Threat against judge not protected by attorney-client privilege, 8th Circuit rules
Image from Shutterstock.com.
A federal appeals court has upheld the conviction of a man for threatening a federal judge in a phone call with his lawyers.
The St. Louis-based 8th U.S. Circuit Court of Appeals upheld the conviction of Robert Ivers in a July 23 opinion. The court said the threat was not protected by attorney-client privilege. Law360 has coverage.
Ivers was convicted in September 2018 for making this statement to his lawyers: “You don’t know the 50 different ways I planned to kill her.”
He was referring to U.S. District Judge Wilhelmina Wright of St. Paul, Minnesota, who ruled against Ivers in an insurance dispute.
Ivers began expressing anger toward Wright well before the phone call with his lawyers, the appeals court said.
After Wright ruled against Ivers on all but one claim, Ivers had mailed court materials to Wright with angry notes. Comments on the notes included: “I do not know where I am f- - -ing sleeping tonight! Think about it!”; “I am sick and tired of this f- - -ing bullshit!”; “I want my f- - -ing money.”; “I will not negotiate!!!”; “Have I made myself clear!!!”; “I am in dire f- - -ing straits!”; and “I am becoming a very dangerous person!!!”
Ivers also expressed anger when he didn’t get a jury trial on the remaining claim because no one had requested one. “I smell a rat! Somebody needs to explain to me what the f- - - is going on!?” he wrote in a letter demanding a jury.
After Ivers lost at trial, he sent mailings to multiple people using the phrase “walking bomb” and calling Wright corrupt. When deputy marshals visited Ivers’ home, he refused to retract his statements and confirmed that he remained a “ticking time bomb.” If someone is living in fear, that’s “too f- - -ing bad,” Ivers said. “It’s what they deserve.”
Ivers filed a second suit against the insurance company, and he was matched with two lawyers from Fredrikson & Byron working for a pro se project. In a phone call, the lawyers told Ivers that his suit would likely be unsuccessful because of Wright’s rulings in the previous suit.
Ivers began to rant against Wright, saying the judge stacked the deck against him to make sure he lost the case. “This f- - -ing judge stole my life from me,” he allegedly said.
During the rant, he made the statement about the 50 different ways he planned to kill the judge.
The lawyers were frightened by Ivers’ statements, the 8th Circuit said. After consulting with their firm’s ethics advisers, the lawyers reported the threat to the pro se project. When U.S. deputy marshals visited Ivers, he shouted at them and continued to rant against the judge.
Ivers was convicted of threatening to murder a federal judge and interstate transmission of a threat to injure another person.
The 8th Circuit concluded the statements were not protected by attorney-client privilege, which protects communications made to obtain legal advice.
“Ivers’ statements, particularly his comment that ‘You don’t know the 50 different ways I planned to kill her,’ undoubtedly threatened the life of a federal judge and were in no way necessary to further his civil lawsuit or made in order to obtain guidance in filing an amended complaint,” the 8th Circuit said. “For these reasons, it is clear that the statements at issue were not for the purpose of obtaining legal advice about his pending lawsuit against an insurance company and are not protected by the attorney-client privilege.”
Ivers also argued his language was intentionally exaggerated and hyperbolic. But Ivers had expressed anger with Wright for almost two years, and also had a prior conviction for stalking a Minnesota state court judge, the court said. In this context, Ivers’ comments could be perceived as a true threat, the court said.
The court also rejected Ivers’ assertion that he couldn’t be convicted for threatening to murder a federal judge unless he subjectively intended his language as a threat.
Brett Kelley of Kelley, Wolter & Scott, who represented Ivers, told Law360 that Ivers is likely to ask the U.S. Supreme Court to consider his case.
He described the decision as holding that purported threats of violence “are never privileged even where legal advice is not sought in furtherance of a crime or fraud.” He also told Law360 that the court held that “individual statements not made expressly for the purpose of obtaining legal advice may be severed from a privileged communication.”