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November 5, 2004.

EVA C. TEMPLE, Defendant.

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 separation.

  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.


  A. Background

  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).

  1. Temple's Arrest

  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 initiated.

  2. Temple's Dismissal from the IRS and Threat to Petherbridge

  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 ...

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