United States of America v. Anthony Unocic

United States Court of Appeals
For the Eighth Circuit
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No. 24-1057
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Anthony Unocic,
lllllllllllllllllllllDefendant - Appellant.
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University of Nebraska College of Law’s First Amendment Clinic
lllllllllllllllllllllAmicus on Behalf of Appellant(s)
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 19, 2024
Filed: April 28, 2025
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Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges.
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COLLOTON, Chief Judge.
A jury convicted Anthony Unocic of one count of threatening to assault a
federal officer under 18 U.S.C. § 115(a)(1)(B). On appeal, Unocic argues that the
district court* plainly erred when instructing the jury on the mental state required for
the offense. We affirm.
While incarcerated in a Nebraska detention center, Unocic told two fellow
inmates that he wanted to kill a federal agent named Tubbs who had investigated
Unocic. The inmates took the threats seriously because Unocic bragged about a
previous violent standoff with police, told the inmates he would use his training with
explosives and knives, and spent eight minutes demonstrating stabbing techniques
that he would use to murder the agent. Unocic boasted that he would have no
problem walking up to Agent Tubbs with a grenade and blowing up both of them.
The inmates, concerned that Agent Tubbs’s life was at risk, reported Unocic’s threats
to federal agents.
A grand jury charged Unocic with one count of threatening to assault a federal
officer in violation of 18 U.S.C. § 115(a)(1)(B) and (c)(1). Section 115(a)(1)(B)
provides:
Whoever . . . threatens to assault, kidnap, or murder . . . a Federal law
enforcement officer . . . with intent to retaliate against such . . . law
enforcement officer on account of the performance of official duties,
shall be punished as provided in subsection (b).
*The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
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Unocic pleaded not guilty, and the case proceeded to trial. The district court
gave a jury instruction that specified four elements that the government must prove
to establish that Unocic committed the charged offense:
One, . . . Mr. Unocic made a threat to assault Agent Tubb;
Two, Mr. Unocic either knew or intended that others would regard his
communication as threatening violence, or recklessly disregarded a
substantial risk that others could regard his communication as
threatening violence;
Three, at the time Unocic issued the threat, Agent Tubbs was a federal
law enforcement officer; and
Four, Mr. Unocic made the threat with intent to retaliate against Agent
Tubbs on account of the performance of his official duties.
Regarding element two, the district court included the following definition: “A
person ‘recklessly disregards’ a substantial risk within the meaning of this offense
when he is aware of the risk, but consciously, deliberately, or carelessly ignores it and
decides to act anyway.”
The court’s use of the term “carelessly” in the definition of “recklessly
disregards” is the focus of this appeal. Unocic did not object to that term in the
district court. He objected to the instruction on a different ground—that element two
should have referred to “Agent Tubbs” rather than “others”—and the district court
overruled the objection. A jury found Unocic guilty, and the district court sentenced
him to thirty-three months’ imprisonment.
On appeal, Unocic argues for the first time that the jury instruction’s use of the
word “carelessly” in defining “recklessly disregards” allowed the jury to convict him
for speech that is protected by the First Amendment. When a defendant objects to a
jury instruction in the district court, but on different grounds than he raises on appeal,
we review for plain error. United States v. Davis, 901 F.3d 1030, 1034 (8th Cir.
2018). To show plain error, Unocic must establish that “(1) there is an error; (2) the
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error is clear or obvious, rather than subject to reasonable dispute; (3) the error
affected [his] substantial rights, which in the ordinary case means it affected the
outcome of the district court proceedings; and (4) the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks omitted).
When evaluating a challenge to a jury instruction, we do not view each
instruction or portion thereof in artificial isolation, but consider any disputed
instruction in the context of the overall charge to the jury. Boyde v. California, 494
U.S. 370, 378 (1990). We then assess whether there is a reasonable likelihood that
the jury instructions, taken as a whole, misled the jury to convict the defendant based
on an incorrect standard. Id. at 380. On plain error review, therefore, Unocic must
show that a reasonable likelihood of misleading the jury was “obvious.” If that prong
is satisfied, then he must show a reasonable probability that the error affected the
outcome of the trial. United States v. Haynie, 8 F.4th 801, 805 (8th Cir. 2021).
Unocic relies on Counterman v. Colorado, 600 U.S. 66 (2023), where the
Supreme Court held that in a prosecution for making true threats of violence, the First
Amendment requires proof that the defendant acted with at least reckless disregard
of the threatening nature of his statements. An objective “reasonable person”
standard, without proof that the defendant had any kind of subjective intent to
threaten, is insufficient. Id. at 78, 82. Unocic argues that the district court flouted
this rule by instructing the jury that a defendant “recklessly disregards” a substantial
risk when he is aware of the risk but “carelessly” ignores it and decides to act
anyway. Unocic maintains that the instruction impermissibly allowed a conviction
without a showing that he had a subjective understanding of the threatening nature
of his statements.
The word “carelessly” is an awkward fit in a definition of “recklessly
disregards.” Standing alone, at least, the term carelessness connotes a different mens
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rea than does recklessness. “Someone who acts recklessly with respect to conveying
a threat . . . is not merely careless. He is aware that others could regard his statements
as a threat, but he delivers them anyway.” Elonis v. United States, 575 U.S. 723,
745-46 (2015) (Alito, J., concurring in part and dissenting in part). It appears that the
district court included the term “carelessly” because it borrowed language from a
model jury instruction for sex trafficking offenses.
Taking the jury instructions as a whole, however, we conclude that there is no
obvious error. The instruction did not advise the jury that Unocic could be convicted
merely for acting carelessly with respect to conveying a threat. The jury was required
to find that Unocic “recklessly disregarded a substantial risk that others could regard
his communication as threatening violence.” The jury was further advised that a
person “recklessly disregards” a substantial risk only if he is “aware of the risk” and
“decides to act anyway.” The word “carelessly” was included only with respect to the
defendant’s act of ignoring the risk—“consciously, deliberately, or carelessly ignores
it.” Because the instruction still required proof that the defendant (1) was aware of
the substantial risk that others could regard his statements as a threat and (2) decided
to act anyway, there is not a reasonable likelihood that the jury convicted Unocic for
carelessly conveying a threat without a subjective understanding of the threatening
nature of his statements.
The instruction further required the jury to find the defendant “made the threat
with intent to retaliate against Agent Tubbs.” With this additional requirement of a
subjective mental state, it is even more unlikely that a jury would have focused on the
word “carelessly” in isolation to conclude that it could convict Unocic for intending
to retaliate against the federal agent by making a “careless” threat without a
subjective understanding of the true threat. There is no obvious reasonable likelihood
that the jury instructions, taken as a whole, misled the jury to convict Unocic based
on an incorrect standard in violation of his rights under the First Amendment. There
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is thus no plain error warranting relief. See United States v. Wilkins, 25 F.4th 596,
601 (8th Cir. 2022).
The judgment of the district court is affirmed.
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