United States v. Adrian Stock

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-2914

______

UNITED STATES OF AMERICA

v.

ADRIAN PETER STOCK,

Appellant

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-11-cr-00182-001)

District Judge: Honorable Nora B. Fischer

______

Argued May 14, 2013

Before: SMITH, FISHER and CHAGARES, Circuit Judges

(Filed: August 26, 2013)

Elisa A. Long, Esq. (ARGUED)

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Rebecca R. Haywood, Esq.

Laura S. Irwin, Esq. (ARGUED)

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Adrian Peter Stock appeals from the District Court‟s

order denying his motion to dismiss his indictment under

Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to

state the offense of transmitting a threat in interstate

commerce under 18 U.S.C. § 875(c). Stock argues that the

term “threat” means the expression of an intent to inflict

injury in the present or future, and that the statement

attributed to him does not meet that definition. For the

reasons stated below, we will affirm.

2

I.1

On August 3, 2011, Stock was charged in a one-count

indictment that alleged:

“On or about February 9, 2011, in the Western

District of Pennsylvania, the defendant,

ADRIAN PETER STOCK, did knowingly and

willfully transmit in interstate commerce a

communication containing a threat to injure the

person of another, that is, the defendant,

ADRIAN PETER STOCK, posted a notice on

Craig‟s List, an Internet web site, that contained

the following statements, among others,

i went home loaded in my truck

and spend the past 3 hours

looking for this douche with the

expressed intent of crushing

him in that little piece of shit

under cover gray impala

hooking up my tow chains and

dragging his stupid ass down to

creek hills and just drowning

1

Because our consideration of a challenge under

Federal Rule of Criminal Procedure 12(b)(3)(B) is confined

to the facts alleged within the indictment, our factual

background is similarly circumscribed. See United States v.

Huet, 665 F.3d 588, 595-96 (3d Cir. 2012); United States v.

Bergrin, 650 F.3d 257, 265 (3d Cir. 2011).

3

him in the falls. but alas i can’t

fine that bastard anywhere . . . i

really wish he would die, just

like the rest of these stupid

fucking asshole cops. so J.K.P.

if you read this i hope you burn

in hell. i only wish i could have

been the one to send you there.

In violation of Title 18, United States Code,

Section 875(c).”

App. at 50.

4

Stock moved to dismiss his indictment under Rule

12(b)(3)(B)2 for failure to state an offense, arguing that his

alleged statement did not constitute a threat under § 875(c) as

a matter of statutory interpretation, but disclaiming any First

2

Stock actually moved to dismiss his indictment under

both Federal Rule of Criminal Procedure 12(b)(2) and Rule

12(b)(3)(B). App. at 53. Stock may have cited Rule 12(b)(2)

because his argument that his indictment fails to state an

offense is based on our holding in United States v. Panarella

that “for purposes of Rule 12(b)(2), a charging document fails

to state an offense if the specific facts alleged in the charging

document fall beyond the scope of the relevant criminal

statute, as a matter of statutory interpretation.” 277 F.3d 678,

685 (3d Cir. 2002). But after we decided Panarella, Rule

12(b)(2) was re-numbered as Rule 12(b)(3)(B). United States

v. Al Hedaithy, 392 F.3d 580, 586 n.6 (3d Cir. 2004). Thus,

our discussion proceeds under Rule 12(b)(3)(B), which

provides that “at any time while the case is pending, the court

may hear a claim that the indictment . . . fails . . . to state an

offense.”

5

Amendment challenge.3 After holding a hearing and ordering

supplemental briefing, the District Court denied Stock‟s

motion to dismiss. Although the District Court concluded

that a threat must evince an intent to injure in the present or

3

To the extent that Stock initially suggested that his

statement was protected by the First Amendment, App. at 65,

he subsequently disclaimed that argument before the District

Court, id. at 125, 254. Stock also abandoned that issue in his

Opening Brief by affirmatively directing us to avoid

“grappl[ing] with the constitutional implications of the

statements in the indictment.” Opening Br. at 26 n.5

(citations omitted); see also Kost v. Kozakiewicz, 1 F.3d 176,

182 (3d Cir. 1993) (holding, where the appellant only

suggested the existence of an issue “in passing in a short

footnote in the[] opening brief, without argument or relevant

citation,” that the appellant had abandoned the issue on

appeal); United States v. Jongewaard, 567 F.3d 336, 339 n.2

(8th Cir. 2009) (noting, where a defendant “expressly

disclaims any challenge . . . under the First Amendment,” that

a court “need not address the question whether [the]

statements . . . contained a true threat rather than

constitutionally protected speech”). Indeed, we understand

Stock‟s passing references to the First Amendment to make

the reasonable point that because his statement is not a

“threat” within the ordinary meaning of that word as it is used

in 18 U.S.C. § 875(c), it cannot possibly be within the subset

of “true threats” that are unprotected by the First Amendment.

Opening Br. at 25; App. at 200-01 ¶ 1.

6

future, the court also determined that a reasonable jury could

find that Stock‟s statement was a threat.

Stock then executed a plea agreement with the

Government pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), in which he generally waived his appellate

rights, but specifically preserved his right to seek review of

the District Court‟s denial of his motion to dismiss. The

District Court accepted Stock‟s guilty plea and imposed a

term of imprisonment of one year and one day and a term of

supervised release of two years. Stock timely appealed.

II.

The District Court had jurisdiction over Stock‟s case

under 18 U.S.C. § 3231, and we have jurisdiction over his

appeal under 28 U.S.C. § 1291.

We apply a mixed standard of review to a district

court‟s decision on a motion to dismiss an indictment,

exercising plenary review over legal conclusions and clear

error review over factual findings. United States v. Huet, 665

F.3d 588, 594 (3d Cir. 2012). In this appeal, Stock attacks the

sufficiency of his indictment, presenting a legal question over

which we have plenary review. United States v. McGeehan,

584 F.3d 560, 565 (3d Cir. 2009), vacated on other grounds,

625 F.3d 159, 159 (3d Cir. 2010). In particular, Stock

challenges the sufficiency of his indictment on the basis that

the specific facts alleged therein fall outside the scope of the

relevant criminal statute as a matter of statutory

interpretation, and statutory interpretation is a legal question

over which we have plenary review. United States v. Zavrel,

7

384 F.3d 130, 132 (3d Cir. 2004). Therefore, we exercise

plenary review over this appeal.

III.

In this appeal, both parties ascribe errors to the District

Court‟s opinion. The Government argues that the indictment

is facially sufficient and that the term “threat” in § 875(c)

does not include a temporal element. Stock, in turn, asserts

that the issue of whether his statement is a threat is a question

of law and that his statement does not express an intent to

injure in the present or future. We address these points

below.

A.

In reviewing Stock‟s motion to dismiss, the District

Court considered whether the word “threat” in § 875(c)

contains a temporal component. The Government argues that

this analysis was unnecessary because Stock‟s indictment is

facially sufficient. We disagree.

Under Federal Rule of Criminal Procedure 7(c)(1), an

indictment “must be a plain, concise, and definite written

statement of the essential facts constituting the offense

charged.” It is true that “[a]n indictment returned by a legally

constituted and unbiased grand jury, . . . if valid on its face, is

enough to call for trial of the charge on the merits.” Huet,

665 F.3d at 594-95 (emphasis omitted) (quotation omitted).

A facially sufficient indictment “(1) contains the elements of

the offense intended to be charged, (2) sufficiently apprises

the defendant of what he must be prepared to meet, and

8

(3) allows the defendant to show with accuracy to what extent

he may plead a former acquittal or conviction in the event of

a subsequent prosecution.” Id. at 595 (quotation omitted).

Usually, a recitation of the statutory language satisfies the

first requirement, “so long as there is sufficient factual

orientation to permit a defendant to prepare his defense and

invoke double jeopardy.” Id. (quotation omitted). And

typically, a factual orientation that includes a specification of

the time period of the alleged offense is sufficient for the

second and third requirements. Id. In short, “detailed

allegations” are unnecessary. Id. at 594.

Under Rule 12(b)(3)(B), a defendant may contest the

sufficiency of an indictment on the basis that it “fails . . . to

state an offense” in at least two ways. First, a defendant may

contend that an indictment is insufficient on the basis that it

does not satisfy the first requirement in that it “fails to charge

an essential element of the crime.” Huet, 665 F.3d at 595

(citation omitted). Second, because an indictment that merely

“recites in general terms the essential elements of the offense”

does not satisfy the second and third requirements, a

defendant may also claim that an indictment fails to state an

offense on the basis that “the specific facts alleged . . . fall

beyond the scope of the relevant criminal statute, as a matter

9

of statutory interpretation.”4 United States v. Panarella, 277

F.3d 678, 685 (3d Cir. 2002).

The Government asks us to ignore the statutory

interpretation issue because, according to the Government,

the indictment is facially sufficient. The Government relies

on Huet, in which we were asked to decide whether a district

court may find facts in ruling on a motion to dismiss an

indictment for failure to state an offense under Rule

12(b)(3)(B). Responding in the negative, we reversed the

district court‟s dismissal of the indictment, which we

concluded was facially sufficient.

However, Huet is distinguishable because the “only

potential question of statutory interpretation” in that case was

“not at issue on appeal.” 665 F.3d at 597 n.7. For that

reason, we had no need to address “whether the facts alleged

in the indictment f[e]ll beyond the scope of the relevant

criminal statute as a matter of statutory interpretation.” Id. at

597 (citing, inter alia, Panarella, 277 F.3d at 685).

4

A court‟s review of a motion to dismiss an

indictment “is a narrow, limited analysis geared only towards

ensuring that legally deficient charges do not go to a jury.”

Bergrin, 650 F.3d at 268. The court‟s ruling “is not . . . a

permissible vehicle for addressing the sufficiency of the

government‟s evidence.” Id. at 265 (quotation omitted).

Thus, the court determines “whether the facts alleged in the

indictment, if accepted as entirely true, state the elements of

an offense and could result in a guilty verdict.” Id. at 268

(citation omitted).

10

Nonetheless, we reaffirmed that a defendant may attack the

sufficiency of an indictment on that basis. Id. at 595.

Here, Stock is making the unmade challenge in Huet –

namely, that “as a matter of law, the indictment fails to state

an offense,” Opening Br. at 13, because “the statements

alleged in the indictment are not „threats‟ and thus fall beyond

the scope of 18 U.S.C. § 875(c),” id. at 12. Our precedent has

recognized such attacks as an appropriate, alternative way in

which to challenge the sufficiency of an indictment. See

McGeehan, 584 F.3d at 565 (“The sufficiency of an

indictment may be challenged not only on the basis that it

fails to charge the essential elements of the statutory offense,

but also on the ground that „the specific facts alleged . . . fall

beyond the scope of the relevant criminal statute, as a matter

of statutory interpretation.‟” (emphasis added) (quoting

Panarella, 277 F.3d at 685)). Thus, the District Court did not

err in considering whether the term “threat” in § 875(c)

includes a temporal element, a question to which we now

turn.

B.

The District Court concluded that the word “threat” in

§ 875(c) means an “„express[ion of] an intention to inflict

injury at once or in the future.‟” App. at 10 (quoting Zavrel,

11

384 F.3d at 136).5 The Government counters that, under

controlling precedent, the term “threat” in § 875(c) is “a

5

We agree with the Government that the District Court

incorrectly concluded that we adopted a definition of the term

“threat” in United States v. Zavrel, 384 F.3d 130 (3d Cir.

2004). There, we reviewed a district court‟s denial of a

defendant‟s motion for judgment of acquittal, considering

whether the mailing of a substance resembling anthrax

constituted a communication containing a “threat” under 18

U.S.C. § 876(c). The defendant argued that her

communications were immediately, not prospectively,

harmful, and that threats were limited to prospective, not

immediate, harm. We observed that the district court had

defined the word “threat” as:

“[A] serious statement or communication which

expresses an intention to inflict injury at once or

in the future as distinguished from idle or

careless talk, exaggeration or something said in

a joking manner. A statement or

communication is a threat if it was made under

such circumstances that a reasonable person

hearing or reading the statement or receiving

the communication would understand it as a

serious expression of an intent to inflict injury.”

12

statement 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.‟” Response Br.

at 28 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).

We hold that the word “threat” in § 875(c) encompasses only

communications expressing an intent to inflict injury in the

present or future.

The Government‟s proffered definition of the word

“threat” is pulled from precedent concerning whether certain

communications constitute “true threats” unprotected by the

First Amendment. The Supreme Court‟s true threat

jurisprudence originated in Watts v. United States, 394 U.S.

705 (1969) (per curiam). There, the defendant was charged

with making a “threat” to harm the president in violation of

18 U.S.C. § 871(a). In reversing the denial of the defendant‟s

motion for judgment of acquittal, the Court instructed that a

statute that “makes criminal a form of pure speech[] must be

interpreted with the commands of the First Amendment

clearly in mind.” Id. at 707. Thus, the Court held that a

threat statute may criminalize only “a true „threat,‟” id. at

Id. at 136 (quotation omitted). Although “[w]e believe[d] this

to be the correct approach,” we declined “to decide the issue

definitively,” because even if we accepted the defendant‟s

assertion that a threat must relate to future harm, we

determined that the defendant‟s communications did threaten

future harm. Id. Thus, we did not resolve in Zavrel whether

the term “threat” in a federal threat statute includes a

temporal element.

13

708, which “must be distinguished from . . . constitutionally

protected speech,” id. at 707.

Contrary to the Government‟s contention, the

definition of the word “threat” and the definition of the phrase

“true threat” are not co-extensive. To be sure, Watts taught us

to interpret threat statutes in light of the First Amendment.

But by distinguishing a “true threat” from a “threat” that

would otherwise fall within the scope of a statute were it not

protected by the First Amendment, Watts shows that “true

threats” are a specific subset of “threats.” Thus, the plain

meaning of a “threat” under § 875(c) is distinct from the

constitutional meaning of a “true threat” under the First

Amendment.6 See United States v. Jongewaard, 567 F.3d

336, 339 & n.2 (8th Cir. 2009) (noting that because the

defendant argued that § 875(c), not the First Amendment,

required that a communication be made to achieve a goal

through intimidation in order to constitute a threat, the court

did not need to address the question of whether the statement

constituted a true threat); United States v. Alkhabaz, 104 F.3d

1492, 1493 (6th Cir. 1997) (concluding that “the indictment

failed, as a matter of law, to allege violations of Section

875(c),” and accordingly declining “to address the First

Amendment issues raised by the parties”); United States v.

Havelock, 664 F.3d 1284, 1304 n.1 (9th Cir. 2012) (en banc)

6

For this reason, we will not rely on the definition of a

“true threat” as “a serious expression of an intention to inflict

bodily harm” that we adopted in United States v. Kosma, 951

F.2d 549, 557 (3d Cir. 1991) (emphasis omitted) (quotation

omitted).

14

(Reinhardt, J., concurring in part and dissenting in part)

(explaining that because the communications “were not a

threat in any sense of the word,” there was no need to “reach

the [First Amendment] question”).

The Government also claims that the ordinary meaning

of the word “threat” in § 875(c) does not contain a temporal

component. Section 875(c) prohibits the “trans[mission] in

interstate . . . commerce [of] any communication containing

. . . any threat to injure the person of another.” The term

“threat” was not defined by congress in § 875(c) or in any of

the related federal threat statutes. See generally 18 U.S.C. §§

871-880.

Our interpretation of the word “threat” in § 875(c)

begins with an inquiry into “whether the language used has a

plain and unambiguous meaning with regard to the particular

dispute in the case.” Zavrel, 384 F.3d at 133 (quotation

omitted); see also Perrin v. United States, 444 U.S. 37, 42

(1979) (“A fundamental canon of statutory construction is

that, unless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning.”

(citation omitted)). When § 875(c) was last amended in 1994,

one definition of the term “threat” expressly included a

temporal element. See Black‟s Law Dictionary 1480 (6th ed.

1990) (“The term, „threat‟ means an avowed present

determination or intent to injure presently or in the future.”

(emphasis added)). While other definitions did not do so

explicitly, see, e.g., id. (“[A threat is a] communicated intent

to inflict physical or other harm on any person or on

property.”), they did so implicitly by defining “threat” with

reference to the speaker‟s “intent,” which is an inherently

15

prospective concept, see id. at 810 (defining the word “intent”

as “[a] state of mind in which a person seeks to accomplish a

given result through a course of action”). Thus, the plain

meaning of the word “threat” in § 875(c) suggests that it is

confined to communications expressing an intent to injure in

the present or future.

This conclusion is confirmed by a consideration of the

“placement and purpose” of the term “threat” in § 875(c).

Zavrel, 384 F.3d at 134 (quotation omitted). Turning to the

placement of the word “threat,” the Government argues that

Congress criminalized “any threat,” which includes past as

well as present and future threats. The Government cites

cases from two other courts of appeals adopting an expansive

understanding of the noun “threat” based on the adjective

“any.” In United States v. Jeffries, the Sixth Circuit held that

a music video was a threatening communication under

§ 875(c) because “the statute covers „any threat,‟ making no

distinction between threats delivered orally (in person, by

phone) or in writing (letters, emails, faxes), by video or by

song, in old-fashioned ways or in the most up-to-date.” 692

F.3d 473, 482 (6th Cir. 2012). And in Jongewaard, the

Eighth Circuit held that a threatening communication under §

875(c) need not be made to effect some change through

intimidation because the phrase “any threat” “criminalizes a

broad spectrum of threats to injure the person of another.”

567 F.3d at 340.

Jeffries and Jongewaard do not advance the

Government‟s argument for several reasons. First, neither the

Sixth Circuit nor the Eighth Circuit analyzed whether the

word “threat” in § 875(c) contains a temporal component,

16

since the communications in those cases were expressly

prospective. Jeffries, 692 F.3d at 475-77; Jongewaard, 567

F.3d at 338. Second, and more significantly, the adjective

“any” can broaden the scope of the noun “threat” to its natural

boundary, but not beyond. Alkhabaz, 104 F.3d at 1495 (“To

emphasize the use of the term „any‟ without acknowledging

the limitation imposed by the term „threat‟ ignores the intent

of Congress.”). And third, Jeffries and Jongewaard lend

some support to an interpretation limiting the term “threat” to

communications revealing an intent to injure in the present or

future by demonstrating that such a definition would “not

render the word „any‟ superfluous.” Havelock, 664 F.3d at

1291 (citing Duncan v. Walker, 553 U.S. 167, 174 (2001)).

Thus, the placement of the word “threat” within § 875(c) does

not counsel an interpretation contrary to the plain meaning of

that term.

Pushing on to the purpose of § 875(c), the Government

voices two concerns about cabining the word “threat” to its

plain meaning. The Government first points out that the

purpose of the true threat exception to the First Amendment is

to “protect[] individuals from the fear of violence, from the

disruption that fear engenders, and from the possibility that

the threatened violence will occur.” Response Br. at 30

(quoting Jeffries, 692 F.3d at 478). But even if the purposes

of § 875(c) are identical to the purposes of the true threat

exception to the First Amendment, one of those purposes is

expressly prospective. See R.A.V. v. City of St. Paul, Minn.,

505 U.S. 377, 388 (1992) (explaining that the reason true

threats are outside the First Amendment is to protect people

“from the possibility that the threatened violence will occur”

17

(emphasis added)). With respect to the other two purposes, a

communication demonstrating an intent to injure in the past

may excite some fear of violence and may engender some

disruption from that fear. But the quantum of fear and the

level of disruption experienced by the victim would usually

be less for an expression of an intent to injure in the past than

in the present or future. For example, it seems

uncontroversial that the statement, “I tried to murder you

yesterday, but I will never do so again,” would normally

provoke less fear and disruption than the statement, “I will

murder you tomorrow.”

The Government further posits that because we apply

an objective test to determine whether a communication is a

true threat, United States v. Kosma, 951 F.2d 549, 557 (3d

Cir. 1991), under which the speaker need only have a general

intent to communicate his statement, United States v.

18

Himelwright, 42 F.3d 777, 782 (3d Cir. 1994),7 “it cannot

matter when, in a temporal sense, the defendant intended to

injure the victim,” Response Br. at 32. Again assuming the

applicability of the true threat test to the definition of the term

“threat,” the sender‟s intent would normally be indiscernible

to a reasonable recipient, while the retrospective or

prospective nature of the message would typically be obvious

to a reasonable recipient. Thus, the purposes of § 875(c) do

not conflict with the plain meaning of the word “threat.”

7

In Virginia v. Black, the Supreme Court stated that

“„[t]rue threats‟ encompass those statements where the

speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals.” 538 U.S. 343, 359 (2003)

(emphasis added) (citations omitted). Some courts of appeals

have suggested that this language establishes a new subjective

standard under which the speaker must have the specific

intent that his statement be threatening, see, e.g., United

States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir.

2011); United States v. Parr, 545 F.3d 491, 498-500 (7th Cir.

2008), while others have reaffirmed the traditional objective

standard, see, e.g., United States v. Nicklas, 713 F.3d 435,

439-40 (8th Cir. 2013); United States v. Jeffries, 692 F.3d

473, 479-81 (6th Cir. 2012); United States v. White, 670 F.3d

498, 508-12 (4th Cir. 2012). Although we have continued to

apply the objective test, see, e.g., Zavrel, 384 F.3d at 135-37,

we have not yet considered whether Black called into

question our precedent on the issue, and Stock does not ask us

to do so here.

19

Our interpretation of the term “threat” in § 875(c) is

also consistent with the reasoning of the other courts of

appeals that have addressed this issue. For example, in

Havelock, the defendant was convicted of mailing, a half hour

before opening kickoff, communications threatening to injure

spectators at the Super Bowl, in violation of 18 U.S.C. §

876(c). On appeal, the defendant argued that the district court

erred in denying his motion to dismiss on the basis that the

indictment alleged insufficient facts to state an offense

“because the communications did not threaten to injure

immediately or in the future, but instead contained a „post-

mortem confession or explanation of his actions, which never

came to fruition,‟” and so “were devoid of a „threat to

injure.‟” 664 F.3d at 1288. A three-judge minority,

concurring in the majority‟s judgment, but dissenting from its

rationale for reversing the convictions,8 determined that the

word “threat” is “by definition prospective,” id. at 1305

(Reinhardt, J., concurring in part and dissenting in part)

(citation omitted), because that term is defined as “an

„indication of impending danger or harm,‟” id. (quoting

United States v. Davila, 461 F.3d 298, 302 (2d Cir. 2006)).

8

The defendant also argued that the district court erred

in denying his motion to dismiss on the basis that the

indictment alleged insufficient facts to state an offense

because the word “person” in § 876(c) referred only to natural

people and the alleged communications were addressed to

corporations. Because the majority reversed the convictions

on this basis, it did not address the defendant‟s alternative

argument.

20

In other words, the minority would have ruled that threats

“may include announcements of future or impending action,

but not statements regarding past events or retrospective

harm.” Id. According to the minority:

“Having deposited the [communications] in a

United States Postal Service mailbox on the

very day of the Superbowl, a mere thirty

minutes before his intended rampage at the

stadium, [the defendant‟s] [communications]

could not have reached [their] intended

destinations in time to put the recipients in fear

of imminent danger or to constitute a threat of

future action.”

Id. at 1305-06. For this reason, the minority would have held

that the communications “did not contain a threat.” Id. at

1307.

Further, in United States v. Landham, 251 F.3d 1072

(6th Cir. 2001), the Sixth Circuit reached the same result,

albeit under a true threat analysis. There, the defendant was

convicted of, inter alia, transmitting a threat in interstate

commerce in violation of § 875(c) based on his statement,

“I’ve done more to you with a Parker 51 than what happened

to your father with a goddamn Taurus five-shot.” Id. at 1082

(emphasis added). On appeal, the defendant argued that the

district court erred in denying his motion to dismiss the

indictment because the alleged statement was not a true

threat. Reasoning that it was “self-evident that [the

defendant] [wa]s referring to damaging remarks he had

previously made by transmitting written communications,”

21

the Sixth Circuit determined that the alleged statement

“refer[red] to past conduct, not present or future conduct.” Id.

Thus, the Sixth Circuit concluded that the statement was “not

a „communication containing a threat,‟” and held that “the

indictment failed, as a matter of law, to allege a violation of

§ 875(c).”9 Id. Based on our own statutory interpretation and

this persuasive authority, we hold that the term “threat” in §

875(c) refers to the expression of an intent to inflict injury in

the present or future.10

C.

Notwithstanding the District Court‟s adoption of

Stock‟s preferred definition of the word “threat,” the court

determined that the case “d[id] not turn on the statutory

construction of section 875(c),” because “a reasonable jury

could conclude that the communication posted by Defendant

on Craigslist constituted a threat.” App. at 13 (citing Huet,

665 F.3d at 596). According to Stock, this conclusion was

9

As an alternative basis for its holding, the court

reasoned that “even if the statement were a veiled threat, it

was not an intent to inflict bodily harm” because “[a] Parker

fifty-one is a fountain pen.” United States v. Landham, 251

F.3d 1072, 1082 (6th Cir. 2001).

10

The parties cite countless cases to support their

competing definitions, some of which include, and others of

which do not include, a temporal element. We find these

cases, which do not directly address the issue, to be of little

value here.

22

erroneous because “[a] determination of whether the facts set

forth in the indictment are „threats‟ as used in § 875(c)

presents a question of law, not a question of fact for a jury.”

Opening Br. at 24 (citations omitted).11 Although we hold

that a court may conclude that a communication does not

constitute a threat as a matter of law in certain cases, we are

also satisfied that the District Court recognized its ability to

do so here.

In the usual case, whether a communication constitutes

a threat or a true threat “is a matter to be decided by the trier

of fact.” Kosma, 951 F.2d at 555 (citations omitted); see also

United States v. White, 670 F.3d 498, 512 (4th Cir. 2012);

United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008);

United States v. Floyd, 458 F.3d 844, 848-49 (8th Cir. 2006);

United States v. Viefhaus, 168 F.3d 392, 397 (10th Cir. 1999);

United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994).

Nonetheless, “[a] few cases may be so clear . . . that they can

be resolved as a matter of law.” Kosma, 951 F.2d at 555

(quoting United States v. Merrill, 746 F.2d 458, 462-63 (9th

11

In the Government‟s view, “Stock fails to develop

this argument and, therefore it is waived.” Response Br. at 25

(citation omitted). We disagree. Stock‟s argument is

supported by citations to five cases and takes up a full page of

the argument section of his brief. See Opening Br. at 24-25;

cf. United States v. Rawlins, 606 F.3d 73, 82 n.11 (3d Cir.

2010) (determining that a challenge was waived where it was

suggested in the statement of issues section of a brief but was

not developed in the argument section of the brief).

23

Cir. 1984)); see also Viefhaus, 168 F.3d at 397; Malik, 16

F.3d at 51.

It is not unprecedented for a court to conclude that a

communication does not legally qualify as a threat or a true

threat. Indeed, in Watts, the Supreme Court held as a matter

of law that the defendant‟s statement was merely “political

hyperbole” that did not fit within the definition of the phrase

“true „threat.‟” 394 U.S. at 708. Additionally, in Landham,

the Sixth Circuit reversed the district court‟s denial of the

defendant‟s motion to dismiss, concluding that “the

indictment failed, as a matter of law, to allege a violation of

§ 875(c)” since the alleged statement was “not a

„communication containing a [true] threat.‟” 251 F.3d at

1082.

Especially relevant is the decision in Alkhabaz, where

the Sixth Circuit affirmed the district court‟s dismissal of the

indictment charging the defendant with violations of § 875(c).

Ruling that a communication cannot constitute a threat unless

it is made to achieve a goal through intimidation, and

reasoning that the defendant‟s messages did not satisfy this

requirement, the court concluded that those messages “d[id]

not constitute „communications containing a threat‟ under

Section 875(c).” 104 F.3d at 1496. Thus, the Sixth Circuit

held that the indictment “fail[ed] to set forth . . . all the

elements necessary to constitute the offense intended to be

punished and [had to] be dismissed as a matter of law.” Id.

(emphasis omitted) (quotation omitted). In light of this

precedent, we reaffirm that a court may properly dismiss an

indictment as a matter of law if it concludes that no

reasonable jury could find that the alleged communication

24

constitutes a threat or a true threat. See Huet, 665 F.3d at

596.

Here, the record reflects that the District Court clearly

recognized its authority to dismiss the indictment as a matter

of law. App. at 13 (“The Court does not foreclose the

possibility that an indictment charging an individual with a

violation of section 875(c) may „fall beyond the scope of the

relevant criminal statute, as a matter of statutory

interpretation‟ if the „specific facts‟ charged in such an

indictment are clearly deficient.” (quoting Huet, 665 F.3d at

595)). The District Court simply declined to exercise this

authority because it determined that “reasonable jurors could

certainly conclude that these statements constitute „a serious

statement or communication which expresses an intention to

inflict injury‟ on JKP „at once or in the future.‟” Id. at 15

(quoting Zavrel, 384 F.3d at 136). We agree that, based on

this underlying determination, the District Court properly

concluded that the question necessarily became one of fact for

the jury to resolve. The propriety of the District Court‟s

underlying determination is the final issue we now address.

D.

The District Court determined that “a reasonable jury

could conclude that the communication posted by Defendant

on Craigslist constituted a threat” based on a consideration of

the alleged statement “as a whole, and in the context in which

the statements were made.” App. at 13 (citing Huet, 665 F.3d

at 596). Stock, however, claims that, “viewed in its

25

entirety,”12 the alleged posting reveals only “statements that

describe past conduct with an intent to harm, followed by a

statement indicating a resignation or abandonment of

purpose, followed, in turn, by expressions of ill wishes and

hopes,” and does not evidence an intent to injure in the

present or future. Opening Br. at 21. We conclude that a

reasonable jury could find that the posting, in context and as a

whole, constitutes a threatening communication.

At the outset, Stock contends that the District Court

erred in “assum[ing] the truth not just of the making of the

statement, but of the content of the statement.”13 Opening Br.

12

Normally, we look at the context and totality of a

communication to determine whether it constitutes a true

threat outside the protection of the First Amendment. See

United States v. Fullmer, 584 F.3d 132, 154 (3d Cir. 2009).

Nonetheless, Stock adopts this test in asserting that the

posting does not constitute a threat within the meaning of

§ 875(c). See Reply Br. at 5 (“[V]iewed in their entirety and

in context, the statements in the indictment fall beyond the

scope of 18 U.S.C. § 875(c).”). We agree that this standard,

which is irrelevant to the definition of the phrase “true threat”

but relevant to the test of whether a communication meets

that definition, is the appropriate inquiry to apply in deciding

whether Stock‟s posting is an expression of an intent to injure

in the present or future.

13

Again, the Government insists that Stock waived

this argument by neglecting to develop it. Response Br. at

25. Again, we disagree. See Opening Br. at 26-27; cf.

Rawlins, 606 F.3d at 82 n.11.

26

at 24. In other words, Stock believes that the District Court

erroneously assumed that he actually engaged in the conduct

described in the first sentence of his posting. “In evaluating a

Rule 12 motion to dismiss, a district court must accept as true

the factual allegations set forth in the indictment.” Huet, 665

F.3d at 595 (emphasis added) (citing, inter alia, United States

v. Sampson, 371 U.S. 75, 78-79 (1962)). Here, the only fact

alleged in the indictment was that Stock “posted a notice on

Craig‟s List, an Internet web site, that contained [specific]

statements.” App. at 50. The description of certain conduct

was part of the statement that Stock allegedly made, not a

second factual allegation. Thus, under normal circumstances,

we would agree that, to the extent the District Court assumed

that the communication was an admission of the conduct

described therein, it did so in error.

Here, however, even if the District Court committed

the alleged error, it is doubtful that the error affected the

court‟s analysis. As the court correctly observed, “an

objective test is applied to determine whether the Defendant‟s

statements constitute a threat under section 875(c).” App. at

14 (citations omitted); see also Kosma, 951 F.2d at 559.

Since Stock does not even argue that the statement was a joke

or political hyperbole, it is obvious that a reasonable person

would be entitled to believe not only that Stock made the

statement, but also that the statement accurately described his

conduct. Thus, Stock‟s sole remaining claim of error is that

the District Court incorrectly interpreted his statement.

According to Stock, his first sentence:

27

“i went home loaded in my truck and spend the

past 3 hours looking for this douche with the

expressed intent of crushing him in that little

piece of shit under cover gray impala hooking

up my tow chains and dragging his stupid ass

down to creek hills and just drowning him in

the falls,”

App. at 50 (emphasis omitted), “unambiguously refer[s] to a

situation past and cannot amount to [a] threat[],” Opening Br.

at 23 (citations omitted). We agree that this statement, by

itself, reveals only an “expressed intent” to injure in “the past

3 hours,” and so does not constitute a threat. See Landham,

251 F.3d at 1082-83 (holding that a statement that refers only

to past conduct does not constitute a true threat). But the first

sentence does not stand alone; it provides context for the four

sentences that follow. See Watts, 394 U.S. at 708

(considering whether a communication constitutes a true

threat “in context”). And in the right context, an expression

of an intent to injure in the past may be circumstantial

evidence of an intent to injure in the present or future. See

United States v. Fullmer, 584 F.3d 132, 156 (3d Cir. 2009)

(holding that speech that “used past incidents to instill fear in

future targets” constituted true threats when “viewed in

context”).

Stock argues that his second sentence, “but alas i can‟t

fine that bastard anywhere,” App. at 50 (emphasis omitted),

“describes a resignation of purpose or abandonment of that

[prior] intent,” Opening Br. at 19. But Stock‟s suggested

reading of this statement is only one possible interpretation.

We believe that a jury could reasonably find, from his use of

28

the present tense in the second sentence together with his

description of his past conduct in the first sentence, that Stock

had not abandoned his prior intent, but that he still harbored a

present intent that he was unable to fulfill at that time. See

Himelwright, 42 F.3d at 782 (explaining that a determination

of whether statements constitute true threats does not depend

on the speaker‟s “ability at the time to carry out the threats”

(citations omitted)).

This alternative understanding of the second sentence

becomes even more reasonable in light of the last three

sentences: “i really wish he would die, just like the rest of

these stupid fucking asshole cops. so J.K.P. if you read this i

hope you burn in hell. i only wish i could have been the one

to send you there.” App. at 50 (emphasis omitted). These

three sentences confirm that at the time Stock made the

posting, he still desired J.K.P.‟s death. Moreover, in the

context of the first and second sentences, a reasonable jury

could have found that when he made the posting, not only did

Stock desire J.K.P.‟s death, but that if he found him, he would

execute his intent, possibly by the means he had previously

employed.

Stock asserts that this reading of the final three

sentences is flawed for two reasons. First, he alleges that

“[t]hese expressions do not suggest that Mr. Stock himself

would harm J.K.P.” Opening Br. at 20 (citations omitted).

We have said that a significant factor in evaluating whether a

communication is a true threat is whether a speaker identifies

himself as the person who will inflict injury on another or

whether the speaker merely suggests that harm will befall

another by someone‟s hand. See Kosma, 951 F.2d at 554.

29

Here, Stock‟s statement that he wished he could have been

the one to kill J.K.P. arguably implies that Stock would not be

the one to do so. However, Stock‟s earlier statement that he

was disappointed that he could not find J.K.P., arguably

implies the opposite, namely, that if he could find J.K.P., he

would be the one to kill him. Thus, a jury could reasonably

find that Stock implicated himself as the person who would

kill J.K.P. See id. at 554 n.8 (holding that a conditional threat

may constitute a true threat).

Second, Stock claims that the final three sentences are

“expressions of a hope and a wish that harm would come to

J.K.P.,” Opening Br. at 20, and that “[m]erely wishing[] or

hoping that harm would come to another falls outside the

scope of the statute,” id. (quotation omitted). The authority

on whether a wish can constitute a threat is divided.

Compare United States v. Christenson, 653 F.3d 697, 701-02

(8th Cir. 2011) (rejecting the argument that simply expressing

a wish that a person suffer harm cannot constitute a true

threat) with United States v. Daulong, 60 F. Supp. 235, 236

(W.D. La. 1945) (holding that a federal threat statute “d[id]

not penalize the imagining, wishing or hoping that the act

w[ould] be committed by someone else”). Stock has offered

no reason, and we can think of none, why a wish could not

constitute a threat in the right context. Applying Stock‟s

requested rule would be especially inappropriate here

because, in the context of the first and second sentences, a

reasonable jury could find that Stock did not simply wish that

J.K.P. would suffer harm, but that he was prepared to commit

the act himself.

30

Before concluding our discussion, we take this

opportunity to comment on the unique procedural challenge

posed by this particular case. While a court‟s review of a

motion to dismiss under Rule 12(b)(3)(B) is limited to a

consideration of the facts alleged in the indictment, Huet, 665

F.3d at 595-96, the court‟s determination of whether a

statement constitutes a threat under § 875(c) is based on the

context and totality of the communication, Fullmer, 584 F.3d

at 154. Thus, “[a]lthough the Government is not required to

set forth its entire case in the indictment,” Huet, 665 F.3d at

595, it is at least “incumbent on the Government to make that

context clear” in an indictment charging a violation of a threat

statute, Landham, 251 F.3d at 1080. Here, we are satisfied

that the Government included sufficient context in the

indictment for the District Court to determine that a

reasonable jury could find that Stock‟s statement expressed

an intent to injure in the present or future.

IV.

For the reasons stated above, we will affirm the

District Court‟s denial of Stock‟s motion to dismiss the

indictment pursuant to Rule 12(b)(3)(B) for failure to state an

offense under § 875(c).

31