United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 31, 2004 August 10, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
03-41634
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY D. REYNOLDS,
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas
Before DAVIS, EMILIO M. GARZA, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
The defendant was convicted of threatening to use weapons of
mass destruction in violation of 18 U.S.C. § 2332a. In this appeal
he argues that the evidence was insufficient to prove beyond a
reasonable doubt either that he actually made a “threat” to use a
weapon of mass destruction or that this threat affected interstate
commerce. The defendant also argues that § 2332a is an
unconstitutional use of Congress’s powers under the Commerce
Clause. The defendant’s arguments are without merit, and we
affirm.
-1- I.
In the fall of 2001, the defendant, Larry D. Reynolds
(Reynolds), was involved in an ongoing dispute with his mortgage
company, Countrywide Mortgage (Countrywide). Reynolds was
delinquent on his mortgage payments and Countrywide was considering
foreclosure. On October 31, 2001, Reynolds called Countrywide from
his office in Des Moines, Iowa, and attempted to access
Countrywide’s automated account system to review the status of his
loan. Reynolds’s delinquency prohibited him from using the
automated system, and instead he was transferred to a customer
service representative in Plano, Texas. Upon connecting with the
operator, Reynolds yelled into the phone, “I just dumped anthrax in
your air conditioner.” The operator immediately contacted
security. Shortly thereafter Countrywide security determined that
the threat was not credible and decided not to evacuate the
building.
Reynolds was subsequently arrested and charged with
threatening to use a weapon of mass destruction in violation of 18
U.S.C. § 2332a. A jury convicted Reynolds and he was sentenced to
51 months in prison.
II.
In this appeal Reynolds contends that the evidence was
insufficient to support his conviction. Where a defendant
challenges the sufficiency of the evidence on which his conviction
was based, this court must determine whether “after viewing the
-2- evidence in the light most favorable to the verdict, any rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.” United States v. Daniel, 957
F.2d 162, 164 (5th Cir. 1992).
A.
Reynolds first argues that the term “threaten to use” in 18
U.S.C. § 2332a suggests that only threats of future use of a weapon
of mass destruction are prohibited by the statute.1 Reynolds
argues that because his statement indicated a past act, i.e, that
he had already dumped anthrax into the air conditioner, it cannot
be construed as a threat under the statute.
This court has not previously considered what constitutes a
“threat” under § 2332a. In the absence of a statutory definition,
terms are given their ordinary, contemporary, common meaning.
1 18 U.S.C. 2332a provides, in pertinent part:
(a) A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction []-
* * *
(2) against any person within the United States, and the results of such use affect interstate or foreign commerce or, in the case of a threat, . . . would have affected interstate or foreign commerce;
shall be imprisoned for any term of years or for life[.]
-3- United States v. Singleton, 946 F.2d 23, 25 (5th Cir. 1991).
Blacks Dictionary defines a “threat” as “[a] communicated
intent to inflict harm or loss on another or on another’s
property[.]” Blacks Law Dictionary (8th ed. 2004). Webster’s
defines a “threat” as “[a]n expression of an intention to inflict
something harmful.” Webster’s II, New Riverside University
Dictionary (Anne H. Soukhanov ed., Houghton Mifflin Company 1984).
Furthermore, we have defined the term “threat” in 18 U.S.C. §875,
which prohibits threatening communications made through interstate
commerce. We held under § 875(c) that a communication is a threat
if “in its context [it] would have a reasonable tendency to create
apprehension that its originator will act according to its tenor.”
United States v. Meyers, 104 F.3d 76, 79 (5th Cir. 1997); see also
United States v. Redden, 81 Fed.Appx. 96, 2003 WL 22682457 (9th
Cir. 2003) (unpublished)(defining “threat” under 18 U.S.C. § 175).
We have found no credible support for a definition of “threat” that
requires reference to a future act. We therefore conclude that the
proper definition of “threaten” in §2332a is that adopted by this
court in Meyers: a communication that has a reasonable tendency to
create apprehension that originator of the communication will act
as represented. Under the circumstances of this case a rational
trier of fact could have found beyond a reasonable doubt that
Reynolds “threatened” to use anthrax.
B.
-4- Reynolds next argues that the evidence was insufficient to
prove beyond a reasonable doubt that the threat would have affected
interstate commerce. In the case of threats to use weapons of mass
destruction, the Government must prove as an element of the offence
that the “use . . . would have affected interstate or foreign
commerce.” 18 U.S.C. § 2332a(a)(2). Reynolds argues that because
there was no evacuation or stoppage of work at the company, the
evidence is insufficient to establish the interstate commerce
requirement of the statute.
This argument is without merit. The statute merely requires
that there would have been an effect on interstate commerce had the
threat been carried out. Countrywide is a national company; had
Reynolds carried out his threat, the closing of Countrywide’s
office definitely would have affected Countrywide’s customers in
numerous different states. For these reasons, we conclude that the
evidence is sufficient to support Reynold’s conviction.2
2 Reynolds also argues that under United States v. Morrison, 529 U.S. 598 (2000), § 2332a violates the Commerce Clause. Reynolds did not challenge the constitutionality of § 2332a in the district court, so our review is limited to plain error. United Stated v. Lankford, 196 F.3d 563, 570 (5th Cir. 1999).
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United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 31, 2004 August 10, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
03-41634
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY D. REYNOLDS,
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas
Before DAVIS, EMILIO M. GARZA, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
The defendant was convicted of threatening to use weapons of
mass destruction in violation of 18 U.S.C. § 2332a. In this appeal
he argues that the evidence was insufficient to prove beyond a
reasonable doubt either that he actually made a “threat” to use a
weapon of mass destruction or that this threat affected interstate
commerce. The defendant also argues that § 2332a is an
unconstitutional use of Congress’s powers under the Commerce
Clause. The defendant’s arguments are without merit, and we
affirm.
-1- I.
In the fall of 2001, the defendant, Larry D. Reynolds
(Reynolds), was involved in an ongoing dispute with his mortgage
company, Countrywide Mortgage (Countrywide). Reynolds was
delinquent on his mortgage payments and Countrywide was considering
foreclosure. On October 31, 2001, Reynolds called Countrywide from
his office in Des Moines, Iowa, and attempted to access
Countrywide’s automated account system to review the status of his
loan. Reynolds’s delinquency prohibited him from using the
automated system, and instead he was transferred to a customer
service representative in Plano, Texas. Upon connecting with the
operator, Reynolds yelled into the phone, “I just dumped anthrax in
your air conditioner.” The operator immediately contacted
security. Shortly thereafter Countrywide security determined that
the threat was not credible and decided not to evacuate the
building.
Reynolds was subsequently arrested and charged with
threatening to use a weapon of mass destruction in violation of 18
U.S.C. § 2332a. A jury convicted Reynolds and he was sentenced to
51 months in prison.
II.
In this appeal Reynolds contends that the evidence was
insufficient to support his conviction. Where a defendant
challenges the sufficiency of the evidence on which his conviction
was based, this court must determine whether “after viewing the
-2- evidence in the light most favorable to the verdict, any rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.” United States v. Daniel, 957
F.2d 162, 164 (5th Cir. 1992).
A.
Reynolds first argues that the term “threaten to use” in 18
U.S.C. § 2332a suggests that only threats of future use of a weapon
of mass destruction are prohibited by the statute.1 Reynolds
argues that because his statement indicated a past act, i.e, that
he had already dumped anthrax into the air conditioner, it cannot
be construed as a threat under the statute.
This court has not previously considered what constitutes a
“threat” under § 2332a. In the absence of a statutory definition,
terms are given their ordinary, contemporary, common meaning.
1 18 U.S.C. 2332a provides, in pertinent part:
(a) A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction []-
* * *
(2) against any person within the United States, and the results of such use affect interstate or foreign commerce or, in the case of a threat, . . . would have affected interstate or foreign commerce;
shall be imprisoned for any term of years or for life[.]
-3- United States v. Singleton, 946 F.2d 23, 25 (5th Cir. 1991).
Blacks Dictionary defines a “threat” as “[a] communicated
intent to inflict harm or loss on another or on another’s
property[.]” Blacks Law Dictionary (8th ed. 2004). Webster’s
defines a “threat” as “[a]n expression of an intention to inflict
something harmful.” Webster’s II, New Riverside University
Dictionary (Anne H. Soukhanov ed., Houghton Mifflin Company 1984).
Furthermore, we have defined the term “threat” in 18 U.S.C. §875,
which prohibits threatening communications made through interstate
commerce. We held under § 875(c) that a communication is a threat
if “in its context [it] would have a reasonable tendency to create
apprehension that its originator will act according to its tenor.”
United States v. Meyers, 104 F.3d 76, 79 (5th Cir. 1997); see also
United States v. Redden, 81 Fed.Appx. 96, 2003 WL 22682457 (9th
Cir. 2003) (unpublished)(defining “threat” under 18 U.S.C. § 175).
We have found no credible support for a definition of “threat” that
requires reference to a future act. We therefore conclude that the
proper definition of “threaten” in §2332a is that adopted by this
court in Meyers: a communication that has a reasonable tendency to
create apprehension that originator of the communication will act
as represented. Under the circumstances of this case a rational
trier of fact could have found beyond a reasonable doubt that
Reynolds “threatened” to use anthrax.
B.
-4- Reynolds next argues that the evidence was insufficient to
prove beyond a reasonable doubt that the threat would have affected
interstate commerce. In the case of threats to use weapons of mass
destruction, the Government must prove as an element of the offence
that the “use . . . would have affected interstate or foreign
commerce.” 18 U.S.C. § 2332a(a)(2). Reynolds argues that because
there was no evacuation or stoppage of work at the company, the
evidence is insufficient to establish the interstate commerce
requirement of the statute.
This argument is without merit. The statute merely requires
that there would have been an effect on interstate commerce had the
threat been carried out. Countrywide is a national company; had
Reynolds carried out his threat, the closing of Countrywide’s
office definitely would have affected Countrywide’s customers in
numerous different states. For these reasons, we conclude that the
evidence is sufficient to support Reynold’s conviction.2
2 Reynolds also argues that under United States v. Morrison, 529 U.S. 598 (2000), § 2332a violates the Commerce Clause. Reynolds did not challenge the constitutionality of § 2332a in the district court, so our review is limited to plain error. United Stated v. Lankford, 196 F.3d 563, 570 (5th Cir. 1999). Under plain error, Reynolds must demonstrate that the district court committed an obvious error that affected his substantial rights and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.(quotations omitted). The district court committed no error, plain or otherwise. Morrison simply reaffirmed the position of the Supreme Court that Congress cannot use the Commerce Clause to regulate non-economic, criminal conduct. See Morrison, 529 U.S. at 610. Clearly the use of weapons of mass destruction could seriously affect interstate commerce. Section 2332a is therefore a constitutional exercise of Congress’s powers under the Commerce Clause.
-5- III.
For the reasons stated above, the judgment of the district
court is affirmed.
AFFIRMED.
-6-