Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
9-21-2004
USA v. Zavrel Precedential or Non-Precedential: Precedential
Docket No. 03-1474
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation "USA v. Zavrel" (2004). 2004 Decisions. Paper 272. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/272
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Scranton, PA 18503
UNITED STATES Attorney for Appellant COURT OF APPEALS FOR THE THIRD CIRCUIT John C. Gurganus [Argued] Office of the United States Attorney, Middle District of Pennsylvania 235 North Washington Avenue No. 03-1474 Scranton, PA 18501
Attorney for Appellee UNITED STATES OF AMERICA
v. _______________________ ROSEMARY ZAVREL, OPINION OF THE COURT _______________________ Appellant ___ ______ FUENTES, Circuit Judge: On Appeal from the United States This case arises in the context of the District Court anthrax scare of 2001. In October of that for the Middle District of Pennsylvania year, Rosemary Zavrel mailed seventeen envelopes containing a white powdery District Court Judge: The Honorable A. substance she intended to resemble anthrax Richard Caputo to various local officials, school and (D.C. No. 01-cr-00356) hospital workers, and to the President of ___________ the United States. The envelopes actually contained cornstarch, and each listed a Argued on January 26, 2004 name and return address that belonged to either of two local juveniles. Zavrel and Before: NYGAARD, FUENTES & her roommate, Emily Forman, planned to STAPLETON, Circuit Judges frame the two boys whom Zavrel felt had unfairly accused Zavrel’s son of making (Opinion Filed: September 21, 2004 ) terroristic threats. The scheme went awry after a local resident discovered loose white powder when she opened the inside Patrick A. Casey [Argued] slot of a public mailbox. Police were Office of the Federal Public Defender, called and the ensuing investigation led Middle District of Pennsylvania directly to Zavrel and Forman. Against 116 North Washington Avenue this backdrop, we consider the narrow addressees. question of whether the mailing of an During the course of the envelope containing cornstarch meant to investigation, Nanticoke Police Detective resemble anthrax, but containing no William Schultz spoke with Dr. Mary w r i t te n m e s s a g e , c o n s t i t u te s a Scott, Principal of the Nanticoke Middle “communication . . . containing any threat School, who informed him that the . . . to injure the person of the addressee” juveniles whose addresses appeared on the under 18 U.S.C. § 876. For the reasons letters had been students in 1999 at the that follow, we hold that it does, and we Lincoln Elementary School where she had therefore affirm the judg men t of been principal. Schultz then discovered conviction. that in May 1999 he had been the I. F ACTUAL AND P ROCEDURAL investigating officer in an incident in B ACKGROUND which the two juveniles were the reported victims. The case was handled in juvenile On the morning of October 23, court, and Zavrel’s son, also a juvenile, 2001, Cindy Donlyn went to the was charged with making “terroristic” Nanticoke, Pennsylvania Post Office to threats against the boys. Zavrel’s son had drop off some mail. When she opened the apparently threatened to bring an mailbox outside of the post office, she automatic handgun to school and shoot the noticed some white powder on the chute two juveniles as well as a third student. inside the box and informed a postal After a period of suspension from school, worker. The Postmaster inspected the Zavrel’s son was prosecuted, adjudicated mailbox and quickly notified his superiors delinquent and placed in juvenile in Harrisburg and Washington, D.C., as detention. Schultz recalled that Zavrel well as the local police. The police contacted his department numerous times unbolted the box from the ground and during the pendency of the case, urging moved it to the back loading dock of the that her son was innocent and that the post office so that no customers could other boys were lying. come near it. When the police opened the box they discovered several letters A search of Zavrel’s apartment containing white powder. At this point, turned up envelopes with the juveniles’ the Postmaster closed the entire post names and addresses typed onto them, a office. The Luzerne County Emergency partially used book of “Love USA” stamps Management Agency sent a team in (the same stamps that were affixed to the protective suits to investigate further. The letters found in the Nanticoke post office), emergency personnel discovered the a partially empty box of cornstarch, and remaining letters, all containing a white latex gloves. A number of clippings about powdery substance that w as later the anthrax scare facing the nation were determined to be cornstarch. The letters also found in the apartment. After Zavrel were seized and never delivered to the was arrested and taken from her residence
2 by the police, her roommate, Forman, the evidence, we should apply a de novo admitted to investigators that she and standard in reviewing this case; the Zavrel had mailed the letters in retaliation government argues that a “particularly against the boys whom they believed had deferential” standard should apply. See lied about the actions of Zavrel’s son. United States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004) (“The verdict must be By indictment filed in July 2002, sustained if there is substantial evidence to Zavrel was charged with conspiracy to support it”) (citations omitted). Although mail threatening communications, in Zavrel frames her appeal as one about the violation of 18 U.S.C. §§ 371 and 876 sufficiency of the evidence, her arguments (Count 1); aiding and abetting the mailing actually concern issues of statutory of threatening communications, in interpretation, and we will therefore violation of 18 U.S.C. § 876 (Count 2); exercise plenary review. United States v. and making a false statement to a federal Thayer, 201 F.3d 214, 219 (3d Cir. 1999). officer, in violation of 18 U.S.C. § 1001 (Count 3). III. D ISCUSSION Following a five-day jury trial, Zavrel was convicted on all counts, and Zavrel c onc e de s that th e the District Court imposed a sentence of government proved the following facts at 30 months’ imprisonment for each count, trial: In October 2001, Zavrel and her to be served concurrently. At the end of then-roommate Emily Forman addressed the government’s case and again at the end seventeen envelopes containing loose of the defense’s case, defense counsel cornstarch (but no written message) to the unsuccessfully moved for a judgment of President of the United States, local acquittal on all counts. Following the jury public officials, school administrators, and verdict, defense counsel again filed a judges, and deposited them in a mailbox in motion for judgment of acquittal, which the Nanticoke, Pennsylvania Post Office. the District Court denied. The envelopes bore the names and return addresses of two boys who had reported This appeal followed. the criminal acts committed by Zavrel’s II. J URISDICTION AND S TANDARD OF son, which Zavrel felt unjustly led to her R EVIEW son’s placement in juvenile detention. Zavrel informed an investigator that the The District Court had jurisdiction letters were mailed “to make those kids over this case pursuant to 18 U.S.C. § pay for what they did,” (Zavrel Brief at 5), 3231. We exercise jurisdiction over the and she admitted to Agent Bill Salvoski of final judgment in this case under 28 U.S.C. the United States Secret Service that the § 1291. cornstarch was used to make the envelopes Zavrel argues that because the appear as if they contained anthrax, and issues on appeal concern the sufficiency of that she hoped it would result in the
3 juveniles being placed in detention. 875(c) for threats made to a person other than the person the defendant intended to Zavrel argues on appeal that this threaten). evidence was insufficient to convict her under counts one and two (the charges Zavrel claims that her actions do brought under 18 U.S.C. § 876), because not amount to a violation of the statute for she contends that mailing of cornstarch two main reasons. First, she argues that alone is insufficient to prove that she absent the enclosure of a written message, mailed a “communication” containing a the mailing of cornstarch cannot constitute “threat to injure” the addressee, under the a “communication” within the meaning of statute. The relevant portion of the statute the statute. Second, Zavrel argues that she states: did not threaten the addressees of the letters, as required under the statute, Whoever knowingly so because any harm caused by the mailings deposits or causes to be would have been immediate, and, she delivered [by the United asserts, the statute only envisions States Postal Service] . . . prospective threats. any communication with or without a name or A.W HETHER M AILING C ORNSTARCH designating mark subscribed C ONSTITUTES “C OMMUNICATION” thereto, addressed to any Zavrel claims that Congress did not other person and containing intend for the mailing of cornstarch to . . . any threat to injure the constitute “communication” under 18 person of the addressee or U.S.C. § 876. The first step in discerning of another, shall be fined the meaning of a statute is to determine u n d e r t h i s t i tl e o r whether the language used “has a plain and imprisoned not more than unambiguous meaning with regard to the five years, or both. particular dispute in the case.” Ki Se Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir. 2004) (citations omitted). See also Liberty 18 U.S.C. § 876(c). The primary purpose Lincoln-Mercury, Inc. v. Ford Motor Co., of the statute is to prohibit the use of the 171 F.3d 818, 822 (3d Cir. 1999) (“In the mails to send threatening communications. absence of a specific statutory definition, Under this provision, the government must the language of the statute should be given establish that Zavrel deposited, in the its ordinary meaning and construed in a mails, a “communication” containing a common sense manner to accomplish the “threat to injure” the addressee. It does legislative purpose.”) (internal quotations not matter whether the communication is and citations omitted). actually delivered. See Seeber v. United States, 329 F.2d 572, 573 (9th Cir. 1964) Zavrel argues that because (upholding a conviction under 18 U.S.C. § Congress did not define “communication”
4 in 1948 when it amended the statute and consider not only the bare meaning of the codified the language under which Zavrel word but also its placement and purpose in was charged, we must interpret the the statutory scheme. [T]he meaning of language as it would have been commonly statutory language, plain or not, depends understood in 1948. She argues that on context.” United States v. Loney, 219 dictionaries in 1948 did not consider the F.3d 281, 285 (3d Cir. 2000) (quoting mailing of cornstarch as falling within the Bailey v. United States, 516 U.S. 137, 145 definition of “communication.” (Zavrel (1995) (internal quotations and additional Brief at 11-12.) To support this point, citations omitted) (alternation in original). Zavrel asserts that the 1948 American College Dictionary, published by Random Although it is unlikely that House, defines communication as “the Congress envisioned this particular activity imparting or interchange of thoughts, when enacting the statute, we are confident opinions, or information by speech, that mailing a white powdery substance writing or signs.” 1 (Zavrel Brief at 21.) It intended to cause fear and distress plainly is Zavrel’s position that this definition constitutes a communication under § 876. could not possibly encompass the mailing Dictionaries today, as well as those dating of cornstarch. from Zavrel’s preferred timetable, define We disagree with Zavrel’s assertion communication as not only the transfer of that only the 1948 dictionary definitions of information through speech and writing, “communication” are relevant to our but also through “signs” or “signals.” See, inquiry. Zavrel correctly notes that e.g., M ERRIAM W EBSTER’S C OLLEGIATE dictionary definitions can be helpful in D ICTIONARY 233 (10th ed. 1996) (defining discerning congressional intent, but we do “communication” as “a process by which not limit ourselves to dictionaries dating inform ation is exchanged between from a statute’s enactment. See, e.g., individuals through a common system of Contents of Account Number 03001288 v. symbols, signs, or behavior”); see also T HE United States, 344 F.3d 399, 406 (3d Cir. A MERICAN C OLLEGE D ICTIONARY (1948) 2003) (citing to a 1993 dictionary to define ( Z a v re l Brief at 21) ( defin in g term in a statute enacted in 1930). Indeed, communication as “the imparting or we recently cautioned that “[t]here is a interchange of thoughts, opinions, or limit . . . to how much can be proved by information by speech, writing, or signs”). invoking dictionary definitions and usage. They define communication as the process As the Supreme Court has said: We by which information is conveyed between individuals. It can be verbal, written or symbolic. Symbols and objects that are 1 Zavrel cites a number of other used at the time a message is conveyed can dictionaries from roughly the same affect the message’s meaning, as can the period, which defined communication environment in which the communication similarly.
5 is made. See United States v. Lewis, 220 1948, the statute criminalized the mailing F. Supp. 2d 548, 555 (S.D. W. Va. 2002). of “any written or printed letter or other communication . . . containing . . . any Art, photography, dance, facial threat to injure the person of the expression – all may be used to addressee.” 18 U.S.C. § 338(a), 52 Stat. communicate ideas from one individual to 742, § 1, par. (b) (1939) (App. 29). In another. The message does not have to be 1948, the statute was amended to in writing to constitute a communication. criminalize the m ailing of “any For example, if an individual were to send communication . . . containing . . . any another person a letter containing a threat to injure the person of the photograph of the addressee with the addressee.” 18 U.S.C. § 876, par. 3 (1948) addressee’s head cut off, few would doubt (App. 30). The amended statute omits any that the sender in that case intends to reference to “written or printed” material, convey a message of fear, fright, or alarm. thus making it clear that a communication In Pratt v. United States, 129 F.3d 54, 56 need not be in writing. (1st Cir. 1997), the defendant was convicted under § 876 for mailing a In this case, we believe that in mutilated pig carcass to a local police chief sending a substance meant to resemble after the officer had confiscated several of anthrax, in envelopes addressed to various the defendant’s firearms. The defendant persons, Zavrel intended to convey a was found guilty and sentenced to a message – a message of fear, fright and lengthy prison term. Id. In a different alarm. Ultimately, Zavrel wanted to frame context, the Supreme Court has held cross the boys whose addresses were typed on burning, another non-verbal act, as one of the envelopes. United States v. Lewis, a “those forms of intimidation that are most case decided in the context of the anthrax likely to inspire fear of bodily harm.” scare, presented a similar scenario. In Virginia v. Black, 538 U.S. 343, 363 Lewis, the defendant tried to frame his ex- (2003). girlfriend by sending four letters to public officials, including the President, Regardless of whether we accept containing an unidentified white powder, Zavrel’s 1948 definition or look to a more a cigarette butt, and a short note reading, current source, we are convinced that, in “I were you [sic], I’d change my attitude.” the context of the 2001 anthrax scare, the (A fifth letter was mailed to a private mailing of cornstarch, meant to resemble citizen and contained a different note a n t h r a x spo res, c o n s t it u t e d a reading, “It is on.”) 220 F. Supp. 2d at “communication” under § 876. We also 549. The court in Lewis determined that, note that Congress likely intended the viewed together, these items constituted statute to have a broader reach than Zavrel threatening communications. The court suggests, as evidenced in part by the fact noted specifically that, “[i]n the context of that the 1948 amendment to the statute the post-September 11 anthrax outbreaks, seems to have expanded its reach. Prior to
6 the mailing of any powdery substance his life, but would also be fearful of future through the postal system is clearly harmful action on the part of the sender. capable of being interpreted as a Zavrel offers no precedential ‘threatening’ communication under support for her notion that the phrase sections 876 and 871.” Id. at 557-58. The “threat to injure” in § 876 should be court also pointed out, “[t]he white powder interpreted as prospective in nature.2 The included in the envelopes was mailed to government contends that the focus of the various individuals at a time when people inquiry here should be whether a were receiving mail containing the reasonable person, familiar with the biological agent anthrax.” Id. at 558. context in which a threat is communicated, As in Lewis, the sender of the white would perceive the communication as a powder-filled envelopes in this case threat of harm. The government’s position communicated a message of apprehension, comports with how the District Court anxiety and fear about exposure to the instructed the jury in this case: powder. We therefore conclude that Zavrel’s mailin gs co nstituted communications within the meaning of § 2 876. We next consider whether the Zavrel does cite to United States v. communications conveyed a threat to harm Taylor, No. 02 Cr. 73 RPP, 2003 WL the addressees. 22073040 (S.D.N.Y. Sept. 5, 2003) for the proposition that § 876 mandates that B.W HETHER Z AVREL ’ S M AILINGS threatening communications be C ONTAINED T HREATS prospective. Taylor concerned a fake Zavrel argues that the phrase “threat anthrax scare at the ABC Carpet store in to injure” in § 876 contemplates a New York City, and the defendant in that prospective, not immediate, threat. case was charged under 18 U.S.C. § Specifically, Zavrel contends that “§ 876 2332a(a)(2), which makes it unlawful to does not criminalize the mailing of “threaten to use a weapon of mass injurious materials; it only criminalizes the destruction . . . against persons within the mailing of communications containing a United States.” Id. at *1. The court in ‘threat to injure.’” (Zavrel Brief at 15.) that case held that the statute Although she concedes that her letters contemplated prospective threats. Taylor were injurious, she contends that they were is an unpublished district court decision immediately harmful to recipients, and did from New York, decided under a not contain prospective threats to injure. different statute than the one at issue The government responds that a here. And, in any case, we are not reasonable recipient of one of Zavrel’s persuaded that the phrase “threaten to letters would not only be immediately use” as interpreted in Taylor has the injured in the sense that he would fear for same impact as the phrase “threat to injure” as does our case.
7 A threat is a serious Our interpretation of the phrase statement or communication “threat to injure” comports with case law which expresses an intention from other jurisdictions. In United States to inflict injury at once or in v. Malik, 16 F.3d 45 (2d Cir. 1994), a the future as distinguished defendant in several lawsuits sent letters to from idle or careless talk, judges threatening his adversaries. The exaggeration or something Malik court defined “threat” as follows: said in a joking manner. A A threat is a statement statement or communication expressing an intention to is a threat if it was made inflict bodily harm to under such circumstances someone of such a nature as that a reasonable person could reasonably induce fear hearing or reading the as distinguished from idle, statement or receiving the careless talk, exaggeration comm unica tion would or something said in a understand it as a serious joking manner. . . . A expression of intent to serious expression of intent inflict injury . . . . to inflict injury and not merely a vehement or emotional expression of (App. at 1001-02). political opinion, hyperbole We believe this to be the correct approach, o r a r g u m e n t s a g a i n st although we do not need to decide the government officials. issue definitively here, because we believe the jury could have reasonably concluded that Donlyn and others who were exposed Id. at 51. We believe that Zavrel’s actions to Zavrel’s mailings experienced both accord with the Malik definition: a immediate harm as well as threats of future recipient of one of Zavrel’s envelopes injury. A reasonable person opening an would fear imminent harm and perhaps envelope containing a white powdery death upon seeing the white powder. The substance, during the height of the anthrax envelopes with white powder were non- crisis in this country, would doubtless fear verbal messages of the sender’s intent to immediate and future injury. That is harm the recipients. precisely what happened in this case. The Even if we adopted Zavrel’s same day that she opened the mailbox and assertion that the threats in the mailings touched the white powder, Cindy Donlyn must be prospective, we believe that went to a hospital emergency room for Zavrel’s mailings did contain threats of diagnosis. She testified that she remained future harm. No doubt persons who were there for about three hours. first exposed to Zavrel’s mailings at the
8 Nanticoke post office were immediately We also conclude that Zavrel’s mailings dismayed when they discovered Zavrel’s constituted threats to injure the recipient letters. It would be natural for any person within the meaning of the statute, and we in such a circumstance to be fearful of therefore affirm the judgment of the future harm. Donlyn’s actions exemplify District Court. this. She testified that after she came in contact with the white powder at the post office she went to the hospital out of fear that exposure to the powder might cause her health problems. Mailing cornstarch, or real anthrax for that matter, may be analogized to mailing a bomb (real or fake) or, as in the Pratt case discussed earlier, a dead animal. 129 F.3d at 56. The fact that some of the contents of these mailings may be immediately harmful does not alter the fact that the sender in each case intends to communicate prospective harm as well. Additionally, opening an envelope containing a white powder, in the circumstances described, could not only create an apprehension of immediate fear and future harm, but also communicates to the intended victim the sender’s hostility and the idea that the sender has access to a deadly agent that he or she can use again in the future. For these reasons, we determine that the jury in Zavrel’s case properly concluded that Zavrel deposited a communication in the mails containing a threat to injure. IV. C ONCLUSION For these reasons, we conclude that, in the wake of the 2001 anthrax scare, mailing cornstarch does constitute a communication under 18 U.S.C. § 876.
9 UNITED STATES v. ZAVREL – NO. 03- message contained any threat to injure. 1474 A. I agree with the majority that STAPLETON, Circuit Judge, dissenting: Zavrel’s conduct in this case was communicative. Determining the message I agree with the Court’s conclusion that was conveyed by her communication, that the mailing of an envelope containing however, is no easy task. Obviously, a white powdery substance in October Zavrel made no verbal or written 2001 constituted a “communication” c o m m u n i c a ti o n . Rather, her within the meaning of 18 U.S.C. § 876. I communicative conduct consisted of cann ot, howeve r, agree with its mailing envelopes that contained a white interpretation of the phrase “containing . . powdery substance to certain addressees in . any threat to injure.” In my view, the October 2001. “threat to injure” contemplated by 18 U.S.C. § 876 requires the relevant Our decisions suggest that the most communication to convey that some appropriate way to determine the message prospective action will be taken by the conveyed by Zavrel’s conduct is to sender or the sender’s confederates. To consider what a person receiving one of the extent that the Court would apply a these envelopes would reasonably perceive broader reading of the statute than the one the message to be. Cf. United States v. I suggest, I would conclude that the Himelwright, 42 F.3d 777, 782 (3d Cir. doctrine of lenity is clearly implicated. 1994) (“[T]o establish a violation of 18 Accordingly, I respectfully dissent. U.S.C. § 875(c), the government bore only the burden of proving that [the defendant] I. acted knowingly and willfully when he Rosemary Zavrel’s conviction on placed the threatening telephone calls and counts one and two of her indictment that those calls were reasonably perceived cannot be sustained unless her conduct fell as threatening bodily injury.”). Applying within the proscription of 18 U.S.C. § 876. this test, I have little trouble concluding That statute prohibits the mailing of “any that a person receiving and opening communication . . . containing . . . any Zavrel’s envelope in October 2001 would threat to injure,” and the dispositive believe that he had just been exposed to question, therefore, is whether Zavrel sent anthrax. I would therefore conclude that a communication containing a threat to the message conveyed by this conduct injure. An analysis of this issue must would be reasonably interpreted as: “I proceed in two steps. The first is to have just exposed you to anthrax.” This determine the substance of the message message, I believe, would also reasonably conveyed by Zavrel’s conduct. The be perceived to include all additional second is to determine whether that inferences that a recipient could make
10 under the belief that he was being exposed “communication . . . containing . . . any to anthrax, such as: “You are now going to threat to injure.” become ill as a result of this exposure,” or B. even: “You are now going to die as a result of this exposure.” In essence, however, The term “threat” has not been the message conveyed by Zavrel’s conduct defined by Congress. It must therefore be amounts to no more and no less than: “I “interpreted as taking [its] ordinary, have just poisoned you.” 3 The question contemporary, common meaning.” Perrin t h e r e fo r e b e c o m e s w h e t h e r t h e v. United States, 444 U.S. 37, 42 (1979). communication “I have just poisoned you” Applying this rule of construction, constitutes, as a matter of law, a numerous courts have attempted to define the term “threat” in the context of the federal threat statutes, 18 U.S.C. §§ 871- 3 880. We have defined it as “‘a serious The Court suggests that a person expression of an intention to inflict bodily receiving one of Zavrel’s envelopes harm.’” United States v. Kosma, 951 F.2d could also perceive a message that the 549, 557 (3d Cir. 1991) (quoting Roy v. sender will send more anthrax in the United States, 416 F.2d 874, 877-78 (9th future. I simply cannot agree that a Cir. 1969)). The definitions adopted by recipient of the message “I have just other courts are substantially similar. See, poisoned you” would reasonably expect e.g., United States v. Fulmer, 108 F.3d to receive more poison at a later point in 1486, 1490-91 (1st Cir. 1997); United time. In a case such as this, where the States v. Alkhabaz, 104 F.3d 1492, 1495 message perceived is based solely upon (6th Cir. 1997); United States v. Malik, 16 an object put through the mail, the F.3d 45, 51 (2d Cir.1994); United States v. message reasonably perceived must be Khorrami, 895 F.2d 1186, 1192 (7th Cir. limited to that which is conveyed by the 1990). nature of the object itself. As the majority suggests, a picture of the The message “I have just poisoned recipient without his head may you” does not express the sender’s intent reasonably connote future violence. But to engage in any future conduct. Rather, it anthrax is a bacterial poison, and the expresses that the sender’s intent to inflict message that one can reasonably perceive bodily harm has been satisfied upon from the receipt of what appears to be receipt of the communication. This is anthrax is that he or she has just been significant because numerous courts exposed to a lethal poison. Given the require that, in order to constitute a nature of the object contained in the “threat” within the context of the federal letter, there would be no reasonable basis threat statutes, the communication must for inferring the need for a second convey the message that bodily harm will exposure and, accordingly, no reasonable be inflicted by the speaker (or a basis for expecting or fearing one.
11 confederate) in some future act. v. Orozco-Santillan, 903 F.2d 1262, 1265- 66 (9th Cir. 1990). For example, the Courts of Appeals for the Fifth and Eleventh Circuits have The requirement that a “threat” held that “[a] communication is a threat contemplate some future conduct by the when ‘in its context [it] would have a speaker is also suggested in Black’s Law r e a s o n a b l e t e n d e n c y t o c r e at e Dictionary, which defines the term as apprehension that its originator will act including “[a] declaration of an intention according to its tenor.’” United States v. to injure another or his property by some Alaboud, 347 F.3d 1293, 1296 (11th Cir. unlawful act.” Black’s Law Dictionary 2003) (quoting United States v. Bozeman, 1480-81 (6th ed. 1990) (emphasis added). 495 F.2d 508, 510 (5th Cir. 1974)) Based upon the foregoing, I cannot (internal quotations omitted) (emphasis conclude that the message “I have just added). The Second Circuit Court of poisoned you” can constitute a “threat” Appeals has taken a similar approach, within the meaning of § 876. Such a stating that to qualify as a “threat,” the message bears no indication that any communication must “‘on its face and in conduct will be forthcoming by the sender. the circumstances in which it is made is so unequivocal, unconditional, immediate and In this case, I have no doubt that a specific as to the person threatened, as to reasonable recipient of Zavrel’s envelopes convey a gravity of purpose and imminent would believe that his health, and even his prospect of execution . . . .’” New York v. life, was in danger. That belief, however, Operation Rescue National, 273 F.3d 184, could only have arisen from an event that 196 (2d Cir. 2001) (quoting United States had already occurred, i.e., exposure to the v. Kelner, 534 F.2d 1020, 1027 (2d Cir. white powdery substance, and not from 1976)) (emphasis ad ded ). In any future conduct that was yet to be distinguishing a “true threat” from a undertaken. Accordingly, I would warning of danger, the same Court stated conclude that Zavrel’s conduct did not fall that “[a]lthough proof of the threat’s effect within the proscription of 18 U.S.C. § 876. on its recipient is relevant to this inquiry, . II. . . a court must be sure that the recipient is fearful of the execution of the threat by the The majority’s interpretation of § s p e a k e r ( o r t h e s p e a k e r ’ s co - 876 is significantly broader than I believe conspirators).” Id. (citing Malik, 16F.3d at jus t if i e d by the langua ge “ a ny 49) (emphasis in original). Furthermore, communication . . . containing . . . any the Ninth Circuit Court of Appeals has threat to injure.” Even assuming, stated that a threat exists when, after however, that the majority’s interpretation hearing the message, “the listener will is another rational reading of § 876, such believe he will be subjected to physical an assumption would lead only to the violence upon his person.” United States conclusion that the ambit of the statute is
12 ambiguous as to whether it requires the false statement to a federal officer. relevant communication to state that the recipient will be injured by some future conduct of the sender. Any such ambiguity must be resolved in favor of lenity. Jones v. United States, 529 U.S. 848, 858 (2000) (citing Rewis v. United States, 401 U.S. 808, 812 (1971)). “‘[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’” Id. (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952)). As the Supreme Court has stated, “[t]here are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute.” McNally v. United States, 483 U.S. 350, 360 (1987) (quoting Fasulo v. United States, 272 U.S. 620, 629 (1926)). Using the mails to induce fear is not plainly within the ambit of § 876. The plain language of the statute, as I have suggested, indicates that the scope of conduct it proscribes is significantly more limited. I would therefore apply the rule of lenity and construe § 876 to cover only the more limited conduct. III. Because I conclude that Zavrel’s conduct does not fall within the proscription of § 876, I would reverse the District Court’s judgment and remand for sentencing solely on the count of making a