The opinion of the court was delivered by: DENNY CHIN, District Judge
On March 5, 2003, two New York City police detectives arrested
defendant Eva C. Temple for threats she had made toward her
landlord. Temple was an employee of the Internal Revenue Service
(the "IRS"), and the detectives arrested her at IRS offices in
Manhattan. During the course of the arrest and as the detectives
were transporting Temple to a police precinct in Queens, she
threatened to initiate an audit of their tax returns.
On May 2, 2003, the IRS fired Temple for unrelated employment
problems. On June 12, 2003, Temple left a threatening voicemail for the IRS employment specialist who had handled her
Temple was indicted in this case for these incidents. Count 1
charges her with willful oppression under color of law, for her
conduct in threatening the detectives with an audit. Count 2
charges her with forcible interference with a federal employee
engaged in official duties, for the threatening voicemail she
left for the IRS employment specialist.
On July 14, 2004, a jury convicted Temple on both counts.
Before the Court is Temple's motion pursuant to Fed.R. Crim. P.
29(c)(2) for a judgment of acquittal as to both counts.
Alternatively, Temple moves for a new trial pursuant to
Fed.R.Crim. P. 33.
For the reasons that follow, the Rule 29(c)(2) motion is
granted as to Count 1 and both motions are denied as to Count 2.
The facts are construed in the light most favorable to the
Government. See United States v. Hamilton, 334 F.3d 170, 179
(2d Cir. 2003).
On March 5, 2003, two detectives from the New York City Police
Department arrested Temple while she was working as a program
analyst at an IRS office in Manhattan. (Tr. at 20-21; GX 6).*fn1 Temple was arrested pursuant to a charge of
aggravated harassment following allegations that she threatened
her landlord with "physical harm and death." (Id. at 22). The
arresting detectives attempted to contact Temple and allow her to
voluntarily surrender, but after "numerous" unsuccessful attempts
the detectives decided to arrest Temple at her place of
employment. (Id. at 22-23). When the detectives took Temple
into custody, she became "very violent" and "abusive." (Id. at
25). As a result of Temple's behavior, the detectives handcuffed
her and forcibly escorted her from the building and placed her in
their vehicle. (Id. at 24-26).
In the vehicle, Temple continued to be abusive and belligerent
towards the officers, kicking the detective who was in the back
seat with her. (Id. at 26). During the ride to the precinct in
Queens Temple told the detectives that she was "an IRS employee
and . . . had the ability to initiate investigations and audits
into [their] tax histories." (Id.). She also stated that "there
were a number of brothers and sisters who held a grudge against
the NYPD and would be willing to do the same on her behalf" and
that she was part of a "group of militant black IRS employees
employed at the IRS . . . that hate [the] NYPD" and that she
would contact these "militants" to initiate an audit of the
detectives because of her arrest. (Id. at 26, 36). At the
precinct, Temple continued to act irrationally and make comments to the officers, some of which caused the officers to laugh.
(Id. at 43, 45). Eventually, the officers contacted the police
emergency services unit. (Id. at 43-44). The emergency services
unit considered using a Taser gun to subdue Temple and eventually
took Temple to a psychiatric hospital for evaluation and
treatment. (Id. at 44). Temple did not cause any audits to be
2. Temple's Dismissal from the IRS and Threat to
In late 2002, IRS Senior Labor Relations Specialist James
Petherbridge was contacted by Temple's supervisor about an
incident involving Temple in Philadelphia. (GX 4; Tr. at 55-57).
Petherbridge's responsibilities at the IRS included, among other
things, assisting IRS management with administrative issues such
as employee removals. (Tr. at 54). In the Philadelphia incident,
as Petherbridge learned in his investigation, Temple confronted a
federal protective service officer when she was asked to display
photo identification after she set off a magnetometer at an IRS
office. (Tr. at 66; GX 4). After placing her photo identification
"within an inch of the officer's face," Temple left the building,
only to return a short time later and berate the officer by
cursing and insulting him. (GX 4).
This incident, along with three other episodes of "disruptive
behavior and insubordination" for which she was suspended, caused
Petherbridge to recommend to Temple's superiors in December 2002
that she be fired. (Id.; Tr. at 64-72). During Petherbridge's continuing investigation thereafter, he also
learned about the circumstances surrounding Temple's March 5,
2003 arrest described above, including Temple's physical and
verbal assaults on the arresting officers. (Tr. at 69-70).
Temple was fired from the IRS effective May 2, 2003. (Id. at
73; GX 5). Following her dismissal, Temple failed to return her
IRS identification badge as required. (Tr. at 73-74; GX 7). On
June 12, 2003, Petherbridge received a telephone call from a bank
officer seeking to verify Temple's identity. (Tr. at 75).
Apparently, Temple was using her IRS identification at the bank.
(Id.). Petherbridge was able to identify Temple because he
heard her "yelling in the background." (Id.). Petherbridge then
asked the bank representative to confiscate Temple's IRS
identification. (Id.). The bank representative was not able to
do so because Temple's identification had already been returned
to her. (Id.).
That afternoon, at approximately 5:12 p.m., Temple left a
voicemail for Petherbridge on the IRS messaging system. (GX 1;
Tr. at 53, 76-77). The following morning, June 13, 2003,
Petherbridge played the voicemail and heard the following message
left by Temple in an angry and hostile voice: "yeah, you faggot
ass bitch ass stupid faggot fuck. I'm gonna fuck you up, you
faggot bitch." (Id. at 76-77; GX 1).
After listening to the voicemail, Petherbridge testified he was
"basically petrified" and "immediately" contacted a special agent
for the Inspector General for Tax Administration at the Department of the Treasury to report the
incident. (Id. at 77, 111). Petherbridge testified that he did
not know where Temple was when he received the voicemail and "was
afraid and had lunch the next week in [his] office because [he]
was really afraid to go out." (Id. at 78). Petherbridge
testified that he was afraid because he "was well aware of
[Temple's] actions when she was arrested, her beating up the
detectives in the ...