Tactical Stop-Loss, LLC v. Travelers Casualty and Surety

1The Honorable Raymond C. Clevenger, III, United States Circuit Judge for the
Federal Circuit, sitting by designation.
2The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1236
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Chane Phillip Christenson, *
*
Appellant. *
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Submitted: June 13, 2011
Filed: September 2, 2011
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Before COLLOTON, CLEVENGER, 1 and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Chane Christenson pleaded guilty to a single count of knowingly and willfully
threatening to take the life of the President of the United States, in violation of 18
U.S.C. § 871(a). The district court 2 sentenced Christenson to three years’ probation.

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Christenson appeals, arguing that there was not a sufficient factual basis for his guilty
plea. We affirm.
On the afternoon of December 9, 2009, Christenson sent the following e-mail,
which we reproduce verbatim, through the White House website:
i guess obama was right “god damn the usa” i vote mass impeach every
last mother fucking one of you for treason. i would kill obama if i could.
i will go to jail before 1 dollar of mine goes for an abortion! illegal
aliens shold be deported just like you obama you false birth record
commie piece of shit. i hope some 1 kills you and stacks your head on
a stick to warn any god damn commie that comes after. if you have more
votes then voters someone LIED. impeach, deport or kill i do not care
any more i hate my country i hate the un i hate acorn i hate mrs obama,
i hate libs, i will not pay any more taxes nor will i call my self an
american. if everyone can come in and no one can leave it’s a jail, berry
sertero needs to have his head removed please kill him like you guys did
JFK. hi hoe i hoe its off to jail i go for it the only way to stay alive in
this fucked up country of mine. i used to praze the beauty of grey now
it all KKK fuck you fuck you i want the with house to burn mass
impeach you god damn treasonest mother fuckers. merry CHRISTmas
you commie fucks! i would of died for my country now id sell it even
fast then you. i do not trust anyone that pays mils. to get a job that pays
thou. please come and aresst me so i can go to court and say “i can say
kill obama cuz that not even his real name’. forget the false birth record
i want a blood teast and some dna.My country is evil just look at the hole
“god damn” crew and now with YOUR healthcare abortion WE all must
buy into. MASS IMPEACH on treason. I HATE MY COUNTRY I
HATE YOU ALL you like you pay others to lie fuck you and your actors
you god damn pieces of shit i want to see obama’s blood spilled all over
the white house make it pink. GOD DAMN THE USA
At approximately 3:00 a.m. on January 6, 2010, Christenson sent another e-mail
through the White House website. This e-mail read:

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WHATS SO HARD ABOUT A BIRTH RECORD? ONLY NON
AMERICAN S STILL TRUST YOU. YOU ARE A CROOK A FEAR
MONGEL I HATE YOU AND I HOPE SOMEONE KILLS YOU AND
YOUR FAMILY REAL SOON. TO WARN THE NEXT ILLEGAL
ALIEN WHO TRIES TO TAKE YOUR PLACE. I WASNT RACISET
UNTILL 2008 THANKS NIGGERS! WHITE PEOPLE CAN BE
NIGGERS TOO! kill obama MRS OBAMA AND THE 2 LITTLE
NIGGER BRAT KIDS!
An investigation traced the e-mails to Christenson, who was interviewed by two
Secret Service agents at his residence on February 1, 2010. Christenson admitted that
he sent the e-mails, but told the agents that he believed that he was under the influence
of alcohol and marijuana at the time. He also stated that he believed that President
Obama’s real name is “Berry Sertero.” Christenson explained to the agents that he
had no interest in killing the President and that he is actually a peaceful person.
In April 2010, a grand jury indicted Christenson on two counts of threatening
to take the life of the President, in violation of 18 U.S.C. § 871(a). The first count of
the indictment pertained to the December 2009 e-mail; the second count arose from
the January 2010 e-mail. On June 30, 2010, Christenson entered a plea agreement in
which he agreed to plead guilty to the second count of the indictment in exchange for
the government’s agreement to make a favorable sentencing recommendation. Under
the heading “FACTUAL BASIS,” the plea agreement stated that Christenson had sent
the e-mails and had knowingly and willfully threatened to take the President’s life.
At a hearing on the same day, Christenson confirmed that he sent the two e-mails, and
the district court concluded that there was a proper factual basis for the plea and
accepted the plea.
Shortly before the sentencing hearing scheduled for December 2010,
Christenson retained new counsel and filed a motion to withdraw his guilty plea.
Christenson asserted that a mental health evaluation conducted after the plea hearing

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indicated that he was likely suffering from a delusional disorder, a paranoid
personality disorder, and alcohol and cannabis dependence. He argued that further
testing was needed to determine whether his plea was knowing and voluntary.
Christenson also contended that he should be allowed to withdraw his plea because
the e-mails contained mere political hyperbole rather than true threats, and were
therefore protected by the First Amendment.
The court convened a hearing, during which the court informed Christenson that
it had been inclined to follow the plea agreement’s recommendation that no term of
imprisonment be imposed. After learning of the court’s intention about sentencing,
Christenson withdrew the motion to withdraw the plea. The district court proceeded
with sentencing, imposed a three-year term of probation, and dismissed the first count
of the indictment on the motion of the United States.
At the outset, we must determine whether we can review Christenson’s claim
that there was an inadequate factual basis for his guilty plea, and, if so, what standard
of review should apply. This court has held that a valid, unconditional plea of guilty
is an admission of guilt that waives all non-jurisdictional defects and defenses. United
States v. Limley, 510 F.3d 825, 827 (8th Cir. 2007). In United States v. Frook, 616
F.3d 773, 775 (8th Cir. 2010), however, we held that a defendant who entered an
unconditional guilty plea could challenge on appeal a district court’s failure to comply
with Federal Rule of Criminal Procedure 11(b)(3). That provision states that “[b]efore
entering judgment on a guilty plea, the court must determine that there is a factual
basis for the plea.” As this court noted in Frook, “[i]f a district court accepts a guilty
plea based on a set of facts that plainly and obviously does not constitute a federal
offense, but nonetheless determines pursuant to Rule 11(b)(3) that the defendant’s
conduct did violate federal law, then there has been a violation of the Rule 11 scheme
designed to ensure a knowing and voluntary plea.” Id. Such a claim may be reviewed
for plain error on direct appeal when the defendant failed to challenge the adequacy
of the factual basis before the district court. Id.

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The government argues that Christenson’s claim is unreviewable, citing cases
suggesting that a defendant who pleads guilty unconditionally cannot raise an as-
applied constitutional challenge to the statute of conviction on direct appeal. See
United States v. Jacobson, 406 F. App’x 91, 92 (8th Cir. 2011) (per curiam); United
States v. Seay, 620 F.3d 919, 922 n.3 (8th Cir. 2010). Christenson, however, does not
challenge his conviction on the basis that § 871(a) is unconstitutional as applied to
him. He argues only that there was not a sufficient factual basis for the guilty plea,
as required by Rule 11(b)(3). Such a claim is reviewable on direct appeal. Frook, 616
F.3d at 775.
Christenson contends that our standard of review should be de novo, because
his argument implicates the First Amendment. First Amendment considerations are
present, see United States v. Frederickson, 601 F.2d 1358, 1363 (8th Cir. 1979), but
an appellant cannot escape the consequences of a forfeiture in the district court by
grounding his argument on the First Amendment. As the Supreme Court noted in
United States v. Olano, 507 U.S. 725 (1993), “[n]o procedural principle is more
familiar to this Court than that a constitutional right, or a right of any other sort, may
be forfeited in criminal as well as civil cases by the failure to make timely assertion
of the right before a tribunal having jurisdiction to determine it.” Id. at 731 (internal
quotation omitted). This court has repeatedly reviewed forfeited First Amendment
claims for plain error. See, e.g., United States v. Wolk, 337 F.3d 997, 1003-04 (8th
Cir. 2003); United States v. Bausch, 140 F.3d 739, 741 (8th Cir. 1998). Christenson
cites Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), and
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557
(1995), for the proposition that de novo review is required, but neither of those cases
involved any issue of forfeiture, and they do not control the standard of review in this
case. While Christenson can challenge the existence of a factual basis supporting his
plea, we review that challenge only for plain error given Christenson’s failure to raise
the argument before the district court. See Frook, 616 F.3d at 775.

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To qualify for relief under the plain-error standard of review, an appellant must
show that the district court committed an error that is clear or obvious under current
law and that the error affected the appellant’s substantial rights. Fed. R. Crim. P.
52(b); see Olano, 507 U.S. at 732, 734. If the appellant makes this showing, an
appellate court “has the discretion to remedy the error – discretion which ought to be
exercised only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(alteration in original) (internal quotation omitted).
Our review of the factual basis for a guilty plea is limited. We ask only whether
there was sufficient evidence before the district court “upon which a court may
reasonably determine that the defendant likely committed the offense.” See United
States v. Cheney, 571 F.3d 764, 769 (8th Cir. 2009) (internal quotation omitted). “We
have held that facts gathered from the prosecutor’s summarization of the plea
agreement and the language of the plea agreement itself, a colloquy between the
defendant and the district court, and the stipulated facts before the district court are
sufficient to find a factual basis for a guilty plea.” United States v. Orozco-Osbaldo,
615 F.3d 955, 958 (8th Cir. 2010) (internal quotation omitted). We may also consider
facts set forth in the presentence report to determine whether there was a sufficient
factual basis for the plea. See Orozco-Osbaldo, 615 F.3d at 958; United States v.
Brown, 331 F.3d 591, 595 (8th Cir. 2003); cf. Howard v. United States, 135 F.3d 506,
509-10 (7th Cir. 1998).
A violation of § 871(a) involves both an objective and a subjective component.
The government must establish that a reasonable recipient, familiar with the context
of the communication at issue, would interpret it as a threat, and that the defendant
appreciated the threatening nature of his statement and intended at least to convey the
impression that the threat was a serious one. United States v. Cvijanovich, 556 F.3d
857, 863 (8th Cir. 2009). The circumstances surrounding the statement at issue are

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relevant to the determination whether each component has been satisfied. See id.;
United States v. Whitfield, 31 F.3d 747, 749 (8th Cir. 1994).
Here, Christenson stipulated in the plea agreement that he sent an e-mail to the
White House website in which he stated, among other things, “kill obama MRS
OBAMA AND THE 2 LITTLE NIGGER BRAT KIDS!” He further stipulated that
he knowingly and willfully threatened to take the life of the President, that he acted
voluntarily, and that he knew that his actions were illegal. Christenson admitted in the
plea agreement and at the plea hearing that he had previously sent an e-mail to the
White House website containing similar threats to take the life of the President. In the
earlier e-mail, Christenson wrote that “i would kill obama if i could” and that “i want
to see obama’s blood spilled all over the white house make it pink.” This evidence
was not so deficient that it obviously could not be the basis for a reasonable
determination that Christenson likely violated § 871(a). See United States v. Mann,
No. 99-4115, 2000 WL 372243, at *1 (8th Cir. 2000) (holding that sufficient evidence
supported the defendant’s conviction where the defendant mailed a letter to the
President stating that “You . . . should live no longer” and “Someday . . . you will pay
for your improper actions with your life,” and also indicating that “change” was
needed, “[b]y force if need be, . . . as we become your worst dream”); see also United
States v. Koski, 424 F.3d 812, 820 (8th Cir. 2005); United States v. Whitfield, 31 F.3d
747, 749 (8th Cir. 1994).
Christenson argues that he simply expressed a wish that the President suffer
harm, rather than a declaration of his own intent to cause harm to the President.
Christenson points out that his e-mails referenced “hot-button political topics” and
that the first e-mail used conditional language, suggesting that the e-mails were mere
political hyperbole. He relies on Watts v. United States, 394 U.S. 705 (1969) (per
curiam), in which the Supreme Court held that § 871(a) did not encompass a statement
during a public rally that “[i]f they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.” Id. at 706. The Court concluded that the statute requires

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the government to prove that the statement at issue is a “true threat,” rather than mere
“political hyperbole.” Id. at 708 (internal quotation omitted). Given the context, the
conditional nature of the statement, and the fact that the crowd laughed after the
statement was made, the Court determined that the statement was only “a kind of very
crude offensive method of stating a political opposition to the President.” Id. (internal
quotation omitted). The Court noted that First Amendment considerations counseled
against imposing criminal liability for such statements. Id. at 707-08.
Watts demonstrates the limits of § 871(a), but no particular formulation of
words is required to state a true treat. This court has noted that “a person may not
escape prosecution for uttering threatening language merely by combining the
threatening language with issues of public concern,” and that “[a] threat may be
considered a ‘true threat’ even if it is premised on a contingency.” United States v.
Bellrichard, 994 F.2d 1318, 1322 (8th Cir. 1993). “That correspondence containing
threatening language is phrased in outrageous terms does not make the
correspondence any less threatening.” Id. The factual basis in this case lacks some
of the mitigating circumstances present in Watts, and in light of the record as a whole
and our limited standard of review, we conclude that there was no obvious error.
The judgment of the district court is affirmed.
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