United States of America v. Joseph Hilton Dierks, also known as Joey Dierks, also known as @JosephDierks

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2374
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Joseph Hilton Dierks, also known as Joey Dierks, also known as @JosephDierks
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Waterloo
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Submitted: September 26, 2019
Filed: October 21, 2020
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Joseph Dierks was convicted of three counts of transmitting a threatening
communication in interstate commerce, 18 U.S.C. § 875(c), based on a series of
tweets he directed at United States Senator Joni Ernst. On appeal, he argues that

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there was insufficient evidence to convict him. He also says that the district court1
improperly instructed the jury, erred in admitting testimony from a law enforcement
officer about the meaning of his tweets, and erred by preventing him from introducing
one of his tweets into evidence. We affirm.
I.
On August 15, 2017, the United States Capitol Police started an investigation
into threatening tweets that @JosephDierks—a Twitter account controlled by
Dierks—tweeted at Senator Ernst. They asked Waterloo, Iowa police to check on him
and tell him to stop the threatening tweeting. A Waterloo officer confirmed that
Dierks sent the tweets and she warned him that if he continued he might be charged
with a crime. Dierks said that he had been trying to get Senator Ernst’s attention
because he wanted her help to join the Navy. He promised he would “tone it down.”
Dierks did not “tone it down.” The next day he sent a series of tweets at
Senator Ernst’s accounts, including the three charged in his indictment:
∑ u r sn army bitch and I’ll @USMC u tf up :)(:
∑ I’ll f u up seriously in my sleep2
∑ I’ll beat ur ass in front of ur widow I promise that
1The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
2This tweet was part of a thread that reads: “@joniernst I’ll f u up seriously in
my sleep U sent ur enforcers my police and that showed me how u can’t control this
situation Send em again ask the @USMC IF IM READY! I don’t have a heart for u
or any bitch ask her cuz u have no clue U think I’m playing…”
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Two days later, FBI Special Agents Thomas Reinwart and Scott Irwin
interviewed Dierks. During their discussion, which did not focus specifically on the
three charged tweets, Dierks admitted that his tweets could be interpreted as
threatening.
The Government charged Dierks with violating 18 U.S.C. § 875(c), which
makes it a crime to transmit in interstate commerce “any communication containing
any threat . . . to injure the person of another.” At trial, in addition to the charged
tweets, the Government introduced other tweets that Dierks sent around the same time
and Agent Irwin testified about the meaning of some of the tweets. Dierks
unsuccessfully tried to introduce another tweet that he thought was exculpatory.
The jury convicted Dierks on all three counts and the district court sentenced
him to 72 months in prison.
II.
Dierks first claims there was insufficient evidence to prove that his tweets were
“true threats” and not protected by the First Amendment. We review sufficiency of
the evidence challenges de novo.3 United States v. Birdine, 515 F.3d 842, 844 (8th
Cir. 2008). We view the record in favor of the verdict and resolve evidentiary
conflicts accordingly, giving all reasonable inferences to the verdict. United States
v. Conway, 754 F.3d 580, 587 (8th Cir. 2014).
A “true threat” is 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) (en banc).
3The Government argues that we should review this claim for plain error
because Dierks failed to renew his motion for judgment of acquittal at the close of
evidence. The record says otherwise. Trial Tr. 124:10–12.
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“[T]o decide whether there is sufficient evidence from which the jury can find that a
reasonable recipient would interpret a communication as a threat, the communication
must be viewed in textual context and also in the context of the totality of the
circumstances in which the communication was made.” United States v. Mabie, 663
F.3d 322, 331 (8th Cir. 2011) (citation omitted).
Dierks argues his tweets were political statements that, in context, could not
be understood as threatening. It is true that we distinguish “political hyperbole” from
true threats. Watts v. United States, 394 U.S. 705, 708 (1969); see also id. (when
assessing threatening statements we must account for our “profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials” (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))). But political context alone will
not excuse a threat. See United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir.
1993).
Dierks claims he wanted Senator Ernst’s help to join the Navy. Although some
of his tweets reference the armed forces (e.g., “u r sn army bitch and I’ll @USMC u
tf up :)(:”), the language he used is not the sort of overstated political hyperbole to
which we give wide berth. See, e.g., Watts, 394 U.S. at 706 (draft protester could not
be prosecuted for saying, “If they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.”). Threatening communications that are not conditional, not
clearly political in context, and do not “in any sense contribute to the values of
persuasion, dialogue, and the free exchange of ideas,” are true threats and fall outside
of the First Amendment’s protection. Bellrichard, 994 F.2d at 1322.
Dierks’s tweets have no readily apparent political valence and the context of
the dozens of other tweets Dierks directed at Senator Ernst intensifies their
threatening message. On the same morning he sent the charged tweets, Dierks also
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sent tweets that read: “@joniernst I’ll flatline ur ass like @tendoublezero lol,”
“@senjonernst [sic] i want u to die sorry not sorry,” “@SenJoniErnst I’ll end u cuz
u think u r a man,” and “@SenJoniErnst @TENdoubleZERO Ur a bitch deserving
death I ask for life.” D. Ct. Dkt. 56-7. Alleged political motivation does not
overcome this threatening context.
Dierks next argues that his tweets could not be true threats because they do not
make sense. The “true threat” doctrine only requires that a jury find that a
defendant’s statement was serious, not literal or even intelligible. See Virginia v.
Black, 538 U.S. 343, 359 (2003). Even if “a person expresses himself in an
outlandish, illogical manner,” his statements can be seriously threatening. United
States v. Mitchell, 812 F.2d 1250, 1256 (9th Cir. 1987), overruled on other grounds
by Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,
290 F.3d 1058, 1068–70 (9th Cir. 2002) (en banc). Dierks’s tweets communicate,
with varying degrees of clarity, a desire to hurt Senator Ernst. That it is not perfectly
clear what it means to “USMC someone up” does not render the message of harm
ambiguous.
Finally, Dierks argues that the Government never proved he transmitted the
tweets “for the purpose of issuing a threat, or with knowledge that the communication
will be viewed as a threat.” Elonis v. United States, 135 S. Ct. 2001, 2012 (2015).
We disagree. Dierks was warned before tweeting that his tweets were threats and he
later admitted his tweets could be viewed that way. Dierks stresses that he only
admitted that his tweets could be viewed as threats, not that he knew they would be
viewed that way. However, a jury “can draw inferences about a defendant’s intent
based on all the facts and circumstances of a crime’s commission.” Rosemond v.
United States, 572 U.S. 65, 78 n.9 (2014). Dierks’s admission, the threatening
content of his tweets, and the warning from the Waterloo police officer were enough
to allow a reasonable jury to find that he intended his tweets as threats or knew they
would be viewed that way. See United States v. Wynn, 827 F.3d 778, 785–86 (8th
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Cir. 2016) (“It is well established that a jury may infer intent from circumstantial
evidence.”) (citation omitted).
III.
The district court instructed the jury that, for each charged tweet, it must find
(1) “the defendant knowingly transmitted a communication in interstate commerce,”
(2) “the communication contained a threat to injure another person,” and (3) “the
defendant intended the communication to be threatening and/or knew it would be
considered threatening.” D. Ct. Dkt. 55 at 12–14. Dierks finds three errors in these
instructions. We review for abuse of discretion and will reverse only if the abuse was
not harmless.4 United States v. Parker, 871 F.3d 590, 604 (8th Cir. 2017); United
States v. Dvorak, 617 F.3d 1017, 1026 (8th Cir. 2010).
First, Dierks argues that the district court should have done more to define
“threat” for the jury, making it clear that the statute punishes “serious threat[s]—not
idle talk, a careless remark, or something said jokingly.” D. Ct. Dkt. 43. Although
we have affirmed cases where the district court provided a more extensive
explanation of the term, we have never required such an instruction. See, e.g., United
States v. Koski, 424 F.3d 812, 820 (8th Cir. 2005). Dierks argues that omitting the
proposed explanation precluded him from arguing that his tweets were cries for
attention not to be taken seriously. This claim—that he did not intend his threats to
be read seriously—is a different way of saying that Dierks lacked the necessary mens
rea to violate § 875(c). But, as discussed below, the district court adequately
4The Government makes another bad argument about our standard of review,
claiming Dierks failed to object to the court’s instructions. The record contradicts
this claim too. Dierks twice filed written objections to the district court’s proposed
instructions, D. Ct. Dkt. 43, 46, and the district court acknowledged the objections at
trial, see Trial Tr. 6–7.
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instructed the jury on the mens rea requirement of the statute. In order to find him
guilty, the jury must have determined Dierks intended to do more than seek attention.
Second, Dierks argues that the final element of the jury instructions—the mens
rea element—should have required the jury to find that he either intended to threaten
another person or knew his tweets would be viewed as a threat by a reasonable
person. D. Ct. Dkt. 43. The Supreme Court has clarified that § 875(c) contains an
implicit mens rea requirement that “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 v. United States, 135 S. Ct. 2001,
2012 (2015). An instruction requiring Dierks to have “knowledge that the
communication will be viewed as a threat by a reasonable person,” misstates the
mens rea standard applicable to § 875(c) cases, so the district court did not abuse its
discretion by rejecting it.
Finally, Dierks argues that the second element of the jury instructions should
have read: “a reasonable person would view the communication as an objective
threat to injure another person.” Trial Tr. 7 (emphasis added). We have held that a
conviction under § 875(c) “requires the government to prove a reasonable recipient
would have interpreted the defendant’s communication as a serious threat to injure,”
but we did so because we considered § 875(c) to be a general intent crime that did not
require that the defendant intended to threaten. United States v. Nicklas, 713 F.3d
435, 440 (8th Cir. 2013).
Elonis significantly undercut Nicklas by establishing that § 875(c) is a specific
intent crime. Now, the key question for mens rea is whether the defendant
“trasmit[ted] a communication for the purpose of issuing a threat or with knowledge
that the communication [would] be viewed as a threat.” Elonis, 135 S. Ct. at 2012.
Nicklas no longer provides a rationale for requiring a jury to find that a threat would
appear as such to a “reasonable person.”
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That does not mean that the “reasonable person” has no place in § 875(c) cases.
It continues to be a necessary part of our “true threat” analysis. Elonis did not alter
the requirement that prosecutions target only “true threats.” This requirement is
satisfied by an objective finding that a reasonable person would have been threatened
by the charged communication. See Mabie, 663 F.3d at 332–33; see also United
States v. Elonis, 841 F.3d 589, 596 (3rd Cir. 2016) (finding § 875(c) retains an
objective component).
We conclude that the district court should have required both a subjective
finding of knowledge or intent and also an objective finding that the communication
was threatening. See United States v. Jeffries, 692 F.3d 473, 485 (6th Cir. 2012)
(Sutton, J., dubitante). Nevertheless, because his tweets were objectively threatening,
we believe it is clear beyond a reasonable doubt that a rational jury would have found
Dierks guilty absent that error. See Dvorak, 617 F.3d at 1024–25. The error was
harmless.
IV.
Finally, Dierks raises two evidentiary challenges. First, he argues that the
district court erred by admitting testimony from a law enforcement officer about the
meaning of his tweets. Second, he claims it improperly excluded a tweet that he
thinks is exculpatory. We review both decisions for an abuse of discretion. United
States v. Beasley, 688 F.3d 523, 533 (8th Cir. 2012); United States v. Suhl, 885 F.3d
1106, 1116 (8th Cir. 2018).
A.
Special Agent Irwin testified at trial about the meaning of Dierks’s tweets.
Dierks argues that Agent Irwin offered improper lay-opinion testimony because he
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explained that when Dierks wrote “tf,” he meant “the fuck,” “f u up” meant “fuck you
up,” and that capital letters meant a raised voice.
Lay testimony is admissible under Federal Rule of Evidence 701 if it is: “(a)
rationally based on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Dierks
argues that Agent Irwin’s testimony was not rationally based on his perception but
was instead expert testimony.
We have been skeptical of lay testimony from law enforcement officers
“interpreting” evidence. In United States v. Peoples, 250 F.3d 630 (8th Cir. 2001),
we ordered a new trial after a police officer testified at length regarding the “hidden
meanings for apparently neutral words” in recorded conversations. Id. at 640. For
example, the officer testified that when one defendant told another that they should
“buy [] a plane ticket” for someone, he was really suggesting that they kill the person.
Id. We explained such testimony is admissible under Rule 701 “only when the law
enforcement officer [was] a participant in the conversation, ha[d] personal knowledge
of the facts being related in the conversation, or observed the conversations as they
occurred.” Id. at 641.
The district court did not abuse its discretion in admitting Agent Irwin’s
testimony because it differed from the testimony in Peoples. First, the officer in
Peoples testified about meanings that were intentionally hidden from all but the
participants in the conversation. Agent Irwin explained common abbreviations and
syntax that Dierks probably thought would be understood by anyone with a Twitter
account. See Longoria v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258, 262 n.3
(5th Cir. 2019) (explaining that “‘lmao’ stands for ‘laughing my ass off’”). Second,
unlike the testimony in Peoples, Agent Irwin’s testimony was not used by the
Government to provide a “narrative gloss” on the facts of the case. See Peoples, 250
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F.3d at 640. Third, Agent Irwin’s testimony was “about facts within [] his range of
generalized knowledge, experience, and perception,” US Salt, Inc. v. Broken Arrow,
Inc., 563 F.3d 687, 690 (8th Cir. 2009) (citation omitted). Agent Irwin testified that
his familiarity with internet slang came from having a Facebook account, texting his
children, and occasionally consulting Urban Dictionary.5
Even if there was an abuse of discretion, it was harmless. See United States v.
Manning, 738 F.3d 937, 942 (8th Cir. 2014). Unlike cases where we have found
harmful error because a witness’s testimony laid out the Government’s case or offered
the prosecutor’s conclusions in the form of opinion testimony, see Peoples, 250 F.3d
at 642, Agent Irwin defined a few abbreviations for the jury. Because the jurors were
probably already familiar with the abbreviations, nothing he said would have had
“more than a slight influence on the jury’s verdict.” Manning, 738 F.3d at 942.
B.
Dierks attempted to introduce a tweet he sent after he spoke with the Waterloo
officer (the day before the charged tweets). It read: “So the cops came by asking
about Twitter. I share videos and make comedic comments. Nothing to be Afraid of.
LMAO.” The district court excluded the tweet as hearsay. Dierks argues it was
admissible under Federal Rule of Evidence 803(3), which allows the admission of
“[a] statement of the declarant’s then-existing state of mind (such as motive, intent,
or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or
bodily health).”
The “circumstantial guarantee of trustworthiness” that makes a statement
admissible under Rule 803(3) “is that it requires [a] statement be contemporaneous
5Dierks argues that Agent Irwin’s reference to Urban Dictionary creates a
hearsay problem. But Irwin only referenced Urban Dictionary once and Dierks does
not challenge that portion of his testimony.
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with the declarant’s ‘then existing’ state of mind . . . . [S]ubstantial contemporaneity
of event and statement negate the likelihood of deliberate or conscious
misrepresentation.” United States v. Naiden, 424 F.3d 718, 722 (8th Cir. 2005)
(citation omitted). As a result, we exclude evidence if the defendant had “time to
reflect” on his situation before making the statement. Id. This tweet was sent, not
tagging Senator Ernst, on the morning of August 15—roughly 18 hours before Dierks
sent the charged tweets.6 That is not contemporaneous enough with his charged
tweets, id., and the district court did not abuse its discretion by excluding it.
For the foregoing reasons, we affirm Dierks’s conviction.
______________________________
6There was some confusion at trial regarding the exact timeline—no one was
certain what time zone the time stamps on the PDF versions of the tweets referred to.
According to those time stamps, this tweet was sent at 9:53 a.m. The charged tweets
were sent around 4:00 a.m. the next day.
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