S. HUNT, Clerk
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Plaintiff - Appellee,
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v. ON APPEAL FROM THE UNITED
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STATES DISTRICT COURT FOR THE
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EDWARD KILLINGSWORTH, JR., NORTHERN DISTRICT OF OHIO
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Defendant - Appellant.
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BEFORE: COLE, GIBBONS, and LARSEN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Edward Killingsworth, Jr. was charged in a one-
count indictment with Interstate Communication Threat, in violation of 18 U.S.C. § 875(c), for
knowingly and willfully transmitting interstate communications threatening to kill any law
enforcement officer. The charges were based on September 2019 Facebook posts stating “I think
a cop needs killed around here again,” and “[M]ore cops need shot dead. They kill us, we kill
them simple.” He filed a motion to dismiss the indictment, arguing it was legally insufficient and
his statements were protected by the First Amendment. The district court denied his motion,
holding that the indictment was sufficient and that whether Killingsworth’s posts constituted “true
threats” or protected political hyperbole was a factual determination for the jury. Killingsworth
then pled guilty to the indictment and the court sentenced him to 30 months’ imprisonment.
Because the indictment was legally sufficient and the actual determination of whether
Killingsworth intended the messages as threats is a factual determination for a jury, we affirm.
No. 21-3028, United States v. Killingsworth
I
On September 17, 2019, a discussion was unfolding on the “Warren’s Real Breaking
News” Facebook page about the county prosecutor’s decision to not charge two police officers in
the January 2019 shooting death of Matthew Burroughs, an unarmed black man. In the comments
section of the article, Killingsworth posted two statements: “I think a cop needs killed around here
again,” and “[M]ore cops need shot dead. They kill us, we kill them simple.” DE 1, Indictment,
Page ID 1; DE 17, Def.’s Mot. to Dismiss Indictment, Page ID 94–95. A municipal court employee
took a screenshot of Killingsworth’s comments and texted it to Detective John Greaver of the
Warren Police Department. Greaver looked up Killingsworth in Ohio’s law enforcement database
and matched his Facebook profile picture to his driver’s license photograph. A warrant was issued
for Killingsworth’s arrest for Aggravated Menacing and Telecommunication Harassment in
violation of Warren, Ohio’s Codified Ordinances. Immediately after the warrant was issued,
Killingsworth’s parole officer arranged to meet him at the Warren Police Station and advised him
of the warrant. Greaver and another police officer placed Killingsworth under arrest on September
17, 2019.
On March 4, 2020, a federal grand jury indicted Mr. Killingsworth, charging him in a one-
count indictment with Interstate Communication Threat, in violation of 18 U.S.C. § 875(c). The
indictment stated:
On or about September 17, 2019, in the Northern District of Ohio, Eastern Division,
Defendant EDWARD KILLINGSWORTH JR. did knowingly and willfully
transmit in interstate and foreign commerce from Warren, Ohio, communications
which viewed together, threatened to kill any law enforcement officer, to wit:
Facebook.com public postings, which included:
a. On September 16, 2019, “I think a cop needs killed around here again.”
b. On September 17, 2019, “[M]ore cops need shot dead. They kill us, we kill them
simple.”
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No. 21-3028, United States v. Killingsworth
DE 1, Indictment, Page ID 1. Killingsworth pled not guilty and moved to dismiss the indictment,
arguing the indictment was legally insufficient because his Facebook comments did not constitute
threats, but rather “statements of opinion not subject to prosecution.” DE 17, Def.’s Mot. to
Dismiss Indictment, Page ID 98. He asserted his statements did not rise to the level of a “true
threat” and were protected as political speech under the First Amendment. Id. at 101–02. The
district court held a hearing on Killingsworth’s Motion to Dismiss the Indictment and his
contemporaneously filed Motion to Suppress, at which Detective Greaver testified that, in addition
to the threats against law enforcement, Killingsworth posted “several other threats toward other
people . . . .” DE 22, Hearing Transcript, Page ID 203. These comments, directed at other users
on the Facebook thread, included: “Your kids need shot in front of you”; “F you and your kids,
you son that prize”; “I’m going to F your wife first”; “Trust me I’ll take one with me”; and “I’ll
see you in the woods.” Id. at 206.
Following the hearing, the district court issued a Memorandum of Opinion and Order
denying Killingsworth’s Motion to Dismiss and Motion to Suppress.1 The court held the
indictment was legally sufficient because it provided “a precise recitation of the elements of the
crime for which Killingsworth [was] charged along with a concise and definite statement of the
facts supporting the charge against him . . . .” DE 24, Mem. Op. and Order, Page ID 254. The
court further held that the indictment sufficiently alleged Killingsworth had the requisite mental
state required for a violation of 18 U.S.C. § 875(c). Id. at 255–56. Finally, the court discussed
Killingsworth’s argument that his speech was protected by the First Amendment, holding that
whether “Killingsworth subjectively intended his statements to be threatening or political
1
The district court denied Killingsworth’s Motion to Dismiss the Indictment and his Motion to
Suppress, but he does not challenge the denial of the Motion to Suppress on appeal.
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No. 21-3028, United States v. Killingsworth
hyperbole is . . . clearly a factual disagreement, one in which this Court may not opine, analyze, or
further discuss [because] factual issues remain the duty of the jury.” Id. at 258. On September 9,
2020, Killingsworth pled guilty to the one-count indictment. The factual basis of the plea
agreement mirrored the facts as set forth in the indictment, and Killingsworth reserved the right to
appeal the district court’s written judgment on his motion to dismiss the indictment.
The district court sentenced Killingsworth on December 21, 2020. With a total offense
level of ten and a criminal history category of VI, his advisory guideline sentencing range was 24
to 30 months. The court discussed the 18 U.S.C. § 3553(a) factors and imposed a high-end
guideline sentence of 30 months and 3 years of supervised release, citing Killingsworth’s lack of
remorse, criminal history, and past probation violations.
II
This court reviews the sufficiency of an indictment de novo. United States v. DeZarn, 157
F.3d 1042, 1046 (6th Cir. 1998). “An indictment is generally sufficient if it fully, directly, and
expressly sets forth all the elements necessary to constitute the offense intended to be punished.”
United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007) (internal quotation marks and citation
omitted). To be sufficient, the indictment must (1) detail each element of the charged offense and
give the defendant notice of the charges he faces, and (2) “be sufficiently specific to enable the
defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime
based on the same facts.” Id. (quoting United States v. Douglas, 398 F.3d 407, 413 (6th Cir.
2005)). The indictment must be read as a whole, with factual allegations accepted as true and
construed in a practical sense with all the necessary implications. United States v. Reed, 77 F.3d
139, 140 n.1 (6th Cir. 1996) (en banc).
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III
“Section 875(c) punishes the transmission in interstate commerce of ‘any communication
containing . . . any threat to injure the person of another.’” United States v. Doggart, 906 F.3d
506, 510 (6th Cir. 2018) (alteration in original) (quoting 18 U.S.C. § 875(c)). For someone to be
convicted under this law, “the government must prove that: (1) the defendant sent a message in
interstate commerce; (2) a reasonable observer would view the message as a threat; and (3) the
defendant intended the message as a threat.” Id.; see also United States v. Howard, 947 F.3d 936,
943 (6th Cir. 2020).
On appeal, Killingsworth asserts the indictment is legally deficient under 18 U.S.C
§ 875(c) because it failed to allege intent of communicating a true threat. He argues that pursuant
to Elonis v. United States, 575 U.S. 723, 737 (2015), a defendant convicted under § 875(c) must
know that he is transmitting a communication and that his communication contains a threat.
Killingsworth contends his two Facebook statements “were not threats, did not contain any
language construable as a serious expression of an intent imminently to carry out some injurious
act, and lacked any expression of an intent to commit the injury.” CA6 R. 21, Appellant Br., at
13.
We disagree. The indictment against Killingsworth fully, directly, and expressly sets forth
each of the elements necessary to constitute an offense under § 875(c). The indictment provides
specific dates for the offense and identifies Killingsworth as the defendant. The indictment tracks
the statutory language, stating that Killingsworth “did knowingly and willfully transmit in
interstate and foreign commerce from Warren, Ohio, communications . . . [that] threatened to kill
any law enforcement officer.” DE 1, Indictment, Page ID 1. The indictment then quotes two of
Killingsworth’s posts: (1) “I think a cop needs killed around here again,” and (2) “[M]ore cops
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need shot dead. They kill us, we kill them simple.” Id. These allegations are sufficiently specific
as to give Killingsworth notice of the charges and protect him against double jeopardy. See
McAuliffe, 490 F.3d at 531.
Killingsworth maintains the indictment is nevertheless defective because its language does
not allege that he intended to threaten law enforcement officers. He argues his posts are not threats,
but rather are “statements of opinion not subject to prosecution.” CA6 R. 21, Appellant Br., at 14.
Killingsworth points to Watts v. United States, 394 U.S. 705 (1969), in which an 18-year-old stated
at a public rally, during a discussion of police brutality, that
They always holler at us to get an education. And now I have already received my
draft classification as 1-A and I have got to report for my physical this Monday
coming. I am not going. If they ever make me carry a rifle the first man I want to
get in my sights is [President Lyndon B. Johnson]. They are not going to make me
kill my black brothers.
Watts, 394 U.S. at 706. In Watts, the Supreme Court held that, “[t]aken in context, and regarding
the expressly conditional nature of the statement and the reaction of the listeners,” the statement
was not a true threat against the President’s life and the conviction could not stand.2 Id. at 708.
Killingsworth argues his language, like the defendant’s in Watts, is political hyperbole at a time of
social unrest when the black community felt frustration with another unarmed black man dying at
the hands of the police without consequences for the officers. He asserts that his language merely
constituted a “vehement, caustic, and sometimes unpleasantly sharp attack[] on government and
public officials.” CA6 R. 21, Appellant Br., at 18 (citing Watts, 394 U.S. at 708).
Unlike the language in Watts, Killingsworth’s statements lacked the word “if” and were
not conditional. Moreover, Killingsworth’s argument is contrary to Supreme Court and Sixth
2
The defendant in Watts was convicted of violating a 1917 statute that prohibited “any person
from knowingly and willfully making any threat to take the life of or to inflict bodily harm upon
the President of the United States.” 394 U.S. at 705 (internal quotation marks omitted).
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Circuit precedent regarding an indictment’s sufficiency in alleging a defendant’s intent under
§ 875(c). His argument that his statements are expressions of political opinion, not threats, does
not render the indictment legally insufficient. In Elonis, the Supreme Court explained “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.”
Elonis, 575 U.S. at 740. The Sixth Circuit has held that “an indictment, when read in its entirety,
can allege a defendant’s intent element by way of descriptions of defendant’s actions—all of which
can imply defendant’s requisite mental state for every element of the crime.” Howard, 947 F.3d
at 944.
The government bears the burden at trial of proving that a threat is a “true threat.” See
Howard, 947 F.3d at 947. At the indictment stage, however, the government’s obligation is simply
to directly set forth each element necessary to constitute the offense intended to be punished.
Hamling v. United States, 418 U.S. 87, 117 (1974). Here, the indictment specifically alleges
Killingsworth knowingly and willfully transmitted a communication threatening to kill police
officers, and this is sufficient. A reasonable reader of the indictment could conclude that
Killingsworth “willfully and knowingly” transmitted the Facebook posts listed in the indictment
“for the purpose of issuing a threat, or with the knowledge that the [posts would] be viewed as a
threat.” Elonis, 575 U.S. at 740. Accordingly, the indictment against Killingsworth sufficiently
contains each element necessary to constitute an offense under 18 U.S.C § 875(c), including the
intent requirement.
Killingsworth next argues the indictment should have been dismissed because it violated
his right to free speech under the First Amendment. He acknowledges the First Amendment does
not protect “true threats,” but argues the district court erred in holding that whether his statements
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constitute true threats is a factual issue properly determined by the jury. Killingsworth asserts the
posts underlying the indictment were “impulsive statements of political alienation which are
protected by the First Amendment.” CA6 R. 21, Appellant Br., at 21. He argues that when
underlying “facts are found that establish the violation of a statute, the protection against
conviction afforded by the First Amendment is a matter of law” requiring judicial determination.
CA6 R. 21, Appellant Br., at 20 (quoting Dennis v. United States, 341 U.S. 494, 513 (1951)). But,
unlike in Dennis, no factfinder had yet made any factual determinations in Killingsworth’s case.
The district court noted the parties submitted arguments about whether Killingsworth’s
statements were true threats or were political hyperbole protected by the First Amendment, but it
did not fully address the arguments, holding that Killingsworth’s intent behind the statements was
a “factual disagreement.” DE 24, Mem. Op. and Order, Page ID 258. The court stated that it could
not “opine, analyze, or further discuss” whether the statements constituted true threats because
“factual issues remain the duty of the jury.” Id. The district court held that, regardless of whether
Killingsworth’s Facebook posts constituted true threats, the indictment was legally sufficient
because it alleged the speech was a threat in violation of 18 U.S.C.§ 875(c) and alleged
Killingsworth possessed the requisite intent that the speech be threatening.
It is true that “the First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers.” Greene v. Barber, 310 F.3d 889, 896 (6th Cir. 2002)
(quoting Houston v. Hill, 482 U.S. 451, 461 (1986)). However, the First Amendment does not
protect “true threats,” a category that includes “those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). In Elonis, the
Supreme Court recognized that “to be a true threat, the defendant must subjectively intend his
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communication to be threatening.” Doggart, 906 F.3d at 512 (citing Elonis, 575 U.S. at 737–38).
Here, Killingsworth’s intent in sending these messages is subject to multiple interpretations, as
illustrated by the parties’ arguments: Killingsworth submits that his statements, in the context of
police brutality against the black community, constitute expressions of political frustration. The
government argues his statements are not political hyperbole, but an authentic threat of violence
against police officers.
The district court correctly concluded that, at the juncture of a motion to dismiss the
indictment, determining Killingsworth’s subjective intent behind his communications was a
question of fact for the jury to determine. Killingsworth argues this is not a factual determination
because whether his posts are protected by the First Amendment is a matter of law because they
provide the basis for the violation of 18 U.S.C § 875(c). But, as discussed above, when a district
court assesses the sufficiency of an indictment, it “accept[s] the factual allegations as true.”
McAuliffe, 490 F.3d at 531. The government would have been required to prove Killingsworth’s
specific intent to threaten to the jury, who would have made the factual determination. At this
stage, the district court’s analysis correctly focused on the legal sufficiency of the indictment and
properly concluded that because the indictment alleged Killingsworth’s speech was a threat in
violation of 18 U.S.C. § 875(c) and alleged he possessed the requisite subjective intent that the
speech be threatening, dismissal was not warranted.
IV
The indictment tracked the language of 18 U.S.C § 875(c) and alleged Edward
Killingsworth intended his messages as a threat. It detailed each element of the charged offense
and was sufficiently specific to enable Killingsworth to plead double jeopardy in a subsequent
proceeding. The actual determination of whether he intended the message as a threat is a factual
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determination for a jury. Therefore, the district court properly denied Killingsworth’s motion to
dismiss the indictment. We affirm.
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