United States v. Bagdasarian

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50529

Plaintiff-Appellee,

v.  D.C. No.

3:09-CR-00083-H-1

WALTER EDWARD BAGDASARIAN,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued and Submitted

August 5, 2010—Pasadena, California

Filed July 19, 2011

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt;

Partial Concurrence and Partial Dissent by Judge Wardlaw

9797

9800 UNITED STATES v. BAGDASARIAN

COUNSEL

Ezekiel E. Cortez (argued), San Diego, California, for the

defendant-appellant.

Kyle W. Hoffman, Assistant United States Attorney (argued),

Karen P. Hewitt, United States Attorney, and Bruce R. Castet-

ter, Assistant United States Attorney, San Diego, California,

for the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge:

The election of our first black President produced a cam-

paign with vitriolic personal attacks and, ultimately, senti-

ments of national pride and good will. The latter was short-

lived on the part of some, politicians and non-politicians

alike, and the vitriol continued as President Obama’s term of

office commenced. To those familiar with American political

history, none of this should have come as a surprise. Although

UNITED STATES v. BAGDASARIAN 9801

Justice Scalia writes that “[o]bservers of the past few national

elections have expressed concern about the increase of char-

acter assassination . . . engaged in by political candidates and

their supporters,”1 mudslinging has long been a staple of U.S.

presidential elections. Justice Scalia, though analyzing a cur-

rent issue, uncharacteristically overlooked the experience of

our Founding Fathers. In the country’s first contested presi-

dential election of 1800, supporters of Thomas Jefferson

claimed that incumbent John Adams wanted to marry off his

son to the daughter of King George III to create an American

dynasty under British rule; Adams supporters called Jefferson

“a mean-spirited, low-lived fellow, the son of a half-breed

Indian squaw, sired by a Virginia mulatto father.”2 Abraham

Lincoln was derided as an ape, ghoul, lunatic, and savage,3

while Andrew Jackson was accused of adultery and murder,4

and opponents of Grover Cleveland chanted slogans that he

had fathered a child out-of-wedlock.5 Still, the 2008 presiden-

tial election was unique in the combination of racial, reli-

gious, and ethnic bias that contributed to the extreme enmity

expressed at various points during the campaign.6 Much of

1

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 382 (1995) (Scalia,

J., dissenting).

2

Paul F. Boller, Presidential Campaigns: From George Washington to

George W. Bush 11 (2004).

3

See Bruce L. Felknor, Dirty Politics 27 (1966).

4

See Paul S. Herrnson, Congressional Elections: Campaigning at Home

and in Washington 160 (1995).

5

See id. The Cleveland story at least may have been true. See Jean Kin-

ney Williams, Grover Cleveland 26 (2003).

6

See, e.g., Eileen Sullivan, Obama Faces More Personal Threats than

Other Presidents-Elect, Huffington Post (Nov. 14, 2008),

http://www.huffingtonpost.com/2008/11/14/obama-faces-more-personal

_n_144005.html; Dave McKinney et al., A Plot Targeting Obama? 3 in

Custody May Be Tied to Supremacists, Said to Talk of Stadium Shooting,

Chi. Sun-Times, Aug. 26, 2008, at 3.

Then-Senator Obama was the first presidential candidate in U.S. history

for whom Secret Service protection was authorized before being nomi-

9802 UNITED STATES v. BAGDASARIAN

this bias was misinformed because although the presidential

candidate was indeed black, he was neither, as some insisted,

Muslim nor foreign born.7

Here, we review a district court’s conviction under 18

U.S.C. § 879(a)(3), which makes it a felony to threaten to kill

or do bodily harm to a major presidential candidate. The

defendant Walter Bagdasarian, an especially unpleasant fel-

low, was found guilty on two counts of making the following

statements on an online message board two weeks before the

presidential election: (1) “Re: Obama fk the niggar, he will

have a 50 cal in the head soon” and (2) “shoot the nig.”8

nated for the presidency. See Nedra Pickler, Racial Slur Triggers Early

Protection for Obama: He Called on Secret Service to Monitor Big

Crowds, Grand Rapids Pr., May 4, 2007, at A3; Shamus Toomey, “A Lot

to Do with Race”: Durbin Says Obama Needs Secret Service in Part

Because He’s Black, Chi. Sun-Times, May 5, 2007, at 6.

7

False accusations that a President is a member of an unpopular reli-

gious minority were prevalent in the 1930s. Wealthy critics of Franklin

Delano Roosevelt and his policies referred to the New Deal as the Jew

Deal, convinced that the President was a Jew named Rosenfeld who “had

surrounded himself with Jews who made policy from a Jewish perspective

for their own benefit,” Hasia R. Diner, The Jews of the United States,

1654 to 2000, at 212-13 (2006); Peter Novick, The Holocaust in American

Life 42 (2000).

Today, there are a great number of critics of President Obama who con-

tinue to believe that he is a Muslim and many who still refuse to accept

the fact that he is a native born citizen. See Lauren Green, Nearly 1 in 5

Americans Thinks Obama is a Muslim, Survey Shows, FoxNews.com

(Aug. 19, 2010), http://www.foxnews.com/politics/2010/08/19-nearly-

americans-thinks-obama-muslim-survey-shows (reporting that survey

found “those who say the president is a Muslim give him a negative job

approval rating”); Brian Stelter, On Television and Radio, Talk of

Obama’s Citizenship, N.Y. Times: Media Decoder, July 24, 2009 (noting

that “conspiracy theorists who have claimed for more than a year that

President Obama is not a United States citizen have found receptive ears

among some mainstream media figures in recent weeks,” discussing some

of America’s most prominent media figures).

8

The complete second statement appears in the next paragraph.

UNITED STATES v. BAGDASARIAN 9803

These statements are particularly repugnant because they

directly encourage violence.9 We nevertheless hold that nei-

ther of them constitutes an offense within the meaning of the

threat statute under which Bagdasarian was convicted.

I. Background

On October 22, 2008, when Barack Obama’s election was

looking more and more likely, Bagdasarian, under the user-

name “californiaradial,” joined a “Yahoo! Finance — Ameri-

can International Group” message board, on which members

of the public posted messages concerning financial matters,

AIG, and other topics. At 1:15 am on the day that he joined,

Bagdasarian posted the following statement on the message

board: “Re: Obama fk the niggar, he will have a 50 cal in the

head soon.” About twenty minutes later, he posted another

statement on the same message board: “shoot the nig country

fkd for another 4 years+, what nig has done ANYTHING

right???? long term???? never in history, except sambos.”

Bagdasarian also posted statements on the same message

board that he had been extremely intoxicated at the time that

he made the two earlier statements.10 He repeated at trial that

he had been drinking heavily on October 22. Another partici-

pant on the message board, John Base, a retired Air Force

9

Neither statement is thereby deprived of constitutional protection, how-

ever, because urging others to commit violent acts “at some indefinite

future time” does not satisfy the imminence requirement for incitement

under the First Amendment. Hess v. Indiana, 414 U.S. 105, 108 (1973)

(holding that the imminence requirement under Brandenburg v. Ohio, 395

U.S. 444, 447 (1969), is not satisfied by constitutionally protected speech

that “amount[s] to nothing more than advocacy of illegal action at some

indefinite future time”).

10

In the twenty minutes between the time at which he posted the

“Obama, fk the niggar” and the “shoot the nig” statements, Bagdasarian

posted a message that concluded: “burp more VINOOOOOOOO.” Several

hours later, he replied to another person’s message that he had reported

Bagdasarian’s statements to the authorities, “Listen up crybaby ole white

boy, I was drunk.”

9804 UNITED STATES v. BAGDASARIAN

officer, reported Bagdasarian’s second statement regarding

Obama to the Los Angeles Field Office of the United States

Secret Service that same morning. Base told the Secret Ser-

vice that an individual identified by the username “californ-

iaradial” had made alarming statements directed at the

presidential candidate. He also provided the Secret Service

with the Internet address link to the “shoot the nig” message

board posting.

A Secret Service agent located this posting and the “Obama

fk the niggar” posting on the Yahoo! message board, and, a

week later, Yahoo! provided the Secret Service with sub-

scriber information for californiaradial@yahoo.com, regis-

tered in La Mesa, California. Yahoo! also provided the Secret

Service with the Internet Protocol history for the “californ-

iaradial” email account, which Service agents used to identify

the IP address from which the “shoot the nig” and “Obama fk

the niggar” statements were posted. This IP address led the

Service agents to Bagdasarian’s home in La Mesa.

A month after the two statements for which Bagdasarian

was indicted were posted on the AIG message board, two

agents visited and interviewed him and he admitted to posting

the statements from his home computer. When asked, he also

told the agents that he had weapons in his home. The agents

found one weapon on a nearby shelf; Bagdasarian said he had

other weapons in addition. Four days later, agents executed a

federal search warrant at Bagdasarian’s home and found six

firearms, including a Remington model 700ML .50 caliber

muzzle-loading rifle, as well as .50 caliber ammunition.

The agents also searched the hard drive of Bagdasarian’s

home computer and recovered an email sent on Election Day

with the subject, “Re: And so it begins.” The email’s text

stated, “Pistol??? Dude, Josh needs to get us one of these, just

shoot the nigga’s car and POOF!” The email provided a link

to a webpage advertising a large caliber rifle. Another email

that Bagdasarian sent the same day with the same subject

UNITED STATES v. BAGDASARIAN 9805

heading stated, “Pistol . . . plink plink plink Now when you

use a 50 cal on a nigga car you get this.” It included a link to

a video of a propane tank, a pile of debris, and two junked

cars being blown up. These email messages would appear to

confirm the malevolent nature of the previous statements as

well as Bagdasarian’s own malignant nature. Unlike in the

case of his first two message board statements two weeks ear-

lier, this time he did not attempt to excuse his inexcusable

conduct on the ground that he was intoxicated.

After the Secret Service filed a criminal complaint against

Bagdasarian for the posting the “shoot the nig” and “Obama

fk the niggar” statements, the Government filed the supersed-

ing indictment at issue here, charging Bagdasarian in two

counts under 18 U.S.C. § 879(a)(3) with threatening to kill

and inflict bodily harm upon a major candidate for the office

of president of the United States. Bagdasarian waived his

right to a jury trial. His case was tried before a district judge

upon the foregoing stipulated facts. The district court found

Bagdasarian guilty on both counts. He appeals.

II. Analysis

[1] The federal statute under which Bagdasarian was

indicted, 18 U.S.C. § 879(a)(3), makes it a crime to “know-

ingly and willfully threaten[ ] to kill, kidnap, or inflict bodily

harm upon . . . a major candidate for the office of President

or Vice President, or a member of the immediate family of

such candidate.” A statute like § 879, “which makes criminal

a form of pure speech, must be interpreted with the com-

mands of the First Amendment clearly in mind.” Watts v.

United States, 394 U.S. 705, 707 (1969). Although the State

cannot criminalize constitutionally protected speech, the First

Amendment does not immunize “true threats.” Id. at 708. The

Court held in Virginia v. Black, 538 U.S. 343 (2003), that

under the First Amendment the State can punish threatening

expression, but only if the “speaker means to communicate a

serious expression of an intent to commit an act of unlawful

9806 UNITED STATES v. BAGDASARIAN

violence to a particular individual or group of individuals.” Id.

at 359. It is therefore not sufficient that objective observers

would reasonably perceive such speech as a threat of injury

or death.

[2] Because of comments made in some of our cases, we

begin by clearing up the perceived confusion as to whether a

subjective or objective analysis is required when examining

whether a threat is criminal under various threat statutes and

the First Amendment.11 Such a choice reflects a false dichot-

omy. The issue is actually whether, as to a threat prosecuted

under a particular threat statute, only a subjective analysis

need be applied or whether both a subjective and an objective

analysis is required. Whether we have held that a threat under

a particular statute must be examined under an objective stan-

dard, as with 18 U.S.C. § 871(a),12 which makes it unlawful

to threaten the President, or whether we have held that the

statute requires the application of both an objective and sub-

jective standard, as with 18 U.S.C. § 879(a)(3),13 the provision

11

See, e.g., United States v. Stewart, 420 F.3d 1007, 1018 (9th Cir.

2005) (discussing perceived inconsistency in circuit authority as to defini-

tion of constitutionally proscribable “true threat” before concluding that

“we need not decide whether the objective or subjective ‘true threat’ defi-

nition should apply here . . . because the evidence establishes that [the

defendant’s] statement was a ‘true threat’ under either definition and thus

is not protected by the First Amendment” (footnote omitted)); United

States v. Sutcliffe, 505 F.3d 944, 961-62 (9th Cir. 2007) (citing Stewart for

the proposition that “our . . . case law” is “contradictory” as to whether

“an objective, rather than subjective, test [should be applied] to determine

whether [the defendant’s] statements constituted true threats[,]” but hold-

ing that “any error in the ‘true threats’ [jury] instruction was harmless”

because “the district court instructed the jury that specific intent to

threaten is an essential element of a § 875(c) conviction, and thus the jury

necessarily found that Defendant had the subjective intent to threaten in

convicting him of the offense”).

12

See United States v. Romo, 413 F.3d 1044, 1051 (9th Cir. 2005);

United States v. Lincoln, 403 F.3d 703, 707 (9th Cir. 2005); United States

v. Hanna, 293 F.3d 1080, 1083 (2002); Roy v. United States, 416 F.2d

874, 877 (9th Cir. 1969).

13

See United States v. Gordon, 974 F.2d 1110, 1117 (9th Cir. 1992),

overruled on other grounds by Planned Parenthood of the Colum-

bia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058 (9th Cir.

2002) (en banc).

UNITED STATES v. BAGDASARIAN 9807

that we consider here, our analysis in its most important

respect is ultimately the same: In order to affirm a conviction

under any threat statute that criminalizes pure speech, we

must find sufficient evidence that the speech at issue consti-

tutes a “true threat,” as defined in Black. Because the true

threat requirement is imposed by the Constitution, the subjec-

tive test set forth in Black must be read into all threat statutes

that criminalize pure speech. The difference is that with

respect to some threat statutes, we require that the purported

threat meet an objective standard in addition, and for some we

do not.14

14

Prior to Black, we did not always apply a subjective test when consid-

ering alleged violations of a threat statute. For example, although § 879

includes both an objective and subjective test, see Gordon, 974 F.2d at

1117, § 871 includes only an objective and no subjective test, see Roy, 416

F.2d at 877, even though both statutes require that threats be made “know-

ingly and willfully,” §§ 871; 879, and even though we have specifically

“look[ed] for guidance,” in setting forth the statutory requirements of

§ 879, to Roy’s interpretation of the “closely analogous” § 871. Gordon,

974 F.2d at 1117.

It appears that we tried in Roy to impose a lower burden for conviction

under § 871, which applies to threats against a sitting President, because

“[a] President’s death in office has worldwide repercussions and affects

the security and future of the entire nation . . . regardless of whether the

person making the threat actually intends to assault the President . . . .”

Roy, 416 F.2d at 877 (citation omitted). Although in Roy, we sought to

make it easier to punish threats against a President under § 871, the adop-

tion of an objective standard serves the opposite function after Black.

Because Black requires that the subjective test must be met under the First

Amendment whether or not the statute requires it, an objective test is not

an alternative but an additional requirement over-and-above the subjective

standard.

To the extent that we may have suggested otherwise in a footnote in

Romo, 413 F.3d at 1051 n.6 (declining, based on pre-Black precedent, to

apply a subjective intent test under § 871(a) “because [the defendant] has

not raised First Amendment issues), such analysis would be inconsistent

with Black and must be limited to cases in which the defendant challenges

compliance only with the objective part of the test and does not contend

either that the subjective requirement has not been met, or that the statute

has been applied in a manner that is contrary to the Constitution. In all

other circumstances in which pure speech is prosecuted under a threat stat-

9808 UNITED STATES v. BAGDASARIAN

As we explained in United States v. Cassel, 408 F.3d 622

(9th Cir. 2005), although the “vagaries of our own case law,”

id. at 630, made it less than “entirely clear or consistent,”

“whether intent to threaten is a necessary part of a constitu-

tionally punishable threat,” id. at 628, Black “affirmed our

own dictum — not always adhered to in our cases — that ‘the

element of intent [is] the determinative factor separating pro-

tected expression from unprotected criminal behavior.” Id. at

632 (alteration in original) (quoting United States v. Gilbert,

813 F.2d 1523, 1529 (9th Cir. 1987)). Cassel made clear that

Black’s “definition of a constitutionally proscribable threat is

. . . binding on us even though it is in tension with some of

the holdings and language in prior cases of this circuit.” Id.

at 633 (citation omitted).15

Because § 879(a)(3), the provision at issue here, requires

subjective intent as a matter of statutory construction, see

Gordon, 974 F.2d at 1117, it necessarily incorporates the con-

stitutional inquiry commanded by Black: Did the speaker sub-

jectively intend the speech as a threat? In order to “determine

ute, we cannot apply exclusively an objective standard, and any subjective

test must incorporate the constitutional requirement set forth in Black. 538

U.S. at 359.

Because the statements at issue in the case before us fail to pass either

of the two tests, we see no reason here to consider the question whether

to retain an objective test for presidential threat statutes in view of Black.

To be clear, we are not suggesting that an objective determination does not

provide a worthwhile test or that statutes criminalizing threats against the

President or others should require only a subjective test. We merely point

out a paradox in our treatment of threat statutes now that Black requires

proof of intent under the First Amendment in all such cases.

15

In a footnote to the passage just quoted, Cassel distinguished United

States v. Lincoln, 403 F.3d 703, 706 (9th Cir. 2005), which relied on pre-

Black cases to suggest in dicta that the First Amendment requires applica-

tion of an objective rather than a subjective test. Cassel, 408 F.3d at 633

n .9. Cassel pointed out that Lincoln “did not raise or consider the implica-

tions of Virginia v. Black,” and therefore, in effect, that Lincoln must be

treated simply as a pre-Black case. Id.

UNITED STATES v. BAGDASARIAN 9809

whether the verdict [under the statutory elements] is sup-

ported by sufficient evidence,” we must answer the question

“whether the facts as found by the jury establish the core con-

stitutional fact of a ‘true threat.’ ” Stewart, 420 F.3d at 1015.

Our subjective intent analysis under § 879(a)(3) therefore sub-

sumes the subjective intent-based true threat inquiry as

described in Black.

A. Elements of the Offense

Two elements must be met for a statement to constitute an

offense under 18 U.S.C. § 879(a)(3): objective and subjective.

The first is that the statement would be understood by people

hearing or reading it in context as a serious expression of an

intent to kill or injure a major candidate for President. See

Gordon, 974 F.2d at 1117. The second is that the defendant

intended that the statement be understood as a threat. Id.

Because Bagdasarian’s conviction under § 879 can be upheld

only if both the objective and subjective requirements are met,

neither standard is the obvious starting point for our analysis,

and our resolution of either issue may serve as an alternate hold-

ing.16

1. Objective Understanding

[3] We begin with the objective test. One question under

§ 879(a)(3) is whether a reasonable person who heard the

statement would have interpreted it as a threat. Gordon, 974

F.2d at 1117. This objective test requires the fact-finder to

“look[ ] at the entire factual context of [the] statements

including: the surrounding events, the listeners’ reaction, and

whether the words are conditional.” Id. It is necessary, then,

to determine whether Bagdasarian’s statements, considered in

their full context, “would be interpreted by those to whom the

16

See Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949)

(“[W]here a decision rests on two or more grounds, none can be relegated

to the category of obiter dictum.”).

9810 UNITED STATES v. BAGDASARIAN

maker communicates the statement as a serious expression of

an intention to inflict bodily harm on or to take the life of

[Obama].” Id. (quoting Roy, 416 F.2d at 877-78). The evi-

dence is not sufficient to support a conclusion that a reason-

able person who read the postings within or without the

relevant context would have understood either to mean that

Bagdasarian threatened to injure or kill the Presidential candi-

date.17

[4] Neither statement constitutes a threat in the ordinary

meaning of the word: “an expression of an intention to inflict

. . . injury . . . on another.” Webster’s Third New International

Dictionary 2382 (1976). The “Obama fk the niggar” state-

ment is a prediction that Obama “will have a 50 cal in the

head soon.” It conveys no explicit or implicit threat on the

part of Bagdasarian that he himself will kill or injure Obama.

Nor does the second statement impart a threat. “[S]hoot the

nig” is instead an imperative intended to encourage others to

take violent action, if not simply an expression of rage or frus-

tration. The threat statute, however, does not criminalize pre-

dictions or exhortations to others to injure or kill the President.18

17

In Planned Parenthood, we applied a standard of review close to de

novo to the question whether pure speech constitutes a “true threat” unpro-

tected by the First Amendment. 290 F.3d at 1070. Here, both parties

briefed and argued the case on the basis of the sufficiency-of-the-evidence

standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979). For that reason,

and because we would decide this case the same way under either Planned

Parenthood or Jackson, we do not determine what standard of review

applies here or in any future case.

18

The Fourth Circuit has written that “an essential element of guilt

[under § 871, which punishes threats against the President or successors

to the presidency] is a present intention either to injure . . . or to incite oth-

ers to injure,” but added that “[m]uch of what we say here is dicta.” United

States v. Patillo, 438 F.2d 13, 16 (4th Cir. 1971) (en banc). No other cir-

cuit has concluded that incitement can be punished under a threat statute,

and over forty years ago, in a case since cited approvingly in almost every

presidential threat case in our circuit, we expressed doubt that § 871

makes criminal an intention or tendency to encourage others to injure the

President. Roy, 416 F.2d at 877. We explained that “if Congress desired

UNITED STATES v. BAGDASARIAN 9811

It is difficult to see how a rational trier of fact could reason-

ably have found that either statement, on its face or taken in

context, expresses a threat against Obama by Bagdasarian.19

There is no disputing that neither of Bagdasarian’s state-

ments was conditional and that both were alarming and dan-

gerous. The first statement, which referred to Obama as a

“niggar” who “will have a 50 cal in the head soon,” coupled

a racial slur with an assassination forecast during a highly

controversial campaign that would ultimately make Obama

to prevent incitement of others to assault the President, then it could have

limited the statute to make it a crime to incite or induce others to assault

or attempt to assault the President.” Id. Having previously “look[ed] for

guidance,” in construing § 879, to Roy’s interpretation of the “closely

analogous” § 871, Gordon, 974 F.2d at 1117, we here follow Roy in refus-

ing to find that incitement qualifies as an offense under § 879. We also

reach that conclusion independently on the basis of the plain language of

the statute. See 18 U.S.C. § 879(a)(3) (making it a crime to “knowingly

and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon . . . a

major candidate for the office of President.”); see also supra at 9803 n.9

(discussing imminence requirement for incitement under the First Amend-

ment).

19

The dissent’s interpretation of Bagdasarian’s statements as threats can

be traced to its misplaced reliance on three cases. See Dissent at 9826-27.

Hanna, which was decided before Black, reversed the threat conviction

and remanded for a new trial, noting that if the defendant were “convicted

again based on admissible evidence, he w[ould] be entitled to have the

appellate court independently review the record to ensure that the sur-

rounding facts found by the jury establish the constitutional fact of a true

threat.” 293 F.3d at 1088. Planned Parenthood, also decided before Black,

is readily distinguishable on the law and the facts: There can be no ques-

tion that the anti-abortionist group “was aware that a ‘wanted’-type poster

would likely be interpreted as a serious threat of death or bodily harm by

a doctor in the reproductive health services community who was identified

on one, given the previous pattern of ‘WANTED’ posters identifying a

specific physician followed by that physician’s murder.” 290 F.3d at 1063.

The facts here present no such pattern. Finally, Romo declined altogether

to address whether the defendant’s speech constituted a true threat under

§ 871(a) because he “has not raised First Amendment issues.” 413 F.3d at

1051 n.6.

9812 UNITED STATES v. BAGDASARIAN

the country’s first black president. No less troubling is the

defendant’s second statement imploring others to “shoot the

nig,” lest the “country [be] fkd for another 4 years+” because

“never in history” has a black person “done ANYTHING

right.” There are many unstable individuals in this nation to

whom assault weapons and other firearms are readily avail-

able, some of whom might believe that they were doing the

nation a service were they to follow Bagdasarian’s command-

ment. There is nevertheless insufficient evidence that either

statement constituted a threat or would be construed by a rea-

sonable person as a genuine threat by Bagdasarian against

Obama.

[5] When our law punishes words, we must examine the

surrounding circumstances to discern the significance of those

words’ utterance, but must not distort or embellish their plain

meaning so that the law may reach them. Here, the meaning

of the words is absolutely plain. They do not constitute a

threat and do not fall within the offense punished by the stat-

ute. In Watts, the Supreme Court reversed a conviction under

a presidential threat statute. 394 U.S. at 705-06. The defen-

dant there had said, “[a]nd now I have already received my

draft classification as 1-A and I have got to report for my

physical this Monday coming. I am not going. If they ever

make me carry a rifle the first man I want to get in my sights

is L.B.J.” Id. at 706. The Court held that “we must interpret

the language Congress chose ‘against the background of a

profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wideopen,

and that it may well include vehement, caustic, and some-

times unpleasantly sharp attacks on government and public

officials’ ”; adding that “[t]he language of the political arena

. . . is often vituperative, abusive, and inexact.” Id. at 708

(citations omitted).

The Government argues that among the relevant elements

of the factual context is that the defendant’s messages were

anonymous, posted only under the screen name “californ-

UNITED STATES v. BAGDASARIAN 9813

iaradial.” We grant that in some circumstances a speaker’s

anonymity could influence a listener’s perception of danger.

But the Government offers no support for its contention that

the imperative “shoot the nig” or the prediction that Obama

“will have a 50 cal in the head soon” would be more rather

than less likely to be regarded as a threat under circumstances

in which the speaker’s identity is unknown.20 Whatever the

effect, in other circumstances, of anonymity on a reasonable

interpretation of Bagdasarian’s statements, the financial mes-

sage board to which he posted them is a non-violent discus-

sion forum that would tend to blunt any perception that

statements made there were serious expressions of intended

violence.

[6] When, in this case, we look to “[c]ontextual informa-

tion . . . that [could] have a bearing on whether [Bagdasari-

an’s] statements might reasonably be interpreted as a threat,”

United States v. Parr, 545 F.3d 491, 502 (7th Cir. 2008), cert.

denied, 129 S. Ct. 1984 (2009), the only possible evidence is

that three or four discussion board members wrote that they

planned to alert authorities to the “shoot the nig” posting,

20

In some circumstances, anonymity may generate greater concern

because listeners cannot rely on the speaker’s identity to discount any seri-

ous intentions. Cf. Doe ex rel. Doe v. Kamehameha Schs./Bernice Pauahi

Bishop Estate, 625 F.3d 1182, 1190 (9th Cir. 2010) (Reinhardt, J., joined

by Kozinski, C.J., dissenting from denial of rehearing en banc) (rejecting

the propositions that “plaintiffs may be unreasonable in fearing severe

threats of physical retaliation because they are made via the internet” or

that “litigants do not reasonably fear threats of serious harm when they are

made by unidentified people, some of whom may not intend to carry them

out”). In other circumstances, however, listeners may give less credence

to anonymous statements because they cannot identify any association

between the speaker and a group that engages in violence, or otherwise

ascertain that the speaker is an individual whose threat should be taken

seriously. Whether a particular speaker’s threat would be taken more or

less seriously if made anonymously may depend on who that speaker is.

Still, all threats against the President or a major presidential candidate

must be taken seriously until it is established that there is no reason to do

so.

9814 UNITED STATES v. BAGDASARIAN

although only one reader, Air Force Officer Base, actually

did. The dissent identifies the responsive postings as the

“[m]ost telling” evidence that a reasonable person would have

perceived Bagdasarian’s messages as a threat. In doing so, it

mischaracterizes these postings as “indicat[ing] that [their

authors] perceived ‘shoot the nig’ as a threat to candidate

Obama.” Dissent at 9828. In fact, none of the responses said

anything about a threat. Their authors may well have thought

that Bagdasarian’s messages were impermissible or offensive

for some other reason or that they encouraged racism or vio-

lence. We fail to see why the fact that several people had neg-

ative reactions to the messages should be taken to mean that

they or others interpreted them as a threat. It is certainly more

significant that among the numerous persons who read Bagda-

sarian’s messages, the record reveals only one who was suffi-

ciently disturbed to actually notify the authorities.21

[7] The Government contends that two additional facts

show that Bagdasarian’s statements might reasonably be

interpreted as a threat. The first is that when Bagdasarian

made the statement that Obama “will have a 50 cal in the head

soon,” Bagdasarian actually had .50 caliber weapons and

ammunition in his home. The second is that on Election Day,

two weeks after posting the messages, he sent an email that

read, “Pistol . . . plink plink plink Now when you use a 50 cal

21

The Stipulated Facts indicate only that Base “saw the ‘shoot the nig’

message,” that he “was concerned that the posting threatened harm to

Barack Obama,” and that he “telephoned the Los Angeles Field Office of

the United States Secret Service and reported the ‘shoot the nig’ posting.”

The Record does not contain evidence as to whether Base posted a

response to the message board. Even under Jackson v. Virginia, 443 U.S.

307 (1979), the facts are insufficient to support a verdict that Bagdasarian

threatened to kill Obama. The “critical inquiry” in Jackson “is whether the

record evidence,” when viewed by any rational trier of fact in the light

most favorable to the prosecution, “could reasonably support a finding of

guilt beyond a reasonable doubt.” Id. at 318-19 (emphasis added). Here,

the record is far too thin to support such a conclusion. See also 9810 n.17

(noting that in Planned Parenthood, we applied a standard of review close

to de novo).

UNITED STATES v. BAGDASARIAN 9815

on a nigga car you get this,” and linked to a video of debris

and two junked cars being blown up. Nobody who read the

message board postings, however, knew that he had a .50 cali-

ber gun or that he would send the later emails. Neither of

these facts could therefore, under an objective test, “have a

bearing on whether [Bagdasarian’s] statements might reason-

ably be interpreted as a threat” by a reasonable person in the

position of those who saw his postings on the AIG discussion

board. Parr, 545 F.3d at 502.

2. Subjective Intent

Even if “shoot the nig” or “[he] will have a 50 cal in the

head soon” could reasonably have been perceived by objec-

tive observers as threats within the factual context, this alone

would not have been enough to convict Bagdasarian under 18

U.S.C. § 879(a)(3). The Government must also show that he

made the statements intending that they be taken as a threat.

A statement that the speaker does not intend as a threat is

afforded constitutional protection and cannot be held criminal.

In Black, the Court explained that the State may punish only

those threats in which 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. at 359. And in Gordon, we held as a matter of statu-

tory interpretation that Congress “construe[d] ‘knowingly and

willfully’ [in § 879] as requiring proof of a subjective intent

to make a threat,’ ” and thus requires the application of a sub-

jective as well as an objective test. 974 F.2d at 1117 (alter-

ations in original) (quoting 128 Cong. Rec. 21,218 (1982)).

[8] We have explained, supra at 9809-13, why neither of

Bagdasarian’s statements on its face constitutes a true threat

unprotected by the First Amendment. Most significantly, one

is predictive in nature and the other exhortatory. For the same

reasons, the evidence is not sufficient for any reasonable

finder of fact to have concluded beyond a reasonable doubt

that Bagdasarian intended that his statements be taken as

9816 UNITED STATES v. BAGDASARIAN

threats. See Jackson, 433 U.S. at 319. Both under the constitu-

tional requirement established in Black that we must read into

§ 879, and under the statutory requirement that we found

extant in Gordon, the district court’s inference of Bagdasari-

an’s intent to threaten is unreasonable taken in context and

does not, even when considered in the light most favorable to

the prosecution, lie within the permissible range of interpreta-

tions of his message board postings. As a matter of law, nei-

ther statement may be held to constitute a “true threat.”

As we discussed in the previous section, the prediction that

Obama “will have a 50 cal in the head soon” is not a threat

on its face because it does not convey the notion that Bagda-

sarian himself had plans to fulfill the prediction that Obama

would be killed, either now or in the future. Neither does the

“shoot the nig” statement reflect the defendant’s intent to

threaten that he himself will kill or injure Obama. Rather,

“shoot the nig” expresses the imperative that some unknown

third party should take violent action. The statement makes no

reference to Bagdasarian himself and so, like the first state-

ment, cannot reasonably be taken to express his intent to

shoot Obama.22

As with our analysis of the objective test, we do not confine

our examination of subjective intent to the defendant’s state-

ments alone. Relying on United States v. Sutcliffe, 505 F.3d

944 (9th Cir. 2007), the Government points to the two facts

22

We are aware that an Internet radio host was recently convicted by a

federal jury under 18 U.S.C. § 115(a)(1)(B), which punishes threats

against, inter alia, a federal judge with intent to intimidate or retaliate. He

was convicted for statements made regarding three Seventh Circuit judges

who had issued a ruling that he disagreed with. See United States v. Tur-

ner, 1:09-cr-00650-DEW-JMA (E.D.N.Y. Aug. 13, 2010); Mark Fass,

Blogger Found Guilty of Threatening Judges in Third Federal Trial, N.Y.

L.J., Aug. 16, 2010, at 1. That case has not reached the appellate courts

and thus does not affect our analysis here. It would in any event not cause

us to change our view with respect to the constitutional question answered

by Black or the result that we reach in this case.

UNITED STATES v. BAGDASARIAN 9817

that we discussed in our analysis of objective understanding

as evidence that Bagdasarian intended to make a threat: (1)

that he was later found to possess a .50 caliber gun like the

one he mentioned in the “Obama fk the niggar” posting, and

(2) that the Election Day email referred to the use of “a 50 cal

on a nigga car.” Neither fact is sufficient to prove beyond a

reasonable doubt that Bagdasarian intended to make a threat

when, two weeks before Election Day, he posted the two

statements for which he was indicted.

In Sutcliffe, we affirmed a conviction under another threat

statute, 18 U.S.C. § 875(c), which, in addition to the knowing

transmission of an interstate threat, requires specific intent to

threaten. 505 F.3d at 952, 960-61; see also United States v.

Twine, 853 F.2d 676, 680 (9th Cir. 1988). We held that the

district court did not abuse its discretion by allowing the Gov-

ernment to present evidence of the defendant’s gun possession

to demonstrate that he actually intended to threaten violence.

Id. at 959. The fact of the defendant’s gun possession was not

determinative of the defendant’s intent, however, but just one

among many pieces of evidence relevant to the language and

context of the threats that we considered in determining that

the defendant had the requisite specific intent to threaten.

Most important in Sutcliffe were the first-person and highly

specific character of messages such as “I will kill you,” “I’m

now armed,” and “You think seeing [your license plate num-

ber posted on my website] is bad . . . trust us when we say [it]

can get much, much, worse. . . . [I]f you call this house again

. . . , I will personally send you back to the hell from where

you came.” Id. at 951-52 (first omission and second alteration

in original).

Given that Bagdasarian’s statements, “Re: Obama fk the

niggar, he will have a 50 cal in the head soon” and “shoot the

nig” fail to express any intent on his part to take any action,

the fact that he possessed the weapons is not sufficient to

establish that he intended to threaten Obama himself. Simi-

larly, the Election Day emails do little to advance the prosecu-

9818 UNITED STATES v. BAGDASARIAN

tion’s case. They simply provide additional information —

weblinks to a video of debris and two junked cars being

blown up and to an advertisement for assault rifles available

for purchase online — that Bagdasarian may have believed

would tend to encourage the email’s recipient to take violent

action against Obama. But, as we have explained, incitement

to kill or injure a presidential candidate does not qualify as an

offense under § 879(a)(3).23

[9] Taking the two message board postings in the context

of all of the relevant facts and circumstances, the prosecution

failed to present sufficient evidence to establish beyond a rea-

sonable doubt that Bagdasarian had the subjective intent to

threaten a presidential candidate. For the same reasons that his

statements fail to meet the subjective element of § 879, given

any reasonable construction of the words in his postings,

those statements do not constitute a “true threat,” and they are

therefore protected speech under the First Amendment. See

Black, 538 U.S. at 359. Accordingly, his conviction must be

reversed.

REVERSED.

WARDLAW, Circuit Judge, concurring in part, and dissent-

ing in part:

I concur fully with the majority’s analysis of the law of

“true threats.” The First Amendment prohibits the criminal-

ization of pure speech unless the government proves that the

speaker specifically intended to threaten. Thus, in every

threats case the Constitution requires that the subjective test

is met. Virginia v. Black, 538 U.S. 343 (2003). In this case,

the statute at issue, 18 U.S.C. § 879(a)(3), also requires that

a reasonable person would foresee that his statement would be

23

See supra at 9810-11 n.18.

UNITED STATES v. BAGDASARIAN 9819

perceived as a threat to harm a presidential candidate.

Because there is sufficient evidence supporting a finding of

objective intent, Jackson v. Virginia, 443 U.S. 307, 319

(1979), and because even under the heightened standard of

review that we apply to constitutional facts, Planned Parent-

hood of the Columbia/Willamette, Inc. v. Am. Coal. of Life

Activists, 290 F.3d 1058, 1070 (9th Cir. 2002) (en banc), the

subjective intent requirement is also met, I conclude there is

sufficient evidence to find Mr. Bagdasarian guilty of threaten-

ing harm against then-presidential candidate Barack Obama.

I.

In the wee hours of the morning of October 22, 2008, Mr.

Bagdasarian, under the user name “californiaradial,” joined a

Yahoo! Finance — American International Group message

board, an internet site on which members of the public could

post messages concerning financial matters, AIG, and other

hot topics of the day. Californiaradial’s first posting about

candidate Obama, at 1:00 a.m., was to the “thread” headed

“re: Hamas, Hezbollah, Syria, and Iran favor Obama 100 to

0,” where he said “blow up all the mother fkers, please carpet

bomb the middle east . . . give me the switch, no prob, thump

and poof sand niggar.”1 Two minutes later on the same thread

he posted: “I would really lose no sleep if middle morons

gone . . . nuke bombing . . . .” At 1:15 a.m., under another

thread with the subject header “OBAMA,” he posted the first

of the two threats charged in the indictment: “fk the niggar,

he will have a 50 cal in the head soon.” Six minutes after that,

Californiaradial combined his pro-bomb and anti-Obama rhet-

oric in another post on the “OBAMA” thread: “yea, the hon-

est people have NO guns and the scum bags, niggars and drug

fks do, thanx obombhaaaaa.” He reiterated his racist animus

on a thread referencing Obama’s Irish heritage: “full monkey,

hey can you crank the music box, I wanna see the puppet

1

The posts appear here as they do in the record; because of their nature,

“sic” designations are omitted.

9820 UNITED STATES v. BAGDASARIAN

monkey dance . . . .” Four minutes later, at 1:26 a.m. he

added, “a lepraaaaaaniggggggggamuch? blank that one, yahoo

a-holes.” At 1:35 a.m., Californiaradial created his own anti-

Obama thread, under the subject header “shoot the nig.”

There he posted the second threat charged in the indictment:

“country fkd for another 4 years+, what nig has done ANY-

THING right???? long term???? never in history, except sam-

bos.”

At this point, the other message board participants reacted

to the serious nature of Californiaradial’s threats. “Dan757x”

immediately responded on the “shoot the nig” thread:

“You’ve been reported by me, a good ole’ white boy.” “Fred-

die226” weighed in to support Dan, who next posted: “I hope

everyone reports this type of garbage.” Under the same

thread, “Sniper1agent” posted: “Be advised Federal Law

Enforcement is monitoring . . . ,” and “Brown.romaine”

advised: “I am reporting this post to the Secret Service.” And,

in fact, John Base, a retired Air Force officer who saw Cali-

forniaradial’s “shoot the nig” message did report the threats

to the Los Angeles Field Office of the United States Secret

Service because, as set forth in the Stipulated Facts, he was

“concerned that the posting threatened harm to Barack

Obama.”

In response, a Secret Service agent searched the message

board, located the “shoot the nig” posting, and also discov-

ered the “50 cal in the head” posting. From Yahoo!, the Secret

Service obtained the IP address for the user registered as

“californiaradial,” and it used that information to get sub-

scriber data from Cox Communications. This trail of bread

crumbs led the Secret Service to La Mesa, California, and, on

November 21, 2008, agents appeared at Californiaradial’s

doorstep.

They discovered that, in the real world, the user known as

“californiaradial” in cyberspace was Mr. Bagdasarian. Mr.

Bagdasarian admitted to posting the “fk the nig” and “50 cal

UNITED STATES v. BAGDASARIAN 9821

in the head” message from his home computer. When asked,

he stated that he had weapons in his home. A search warrant

executed a few days later revealed that Mr. Bagdasarian pos-

sessed six firearms, including a Remington model 700 ML .50

caliber muzzle-loading rifle. Agents also discovered .50 cali-

ber ammunition in Mr. Bagdasarian’s home. The agents

searched Mr. Bagdasarian’s computer, where they discovered

a November 4, 2008, email message from Mr. Bagdasarian to

an associate with the foreboding subject line “Re: And so it

begins.” The email stated, “Pistol??? Dude, Josh needs to get

us one of these, just shoot the nigga’s car and POOF!” The

email then provided a link to a photograph of a rifle on a Bar-

rett Rifles website. A second email that Mr. Bagdasarian sent

the same day under the same subject line stated, “Pistol . . .

plink plink plink Now when you use a 50 cal on a nigga car

you get this.” The email then directed the reader to a You-

Tube video of a car being blown up.

II.

“Whether a particular statement may properly be consid-

ered to be a threat is governed by an objective standard —

whether a reasonable person would foresee that the statement

would be interpreted by those to whom the maker communi-

cates the statement as a serious expression of intent to harm

or assault.” Planned Parenthood, 290 F.3d at 1074 (quoting

United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th

Cir. 1990)). “Alleged threats should be considered in light of

their entire factual context, including the surrounding events

and reaction of the listeners.” Orozco-Santillan, 903 F.2d at

1265. “[C]ontext is critical in a true threats case and history

can give meaning to the medium.” Planned Parenthood, 290

F.3d at 1078. In determining whether Mr. Bagdasarian’s state-

ments constituted objective threats, we must look “at the

entire factual context of those statements including: the sur-

rounding events, the listeners’ reaction, and whether the

words are conditional.” United States v. Gordon, 974 F.2d

1110, 1117 (9th Cir. 1992).

9822 UNITED STATES v. BAGDASARIAN

Reading the two statements charged in the indictment in

isolation, the majority dissects them to conclude that they

were not even threats. It fails to consider the ominous back-

drop of America’s history of racial violence, the uniquely

racial and violent undercurrents of the 2008 presidential elec-

tion, the entirety of Mr. Bagdasarian’s postings on October

22, two weeks before the 2008 election, and the listeners who

not only perceived the posts as threatening when they were

made, but who acted on that perception.2

Mr. Bagdasarian’s statements portended no less impending

harm because they did not completely spell out the threat. For

example, given this country’s history of Ku Klux Klan vio-

lence, a burning cross can signify “a message of intimidation”

and “the possibility of injury or death.” Black, 538 U.S. at

357. Parking a Ryder truck outside an abortion clinic, after the

Oklahoma City bombing, can indicate a serious intent to

harm. Planned Parenthood, 290 F.3d at 1078-79. And, as the

district court recognized, in the wake of September 11, telling

a flight attendant that you are carrying a bomb is not a joke.

Mr. Bagdasarian posted at a time when violent and racist

threats against candidate Obama were being taken very seri-

ously. Though President Obama currently resides in the White

House, the prospect of his election ignited polarizing racial

animus, including “racist chatter on white supremacist Web

2

The majority also disregards the evidence presented at trial of our

country’s experience with political assassinations. The sheer number of

presidents (nearly ten percent of the presidents who have served) who

have been targeted and killed by assailants with guns in our nation’s short

history undermines the conclusion that a reasonable person would inter-

pret Mr. Bagdasarian’s “50 cal in the head” comment as a joke or mere

political rhetoric. Moreover, as the recent example of the shooting of Ari-

zona Representative Gabrielle Giffords demonstrates, what begins as a

bizarre post on the Internet can erupt as a devastating outburst of violence.

See Alexandra Berzon, John R. Emshwiller & Robert A. Guth, Postings

of a Troubled Mind, Wall St. J., Jan. 12, 2011; Marc Lacey & David M.

Herszenhorn, Congresswoman Is Shot in Rampage Near Tucson, N.Y.

Times, Jan. 9, 2011.

UNITED STATES v. BAGDASARIAN 9823

sites.” Nedra Pickler, Racial Slur Triggers Early Protection

for Obama, Associated Press, May 4, 2007. Not only did this

animus materialize in at least one viable assassination

attempt, see Dave McKinney, Frank Main & Natasha

Korecki, A Plot Targeting Obama?, Chi. Sun-Times, Aug. 26,

2008,3 but the heightened fear that candidate Obama would be

the target of violence spurred the Department of Homeland

Security to authorize Secret Service protection as early as

May 2007, before candidate Obama was even nominated for

the presidency, making him the only presidential candidate to

receive protection so early.4 Pickler, Racial Slur.

Certainly as of fall 2008, our country’s collective experi-

ence with internet threats and postings that presaged tragic

events made it all the more likely that a reasonable person

would foresee that even anonymous internet postings would

be perceived as threats.5 The country had witnessed the 1999

Columbine High School shootings by Dylan Klebold and Eric

Harris, who had posted death threats on his website, along

with discussions of bombmaking and killing students and

teachers. See Michael Janofsky, Parents Want New Inquiry

into Columbine Killings, N.Y. Times, Jan. 6, 2002; Kirk John-

son, Columbine Evidence Is Placed on Chilling Public Dis-

play, N.Y. Times, Feb. 27, 2004; Kim Murphy, Warning

3

A similar plot planned on the internet by white supremacists involving

a killing spree that would end with the assassination of candidate Obama

was derailed by the arrest of two men who were charged with, among

other things, making threats against a major presidential candidate. See

Richard A. Serrano, Pair Accused of Plotting to Kill Obama, 102 Blacks,

L.A. Times, Oct. 28, 2008. A Wisconsin man who threatened over the

internet to kill President-elect Obama shortly before the inauguration for

what he claimed was the “country’s own good” was arrested in Missis-

sippi. Obama Threat Leads to Arrest, L.A. Times, Jan. 17, 2009.

4

Then-Senator Hillary Clinton received Secret Service protection

throughout her candidacy due to her status as a former First Lady. Pickler,

Racial Slur.

5

The majority acknowledges that a speaker’s anonymity can render a

statement more threatening.

9824 UNITED STATES v. BAGDASARIAN

Signs of Massacre Were Hidden in Plain Sight, LA. Times,

May 9, 1999. In 2005, days after an Orange County teenager

posted on an Internet message board that he would “start a

Terror Campaign to hurt those that have hurt me,” the teen

went on a neighborhood shooting spree, killing a man and his

daughter. Kimi Yoshino, Threats Online: Is There a Duty to

Tell?, L.A. Times, Nov. 2, 2005. Also in 2005, a teenager

who was an “avid participant in Internet discussion groups . . .

with postings under his name that mention weapons and vio-

lence amid broader conversations about politics, the paranor-

mal, time travel, reincarnation and Big Foot” killed seven

people and himself at his high school in Minnesota. Kirk

Johnson, Survivors of High School Rampage Left with Inju-

ries and Many Questions, N.Y. Times, Mar. 25, 2005.

And in 2007, following a disturbing online posting, a Vir-

ginia Tech student shot and killed thirty-two people on the

campus. Benedict Carey, For Rampage Killers, Familiar

Descriptions, “Troubled” and “Loner,” but No Profile, N.Y.

Times, Apr. 18, 2007. In the wake of this experience, it is

only logical to conclude that on-line postings of impending

violence would be perceived by reasonable people as serious

threats. As one district attorney put it following yet another

student’s threat to shoot his classmates, “Any kid that makes

a direct threat of this nature on the tail of what happened in

Santee can reasonably expect there to be a very dramatic reac-

tion.” Ofelia Casillas, Teen Pleads Not Guilty to Making

Bomb Threat, L.A. Times, Mar. 20, 2001.

In a similar case involving internet threats, a federal district

judge in 2009 denied a motion filed by Harold Turner, a blog-

ger and internet radio host, seeking to dismiss an indictment

against him for threatening three judges of the United States

Court of Appeals for the Seventh Circuit. On his blog, Turner

had posted information about the judges, and had written:

“Let me be the first to say this plainly: These judges deserve

to be killed. Their blood will replenish the tree of liberty. A

small price to pay to assure freedom for millions.” David Kra-

UNITED STATES v. BAGDASARIAN 9825

vets, Blogger Threatened to Murder Judges, Feds Say, Wired,

June 24, 2009. The district court found that the fact that Tur-

ner, who lived in New Jersey, posted threats against Chicago-

based judges did not diminish the threat, reasoning:

In an era when physicians have been murdered in

their places of worship; families of Judges have been

slain; a Judge of the Eleventh Circuit Court of

Appeals and State Court Judges have been blown up

or shot; a Federal Courthouse ripped apart by home-

made explosives, all in the name of political dissent

or religious fanaticism, it cannot be said that Defen-

dant’s statements are unlikely to incite imminent

lawless action.

United States v. Turner, 2009 WL 726501, at *3 (E.D.N.Y.

2009). As the majority points out, Turner was subsequently

convicted.

The majority does not dispute that Mr. Bagdasarian’s state-

ments were nonconditional,6 alarming, and dangerous, but

finds their threatening nature blunted by the fact that Mr. Bag-

dasarian posted them on a financial “non-violent” message

board. Although the message board itself focused on AIG’s

2008 financial meltdown, the individuals who posted natu-

rally veered into the political implications of the crashing

6

The majority cites Watts v. United States, 394 U.S. 705, 708 (1969)

(per curiam), for the proposition that we must interpret Bagdasarian’s

statements in light of our national commitment to free and open political

debate. While this principle is undoubtedly correct, Watts itself is inappo-

site. Black’s subjective intent requirement prevents free and open public

debate from being swept up in the prohibition of “true threats.” In Watts,

however, the Supreme Court examined the defendant’s statement under

the objective standard and concluded that the statement at issue would not

be perceived as a threat because the statement was “expressly condition-

al,” rather than immediate. Id. Thus, not only does Watts fail to support

the majority’s assertion that Bagdasarian’s meaning was “plain,” it lends

further support to my view of the objectively threatening nature of Bagda-

sarian’s postings, which were not conditional.

9826 UNITED STATES v. BAGDASARIAN

financial markets.7 Mr. Bagdasarian’s own postings on the

board contained increasingly political, violent, and vicious

attacks targeting candidate Obama. That he posted on a finan-

cial message board does not diminish the nature of the threats;

just as they would be no less diminished had he shouted them

on the floor of the New York Stock Exchange.

The majority focuses narrowly on the charged threats and

dismisses them as mere imperatives or predictions. But our

case law is to the contrary. We do not require that the speaker

in a threats case explicitly threaten that he himself is going to

injure or kill the intended victim; rather, we examine the sur-

rounding circumstances to determine whether a reasonable

person in the speaker’s shoes would foresee that his state-

ments would be perceived as threats.

For example, in United States v. Hanna, 293 F.3d 1080,

1082-83 (9th Cir. 2002), we determined that there was suffi-

cient evidence for a jury to conclude that Hanna had threat-

ened the President,8 where no explicit threat had been made.

Rather, the documents underlying the charges merely depicted

President Clinton along with statements such as “KILL THE

BEAST,” “666,” “willie jeffer jackal,” and “WANTED FOR

MURDER, DEAD OR ALIVE.” We held that: “Although

Hanna did not explicitly indicate that he was going to kill the

President, a jury could conclude that a reasonable person in

Hanna’s position would foresee that such statements would be

7

A thread headed “re: Nobodys Watchin the Store in America” emerged

on which “Sheeeyaright” posted “its up to us.No Obama.” There ensued

a colorful discussion about how the economic situation had changed dur-

ing the administrations of President Clinton and President Bush, and what

might be expected from a President Obama. This led to still other threads

not started by Mr. Bagdasarian entitled “Obama will make the US a 3rd

world Country” and “Hamas, Hezbollah, Syria, and Iran favor Obama 100

to 0.”

8

In Hanna, we reversed the conviction only due to other trial errors

which indicated that the jury’s deliberations may have been tainted by

improperly admitted evidence.

UNITED STATES v. BAGDASARIAN 9827

perceived as threats by the recipients of the statements.” Id.

at 1088.

Similarly, in United States v. Romo, 413 F.3d 1044, 1051

(9th Cir. 2005), an opinion relied upon by the district court,

we upheld a threats conviction where then-incarcerated Romo

“wrote and mailed a letter stating that someone should put a

bullet in the President’s head and that he would like to do it.”

We found this to be an “unequivocal” threat, stating that a

“clearer threat is difficult to imagine.” Id. at 1050, 1051. And,

in Planned Parenthood, anti-abortion activists circulated on

the internet and elsewhere a series of “WANTED” and

“GUILTY” posters identifying doctors who performed abor-

tions, and who were thereafter murdered, along with a “Nu-

remberg Files” poster where lines were drawn through the

names of the murdered physicians. Although the posters did

not contain an explicit threat of harm, it was proper to con-

sider them in context. Planned Parenthood, 290 F.3d at

1064-65. We concluded substantial evidence supported con-

victions under the FACE Act,9 in that the anti-abortionist

group “was aware that a ‘wanted’-type poster would likely be

interpreted as a serious threat of death or bodily harm by a

doctor in the reproductive health services community who

was identified on one, given the previous pattern of

‘WANTED’ posters identifying a specific physician followed

by that physician’s murder.” Id. at 1063. We were “indepen-

dently satisfied” that the posters “amounted to a true threat”

and were not protected speech.10 Id.

9

The Freedom of Access to Clinic Entrances Act (“FACE”) makes it a

crime when a person “by force or threat of force . . . intentionally injures,

intimidates or interferes with . . . any person because that person is or has

been . . . obtaining or providing reproductive health services.” 18 U.S.C.

§ 248(a)(1).

10

That Hanna and Romo do not deal with Black’s subjective intent

requirement does not discount the persuasiveness of the objective intent

analysis in those cases. Black clarified that the subjective test governs

whether a statement constitutes a “true threat”; it did not disturb how we

9828 UNITED STATES v. BAGDASARIAN

Most telling were the contemporaneous reactions of the

recipients of Mr. Bagdasarian’s posted threats.11 At least four

individuals indicated that they perceived “shoot the nig” as a

threat to candidate Obama, and the threat was in fact reported

to the United States Secret Service, which then launched into

action to prevent the threat from materializing. There can be

no doubt that “construing the evidence in the light most favor-

able to the prosecution,” Nevils, 598 F.3d at 1166 (citing

Jackson, 443 U.S. at 319), there was sufficient evidence for

“a rational juror” to find objective intent. Id.

have applied the objective test. Thus, the holdings of Hanna and Romo,

analyzing the threats under the objective standard and concluding it was

satisfied where the speakers “stated or at least suggested that the President

should be killed,” remain controlling authority as to the objective standard.

Hanna, 293 F.3d at 1088. We reversed the conviction in Hanna only

because of certain improperly admitted evidence which may have tainted

the jury’s deliberations. Therefore, this reversal does not detract from

Hanna’s holding that the suggested threat to the President met the objec-

tive standard. Nor does the fact that Romo declined to address whether

Romo’s speech constituted a “true threat” bear any relevance to this dis-

cussion. As the majority itself reiterates, when First Amendment issues are

raised, the subjective intent standard must be applied to determine whether

the speech is a “true threat” that may be constitutionally criminalized.

Romo’s objective test analysis is pertinent here, and it remains good law.

See Romo, 413 F.3d at 1051-52.

11

The majority is correct that none of the other message board partici-

pants used the word “threat” in reaction to Bagdasarian’s postings, but that

they perceived a threat to candidate Obama is made obvious by their post-

ings that the threats had been “reported” and their references to “Federal

Law Enforcement” and the “Secret Service.” The majority then errone-

ously relies on its own speculation to conjure up other possible reasons for

the readers’ reactions. Even if the comments did support the inferences

suggested by the majority, however, the trial court made a finding that the

readers’ comments confirmed that Bagdasarian’s postings were objec-

tively perceived as threats, and we “must defer to that resolution.” See

United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc)

(“[W]hen ‘faced with a record of historical facts that supports conflicting

inferences’ a reviewing court ‘must presume — even if it does not affir-

matively appear in the record — that the trier of fact resolved any such

conflicts in favor of the prosecution, and must defer to that resolution.’ ”

(quoting Jackson, 443 U.S. at 326)).

UNITED STATES v. BAGDASARIAN 9829

III.

Although it is a closer question, as questions of subjective

intent generally are, after independently reviewing the record,

I believe the district court did not err in finding that Mr. Bag-

dasarian subjectively intended to threaten presidential candi-

date Obama. To prove subjective intent, the government must

show that “the speaker means to communicate a serious

expression of an intent to commit an unlawful act of vio-

lence.” Black, 538 U.S. at 359. The government need not

prove that Mr. Bagdasarian “himself will kill” candidate

Obama, but need demonstrate only the intent to threaten. “The

speaker need not actually intend to carry out the threat.

Rather, a prohibition on true threats ‘protects individuals from

the fear of violence,’ . . . in addition to protecting people

‘from the possibility that the threatened violence will occur.’ ”

Id. at 360 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377,

388 (1992)).

In a night of posting on the AIG board, Mr. Bagdasarian

made numerous explosive comments aimed at candidate

Obama. Although only two of his posts were charged as

threats, they, together with his other posts, indicate that he

intended to threaten. Others on the message board posted

comments that could be described as political rhetoric, but it

was Mr. Bagdasarian alone who introduced the posts tinged

with violence and racism toward Obama and it was Mr. Bag-

dasarian alone who took the affirmative step of introducing

the ominous thread headed “shoot the nig,” against which the

other board participants reacted so strongly. And at the very

time that Mr. Bagdasarian posted “fk the niggar, he will have

a 50 cal in the head soon,” he possessed in his home a Rem-

ington model 700 ML .50 caliber muzzle-loading rifle and .50

caliber ammunition with which to load it. See United States

v. Sutcliffe, 505 F.3d 944, 959 (9th Cir. 2007) (concluding

that possession of a weapon is evidence of subjective intent

to threaten where the threat involves the infliction of harm).

9830 UNITED STATES v. BAGDASARIAN

As the district court found, Mr. Bagdasarian’s posts were

not casual one-off comments. When other participants con-

fronted him with the gravity of starting a thread labeled

“shoot the nig” by indicating they were reporting him and that

law enforcement was monitoring him, he evidenced his own

belief that his posts were threatening. First, he wanted to

know “which [law enforcement] agency” was monitoring the

message board. Then he began to make excuses for his threat-

ening comments, posting: “Listen up, crybaby ole white boy,

I was drunk.”

Mr. Bagdasarian had imbibed some alcohol that night, but

it did not prevent him from tracking the conversations occur-

ring on multiple threads and posting responses over a seven-

hour period. Moreover, his postings that night were specific,

relevant to the context of each thread and even included word-

play. If anything, his intake of “vino,” as he described it, may

have lowered his inhibitions sufficiently that he was in fact

posting his genuinely held views about Obama, including a

true expression of his intent to threaten the candidate with

harm. As the district court found, that Mr. Bagdasarian was

drinking does not make his statements any less threatening

than they were at the time he made them, and his 8:00 a.m.

posting that he was drunk when he started the “shoot the nig”

thread at 1:35 a.m. that morning only indicates that he woke

up to realize the serious nature of his threats.

And Mr. Bagdasarian’s continuing threats of harm to

President-elect Obama two weeks later, when he was presum-

ably sober, further evidence his intent to threaten. He sent two

emails on Election Day headed: “And so it begins.” The first,

which provided a link to the “www.barrettrifles.com” website

depicting a Barrett model 82a1 rifle, stated: “Josh needs to get

us one of these, just shoot the nigga’s car and POOF!” The

second provided a link to a YouTube video showing a car

being blown up. That email stated: “Pistol . . . plink plink

plink Now when you use a 50 cal on a nigga car you get this.”

UNITED STATES v. BAGDASARIAN 9831

The evidence demonstrates that Mr. Bagdasarian, an adult

man who knowingly possessed a .50 caliber rifle, intention-

ally posted on the “OBAMA” thread: “fk the niggar, he will

have a 50 cal in the head soon,” understanding he had access

to that very weapon and could implement the threat. Only

twenty minutes later he initiated the “shoot the nig” thread,

under which he wrote “country fkd for another four years+,

what nig has done ANYTHING right???? long term????

never in history, except sambos.” That Mr. Bagdasarian later

made a public apology does not detract from his intent at the

time; his intent to threaten harm to candidate Obama gener-

ated fear for the candidate’s safety and mobilized the Secret

Service, which tracked Mr. Bagdasarian down. Mr. Bagda-

sarian did not come forward; the Secret Service had to locate

him. He hid behind his “californiaradial” cloak of anonymity

with the hope, one can infer, that he would not be found out.

Therefore, independently reviewing the entire record, I con-

clude that at the time Mr. Bagdasarian made the charged

threats, he acted with the specific intent to threaten candidate

Obama.

IV.

The prohibition on true threats “protects individuals from

the fear of violence and from the disruption that fear engen-

ders.” Black, 538 U.S. at 360 (citation and internal quotation

marks omitted). Undoubtedly, the need for protection takes on

exceptional importance in the context of a presidential candi-

dacy. See Watts, 394 U.S. at 707 (discussing threats against

the president); Roy v. United States, 416 F.2d 874, 877 (9th

Cir. 1969) (“Thus, it appears that the statute [prohibiting

threats against the President] was designed in part to prevent

an evil other than assaults upon the President or incitement to

assault the President. It is our view that the other evil is the

detrimental effect upon Presidential activity and movement

that may result simply from a threat upon the President’s

life.”). Not only could the fear engendered by true threats

limit a candidate’s freedom to participate fully in the debate

9832 UNITED STATES v. BAGDASARIAN

leading up to the election — thus depriving the campaign pro-

cess of its valuable public function, see Buckley v. Valeo, 424

U.S. 1, 66-67 (1976) (per curiam) — but the failure to take

such threats seriously could ultimately deprive our country of

a public servant and potential leader. Because the evidence

presented at trial as to objective intent is more than sufficient

to allow at least one rational trier of fact to find that Mr. Bag-

dasarian’s statements were threats in violation of § 879(a)(3),

and because an independent review convinces me that the

constitutional requirement of subjective intent is met, I would

affirm Mr. Bagdasarian’s conviction.