United States v. Bly

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 06-4578

CHARLES A. BLY,

Defendant-Appellant.



Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, District Judge.

(3:04-cr-00011-NKM)

Argued: September 26, 2007

Decided: December 14, 2007

Before MOTZ and KING, Circuit Judges, and

Robert J. CONRAD, Jr., Chief United States District Judge

for the Western District of North Carolina,

sitting by designation.

Affirmed by published opinion. Judge King wrote the majority opin-

ion, in which Judge Conrad joined. Judge Motz wrote a concurring

opinion.

COUNSEL

ARGUED: Willis James Spaulding, Charlottesville, Virginia, for

Appellant. Jennifer Rebecca Bockhorst, OFFICE OF THE UNITED

STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON

2 UNITED STATES v. BLY

BRIEF: John L. Brownlee, United States Attorney, Roanoke, Vir-

ginia, Jean B. Hudson, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for

Appellee.

OPINION

KING, Circuit Judge:

Charles A. Bly appeals from the district court’s refusal to dismiss

the portion of an indictment charging him with a violation of 18

U.S.C. § 876(b) (the "§ 876(b) Offense"). Pursuant to a plea agree-

ment, Bly entered a conditional guilty plea in the Western District of

Virginia to the § 876(b) Offense, reserving his right of appeal. The

charge underlying Bly’s conviction alleged, inter alia, that he had

"knowingly and with intent to extort from the University of Virginia

a sum of money or other thing of value" mailed a written communica-

tion containing a threat to injure certain individuals. On appeal, Bly

contends that the § 876(b) Offense should have been dismissed for

two reasons: first, his statements were not "true threats," but instead

were "political hyperbole" protected by the First Amendment; and,

second, the charge was fatally defective because the University of

Virginia is not a "person" subject to being extorted under § 876(b). As

explained below, we reject Bly’s contentions and affirm.

I.

A.

Bly earned bachelor’s and master’s degrees in engineering from the

University of Virginia ("UVA," or the "University") in 1978 and

1983, respectively. In 1994, Bly returned to UVA to pursue doctorate

studies. He thereafter grew concerned that members of his supervising

committee were plagiarizing his work. Although Bly voiced com-

plaints in this regard to the University administration, no action was

taken in response. By 2002, having failed to make progress on his dis-

sertation, Bly was dropped from his doctorate program. Soon thereaf-

ter, he began writing and sending threatening communications by

UNITED STATES v. BLY 3

mail and email, asserting that UVA personnel had plagiarized his

work and treated him unfairly. As relevant here, Bly sent four com-

munications on the following dates: July 30, 2003 (letter); August 12,

2003 (email message); November 29, 2003 (letter); and January 1,

2004 (letter). Bly’s letter of January 1, 2004 (the "Letter"), comprised

of fifteen pages and addressed to approximately forty-six individuals,

is the source of the underlying conviction and gives rise to the issues

in this appeal.1

The addressees of the Letter included multiple officers and mem-

bers of the Board of Visitors of the University, various government

officials, officers of academic organizations, and others. In the Letter,

Bly made various demands on the University, including removal of

his thesis advisor’s website; an investigation of his list of purported

University abuses; publication of those abuses in major news outlets;

an audit to expose University wrongdoing; replacement of the UVA

President with the Governor of New York; and creation of a nuclear

engineering program designed specifically for Bly. Bly also

demanded that the University pay him "restitution for civil damages,

[and] monetary recompense for these abuses," in the sum of

$533,600. J.A. 50.2

Importantly, the Letter was replete with what the prosecution

deemed threats made by Bly. For example, Bly signaled his intention

to seek redress outside legal channels, asserting that "bullets are far

cheaper and much more decisive. A person with my meager means

and abilities can stand at a distance of two football fields and end ele-

ments of long standing dispute with the twitch of my index finger."

J.A. 47. Bly also asserted in the Letter that "it would be a shame to

brutalize Rydin and Brenizer [another thesis advisor] in order to guar-

antee that I receive a hearing of my story and a form of justice." Id.

at 47. With the Letter, Bly enclosed copies of firearms practice targets

with bullet holes near their centers to "give[ ] evidence of a talent I

1

Bly’s three earlier communications (those preceeding the Letter) of

July 30, August 12, and November 29, 2003, relate to counts of the

indictment which were dismissed under his plea agreement with the

United States Attorney.

2

Our citations to "J.A. ___" refer to the contents of the Joint Appendix

filed by the parties in this appeal.

4 UNITED STATES v. BLY

possess for gun control—hitting the target." Id. A cover sheet

attached to these practice targets read, "TESTIMONY TO MY ABIL-

ITY WITH SMALL—BORE AND HIGH—POWER RIFLES. YOU

WILL NOTE THIS WILL HAVE NO BEARING ON THE OUT-

COME OF OUR WORK, AS LONG AS YOU NOW DO YOUR

PART EXPEDITIOUSLY AND HONESTLY, WITH NO FUR-

THER OBFUSCATION WHATSOEVER." Id. at 53-57 (capitaliza-

tion in original). Although Bly maintained in the Letter that "[t]hese

comments are not to be interpreted as illegal brandishing of a firearm,

blackmail, or extortion," he admonished his recipients that, "if this

remains class warfare, I assure you tragic consequences." Id. at 47.

B.

On February 4, 2004, the federal grand jury in Charlottesville, Vir-

ginia, indicted Bly on five counts, including three offenses under 18

U.S.C. § 876(c) (Counts One, Three, and Five), an offense under

§ 875(c) (Count Two), and the § 876(b) Offense (Count Four). The

§ 876(b) Offense alleged, in pertinent part, that Bly had sent the Let-

ter "knowingly, and with intent to extort from the University of Vir-

ginia a sum of money or other thing of value . . . containing a threat

to injure" the persons of Drs. Rydin and Brenizer, in violation of

§ 876(b). J.A. 19-20.

On March 3, 2004, Bly filed a motion to dismiss the five counts

of the indictment, contending, inter alia, that his communications

were protected by the First Amendment, and that UVA is not a "per-

son" subject to being extorted under § 876(b). By Order of May 10,

2004, this motion to dismiss was summarily denied. On October 9,

2005, Bly filed an amended motion to dismiss the indictment, seeking

to clarify his earlier contentions. In response, the district court filed

its Memorandum Opinion and Order of October 14, 2005, denying

Bly’s amended motion. See United States v. Bly, No. 3:04cr00011

(W.D. Va. Oct. 14, 2005) (the "Opinion").3

By its Opinion, the district court denied Bly’s amended motion to

dismiss for two basic reasons. First, the court concluded that the state-

3

The district court’s Opinion of October 14, 2005 is found at J.A. 66-

74.

UNITED STATES v. BLY 5

ments made by Bly in the Letter were not protected by the First

Amendment, in that they were "true threats" rather than constitution-

ally protected "political hyperbole." Opinion 4.4 Second, the court

ruled that UVA was a "person" subject to being extorted under

§ 876(b).

On October 13, 2005, the day before the district court issued its

Opinion, Bly entered into a plea agreement with the United States

Attorney, in which he agreed to plead guilty to the § 876(b) Offense.

On October 17, 2005, pursuant to that agreement, Bly entered his

guilty plea to the § 876(b) Offense, as charged in Count Four of the

indictment. He reserved his right, however, pursuant to Rule 11(a)(2)

of the Federal Rules of Criminal Procedure, to appeal the denial of his

dismissal motions.5 On that same day, Bly filed a second amended

motion to dismiss, again seeking to clarify his grounds for dismissal,

specifically his contention that UVA is not a "person" subject to being

extorted under § 876(b). Bly’s second amended motion to dismiss

was denied on October 18, 2005.

At his May 23, 2006 sentencing hearing in the district court, Bly

was sentenced to a term of imprisonment equal to "time served," plus

4

The Letter, which is not spelled out in haec verba in the indictment,

was apparently submitted to the district court in connection with its con-

sideration of Bly’s motions to dismiss.

5

Rule 11(a)(2) of the Federal Rules of Criminal Procedure provides, in

pertinent part, as follows:

With the consent of the court and the government, a defendant

may enter a conditional plea of guilty . . . reserving in writing

the right to have an appellate court review an adverse determina-

tion of a specified pretrial motion.

Pursuant to the plea agreement, Bly agreed with the prosecution on his

potential appeal in the following terms:

I understand that I will maintain my right to appeal the trial

court’s denial of my motion to dismiss the count to which I am

pleading guilty. The United States agrees that my guilty plea

does not operate as a waiver of my right to appeal the legal issue

presented in that motion, and that such an appeal is proper.

J.A. 81.

6 UNITED STATES v. BLY

three years of supervised release. After Bly was sentenced on the

§ 876(b) Offense, Counts One, Two, Three, and Five of the indict-

ment were dismissed, pursuant to the plea agreement. On May 31,

2006, Bly filed a notice of appeal, and the district court’s judgment

was entered on June 2, 2006.6 We possess jurisdiction pursuant to 28

U.S.C. § 1291.

II.

Bly’s appeal presents two separate contentions. First, he maintains

that the Letter contained constitutionally protected "political hyper-

bole," and not an unprotected "true threat" to injure Drs. Rydin and

Brenizer. Second, he contends that UVA is not a "person" subject to

being extorted under § 876(b), and that the § 876(b) Offense fails for

that independent reason. Whether a written communication contains

either constitutionally protected "political hyperbole" or an unpro-

tected "true threat" is a question of law and fact that we review de

novo. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

506-11 (1984). Whether an indictment properly charges a criminal

offense — specifically, in this appeal, whether UVA is a person sub-

ject to being extorted under § 876(b) — is a question of law which

we also review de novo. United States v. Darby, 37 F.3d 1059, 1062

(4th Cir. 1994).

III.

The statute underlying the § 876(b) Offense provides, in pertinent

part, as follows:

Whoever, with intent to extort from any person any money

or other thing of value, so deposits, or causes to be delivered

[by mail] any communication containing any threat to kid-

nap any person or any threat to injure the person of the

addressee or of another, shall be [guilty of an offense

against the United States].

6

Pursuant to Rule 4(b)(2) of the Federal Rules of Appellate Procedure,

a notice of appeal filed after the district court announces its decision, but

prior to the entry of judgment, is deemed to be "filed on the date of and

after the entry."

UNITED STATES v. BLY 7

18 U.S.C. § 876(b). In order for the prosecution to sustain a convic-

tion under § 876(b), three essential elements must be established. That

is:

(1) The defendant must have caused the mailing of a writ-

ten communication;

(2) Such written communication must have contained a

threat to kidnap any person or to injure the person of

the addressee or of another (the "Threat Element"); and

(3) The defendant must have intended such communica-

tion to extort from any person money or other thing of

value (the "Extortion Element").

In this appeal, Bly makes contentions with respect to both the

Threat and Extortion Elements — contentions that he characterizes as

challenges to the legal sufficiency of the indictment in alleging those

elements. Bly’s contention on the Threat Element, however, is not a

legal sufficiency issue; rather, it is an issue of failure of proof on the

part of the prosecution. Specifically, Bly maintains that the Threat

Element cannot be satisfied because, as a matter of law, the Letter did

not contain any "true threats," but instead contained constitutionally

protected "political hyperbole." By contrast, Bly’s second contention,

relating to the Extortion Element, constitutes a legal sufficiency issue.

In this regard, Bly asserts the § 876(b) Offense’s allegation of the

Extortion Element is fatally defective because UVA is not a "person"

subject to being extorted under § 876(b). We assess these contentions

in turn.

A.

As explained below, Bly’s first contention of error — that the state-

ments contained in the Letter are protected by the First Amendment

— fails to pass muster and must be rejected. Put simply, the First

Amendment was not intended to protect every oral or written utter-

ance. Beauharnais v. People of State of Ill., 343 U.S. 250, 266 (1952).

Threats — including threats of extortion — are not constitutionally

protected simply because they are verbalized or written. United States

8 UNITED STATES v. BLY

v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972); see also R.A.V. v.

St. Paul, 505 U.S. 377, 388 (1992) (concluding that threats of vio-

lence are outside First Amendment protection). True threats have

been characterized by the Supreme Court as statements made by a

speaker who "means to communicate a serious expression of an intent

to commit an act of unlawful violence to a particular individual or

group." Virginia v. Black, 538 U.S. 343, 359 (2003).

Although the First Amendment does not protect true threats, it does

protect statements that constitute political hyperbole. See Watts v.

United States, 394 U.S. 705, 705-08 (1969). In pursuing his First

Amendment contention, Bly maintains that the communications con-

tained in the Letter are constitutionally protected because they are

best characterized as political hyperbole. As explained below, Bly’s

reliance on the Watts decision is misplaced.

Watts, an anti-Vietnam war protestor, asserted at a public rally in

Washington, D.C., that "[i]f they ever make me carry a rifle the first

man I want to get in my sights is L.B.J. [President Lyndon Baines

Johnson]." Watts, 394 U.S. at 706. The Supreme Court held that this

statement did not constitute a true threat, and that it instead was politi-

cal hyperbole protected by the First Amendment. Id. at 708. In so rul-

ing, the Court looked to and relied upon several contextual factors.

Watts’s statement, "[i]f they ever make me carry a gun," was

expressly conditioned on a trigger event — being drafted into the mil-

itary — that removed the imminence of the threat. Id. at 707. Also,

Watt’s statement was made at a public rally on a topic of great

national concern. Id. at 708. As the Court pointed out, even "vehe-

ment, caustic, and sometimes unpleasantly sharp attacks on govern-

ment and public officials" should not constitute proscribed speech

"against the background of a profound national commitment to the

principle that debate on public issues should be uninhibited, robust,

and wideopen." Id. Additionally, the audience’s reaction to Watt’s

statement was not fear, but laughter. Id. at 707. Based on this analy-

sis, the Court concluded that Watt’s statement was not a true threat,

but was rather constitutionally protected political hyperbole.

Our decision in United States v. Lockhart is a further illustration

of how allegedly threatening statements should be assessed. See 382

F.3d 447 (4th Cir. 2004). Lockhart, a job applicant, had approached

UNITED STATES v. BLY 9

a Food Lion supervisor about available positions. Id. As Lockhart was

leaving, she handed the supervisor a letter which stated, "if George

Bush refuses to see the truth and uphold the Constitution, I will per-

sonally put a bullet in his head." Id. at 450. We concluded that Lock-

hart’s statement constituted a true threat. Id. at 452. In so ruling, we

distinguished Lockhart’s threat from the statement made by the prote-

stor in Watts for several reasons. First, although Lockhart’s threat was

grammatically conditional, it was not expressly so. Id. at 452. Watts

had conditioned his threat upon being drafted into the military; by

contrast, it was not clear what might have precluded Lockhart from

carrying out her threat of violence. Id. Second, there was no indica-

tion that Lockhart’s letter was meant as a joke. Id. Third, the context

in which the Lockhart letter had been handed to the Food Lion super-

visor was private, as opposed to the public anti-war rally in Watts. Id.

Finally, there was no indication that Lockhart intended to engage in

political discourse with Food Lion management. Id. Thus, her state-

ments were not protected by the First Amendment and her conviction

was sustained. Id.

Our assessment of Bly’s Letter reveals that the statements con-

tained therein are more akin to those made in Lockhart, and thus do

not enjoy any First Amendment protection. Unlike in Watts, the Letter

was not addressed to a public audience and, as in Lockhart, it was

delivered privately to specific individuals. Bly’s communications

were only grammatically conditional, and he both implicitly and

explicitly promised violent retribution if he did not receive the result

he sought. As the district court aptly stated, "[t]he reader is left unsure

what measure of justice would appease Mr. Bly." Opinion 4. In these

circumstances, the Letter contained true threats and the statements

contained therein are not protected by the First Amendment.

B.

We also reject Bly’s second appellate contention, challenging the

legal sufficiency of the Extortion Element. Bly maintains that his con-

viction is defective and must be vacated because UVA is not a "per-

son" subject to being extorted under § 876(b) — an issue of first

impression in our circuit. He makes two primary assertions in support

of this contention. First, relying on principles of statutory construc-

tion, he maintains that the relevant meaning of the term "person" in

10 UNITED STATES v. BLY

§ 876(b) is limited to a living person only, and does not include an

entity such as UVA.7 Second, Bly contends that, even if some entities

can qualify as persons subject to being extorted under § 876(b), UVA

is an arm of the sovereign, i.e., the Commonwealth of Virginia, that

cannot be a "person" for purposes of the Extortion Element. Bly’s

assertions fail for the reasons discussed below.8

1.

a.

The starting point for any issue of statutory interpretation — such

as Bly’s assertion that the term "any person" in § 876(b) refers only

to live persons — is the language of the statute itself. United States

v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003). "In that regard, we

must first determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute . . . and

our inquiry must cease if the statutory language is unambiguous and

the statutory scheme is coherent and consistent." See United States v.

Hayes, 482 F.3d 749, 752 (4th Cir. 2007) (internal quotation marks

omitted). Whether a statutory term is plain and unambiguous is deter-

mined not only by the language of the statute itself, but also by how

it is used and the context of the statute as a whole. Id. As the Supreme

7

Bly appears to use the term "natural persons" as if it should be limited

to human beings only. The Supreme Court has recognized, however, that

a corporation is deemed to be a natural person for virtually all purposes

of constitutional and statutory analysis. See Monell v. Dep’t of Social

Serv. of City of New York, 436 U.S. 658, 687 (1978); Wilson v. Omaha

Indian Tribe, 442 U.S. 653, 666-67 (1979). As a result, we refer to Bly’s

proposed natural person limitation as relating to "live," "living," or "liv-

ing and breathing" persons.

8

In its brief on appeal, the Government alternatively maintains that the

§ 876(b) Offense is valid because, although UVA was the alleged extor-

tion victim, it would have been the responsibility of the individual

addressees of the Letter — including members of the University’s Board

of Visitors, its President, and its General Counsel — to respond to Bly’s

demands. UVA was the entity to which Bly’s extortion demand was

directed, however, and it was the entity with the resources to possibly

satisfy his demands. The § 876 Offense thus properly specified in the

Extortion Element that UVA was the victim of the § 876(b) Offense.

UNITED STATES v. BLY 11

Court has explained, "[t]he plain meaning of legislation should be

conclusive, except in the rare cases [in which] the literal application

of a statute will produce a result demonstrably at odds with the inten-

tions of its drafters." United States v. Ron Pair Enters., Inc., 489 U.S.

235, 242 (1989) (internal quotation marks omitted).

The term "person" appears in § 876(b) three times, in two distinct

contexts. As first used in § 876(b), in the Extortion Element, the term

"any person" (in the phrase "intent to extort from any person")

describes the permissible victim of an extortion demand.9 The term

"person" is then used in § 876(b) on two other occasions, both as part

of the Threat Element: in the phrase "kidnap any person" to describe

the potential victim of a threat to kidnap, and in the phrase "injure the

person of the addressee or of another" to describe the type of harm

threatened against the potential victim of a threat to injure. Although

threats to kidnap a person and to injure the person of another are real-

istically limited to live persons, it is entirely reasonable to conclude

that an artificial entity, such as UVA, can be the victim of an extor-

tion demand. Moreover, under ordinary usage, the term "person" is

defined as "a human being, a body of persons, or a corporation, part-

nership, or other legal entity that is recognized by law as the subject

of rights and duties." Webster’s Dictionary, 1686 (3d ed. 2002)

(emphasis added). Thus, a plain meaning assessment of § 876(b) com-

pels us to conclude that the term "person," as used in the Extortion

Element, is not limited to living and breathing persons.10 The

9

The modification of "person" by use of the word "any" in the Extor-

tion Element of § 876(b) appears to manifest a congressional intention of

being broadly inclusive. According to Webster’s, "any" means, inter alia,

"one or some of whatever kind of any sort." Webster’s Dictionary, 97 (3d

ed. 2002).

10

Bly relies on certain court decisions to support his position that,

under § 876(b), only living persons can be the subject of extortion. Those

authorities are inapposite, however, because they do not relate to the

term "person" as it is used in the Extortion Element of § 876(b). Indeed,

those decisions address the construction of "person" as that term is used

in § 876(c), which lacks an extortion element. See, e.g., United States v.

Williams, 376 F.3d 1048, 1052-53 (10th Cir. 2004) (concluding that

"person," as used in § 876(c) to describe element of threat to injure, is

limited to live persons); United States v. Brownfield, 130 F. Supp. 2d

1177, 1180-81 (C.D. Cal. 2001) (same).

12 UNITED STATES v. BLY

Supreme Court has strongly buttressed this conclusion by its recogni-

tion in Monell v. Dep’t of Social Serv. of City of New York, 436 U.S.

658, 687 (1978), that "it is well understood that corporations should

be treated as natural persons for virtually all purposes of constitu-

tional and statutory analysis."

b.

Bly nevertheless contends that our interpretation of the term "per-

son" is controlled by the rule of "uniform usage," i.e., that "identical

terms used in the same sentence of a statute carry the same meaning."

Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 533 (4th Cir. 2005). The

uniform usage rule is not to be applied, however, "when there is a

variation in how the words are used as reasonably to warrant the con-

clusion that they were employed in different parts of the act with dif-

ferent intent." Id. Moreover, if a statutory term has multiple

commonly understood and accepted meanings, among which a

speaker may alternate without confusion, the rule of uniform usage

will readily yield. See Gen. Dynamics Land Sys., Inc. v. Cline, 540

U.S. 581, 595-96 (2004).

Although Bly contends that the principle of uniform usage should

control our analysis of the Extortion Element of § 876(b), the context

in which the term "any person" is used therein plainly indicates that

it does not refer solely to living persons. On this point, the district

court correctly recognized that "[t]his is the kind of ‘variation’ in the

connection in which words are used which warrants the conclusion

that the meaning of ‘person’ could be used in a narrow and a broader

sense within the same paragraph." Opinion 7. In the context of the

term "person" in the Extortion Element, we agree with the district court.11

11

Bly also maintains that the use of the term "person" in 18 U.S.C.

§ 875 (which he characterizes as a parallel statute) supports his interpre-

tation of the Extortion Element of § 876(b). According to Bly, because

Congress explicitly included "firm, association, or corporation," in addi-

tion to "person," in § 875, the omission of those terms from § 876 man-

dates his interpretation of the term "any person" in the Extortion

Element. We have recognized that, under ordinary principles of statutory

construction, "where Congress includes particular language in one sec-

tion of a statute but omits it in another provision of the same Act, it is

UNITED STATES v. BLY 13

2.

Bly next asserts that even if the term "any person" in the Extortion

Element includes some non-natural persons, it still does not cover

UVA. He relies for this assertion on the Dictionary Act, 1 U.S.C. § 1,

which includes entities like corporations (but not governmental enti-

ties) in its definition of "person." According to Bly, UVA, as a public

university, is an extension of the Commonwealth of Virginia, and is

thus not a corporation or other entity within in the Dictionary Act’s

definition of the term "person." As explained below, although the

Dictionary Act does not expressly include governmental bodies in its

definition of the term "person," that omission is neither controlling

nor persuasive.12

In assessing the meaning of a statutory term, our Court is necessar-

ily guided by the provisions of the Dictionary Act. See 1 U.S.C. § 1

("In determining the meaning of any Act of Congress, unless the con-

text indicates otherwise . . . the words ‘person’ and ‘whoever’ include

corporations, companies, associations, firms, partnerships, societies,

and joint stock companies, as well as individuals." (emphasis added)).

Unless the context of a statute indicates otherwise, the definitions

supplied by the Dictionary Act are to be used to determine the mean-

ing of the terms contained in an Act of Congress. Id. And, the

Supreme Court has applied the Dictionary Act’s definition of the term

"person" to the statutes defining criminal offenses in Title 18 of the

generally presumed that Congress acts intentionally and purposefully in

the disparate inclusion or exclusion." Soliman v. Gonzales, 419 F.3d 276,

283 (4th Cir. 2005). Unfortunately for Bly, § 875 and § 876 were not

enacted into law as part of the same statute. Section 876 was enacted in

1932, but § 875 was not enacted until 1934. Because § 876 was enacted

two years prior to § 875, the parallel statute rule does not assist Bly.

12

The logical extension of Bly’s contention that UVA is not a "person"

under the Extortion Element because it is a part of the Commonwealth

would lead to an absurd result — if Bly had made his extortion demands

to a private college, § 876(b) would, under his contention, be applicable

and he could be prosecuted for an § 876(b) Offense. See Aremu v. Dep’t

of Homeland Sec., 450 F.3d 578, 583 (4th Cir. 2006) (noting "settled rule

that a court must, if possible, interpret statutes to avoid absurd results").

14 UNITED STATES v. BLY

United States Code. See United States v. A & P Trucking, 358 U.S.

121 (1958).

Under Virginia law, UVA is both a corporation and a department

of the government of Virginia. Indeed, the Virginia Code provides

that UVA’s Board of Visitors, which is charged with "the care and

preservation of all property belonging to the University," is an entity

that "shall be and remain a corporation." Va. Code §§ 23-69, 23-76.

And, the Supreme Court of Virginia has determined UVA to be both

"a corporation and a department of the government." Batcheller v.

Commonwealth, 10 S.E.2d 529, 535 (Va. 1940). The district court

relied on this legal principle in ruling on Bly’s Extortion Threat con-

tention. In response to Bly’s second amended motion to dismiss,

which focused primarily on whether UVA is a person subject to being

extorted under § 876(b), the court explained that,

the Defendant’s motion is without merit. Va. Code § 23-69

provides that the Board of Visitors of the University of Vir-

ginia "shall be and remain a corporation" and Va. Code

§ 23-76 vests the Board "with the care and preservation of

all property belonging to the University."

J.A. 88. We agree with the district court — UVA is more than an

extension of the Commonwealth of Virginia and, under Virginia law,

it is a corporation. See Va. Code §§ 23-69, 23-76; Batcheller, 10

S.E.2d at 535.

Finally, Bly’s proposition that the term "person," as used in the

Extortion Element, should exclude all sovereign entities and their sub-

parts, has little appeal in the criminal law context. See United States

v. Cooper Corp., 312 U.S. 600, 604-05 (1941) (concluding that rule

excluding sovereign from term "person" may be overcome by analysis

of purpose, subject matter, context, and other relevant considerations).13

13

Several federal courts have recognized that a government entity can

be the victim of a crime. See, e.g. United States v. Ekanem, 383 F.3d 40,

43-44 (2d Cir. 2004) (2d Cir. 2004) (concluding that "victim" under

Mandatory Victims Restitution Act not limited by Dictionary Act’s defi-

nition of "person" and also includes government); United States v. Foun-

tain, 768 F.2d 790, 802 (7th Cir. 1985) (concluding that Department of

Labor can be victim under Victim and Witness Protection Act).

UNITED STATES v. BLY 15

In support of this proposition, Bly relies on two Ninth Circuit deci-

sions arising under 18 U.S.C. § 1153 (Indian major crimes statute).

See United States v. Errol D., 292 F.3d 1159, 1162 (9th Cir. 2002)

(alleging victim to be Bureau of Indian Affairs); United States v.

Belgarde, 300 F.3d 1177, 1179 (9th Cir. 2002) (alleging victim to be

the Montana Department of Family Services). The Ninth Circuit ruled

in those cases that a government entity could not be a victim under

§ 1153, because such an entity was not a living person. Even if cor-

rectly decided, those decisions seem readily distinguishable from our

Extortion Element issue, in that § 1153 appears, by its terms, to relate

exclusively to living persons. 18 U.S.C. § 1153 ("Any Indian who

commits against the person or property of another Indian or other

person any of the following offenses . . . [shall be guilty of a crime

against the United States]." (emphasis added)).

The question of whether the statutory use of the term "person"

excludes governmental entities arises primarily in civil litigation, such

as when a litigant seeks damages from a state entity, or in suits over

whether Congress has subjected a state entity to monetary liability.

Put simply, the financial considerations readily apparent in such civil

disputes are hardly relevant (much less controlling) to our resolution

of a criminal law question like that presented here — whether a gov-

ernmental entity can be the victim of an extortion demand under

§ 876(b). Cf. Vermont Agency of Natural Res. v. United States ex rel.

Stevens, 529 U.S. 765, 780-87 (2000) (concluding that False Claims

Act did not subject state to liability in qui tam action); see also Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) (ruling that

state is not "person" within meaning of § 1983).14 Indeed, policy con-

14

The other authorities upon which Bly relies in his appellate brief are

readily distinguishable, in that they relate to civil proceedings only. See

Va. Office for Protection and Advocacy v. Reinhard, 405 F.3d 185, 189

(4th Cir. 2005) (recognizing that Virginia state agency was not "person"

who could sue under § 1983); Al Fayed v. C.I.A., 229 F.3d 272, 273

(D.C. Cir. 2004) (concluding that "person" subject to subpoena did not

include federal government); Donald v. Univ. of Ca. Bd. of Regents, 329

F.3d, 1040, 1044 (9th Cir. 2003)(recognizing that state is not "person"

subject to liability under False Claims Act); Commonwealth of Va. v. Bd.

of Supervisors of Spotsylvania County, 225 Va. 492, 494-95 (1983) (rec-

ognizing that Virginia is not "person" subject to filing deadline for pur-

poses of suit to collect fee reimbursement).

16 UNITED STATES v. BLY

cerns such as comity and parity — that could impact federalism issues

between state and federal sovereigns — are not pertinent here. We are

today called upon to assess only the issue of whether a university con-

nected to one of the states can be an extortion victim under § 876(b);

not whether Congress is empowered to impose potential civil liability

on some state entity.

Thus, Bly’s contention that governmental entities are excluded

from the definition of "person" in the Dictionary Act, and that UVA

is not subject to being extorted under § 876(b), is unconvincing. See

Vermont Agency of Natural Res., 529 U.S. at 781; see also Georgia

v. Evans, 316 U.S. 159, 161-63 (1942) (recognizing Georgia as per-

son under antitrust statute). As the district court properly observed in

assessing this contention, there is nothing in § 876(b) to indicate that

Congress intended to protect only living persons from the extortion

demands criminalized in § 876(b). See Order 7. In context, it is clear

that Congress, by using the term "any person" in the Extortion Ele-

ment, intended "to penalize every extortion demand by mail which is

coupled with an express threat or with any language or expression

which carries with it the reasonable connotation of a threat." United

States v. Prochaska, 222 F.2d 1, 2 (7th Cir. 1955). As such, UVA —

for the purposes of the Extortion Element of § 876(b) — qualifies as

a person subject to being extorted under § 876(b).

IV.

Pursuant to the foregoing, we reject Bly’s contentions and affirm

the judgment of the district court.

AFFIRMED

DIANA GRIBBON MOTZ, Circuit Judge, concurring:

I respect the majority’s position and completely agree with its rea-

soning with respect to the First Amendment issue. I also concur in the

judgment. In my view, however, whether the term "person" in 18

U.S.C. § 876(b) includes the University of Virginia presents a very

difficult question. Although ultimately I agree with the majority’s

conclusion, I write separately because I reach this conclusion for

somewhat different reasons.

UNITED STATES v. BLY 17

I.

The Supreme Court has expressly recognized that the "presumption

that ‘person’ does not include the sovereign" in federal statutes is

"longstanding." Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529

U.S. 765, 780 (2000). More than sixty years ago, Congress passed the

1947 Dictionary Act, legislating against this background presumption,

providing that the word "person" includes corporations and partner-

ships. General Provisions, 80 cong. ch. 388, 61 Stat. 633 (1947) (cod-

ified as amended at 1 U.S.C.A. § 1 (West 2005)).

The Court then linked the longstanding presumption to the Dictio-

nary Act, explaining that "[t]he absence of any comparable provision

extending the term to sovereign governments implies that Congress

did not desire the term to extend to them." United States v. Mine

Workers, 330 U.S. 258, 275 (1947). In 1948, after the decision in

Mine Workers, Congress appeared to ratify this position when it

amended the Act by expanding the term "person" to include numerous

other legal entities but declining to include sovereign entities as "per-

sons." See Act of June 25, 1948, 80 cong. ch. 645, sec. 6, 62 Stat.

859; see also Ankenbrandt v. Richards, 504 U.S. 689, 700-01 (1992)

(presuming that, when Congress makes other substantive changes to

a statute but does not indicate an intent to change a prior construction,

Congress has adopted that interpretation).

The Court has expressly held that, for purposes of this presump-

tion, "sovereign" includes a state or state agency. Vt. Agency, 529

U.S. at 778, 780-81. Therefore, the presumption would apply to the

University of Virginia, a state agency. See Cent. Va. Cmty. Coll. v.

Katz, 126 S. Ct. 990, 994 (2006). Moreover, the Court has instructed

that while the presumption is not "hard and fast," we can only disre-

gard it "upon some affirmative showing of statutory intent to the con-

trary." Vt. Agency, 529 U.S. at 781.

The Government offers little in the way of an "affirmative showing

of statutory intent," to justify disregard of the presumption.

It does point to the fact that, in addition to being a state agency, the

University is a corporation under state law. This is true but irrelevant.

The Supreme Court has never suggested that the state law designation

18 UNITED STATES v. BLY

of a sovereign entity as a corporation eliminates that entity’s status as

a sovereign. Indeed, when a sovereign Indian Tribe and a corporation

that was an "‘arm’ of the Tribe" sought to be recognized as "per-

son[s]" under a federal statute, the Supreme Court denied this status

to both the Tribe and corporation, without distinguishing the two,

because both were sovereign entities. Inyo County v. Paiute-Shoshone

Indians, 538 U.S. 701, 704, 705 n.1 (2003). Similarly, the Court has

recognized that although "state officials literally are persons," they are

nonetheless presumed not to be included within the statutory term

"person" when acting in their "official capacity" because in those cir-

cumstances they are "no different from . . . the State itself." See Will

v. Mich. Dept. of State Police, 491 U.S. 58, 64, 71 (1989).

The only other reason the Government offers for disregarding the

presumption is that § 876(b) is a criminal statute. Again, the Supreme

Court has not suggested that the presumption reflected in the 1947

Dictionary Act does not apply to criminal statutes. Rather, as the

majority recognizes, "the Supreme Court has applied the Dictionary

Act’s definition of the term ‘person’ to the statutes defining criminal

offenses in Title 18 of the United States Code." Ante at 13-14 (citing

United States v. A & P Trucking Co., 358 U.S. 121 (1958)); see also

United States v. Ekanem, 383 F.3d 40, 42-43 (2d Cir. 2004) (recog-

nizing that the presumption would apply but finding that the statutory

context nevertheless indicates that "person" includes government enti-

ties as potential victims in the Mandatory Victims Restitution Act);

United States v. Errol D., 292 F.3d 1159, 1162-63 (9th Cir. 2002)

(recognizing that the presumption applies and holding that "person"

does not include a federal agency as a potential victim in the Major

Crimes Act); United States v. Belgarde, 300 F.3d 1177, 1181 (9th Cir.

2002) (relying upon Errol D. and holding that "person" does not

include a state agency as a potential victim in the Major Crimes Act).

Accordingly, if we were to apply the presumption as reflected in

the 1947 Dictionary Act and then end our inquiry looking only to the

Government’s proffered "affirmative showing," I would be inclined to

reverse. But, it is not at all clear that our analysis ends here.

II.

Congress enacted § 876(b) in 1932, over a decade before the 1947

Dictionary Act. See Act of July 8, 1932, 72 cong. ch. 464, 47 Stat.

UNITED STATES v. BLY 19

649 (codified as amended at 18 U.S.C. § 876(b) (2000)). Supreme

Court precedent from that time established a different analysis for

determining whether "person" includes the sovereign than the

approach reflected in the 1947 Dictionary Act and the more modern

cases, like Vermont Agency, 529 U.S. 765.

In Nardone v. United States, decided only a few years after Con-

gress enacted § 876(b), the Court recognized the "canon that the gen-

eral words of a statute do not include the government." 302 U.S. 379,

383 (1937) (citing and explaining numerous prior cases involving the

canon).* The Court held, however, that the canon applied to only two

categories of statutes: (1) those which, "if not so limited, would

deprive the sovereign of a recognized or established prerogative[,]

title[,] or interest"; and (2) those in which a reading that includes the

sovereign "would work obvious absurdity." Id. at 383-84. Finding that

the statute at issue did not fall into either category, the Court declined

to apply the canon. Instead, it applied "another well recognized prin-

ciple": "that the sovereign is embraced by general words of a statute

intended to prevent injury and wrong." Id. at 384.

If we simply applied the principles articulated by the Nardone

Court, the term "person" in § 876(b) certainly would include a sover-

eign entity, like the University of Virginia. For including the Univer-

sity within the term "person" for purposes of § 876(b) neither deprives

*It might seem odd to turn to the judicial understanding of the term

"person," rather than the then-current version of the Dictionary Act,

which also defined the term. At the time that § 876 was enacted, the 1871

Dictionary Act was in force, see Act of Feb. 25, 1871, 41 cong. ch. 71,

§ 2, 16 Stat. 431, but the Supreme Court has instructed that the 1871

Act’s definition of "person" fails to evidence a clear intent as to whether

the sovereign is a person, see Will, 491 U.S. at 64, 69. Moreover, Nar-

done does not cite the 1871 Act when discussing the "canon" or "well

recognized principle . . . that the sovereign is embraced by general words

of a statute intended to prevent injury and wrong." 302 U.S. at 384. Nor

does United States v. Cooper Corp., in which the Court expressly relied

on Nardone for the proposition that "in common usage, the term ‘person’

does not include the sovereign." 312 U.S. 600, 604-05 & n.6 (1941).

Thus, Nardone, rather than the 1871 Dictionary Act, provides the best

evidence of whether "person" was understood to include a sovereign

entity when Congress enacted § 876(b).

20 UNITED STATES v. BLY

the University of a "recognized or established prerogative[,] title[,] or

interest," nor produces an absurd result. Id. at 383-84. Further, this

reading accords with Nardone’s "well recognized principle," as a stat-

ute criminalizing extortion surely is "intended to prevent injury and

wrong." Id. at 384.

III.

Therefore, as I see it, determining whether the University is a "per-

son" for purposes of § 876(b) hinges upon whether we look to the cur-

rent Dictionary Act or Nardone. Although the question is not free

from doubt, I believe that we should look to the latter. This approach

accords with the Supreme Court’s general interpretive assumption

that Congress formulates new legislation with awareness of prior

interpretations of the terms used in that legislation. See, e.g., Barnhart

v. Peabody Coal Co., 537 U.S. 149, 160-61 (2003); see also 2A Nor-

man J. Singer, Sutherland Statutes and Statutory Construction § 47:30

(rev. 7th ed. 2007).

No Supreme Court case, however, directly addresses the question

we face, and the closest precedent, Will, 491 U.S. 58, is not terribly

helpful. In Will, the Court considered whether a state and its officials

were "persons" for purposes of 42 U.S.C. § 1983. The Will Court

noted the presumption that "person" excludes the sovereign, id. at 64,

but also looked to the understanding of the word "person" at the time

Congress enacted § 1983 in 1871, id. at 69-70 & n.9, along with other

tools of statutory interpretation, id at 67-69. In Will, the presumption

and contemporaneous understanding of the term "person" at the time

Congress enacted § 1983 did not produce conflicting results; neither

indicated that "person" included the sovereign. For this reason, Will

provides no guidance as to whether the presumption or the then-

current understanding of the word is the proper interpretive tool when

the two do conflict. Cf. Ngiraingas v. Sanchez, 495 U.S. 182, 192

(1990) (concluding that the presumption, language, purpose, and con-

temporary understanding all support the same result under § 1983).

The Supreme Court, however, has long and consistently recognized

that determining whether a sovereign is a "person" "depends not

‘upon a bare analysis of the word person’ . . . but on the ‘legislative

environment’ in which the word appears,’" Inyo, 538 U.S. at 711 (cit-

UNITED STATES v. BLY 21

ing Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 317 (1978) and Geor-

gia v. Evans, 316 U.S. 159, 161 (1942)); see also Cooper, 312 U.S.

at 605 & n.6. To determine whether the term "person" includes the

sovereign in a given context, the Court examines "all . . . available

aids to construction," including legislative purpose, subject matter,

context, history, executive interpretation, and "the policy intended to

be served by the enactment." Pfizer, 434 U.S. at 313, 316 (quoting

Cooper, 312 U.S. at 605); see also Ngiraingas, 495 U.S. at 192

(applying all of these aids to construction); Will, 491 U.S. at 64-70

(same).

We have few of these tools to guide us in determining whether

"person" in § 876(b) includes a sovereign entity, such as the Univer-

sity of Virginia — the statute’s legislative history provides no help

and its purpose also does not dictate a result. But it seems to me that

the "legislative environment," Inyo, 538 U.S. at 711, must include the

"well recognized principle" articulated in Nardone and existing at the

time Congress enacted § 876(b), that the term "person" in a statute

"intended to prevent injury and wrong" embraced the sovereign. See

Yousuf v. Samantar, 451 F.3d 248, 253-55 (D.C. Cir. 2006) (applying

the principle articulated in Nardone to Federal Rule of Procedure 45,

which was adopted prior to the 1947 Dictionary Act). Moreover in

§ 876(b), Congress sought "to penalize every extortion demand by

mail which is coupled with an express threat," United States v.

Prochaska, 222 F.2d 1, 2 (7th Cir. 1955), and punishing threats

against a sovereign entity unquestionably furthers this policy.

Accordingly, because both the contemporary understanding of the

relevant principle of statutory construction and "the policy intended

to be served by the" statute, Pfizer, 434 U.S. at 316, support the con-

clusion that "person" in § 876(b) includes a sovereign entity like the

University of Virginia, I agree with the majority that it does.