United States v. Timothy Cessor ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3296
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United States of America
Plaintiff - Appellee
v.
Timothy R. Cessor
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 19, 2021
Filed: April 5, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
A jury convicted Timothy R. Cessor of making a threat against the president,
in violation of 18 U.S.C. § 871(a). At the time of sentencing, Cessor had been in
custody for about 20 months. The district court 1 sentenced Cessor to time served, a
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.
downward variance from the applicable United States Sentencing Guidelines range
of 51 to 63 months. Cessor appeals, asserting there was insufficient evidence to
convict him. We affirm.
I. BACKGROUND
In February 2019, 26-year-old Timothy Cessor lived with his parents in
Cheyenne, Wyoming. Cessor, who was frustrated with then-President Donald
Trump, broke into a gun safe located under his parents’ bed, took a loaded .40 caliber
pistol and a magazine, spray painted “Trump” with a line through it on the driver’s
door of his truck, searched for driving directions to the White House using his phone,
and began driving toward Washington, D.C. Cessor’s only plan was to drive to the
vicinity of the White House and try to put himself in a position to shoot Trump.
Several hours after leaving home, Cessor apparently began to have second
thoughts. He called his father on his cell phone while driving in Nebraska. Cessor
told his father that he had left to “take care of” Trump. The parties dispute what was
said next during this phone call: Cessor’s father testified that Cessor told him that he
could not carry through with his idea of harming Trump and asked his father which
of two proposed options would be best—whether he would be welcome back at
home or if he should surrender to law enforcement. Cessor’s father urged him to
return home for professional help. During the trial, the government presented
records from the Cheyenne Regional Medical Center (where Cessor’s father brought
Cessor after arriving back home) and testimony from a physician’s assistant and the
clinician who conducted the psychiatric assessment at the emergency room. The
records and testimony reflect that Cessor’s father indicated that he had to convince
or talk Cessor into returning home to Wyoming. Cessor’s father testified, however,
that he did not remember telling medical personnel this version of events and
reiterated that Cessor voluntarily stated that he wanted to come home early on during
their phone conversation.
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There was virtually no evidence that Cessor had developed a thought-out plan
that would have, in reality, put Trump in harm’s way. At the close of the evidence,
Cessor moved for a judgment of acquittal arguing that the government failed to
satisfy its burden of showing a true threat of present or future harm towards President
Trump. The district court deferred ruling on the motion. Following the jury’s guilty
verdict, the district court ruled that while it was a close question, there was sufficient
evidence to raise a jury question. This appeal followed.
II. DISCUSSION
We review a challenge to the sufficiency of the evidence de novo. United
States v. Dierks, 978 F.3d 585, 589 (8th Cir. 2020) (citation omitted). In reviewing
the record, we draw all reasonable inferences and resolve all evidentiary conflicts in
favor of the verdict. Id. Cessor contends that the evidence was insufficient to
establish a “true threat” of intent to injure presently or in the future because at the
time he conveyed his thoughts, they were past thoughts of intent to harm that he no
longer intended to act on.
Cessor filed a motion in limine to exclude medical records from the Cheyenne
Regional Medical Center on the grounds of relevance, unfair prejudice, and hearsay
under Fed. R. Evid. 401, 402, 403, 801, 803, and 807. At the pretrial conference,
the district court sustained the motion, in part, and denied it, in part, ordering the
government to redact the portions of the records that stated “apparently [Cessor] has
intentions of murdering Donald Trump” and any reference to police statements or
police conduct while at the Cheyenne Regional Medical Center. The district court
left undecided defense counsel’s alternative request for a limiting instruction,
requiring counsel to propose suggested language at the appropriate time in the trial.
Cessor has not appealed the district court’s in limine ruling.
Cessor argued to the jury that his statements to his father while he was talking
to him on the phone in Nebraska recounted past, but by then abandoned intent to do
injury or harm to Trump, and that the medical records did not accurately recount the
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events or conversations. The jury was instructed that government had the burden of
proving beyond a reasonable doubt that: (1) on or about February 4, 2019, in the
District of Nebraska, Cessor said words alleged to be a threat against the President;
(2) Cessor understood and meant the words as a true threat; and (3) Cessor
knowingly and willfully said the words. As to the statements other people testified
Cessor made regarding his intent to harm Trump, the district court instructed the
jurors that it was for them to decide whether Cessor made the statement and, if so,
how much weight to give the statement.
The district court gave the jury a limiting instruction regarding the Cheyenne
Regional Medical Center records, which stated:
You may consider evidence of those statements made at the
Cheyenne Regional Medical Center only for the limited purpose of
deciding whether the defendant had the state of mind or intent necessary
to commit the crime charged in the Indictment. You must not find the
defendant guilty for making a threat against the President in the District
of Nebraska as charged in the Indictment based solely on a statement
he allegedly made in the Cheyenne Regional Medical Center in
Wyoming. You must find that the threat was made in the State of
Nebraska.
We have defined a “true threat” as a “statement that a reasonable recipient
would have interpreted as a serious expression of an intent to harm or cause injury
to another.” Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir.
2002). To sustain the conviction, there need only be evidence from which a
reasonably jury could find that the “statement was serious, not literal or even
intelligible.” Dierks, 978 F.3d at 590. A jury is permitted to “draw inferences about
a defendant’s intent based on all the facts and circumstances of a crime’s
commission.” Id. (quoting Rosemond v. United States, 572 U.S. 65, 78 n.9 (2014)).
While we are mindful of the broad discretion given to prosecutors in carrying
out their duty to enforce criminal statutes, this case is troubling because the only
substantive evidence that Cessor had a present or future intent to harm Trump while
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in Nebraska was based on hearsay statements recorded in an emergency room in
Wyoming hours after Cessor abandoned his plan to go to Washington, D.C. Cessor,
however, has not appealed the district court’s ruling on the admission of the medical
records. And, even if the evidence is barely sufficient, a jury’s determinations on
witness credibility and resolution of inconsistent testimony are virtually
unreviewable on appeal. United States v. Hodge, 594 F.3d 614, 618 (8th Cir. 2010)
(citations omitted).
It was within the jury’s discretion to credit the medical providers’ testimony
as well as the statements in the medical records that were admitted at trial. We are
not free to reweigh the evidence and are without authority to reverse a conviction as
long as there is sufficient evidence in the record from which the jury could
reasonably conclude that Cessor committed the charged offense. Because there was
sufficient evidence from which a jury could find a “true threat,” the conviction must
stand.
III. CONCLUSION
The judgment of the district court is affirmed.
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