United States v. Cloepha Franks

USCA11 Case: 24-11546 Document: 40-1 Date Filed: 09/25/2025 Page: 1 of 9

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-11546

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLOEPHA FRANKS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:23-cr-00119-KD-MU-1

____________________

Before NEWSOM, GRANT, and BRASHER, Circuit Judges.

PER CURIAM:

Cloepha Franks appeals his conviction under 18 U.S.C. §

875(c) for transmitting threats in interstate commerce. Franks was

fired from his construction job after leaving his employer a series

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2 Opinion of the Court 24-11546

of profanity-laden voicemails angrily demanding a raise. The next

month, he sent his former supervisor, Kelly Watts, a series of text

messages threatening to kill him. Based on these text messages, he

was arrested, tried, and found guilty by a jury of violating section

875(c). Franks was sentenced to 33 months in prison.

On appeal, he argues that the district court made three er-

rors. First, he asserts that the district court erred in denying his mo-

tion for judgment of acquittal because the government failed to in-

troduce sufficient evidence that he knowingly or intentionally

transmitted a true threat through interstate commerce. Second, he

argues that the district court erred by excluding earlier non-threat-

ening text messages he sent to the supervisor because they were

relevant to the supervisor’s state of mind when he received the

threatening text messages. Third, he argues that the district court

erred by applying an enhancement for offenses involving more

than two threats because his string of texts constituted one threat.

Because each of these arguments fails, we affirm.

I.

We will start with Franks’s arguments about the sufficiency

of the evidence. We review a challenge to the sufficiency of the

evidence and the denial of a Federal Rule of Criminal Procedure 29

motion for judgment of acquittal de novo. United States v. Chafin, 808

F.3d 1263, 1268 (11th Cir. 2015). We will uphold the district court’s

denial of a motion for judgment of acquittal if a reasonable trier of

fact could conclude that the evidence establishes the defendant’s

guilt beyond a reasonable doubt. United States v. Holmes, 814 F.3d

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24-11546 Opinion of the Court 3

1246, 1250 (11th Cir. 2016). We view all facts and inferences in the

light most favorable to the government. Id.

18 U.S.C. § 875(c) prohibits “transmit[ting] in interstate or

foreign commerce any communication containing any threat to

kidnap any person or any threat to injure the person of another.”

A true threat is a serious expression conveying that a speaker

means to “commit an act of unlawful violence.” Virginia v. Black,

538 U.S. 343, 359 (2003). A statement can count as a threat based

solely on its objective content. Counterman v. Colorado, 600 U.S. 66,

72 (2023). To obtain a conviction under section 875(c), the govern-

ment must prove beyond a reasonable doubt that (1) a communi-

cation was transmitted in interstate commerce; (2) the communi-

cation contained a threat; and (3) the defendant intended to issue

threats or knew they would be perceived as such. 18 U.S.C.

§ 875(c); Elonis v. United States, 575 U.S. 723, 732 (2015). A showing

of recklessness is enough to satisfy the mens rea requirement. Coun-

terman, 600 U.S. at 79. Franks does not dispute that the communi-

cation was transmitted in interstate commerce.

The district court did not err in denying Franks’s motion for

judgment of acquittal because a reasonable trier of fact could find

Franks guilty of transmitting a threat through interstate commerce.

Franks promised to shoot Watts. He said he knew where Watts

worked (which was true) and when (also true). He sent at least ten

of these messages over a period of several hours, despite Watts’s

repeated requests to be left alone. Graphic promises to commit

murder are paradigmatic threats. See United States v. Callahan, 702

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F.2d 964, 966 (11th Cir. 1983) (finding letter “threatening on its

face” where it stated an intent to commit murder); United States v.

Bozeman, 495 F.2d 508, 510 (5th Cir. 1974) (finding it “clear beyond

cavil” that a promise to commit murder was a threat under section

875(c)). Like the letter in Callahan, Franks’s text messages specified

“a date, time, and place” where the murder would occur: Monday

morning at the “Cross road.” Id. Franks’s repeated promises to

murder Watts were threats under section 875(c).

A reasonable jury could also find that Franks intended to

convey a threat. Elonis, 575 U.S. at 740; Counterman, 600 U.S.at 69.

Intention to convey a threat can be determined through circum-

stantial evidence of mental state. United States v. Curtin, 78 F.4th

1299, 1306 (11th Cir. 2023). The defendant’s “own words” are pow-

erful evidence of intent to convey a threat. Id. Franks warned Watts

that he would “never know when I [am] going to pull up you.”

This, along with Franks’s numerous other promises to kill Watts,

was ample evidence to support the jury’s determination that

Franks intended to convey a threat.

In response, Franks argues that there was not sufficient evi-

dence to convict because Watts’s reaction was not “indicative of

someone who considered the texts to be truly threatening.” Franks

cites Watts’s responses to Franks’s text messages, in which Watts

claimed he was not afraid of Franks. But there was more than

enough evidence to the contrary for the jury to reject Franks’s ar-

gument. Watts reported Franks’s messages to his company’s hu-

man resources manager the morning immediately after receiving

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24-11546 Opinion of the Court 5

them. He changed his team’s morning schedule, arrived to work

earlier than normal, and instructed his employees to come an hour

late. He notified both state police and the FBI of Franks’s threats.

Watts clearly took Franks’s threats seriously.

Viewing the evidence in the light most favorable to the gov-

ernment, we therefore conclude there was sufficient evidence to

support the jury’s verdict.

II.

We turn now to Franks’s argument about the admissibility

of additional text messages that he sent Watts weeks before he be-

gan threatening to kill him. “Determinations of admissibility of ev-

idence rest largely within the discretion of the trial judge and will

not be disturbed on appeal absent a clear showing of an abuse of

discretion.” United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.

1983). A district court abuses its discretion if it applies an incorrect

legal standard, employs improper procedures in reaching its deter-

mination, makes clearly erroneous findings of facts, or commits a

clear error of judgment. United States v. Harris, 989 F.3d 908, 911-12

(11th Cir. 2021). The proponent of evidence bears the burden of

establishing its admissibility. Carrizosa v. Chiquita Brands Int’l, Inc.,

47 F.4th 1278, 1308 (11th Cir. 2022).

At trial, Franks moved to admit his earlier text messages to

Watts under the rule of completeness. The rule of completeness,

codified in Federal Rule of Evidence 106, provides: “If a party in-

troduces all or part of a statement, an adverse party may require

the introduction, at that time, of any other part — or any other

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6 Opinion of the Court 24-11546

statement — that in fairness ought to be considered at the same

time. The adverse party may do so over a hearsay objection.” Fed.

R. Evid. 106. “Rule 106 does not automatically make the entire doc-

ument admissible.” United States v. Pendas-Martinez, 845 F.2d 938,

944 (11th Cir. 1988). Courts consistently hold that the Rule applies

only to additional material that is relevant and necessary to “qual-

ify, explain, or place into context the portion already introduced.”

Id.

The district court declined to admit Franks’s previous text

messages because they were hearsay and irrelevant. Franks argues

that the texts were not being offered for the truth of the matter

asserted, but for their effect on Watts. Franks maintains that, under

the rule of completeness, the earlier text messages are necessary to

contextualize Franks’s later statements. Franks believes that they

are relevant to whether a reasonable person would have consid-

ered Franks’s texts to be threats.

The texts in question began in April 2023, one month before

Franks’s threats began. Franks sent Watts links to music videos, as

well as a message wishing him a happy Easter and thanking Watts

for hiring him. Franks also said he was entitled to a raise and called

Watts a “btich” [sic], before thanking Watts for “putting up with

[Franks]”.

We cannot say the district court abused its discretion in con-

cluding that these texts are irrelevant to whether Franks’s later

texts are objectively threatening. First, they occurred in April. The

fact that Franks’s tone was less threatening is of no surprise; he

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hadn’t been terminated yet. Second, the fact that Franks wished his

supervisor a happy Easter does not suggest that Watts didn’t be-

lieve Franks to be capable of violence. These unrelated messages

were neither relevant nor necessary to qualify, explain, or contex-

tualize Franks’s later threats to murder Watts.

The district court acted within its discretion in declining to

admit Franks’s earlier text messages.

III.

Lastly, we address Franks’s arguments about his sentence.

When reviewing the district court’s findings with respect to Guide-

lines issues, we consider legal issues de novo, factual findings for

clear error, and the court’s application of the Guidelines to the facts

with due deference, which is akin to clear error review. United

States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). To be clearly

erroneous, this Court must be left with a definite and firm convic-

tion that a mistake was committed. Id. Notwithstanding an error

in applying the Guidelines, this Court will not reverse if the district

court would likely have sentenced the defendant the same way re-

gardless, and the sentence was substantively reasonable. United

States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006); United States v.

Grushko, 50 F.4th 1, 18 (11th Cir. 2022).

In Franks’s Presentence Investigation Report, the probation

officer increased the offense level by two in accordance with

United States Sentencing Guidelines Manual § 2A6.1(b)(2)(A) (Nov.

2023), which applies to offenses “involving more than two threats”.

Factoring in a base offense level of twelve to a category IV criminal

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8 Opinion of the Court 24-11546

history, the probation officer recommended a guideline imprison-

ment range of 27 to 33 months. The court sentenced Franks to 33

months.

Franks argues it was error to apply the two-level increase

under section 2A6.1(b)(2)(A) because Franks’s text messages con-

stituted one single threat. He argues his texts all occurred in a short

period of time and conveyed “essentially the same message” and

should therefore be considered “a single episode or occurrence.”

But we need not decide whether Franks’s text messages constituted

one threat because the district court expressly stated that it “would

have imposed [its] sentence regardless of whether the plus two

[was] appropriate.” See United States v. Keene, 470 F.3d 1347, 1349

(11th Cir. 2006). The district court’s statement, which it made at

the end of the sentencing hearing, after Franks’s allocution and sen-

tencing arguments, leaves no doubt that any error in adding the

“plus two” would not have affected the sentence. Cf. United States

v. Delgado, 981 F.3d 889, 900 n.8 (11th Cir. 2020) (suggesting that

Keene statements should usually be after considering the sentencing

factors and allocution, rather than before).

For our part, we cannot say the district court’s sentence is

substantively unreasonable. Even assuming an error occurred and

the lower guidelines range applied, the sentence was substantively

reasonable in the light of Franks’s five previous convictions, the

fact that he committed the instant offense while on probation, and

the seriousness of his threats. Grushko, 50 F.4th at 20. Because the

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alleged error did not affect the district court’s decision, any error

was harmless. Scott, 441 F.3d at 1329.

Finally, Franks argues he was entitled to a reduction to his

Guidelines range under section 2A6.1(b)(6) of the United States

Sentencing Guidelines, which applies if the offense evidenced “lit-

tle or no deliberation”. Franks argues that he was too drunk when

he sent the texts to have deliberated. He did not provide any cred-

ible evidence supporting this allegation. Franks sent his messages

over the course of three hours. The timestamps show that he took

breaks of thirty minutes to over two hours between sending Watts

death threats. Accordingly, at sentencing the district court found

that Franks had enough time for deliberation. The court also re-

jected Franks’s request for a voluntary intoxication instruction.

Considering the evidence, the district court’s refusal to grant the

reduction was not clearly erroneous.

IV.

The judgment of the district court is AFFIRMED.