United States v. Alfredo Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990). · Go Syfert
United States v. Alfredo Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990). Cases Citing This Book View Copy Cite
340 citation events (228 in the last 25 years) across 43 distinct courts.
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At page 1265 Determining the scope of a threat under federal statutes114 citing cases“whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.”19 citing courts quote it · 37 listed here
Show 27 more citing cases
  • Brock v. State, 495 S.W.3d 1 (Tex. App.—Waco 2016). 2 cites
    United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990); United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987).
  • Brown, James A. v. State, No. PD-0729-15 (Tex. App. June 18, 2015). 2 cites
    App. 1980)……….…………….…..27 Lebleu v. State, 192 S.W.3d 205 (Tex. App. Houston 2006)………….………………………...28 Manemann v. State, 878 S.W.2d 334, 338 (Tex.App.-Austin 1994)……………………...28 United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Ci…
  • James Arthur Brown v. State, No. 03-13-00760-CR (Tex. App.—Austin Mar. 6, 2015).
    Manemann, 878 S.W.2d at 337 (citing United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).
  • Terry Atkins v. State, No. 03-13-00509-CR (Tex. App.—Austin Jan. 5, 2015). 2 cites
    Servs. v. Singh, 428 F.3d 559 , 580 (5th Cir. 2005) ...........................22 Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988) ........................................................22 United States v. Orozco-Santillan, 903 F.2d 12…
  • James Arthur Brown v. State, No. 03-13-00760-CR (Tex. App.—Austin Dec. 31, 2014). 2 cites
    App. 1980)……….……….30 Lebleu v. State, 192 S.W.3d 205 (Tex. App. Houston 2006)………….………….31 Manemann v. State, 878 S.W.2d 334, 338 (Tex.App.-Austin 1994)……………..32 United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)…………32 Un…
  • Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217 (D. Colo. 2014).
    In determining whether communications constitute an unprotected true threat, they “should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.” United States v. Orozco-Sant…
  • United Food & Com. Workers Local 99 v. Bennett, 934 F. Supp. 2d 1167 (D. Ariz. 2013).
    The question of whether a statement may be considered a threat is “governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement…
  • United States v. Marc Keyser, 704 F.3d 631 (9th Cir. 2012). 2 cites
    “Whether a particular statement may properly be considered to be a threat is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the…
  • United States v. Scott Rendelman, No. 11-3604 (7th Cir. Nov. 7, 2012).
    See United States v. Saunders, 166 F.3d 907 , 912–13 (7th Cir. 1999); United States v. Veach, 455 F.3d 628, 633 (6th Cir. 2006); United States v. Orozco‐Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990).
  • United States v. Rendelman, 495 F. App'x 727 (7th Cir. 2012).
    See United States v. Saunders, 166 F.3d 907, 912-13 (7th Cir.1999); United States v. Veach, 455 F.3d 628, 633 (6th Cir.2006); United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990).
  • Jack H. Meyer v. State, No. 06-11-00205-CR (Tex. App.—Texarkana May 3, 2012). 2 cites
    United States v. Orozco–Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990); United States v. Mitchell, 812 F.2d 1250 , 1255–56 (9th Cir. 1987).
  • Meyer v. State, 366 S.W.3d 728 (Tex. App.—Texarkana 2012). 2 cites
    United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990); United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir.1987).
  • United States v. Terry Steward, 472 F. App'x 589 (9th Cir. 2012).
    “Alleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.” United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990), overruled in part on ot…
  • United States v. Havelock, 664 F.3d 1284 (9th Cir. 2012).
    Coal. of Life Activists, 290 F.3d 1058 , 1074 (9th Cir.2002) (en banc) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)).
  • United States v. Dillard, 835 F. Supp. 2d 1120 (D. Kan. 2011).
    In determining whether communications constitute an unprotected true threat, they “should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.” United States v. Orozco-Sant…
  • People v. Lowery, 257 P.3d 72 (Cal. 2011). 2 cites
    Consequently, as the Colorado Court of Appeals noted in People v. Stanley (Colo.Ct.App. 2007) 170 P.3d 782 , various federal appellate courts construing statutes criminalizing threats “almost uniformly applied an objective [reasonable pers…
  • United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011). 2 cites
    “Whether a particular statement may properly be considered to be a threat is governed by an objective standard— whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the s…
  • Holcomb v. Commonwealth, 709 S.E.2d 711 (Va. Ct. App. 2011).
    (considering the “reaction of the listeners)
  • Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009).
    Whether an objective or subjective standard is applied to determine “an intent to inflict bodily harm” exists, the speech is examined in *564 the “light of its entire factual context, including the surrounding events and reaction of the li…
  • United States v. Lewis, 313 F. App'x 703 (5th Cir. 2009).
    As stated by the Ninth Circuit, the “ ‘only intent requirement is that the defendant intentionally or knowingly communicates his threat, not that he intended or was able to carry out his threat.’ ” Id. (quoting United States v. Orozco-Sant…
  • Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008). 2 cites
    We have also characterized the objective standard as asking “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm…
  • Fogel v. Collins, No. 06-15395 (9th Cir. June 26, 2008). 2 cites
    We have also characterized the objective stan- dard as asking “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to har…
  • State v. Cook, 947 A.2d 307 (Conn. 2008).
    (applying 18 U.S.C. § 115 , which prohibits threatening to assault federal law enforcement officer)
  • State v. Johnson, 2008 UT App 5, 178 P.3d 915.
    A true threat has been described as one in which “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.” United…
  • People v. Stanley, 170 P.3d 782 (Colo. Ct. App. 2007). 2 cites
    See, e.g., People v. Baer, 973 P.2d 1225, 1231, 1233 (Colo.1999) (threat cognizable under § 18-9-111, criminalizing harassment by stalking, assessed under "an objective `reasonable person' standard"); United States v. Fulmer, 108 F.3d 1486…
  • State v. King, 135 Wash. App. 662 (Wash. Ct. App. 2006).
    Id.; United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990), overruled in part on other grounds by United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002). 2 ¶14 But the crime of felony harassment and the crime of witness…
  • Fogel v. Grass Valley Police Dep't, 415 F. Supp. 2d 1084 (E.D. Cal. 2006).
    The question here is whether Fogel’s statement that he was “a fucking suicide bomber communist terrorist!” with “W.O.M.D. on Board” was a “true threat.” Whether a particular statement is a “true threat” depends on “whether a reasonable per…
At page 1264 quotations and emphasis omitted3 citing cases1 citing court put it this way
  • United States v. Erik Quiroz Razo, No. 20-10021 (9th Cir. Sept. 24, 2021).
    (quotations and emphasis omitted)
  • United States v. Michael Wallenstein, No. 17-50003 (9th Cir. Sept. 23, 2019).
    “In reviewing for sufficiency of the evidence, we assess the evidence in the light most favorable to the prosecution, determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable d…
  • United States v. Jesus Barragan, 871 F.3d 689 (9th Cir. 2017).
    In so doing, “we assess the evidence ‘in the light *706 most favorable to the prosecution,’ determining whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. at 1014-15 (…
At page 1266 The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of kno…3 citing cases2 citing courts put it this way
  • People v. Dutton, 2014 COA 51, 356 P.3d 871.
    (The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged…)
  • State v. C.D.L., 2011 UT App 55, 250 P.3d 69.
    Particularly, "[t]he identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, in…
  • Clark v. State, 981 A.2d 666 (Md. Ct. Spec. App. 2009).
    (The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged…)
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Alfredo OROZCO-SANTILLAN, Defendant-Appellant
87-5338.
Court of Appeals for the Ninth Circuit.
May 23, 1990.
903 F.2d 1262
1990 U.S. App. LEXIS 8303
1990 WL 66604
Harriet L. Hawkins, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant., Steven G. Madison, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Hug, Schroeder, Hall.
Cited by 189 opinions  |  Published
CYNTHIA HOLCOMB HALL, Circuit Judge:

Alfredo Orozco-Santillan appeals the district court’s denial of his motion for acquit[*1264] tal and his conviction on three counts of threatening a federal law enforcement officer, in violation of 18 U.S.C. § 115. We affirm.

I

The government indicted Alfredo Or-ozco-Santillan (“Orozco-Santillan”) on three counts of threatening to assault a federal law enforcement officer, in violation of 18 U.S.C. § 115.

Count III is based on Orozco-Santillan’s statements to Immigration Naturalization Service (INS) Agent Daniel Vela (“Vela”) when Vela arrested and questioned him on June 17, 1987. Immediately prior to the statements, Vela, other INS agents, and police officers approached Orozco-Santillan and about fifteen other men at a Los Ange-les park, and asked them to form a line. Instead of complying with the request, Or-ozco-Santillan and others walked away. When asked to return, Orozco-Santillan hesitated, and two police officers led him back to the line.

Vela then questioned Orozco-Santillan, who was handcuffed and kneeling on the ground. Orozco-Santillan hesitated in his responses, but eventually admitted that he was a deportable alien. When Vela and Police Officer Earl Bevans (“Bevans”) asked Orozco-Santillan to stand, Orozco-Santillan replied, “take these handcuffs off and I’ll kick your fucking ass.” While being led to the police van, Orozco-Santil-lan pushed Vela with his body. Vela pushed back, and then Orozco-Santillan hit Vela with his elbow, calling Vela “pinche emigra,” which Vela translated as “fucking immigration.”

Orozco-Santillan was taken to jail and booked on immigration charges, where he repeated that he would “kick [Vela’s] ass” if Vela removed his handcuffs. Vela noticed that Orozco-Santillan had a tatoo of boxing gloves, and asked if he boxed. Or-ozco-Santillan replied, “Yeah, do you want to try me?”

Count II is based on Orozco-Santillan’s statements during a telephone call he made to Vela on August 4, 1987. Vela asked about the status of Orozco-Santillan’s deportation case. Orozco-Santillan said he was back on the street and could obtain information about Vela from another INS agent, Jesus Quintenar. Orozco-Santillan also said “you motherfucker, lo vas a pa-gar,” which Vela translated as “you will pay for this.”

Count I is based on Orozco-Santillan’s statements during a telephone call he made to Vela on August 6, 1987. The previous day, Vela had arrested Marco Antonio Vidal-Rubio, Orozco-Santillan’s neighbor. When Vela answered his phone the next day, the caller said “Danny, this is Orozco. Somebody is going to die.” The person also said “you ain’t shit, Vela. You’re just a punk. You better let Vidal go. You had no right arresting him. You can’t fuck with me Vela, cause I’m out on bail! You’re going to get your ass kicked, punk.” These statements, made in a loud and angry manner, frightened Vela, and he understood the person was “out to kill him.” When Orozco-Santillan was arrested on August 11, 1987, he said, “You can’t fuck with me, Vela, just because I called.”

At the close of both the government’s and his case, Orozco-Santillan moved for judgment of acquittal on all counts, pursuant to Fed.R.Crim.P. 29. The district court denied the motions. Orozco-Santillan was found guilty, following a jury trial, on all three counts, and sentenced to 18 months confinement and three years probation. He timely appeals, arguing that as to Counts II and III the government failed to prove that his statements were threats, and as to Count I the government failed to prove that Orozco-Santillan was the caller.

II

This court examines the sufficiency of the evidence to support a conviction and the denial of a motion for acquittal by reviewing the evidence “in the light most favorable to the prosecution,” determining whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Sharif, 817[*1265] F.2d 1375, 1377 (9th Cir.1987). “[T]he reviewing court must respect the province of the jury to ascertain the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a manner which supports the verdict.” United States v. Goode, 814 F.2d 1353, 1355 (9th Cir.1987) (quoting United States v. Ramos, 558 F.2d 545, 546 (9th Cir.1977)).

Ill

To convict Orozco-Santillan under 18 U.S.C. § 115(a)(1)(B), the government must prove: 1) the defendant, 2) threatened to assault, 3) a federal law enforcement officer, 4) with intent to impede, intimidate, interfere with, or retaliate against that officer, 5) while the officer was engaged in or on account of the performance of his official duties. [1] The elements of this statute have not been the specific subject of a decision in our circuit. However, by applying Ninth Circuit case law interpreting analogous statutes, [2] we find that there was sufficient evidence to support the jury’s verdict for each count.

A

Orozco-Santillan contends that his statements to Agent Vela when he was arrested and during the telephone call on August 4, 1987, were not threats. (Counts II and III).

A threat has been defined for application in other statutes as “an expression of an intention to inflict evil, injury, or damage on another.” United States v. Gilbert, 884 F.2d 454, 457 (9th Cir.1989) (quoting Webster’s Third New International Dictionary at 2382) (applying 42 U.S.C. § 3631, which prohibits interference with housing rights by force or threat of force), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990). Alleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners. Id. (citing United States v. Mitchell, 812 F.2d 1250, 1255 (9th Cir.1987) (applying 18 U.S.C. § 871, which governs threats to assault or kill the President)); accord United States v. Merrill, 746 F.2d 458, 462-63 (9th Cir.1984), (applying 18 U.S.C. § 871) cert. denied, 469 U.S. 1165, 105 S.Ct. 926, 83 L.Ed.2d 938 (1985); Roy v. United States, 416 F.2d at 876 (applying 18 U.S.C. § 871). “The fact that a threat is subtle does not make it less of a threat.” Gilbert, 884 F.2d at 457.

Whether a particular statement may properly be considered to be a threat is governed by an objective standard— whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. Mitchell, 812 F.2d at 1255-56 (reasonable person standard employed in determining whether statement is threat under 18 U.S.C. § 871); Merrill, 746 F.2d at 462. [3] Although a threat must be “distinguished from what is constitutionally protected speech” (Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (per curiam)), this is not a case involving statements with a political message. A “true” threat, where a reasonable person would foresee that the listener will believe he will[*1266] be subjected to physical violence upon his person, is unprotected by the first amendment. Merrill, 746 F.2d at 462.

As to Count III, the government established that Orozco-Santillan’s statements about kicking Vela’s “fucking ass” and boxing with him, considered in context, were threats to assault. See, e.g., Gilbert, 884 F.2d at 456-57; Merrill, 746 F.2d at 462. Vela had arrested Orozco-Santillan and subjected him to deportation proceedings. Orozco-Santillan had resisted joining the police line, had resisted answering Vela’s questions, and had cursed at him and pushed him. In these circumstances, a rational jury could construe Orozco-Santil-lan’s statements as threats.

The statements in Count II could also be considered to be threats to assault Vela. The fact that Orozco-Santillan’s subsequently said Vela “would pay,” rather than that he would injure Vela, is no defense. See Gilbert, 884 F.2d at 456-57. Further, Orozco-Santillan’s statement must be considered in context. Vela had arrested Orozco-Santillan and subjected him to deportation proceedings. In these circumstances, a rational jury could conclude that Orozco-Santillan’s statement made on the telephone was a threat.

B

Orozco-Santillan’s second argument is that the government failed to prove that he was the person who called Vela on August 6, 1987 (Count I). Orozco-Santillan concedes that there was sufficient evidence to prove all elements except his identity.

The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge of facts known peculiarly to the caller. United States v. Miller, 771 F.2d 1219, 1234 (9th Cir.1985); Fed.R.Evid. 901.

During his testimony, Orozco-San-tillan denied that he made the August 6 telephone call containing threatening statements to Vela. Vela, on the other hand, testified that he recognized the voice of the caller, that the contents of the call revealed information possessed by Orozco-Santillan, and furthermore that Orozco-Santillan admitted to making the call. Vela’s testimony, if believed, was sufficient to establish the identity of the caller. We must assume that the jury resolved the conflict between Vela’s and Orozco-Santillan’s testimony in favor of Vela. See Goode, 814 F.2d at 1355. Therefore, there was sufficient evidence such that a reasonable jury could find that Orozco-Santillan was the person who made these threats to assault Vela. Miller, 771 F.2d at 1234.

The judgment of the district court is

AFFIRMED.

1

. 18 U.S.C. § 115(a)(1)(B) states, "Whoever threatens to assault, kidnap, or murder a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section, with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b)."

2

. We find the case law interpreting 18 U.S.C. § 871 (Threats Against the President) particularly relevant. Both sections 115 and 871 focus on the same evil: the detrimental effect upon a federal official’s activity and performance of official duties that may result from threats against the official. See Roy v. United States, 416 F.2d 874, 876-88 (9th Cir.1969); Pub.L. 98-473, 1984 U.S.Code Cong, and Adm.News pp. 3182, 3496.

3

.The only intent requirement is that the defendant intentionally or knowingly communicates his threat, not that he intended or was able to carry out his threat. Gilbert, 884 F.2d at 456-57 (applying 42 U.S.C. § 3631, governing threats to interfere with housing rights); United States v. Davis, 876 F.2d 71, 73 (9th Cir.1988) (applying 18 U.S.C. § 876, governing mailing threatening[*1266] communications), cert. denied, — U.S. -, 110 S.Ct. 188, 107 L.Ed.2d 143 (1989); Mitchell, 812 F.2d at 1256 (interpreting 18 U.S.C. § 871); United States v. Roy, 416 F.2d at 877 (threat has restrictive effect upon the free exercise of Presidential responsibilities regardless of whether the person making it actually intends to assault the President). Orozco-Santillan does not contend that he did not intend to make these statements, he argues only that the statements he made could not reasonably be interpreted as threats.