The opinion of the court was delivered by: Judge Conner
Presently before the court is a post-trial motion for judgment of acquittal (Doc. 66), filed by defendant Abraham Cruz ("Cruz"). Cruz moves for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. For the reasons that follow, the motion (Doc. 66) will be denied.
I. Factual Background & Procedural History
On August 10, 2011, a grand jury indicted Cruz on one count of threatening to assault and kill employees of the United States Social Security Administration in violation of 18 U.S.C. § 111 and two counts of threatening to assault and kill a United States Department of Homeland Security Federal Agent in violation of 18 U.S.C. § 115. (Doc. 11). Cruz pleaded not guilty to all three counts, and a jury trial commenced on April 2, 2012. (Doc. 19; Tr. at 1). The following evidence was adduced at trial.
On August 8, 2011, Cruz entered the United States Social Security Administration Office in Harrisburg, Pennsylvania around 8:45 a.m. to discuss his benefits with a claims representative. (Trial Transcript at 70)*fn1 . The representative informed Cruz that he would be unable to receive benefits until a medical decision was made. (Doc. 49 ¶ 5). Cruz became agitated and exited the interview room at approximately 9:50 a.m. (Id.; Tr. at 71). Protective Service Officer Kevin Gebherd ("PSO Gebherd"), who was stationed in the waiting area of the Social Security Administration Office, testified at trial that Cruz first said something unintelligible and then yelled "you're going to need toe tags" as he exited the office.*fn2 (Tr. at 71). PSO Gebherd reported the incident to the Protective Service "megacenter" in Philadelphia around 9:55 a.m.
Around 10:30 a.m., Department of Homeland Security Special Agent Edward Ryan ("Special Agent Ryan"), whose job involves investigating alleged crimes against government employees or on government property, received a telephone call advising him of the situation that had occurred in Harrisburg that morning. (Tr. at 96--97, 99--100). Special Agent Ryan received an e-mail describing the situation and then spoke with PSO Gebherd via telephone. (Tr. at 101).
At approximately 1:30 p.m., Special Agent Ryan telephoned Cruz in order to determine whether Cruz had calmed down since the morning, to further discuss the incident, and ultimately to "mitigate the threat."*fn3 (Tr. at 103). Special Agent Ryan identified himself and asked Cruz if he had been to the Social Security Administration, to which Cruz responded that he had. (Tr. at 104). Special Agent Ryan testified that Cruz became agitated during the phone call, made threats against Social Security employees, and told Special Agent Ryan that he was going to "take [his] ticket book, take [his] gun, take [his] doughnut and beat [his] ass." (Tr. at 104). Special Agent Ryan testified that Cruz, after making more threats, terminated the call. (Tr. at 105).
Special Agent Ryan then called the United States Attorney's Office for the Middle District of Pennsylvania and advised Assistant United States Attorney Kim Daniel ("AUSA Daniel") of the circumstances and content of the call. (Tr. at 107). AUSA Daniel authorized Special Agent Ryan to call Cruz back and record the telephone conversation, and Special Agent Ryan did so at approximately 2:30 p.m. (Tr. at 108). During the second telephone call, Cruz made statements such as "[t]here gonna be a war about this," "you should be concerned about yourself . . . If I'm gonna tell you I'm gonna kill you, I ain't gonna tell you I'm gonna kill you, I'm gonna swing at you, all I gotta do is hit you one time," and "[w]hy don't you come see me in person so we can talk and see whatever, so I can see what I'm talking to. Give me a target, you have one." (Tr. at 111; Ex. 200).
Special Agent Ryan contacted AUSA Daniel; AUSA Daniel listened to the recording of the telephone call and requested that Special Agent Ryan travel from Philadelphia to Harrisburg. (Tr. at 114). Once in Harrisburg, Special Agent Ryan filed a criminal complaint and obtained an arrest warrant for Cruz. (Tr. at 114). Special Agent Ryan, along with eight armed inspectors and police officers, arrested Cruz at his sister's house at approximately 6:00 p.m on August 8, 2011.*fn4 (Tr. at 116--17).
During the trial, the parties stipulated that Cruz had "previously received Social Security benefits based on a diagnosis of affective/mood disorders and personality disorders," and that Cruz had applied in August, 2011 for Social Security benefits "for bipolar disorder and multiple personalities." (Doc. 49 ¶¶ 1, 2). Special Agent Ryan testified on cross-examination that some of Cruz's statements during the phone calls were unintelligible or unresponsive. (Tr. at 128--31). Cruz's sister, Yvette Cruz, testified that Cruz had bipolar disorder and that he had been talking to himself leading up to the August 8, 2011 incidents because he had not been taking any medication. (Tr. at 147--48, 152). Yvette Cruz stated that her brother often used the phrase "toe tags," sometimes referring to himself as "toe tags and body bags." (Tr. at 151--52, 157).
At the conclusion of the prosecution's case, Cruz moved for a judgment of acquittal on all three counts pursuant to Rule 29 of the Federal Rules of Criminal Procedure. (Tr. at 137). The court granted the motion with respect to count one- the violation of 18. U.S.C. § 111-and denied the motion with respect to counts two and three. (Tr. at 144). On April 3, 2011, the jury found Cruz guilty of the two remaining counts. (Doc. 59). Cruz timely renewed his motion for a judgment of acquittal with respect to counts two and three on April 24, 2011.*fn5 (Doc. 66). The motion is now ripe for disposition.
On a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, the court must "determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). "[I]f there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury's decision," then the court must sustain the verdict. United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). Under the highly deferential standard of review for a Rule 29 motion for judgment of acquittal, it is not the court's task to "weigh credibility and assign weight to the evidence." United States v. Brodie, 403 F.3d 123, ...