Wednesday, May 03, 2006

Court Reverses Conviction for "Assault by Voicemail" but Upholds Charge of Willfully Oppressing a Person in Connection with Revenue Laws

United States v. Temple, Docket No. 05-0165-cr(L); 05-0679(XAP) (2d Cir. May 1, 2006) (Miner, Wesley, Rakoff)

Eva Temple, an IRS employee, was charged with disruptive behavior in two separate incidents. In the first, two New York City Police Detectives came to arrest her at her place of work, and, as they did, she verbally abused them. In the police car on the way to the precinct, she told the detectives that "she had the 'ability to initiate investigations and audits into the[ir] tax histories'" and that she had co-workers who held a grudge against the police whom she could tell to audit their tax returns. For this, she was charged with willfully oppressing a person under color of law while acting in connection with a revenue law of the United States. 26 U.S.C. § 7214(a). Ms. Temple was subsequently fired from her job and made a telephone call to the official who had recommended her firing. The official received a voicemail message about nineteen hours after it was left, threatening to "fuck you up, you faggot bitch." For this, she was charged with "forcibly" assaulting or intimidating the official.
18 U.S.C. § 111. The district court granted a judgment of acquittal on the oppression charge, holding that it was not under "color of law," since she was not acting under any actual authority, was not even "apparently" empowered to punish the officers, and that the officers were laughing at her taunts; it upheld the "forcible" assault or intimidation charge, however.

The Circuit reversed both rulings of the district court. It found fairly easily that the threat to "fuck up" an official left on his voicemail many hours before the message was finally received did not involve the "immediate or imminent threat" necesessary for a conviction for "forcible" intimidation. That was despite the threatened official's testimony that he was "basically petrified" after receiving her call because he was aware of her actions at the time of her arrest and that he had "great concerns about [his] own safety."

The Circuit reversed the judgment of acquittal on the oppression count, however. It held that Ms. Temple's employment by the IRS clothed her with "indicia of authority" and that she made a "specific and direct threat under the guise of apparent authority." It noted that the officers were unaware that Temple probably did not have authority to initiate any audit of their tax status.

Judge Wesley concurred, writing to express his concern that the court's reliance on its prior decision in United States v. Giordano, 442 F.3d 30 (2d Cir. 2006), had allowed "a victim's subjective beliefs or fears about a defendant's ability to or willingness to use his or her public position to cause harm" to be the basis for a finding that a defendant was acting "under color of law." Judge Wesley stated that he would hold that Temple's threats were under color of law without regard to the police detectives' subjective beliefs or fears about her actions. He urged that the color of law inquiry be based on "objective criteria."


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