United States v. Zavrel

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

9-21-2004

USA v. Zavrel

Precedential or Non-Precedential: Precedential

Docket No. 03-1474

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PRECEDENTIAL Scranton, PA 18503

UNITED STATES Attorney for Appellant

COURT OF APPEALS

FOR THE THIRD CIRCUIT John C. Gurganus [Argued]

Office of the United States Attorney,

Middle District of Pennsylvania

235 North Washington Avenue

No. 03-1474 Scranton, PA 18501

Attorney for Appellee

UNITED STATES OF AMERICA

v.

_______________________

ROSEMARY ZAVREL,

OPINION OF THE COURT

_______________________

Appellant

___ ______

FUENTES, Circuit Judge:

On Appeal from the United States

This case arises in the context of the

District Court

anthrax scare of 2001. In October of that

for the Middle District of Pennsylvania

year, Rosemary Zavrel mailed seventeen

envelopes containing a white powdery

District Court Judge: The Honorable A.

substance she intended to resemble anthrax

Richard Caputo

to various local officials, school and

(D.C. No. 01-cr-00356)

hospital workers, and to the President of

___________

the United States. The envelopes actually

contained cornstarch, and each listed a

Argued on January 26, 2004

name and return address that belonged to

either of two local juveniles. Zavrel and

Before: NYGAARD, FUENTES &

her roommate, Emily Forman, planned to

STAPLETON, Circuit Judges

frame the two boys whom Zavrel felt had

unfairly accused Zavrel’s son of making

(Opinion Filed: September 21, 2004 )

terroristic threats. The scheme went awry

after a local resident discovered loose

white powder when she opened the inside

Patrick A. Casey [Argued]

slot of a public mailbox. Police were

Office of the Federal Public Defender,

called and the ensuing investigation led

Middle District of Pennsylvania

directly to Zavrel and Forman. Against

116 North Washington Avenue

this backdrop, we consider the narrow addressees.

question of whether the mailing of an

During the course of the

envelope containing cornstarch meant to

investigation, Nanticoke Police Detective

resemble anthrax, but containing no

William Schultz spoke with Dr. Mary

w r i t te n m e s s a g e , c o n s t i t u te s a

Scott, Principal of the Nanticoke Middle

“communication . . . containing any threat

School, who informed him that the

. . . to injure the person of the addressee”

juveniles whose addresses appeared on the

under 18 U.S.C. § 876. For the reasons

letters had been students in 1999 at the

that follow, we hold that it does, and we

Lincoln Elementary School where she had

therefore affirm the judg men t of

been principal. Schultz then discovered

conviction.

that in May 1999 he had been the

I. F ACTUAL AND P ROCEDURAL investigating officer in an incident in

B ACKGROUND which the two juveniles were the reported

victims. The case was handled in juvenile

On the morning of October 23,

court, and Zavrel’s son, also a juvenile,

2001, Cindy Donlyn went to the

was charged with making “terroristic”

Nanticoke, Pennsylvania Post Office to

threats against the boys. Zavrel’s son had

drop off some mail. When she opened the

apparently threatened to bring an

mailbox outside of the post office, she

automatic handgun to school and shoot the

noticed some white powder on the chute

two juveniles as well as a third student.

inside the box and informed a postal

After a period of suspension from school,

worker. The Postmaster inspected the

Zavrel’s son was prosecuted, adjudicated

mailbox and quickly notified his superiors

delinquent and placed in juvenile

in Harrisburg and Washington, D.C., as

detention. Schultz recalled that Zavrel

well as the local police. The police

contacted his department numerous times

unbolted the box from the ground and

during the pendency of the case, urging

moved it to the back loading dock of the

that her son was innocent and that the

post office so that no customers could

other boys were lying.

come near it. When the police opened the

box they discovered several letters A search of Zavrel’s apartment

containing white powder. At this point, turned up envelopes with the juveniles’

the Postmaster closed the entire post names and addresses typed onto them, a

office. The Luzerne County Emergency partially used book of “Love USA” stamps

Management Agency sent a team in (the same stamps that were affixed to the

protective suits to investigate further. The letters found in the Nanticoke post office),

emergency personnel discovered the a partially empty box of cornstarch, and

remaining letters, all containing a white latex gloves. A number of clippings about

powdery substance that w as later the anthrax scare facing the nation were

determined to be cornstarch. The letters also found in the apartment. After Zavrel

were seized and never delivered to the was arrested and taken from her residence

2

by the police, her roommate, Forman, the evidence, we should apply a de novo

admitted to investigators that she and standard in reviewing this case; the

Zavrel had mailed the letters in retaliation government argues that a “particularly

against the boys whom they believed had deferential” standard should apply. See

lied about the actions of Zavrel’s son. United States v. Cartwright, 359 F.3d 281,

286 (3d Cir. 2004) (“The verdict must be

By indictment filed in July 2002,

sustained if there is substantial evidence to

Zavrel was charged with conspiracy to

support it”) (citations omitted). Although

mail threatening communications, in

Zavrel frames her appeal as one about the

violation of 18 U.S.C. §§ 371 and 876

sufficiency of the evidence, her arguments

(Count 1); aiding and abetting the mailing

actually concern issues of statutory

of threatening communications, in

interpretation, and we will therefore

violation of 18 U.S.C. § 876 (Count 2);

exercise plenary review. United States v.

and making a false statement to a federal

Thayer, 201 F.3d 214, 219 (3d Cir. 1999).

officer, in violation of 18 U.S.C. § 1001

(Count 3).

III. D ISCUSSION

Following a five-day jury trial,

Zavrel was convicted on all counts, and Zavrel c onc e de s that th e

the District Court imposed a sentence of government proved the following facts at

30 months’ imprisonment for each count, trial: In October 2001, Zavrel and her

to be served concurrently. At the end of then-roommate Emily Forman addressed

the government’s case and again at the end seventeen envelopes containing loose

of the defense’s case, defense counsel cornstarch (but no written message) to the

unsuccessfully moved for a judgment of President of the United States, local

acquittal on all counts. Following the jury public officials, school administrators, and

verdict, defense counsel again filed a judges, and deposited them in a mailbox in

motion for judgment of acquittal, which the Nanticoke, Pennsylvania Post Office.

the District Court denied. The envelopes bore the names and return

addresses of two boys who had reported

This appeal followed.

the criminal acts committed by Zavrel’s

II. J URISDICTION AND S TANDARD OF son, which Zavrel felt unjustly led to her

R EVIEW son’s placement in juvenile detention.

Zavrel informed an investigator that the

The District Court had jurisdiction

letters were mailed “to make those kids

over this case pursuant to 18 U.S.C. §

pay for what they did,” (Zavrel Brief at 5),

3231. We exercise jurisdiction over the

and she admitted to Agent Bill Salvoski of

final judgment in this case under 28 U.S.C.

the United States Secret Service that the

§ 1291.

cornstarch was used to make the envelopes

Zavrel argues that because the appear as if they contained anthrax, and

issues on appeal concern the sufficiency of that she hoped it would result in the

3

juveniles being placed in detention. 875(c) for threats made to a person other

than the person the defendant intended to

Zavrel argues on appeal that this

threaten).

evidence was insufficient to convict her

under counts one and two (the charges Zavrel claims that her actions do

brought under 18 U.S.C. § 876), because not amount to a violation of the statute for

she contends that mailing of cornstarch two main reasons. First, she argues that

alone is insufficient to prove that she absent the enclosure of a written message,

mailed a “communication” containing a the mailing of cornstarch cannot constitute

“threat to injure” the addressee, under the a “communication” within the meaning of

statute. The relevant portion of the statute the statute. Second, Zavrel argues that she

states: did not threaten the addressees of the

letters, as required under the statute,

Whoever knowingly so

because any harm caused by the mailings

deposits or causes to be

would have been immediate, and, she

delivered [by the United

asserts, the statute only envisions

States Postal Service] . . .

prospective threats.

any communication with or

without a name or A.W HETHER M AILING C ORNSTARCH

designating mark subscribed C ONSTITUTES “C OMMUNICATION”

thereto, addressed to any

Zavrel claims that Congress did not

other person and containing

intend for the mailing of cornstarch to

. . . any threat to injure the

constitute “communication” under 18

person of the addressee or

U.S.C. § 876. The first step in discerning

of another, shall be fined

the meaning of a statute is to determine

u n d e r t h i s t i tl e o r

whether the language used “has a plain and

imprisoned not more than

unambiguous meaning with regard to the

five years, or both.

particular dispute in the case.” Ki Se Lee

v. Ashcroft, 368 F.3d 218, 222 (3d Cir.

2004) (citations omitted). See also Liberty

18 U.S.C. § 876(c). The primary purpose

Lincoln-Mercury, Inc. v. Ford Motor Co.,

of the statute is to prohibit the use of the

171 F.3d 818, 822 (3d Cir. 1999) (“In the

mails to send threatening communications.

absence of a specific statutory definition,

Under this provision, the government must

the language of the statute should be given

establish that Zavrel deposited, in the

its ordinary meaning and construed in a

mails, a “communication” containing a

common sense manner to accomplish the

“threat to injure” the addressee. It does

legislative purpose.”) (internal quotations

not matter whether the communication is

and citations omitted).

actually delivered. See Seeber v. United

States, 329 F.2d 572, 573 (9th Cir. 1964) Zavrel argues that because

(upholding a conviction under 18 U.S.C. § Congress did not define “communication”

4

in 1948 when it amended the statute and consider not only the bare meaning of the

codified the language under which Zavrel word but also its placement and purpose in

was charged, we must interpret the the statutory scheme. [T]he meaning of

language as it would have been commonly statutory language, plain or not, depends

understood in 1948. She argues that on context.” United States v. Loney, 219

dictionaries in 1948 did not consider the F.3d 281, 285 (3d Cir. 2000) (quoting

mailing of cornstarch as falling within the Bailey v. United States, 516 U.S. 137, 145

definition of “communication.” (Zavrel (1995) (internal quotations and additional

Brief at 11-12.) To support this point, citations omitted) (alternation in original).

Zavrel asserts that the 1948 American

College Dictionary, published by Random

Although it is unlikely that

House, defines communication as “the

Congress envisioned this particular activity

imparting or interchange of thoughts,

when enacting the statute, we are confident

opinions, or information by speech,

that mailing a white powdery substance

writing or signs.” 1 (Zavrel Brief at 21.) It

intended to cause fear and distress plainly

is Zavrel’s position that this definition

constitutes a communication under § 876.

could not possibly encompass the mailing

Dictionaries today, as well as those dating

of cornstarch.

from Zavrel’s preferred timetable, define

We disagree with Zavrel’s assertion communication as not only the transfer of

that only the 1948 dictionary definitions of information through speech and writing,

“communication” are relevant to our but also through “signs” or “signals.” See,

inquiry. Zavrel correctly notes that e.g., M ERRIAM W EBSTER’S C OLLEGIATE

dictionary definitions can be helpful in D ICTIONARY 233 (10th ed. 1996) (defining

discerning congressional intent, but we do “communication” as “a process by which

not limit ourselves to dictionaries dating inform ation is exchanged between

from a statute’s enactment. See, e.g., individuals through a common system of

Contents of Account Number 03001288 v. symbols, signs, or behavior”); see also T HE

United States, 344 F.3d 399, 406 (3d Cir. A MERICAN C OLLEGE D ICTIONARY (1948)

2003) (citing to a 1993 dictionary to define ( Z a v re l Brief at 21) ( defin in g

term in a statute enacted in 1930). Indeed, communication as “the imparting or

we recently cautioned that “[t]here is a interchange of thoughts, opinions, or

limit . . . to how much can be proved by information by speech, writing, or signs”).

invoking dictionary definitions and usage. They define communication as the process

As the Supreme Court has said: We by which information is conveyed between

individuals. It can be verbal, written or

symbolic. Symbols and objects that are

1

Zavrel cites a number of other used at the time a message is conveyed can

dictionaries from roughly the same affect the message’s meaning, as can the

period, which defined communication environment in which the communication

similarly.

5

is made. See United States v. Lewis, 220 1948, the statute criminalized the mailing

F. Supp. 2d 548, 555 (S.D. W. Va. 2002). of “any written or printed letter or other

communication . . . containing . . . any

Art, photography, dance, facial

threat to injure the person of the

expression – all may be used to

addressee.” 18 U.S.C. § 338(a), 52 Stat.

communicate ideas from one individual to

742, § 1, par. (b) (1939) (App. 29). In

another. The message does not have to be

1948, the statute was amended to

in writing to constitute a communication.

criminalize the m ailing of “any

For example, if an individual were to send

communication . . . containing . . . any

another person a letter containing a

threat to injure the person of the

photograph of the addressee with the

addressee.” 18 U.S.C. § 876, par. 3 (1948)

addressee’s head cut off, few would doubt

(App. 30). The amended statute omits any

that the sender in that case intends to

reference to “written or printed” material,

convey a message of fear, fright, or alarm.

thus making it clear that a communication

In Pratt v. United States, 129 F.3d 54, 56

need not be in writing.

(1st Cir. 1997), the defendant was

convicted under § 876 for mailing a In this case, we believe that in

mutilated pig carcass to a local police chief sending a substance meant to resemble

after the officer had confiscated several of anthrax, in envelopes addressed to various

the defendant’s firearms. The defendant persons, Zavrel intended to convey a

was found guilty and sentenced to a message – a message of fear, fright and

lengthy prison term. Id. In a different alarm. Ultimately, Zavrel wanted to frame

context, the Supreme Court has held cross the boys whose addresses were typed on

burning, another non-verbal act, as one of the envelopes. United States v. Lewis, a

“those forms of intimidation that are most case decided in the context of the anthrax

likely to inspire fear of bodily harm.” scare, presented a similar scenario. In

Virginia v. Black, 538 U.S. 343, 363 Lewis, the defendant tried to frame his ex-

(2003). girlfriend by sending four letters to public

officials, including the President,

Regardless of whether we accept

containing an unidentified white powder,

Zavrel’s 1948 definition or look to a more

a cigarette butt, and a short note reading,

current source, we are convinced that, in

“I were you [sic], I’d change my attitude.”

the context of the 2001 anthrax scare, the

(A fifth letter was mailed to a private

mailing of cornstarch, meant to resemble

citizen and contained a different note

a n t h r a x spo res, c o n s t it u t e d a

reading, “It is on.”) 220 F. Supp. 2d at

“communication” under § 876. We also

549. The court in Lewis determined that,

note that Congress likely intended the

viewed together, these items constituted

statute to have a broader reach than Zavrel

threatening communications. The court

suggests, as evidenced in part by the fact

noted specifically that, “[i]n the context of

that the 1948 amendment to the statute

the post-September 11 anthrax outbreaks,

seems to have expanded its reach. Prior to

6

the mailing of any powdery substance his life, but would also be fearful of future

through the postal system is clearly harmful action on the part of the sender.

capable of being interpreted as a

Zavrel offers no precedential

‘threatening’ communication under

support for her notion that the phrase

sections 876 and 871.” Id. at 557-58. The

“threat to injure” in § 876 should be

court also pointed out, “[t]he white powder

interpreted as prospective in nature.2 The

included in the envelopes was mailed to

government contends that the focus of the

various individuals at a time when people

inquiry here should be whether a

were receiving mail containing the

reasonable person, familiar with the

biological agent anthrax.” Id. at 558.

context in which a threat is communicated,

As in Lewis, the sender of the white would perceive the communication as a

powder-filled envelopes in this case threat of harm. The government’s position

communicated a message of apprehension, comports with how the District Court

anxiety and fear about exposure to the instructed the jury in this case:

powder. We therefore conclude that

Zavrel’s mailin gs co nstituted

communications within the meaning of §

2

876. We next consider whether the Zavrel does cite to United States v.

communications conveyed a threat to harm Taylor, No. 02 Cr. 73 RPP, 2003 WL

the addressees. 22073040 (S.D.N.Y. Sept. 5, 2003) for

the proposition that § 876 mandates that

B.W HETHER Z AVREL ’ S M AILINGS threatening communications be

C ONTAINED T HREATS

prospective. Taylor concerned a fake

Zavrel argues that the phrase “threat anthrax scare at the ABC Carpet store in

to injure” in § 876 contemplates a New York City, and the defendant in that

prospective, not immediate, threat. case was charged under 18 U.S.C. §

Specifically, Zavrel contends that Ҥ 876 2332a(a)(2), which makes it unlawful to

does not criminalize the mailing of “threaten to use a weapon of mass

injurious materials; it only criminalizes the destruction . . . against persons within the

mailing of communications containing a United States.” Id. at *1. The court in

‘threat to injure.’” (Zavrel Brief at 15.) that case held that the statute

Although she concedes that her letters contemplated prospective threats. Taylor

were injurious, she contends that they were is an unpublished district court decision

immediately harmful to recipients, and did from New York, decided under a

not contain prospective threats to injure. different statute than the one at issue

The government responds that a here. And, in any case, we are not

reasonable recipient of one of Zavrel’s persuaded that the phrase “threaten to

letters would not only be immediately use” as interpreted in Taylor has the

injured in the sense that he would fear for same impact as the phrase “threat to

injure” as does our case.

7

A threat is a serious Our interpretation of the phrase

statement or communication “threat to injure” comports with case law

which expresses an intention from other jurisdictions. In United States

to inflict injury at once or in v. Malik, 16 F.3d 45 (2d Cir. 1994), a

the future as distinguished defendant in several lawsuits sent letters to

from idle or careless talk, judges threatening his adversaries. The

exaggeration or something Malik court defined “threat” as follows:

said in a joking manner. A

A threat is a statement

statement or communication

expressing an intention to

is a threat if it was made

inflict bodily harm to

under such circumstances

someone of such a nature as

that a reasonable person

could reasonably induce fear

hearing or reading the

as distinguished from idle,

statement or receiving the

careless talk, exaggeration

comm unica tion would

or something said in a

understand it as a serious

joking manner. . . . A

expression of intent to

serious expression of intent

inflict injury . . . .

to inflict injury and not

merely a vehement or

emotional expression of

(App. at 1001-02).

political opinion, hyperbole

We believe this to be the correct approach, o r a r g u m e n t s a g a i n st

although we do not need to decide the government officials.

issue definitively here, because we believe

the jury could have reasonably concluded

that Donlyn and others who were exposed Id. at 51. We believe that Zavrel’s actions

to Zavrel’s mailings experienced both accord with the Malik definition: a

immediate harm as well as threats of future recipient of one of Zavrel’s envelopes

injury. A reasonable person opening an would fear imminent harm and perhaps

envelope containing a white powdery death upon seeing the white powder. The

substance, during the height of the anthrax envelopes with white powder were non-

crisis in this country, would doubtless fear verbal messages of the sender’s intent to

immediate and future injury. That is harm the recipients.

precisely what happened in this case. The

Even if we adopted Zavrel’s

same day that she opened the mailbox and

assertion that the threats in the mailings

touched the white powder, Cindy Donlyn

must be prospective, we believe that

went to a hospital emergency room for

Zavrel’s mailings did contain threats of

diagnosis. She testified that she remained

future harm. No doubt persons who were

there for about three hours.

first exposed to Zavrel’s mailings at the

8

Nanticoke post office were immediately We also conclude that Zavrel’s mailings

dismayed when they discovered Zavrel’s constituted threats to injure the recipient

letters. It would be natural for any person within the meaning of the statute, and we

in such a circumstance to be fearful of therefore affirm the judgment of the

future harm. Donlyn’s actions exemplify District Court.

this. She testified that after she came in

contact with the white powder at the post

office she went to the hospital out of fear

that exposure to the powder might cause

her health problems.

Mailing cornstarch, or real anthrax

for that matter, may be analogized to

mailing a bomb (real or fake) or, as in the

Pratt case discussed earlier, a dead animal.

129 F.3d at 56. The fact that some of the

contents of these mailings may be

immediately harmful does not alter the fact

that the sender in each case intends to

communicate prospective harm as well.

Additionally, opening an envelope

containing a white powder, in the

circumstances described, could not only

create an apprehension of immediate fear

and future harm, but also communicates to

the intended victim the sender’s hostility

and the idea that the sender has access to a

deadly agent that he or she can use again

in the future.

For these reasons, we determine

that the jury in Zavrel’s case properly

concluded that Zavrel deposited a

communication in the mails containing a

threat to injure.

IV. C ONCLUSION

For these reasons, we conclude that,

in the wake of the 2001 anthrax scare,

mailing cornstarch does constitute a

communication under 18 U.S.C. § 876.

9

UNITED STATES v. ZAVREL – NO. 03- message contained any threat to injure.

1474

A.

I agree with the majority that

STAPLETON, Circuit Judge, dissenting: Zavrel’s conduct in this case was

communicative. Determining the message

I agree with the Court’s conclusion

that was conveyed by her communication,

that the mailing of an envelope containing

however, is no easy task. Obviously,

a white powdery substance in October

Zavrel made no verbal or written

2001 constituted a “communication”

c o m m u n i c a ti o n . Rather, her

within the meaning of 18 U.S.C. § 876. I

communicative conduct consisted of

cann ot, howeve r, agree with its

mailing envelopes that contained a white

interpretation of the phrase “containing . .

powdery substance to certain addressees in

. any threat to injure.” In my view, the

October 2001.

“threat to injure” contemplated by 18

U.S.C. § 876 requires the relevant Our decisions suggest that the most

communication to convey that some appropriate way to determine the message

prospective action will be taken by the conveyed by Zavrel’s conduct is to

sender or the sender’s confederates. To consider what a person receiving one of

the extent that the Court would apply a these envelopes would reasonably perceive

broader reading of the statute than the one the message to be. Cf. United States v.

I suggest, I would conclude that the Himelwright, 42 F.3d 777, 782 (3d Cir.

doctrine of lenity is clearly implicated. 1994) (“[T]o establish a violation of 18

Accordingly, I respectfully dissent. U.S.C. § 875(c), the government bore only

the burden of proving that [the defendant]

I.

acted knowingly and willfully when he

Rosemary Zavrel’s conviction on placed the threatening telephone calls and

counts one and two of her indictment that those calls were reasonably perceived

cannot be sustained unless her conduct fell as threatening bodily injury.”). Applying

within the proscription of 18 U.S.C. § 876. this test, I have little trouble concluding

That statute prohibits the mailing of “any that a person receiving and opening

communication . . . containing . . . any Zavrel’s envelope in October 2001 would

threat to injure,” and the dispositive believe that he had just been exposed to

question, therefore, is whether Zavrel sent anthrax. I would therefore conclude that

a communication containing a threat to the message conveyed by this conduct

injure. An analysis of this issue must would be reasonably interpreted as: “I

proceed in two steps. The first is to have just exposed you to anthrax.” This

determine the substance of the message message, I believe, would also reasonably

conveyed by Zavrel’s conduct. The be perceived to include all additional

second is to determine whether that inferences that a recipient could make

10

under the belief that he was being exposed “communication . . . containing . . . any

to anthrax, such as: “You are now going to threat to injure.”

become ill as a result of this exposure,” or

B.

even: “You are now going to die as a result

of this exposure.” In essence, however, The term “threat” has not been

the message conveyed by Zavrel’s conduct defined by Congress. It must therefore be

amounts to no more and no less than: “I “interpreted as taking [its] ordinary,

have just poisoned you.” 3 The question contemporary, common meaning.” Perrin

t h e r e fo r e b e c o m e s w h e t h e r t h e v. United States, 444 U.S. 37, 42 (1979).

communication “I have just poisoned you” Applying this rule of construction,

constitutes, as a matter of law, a numerous courts have attempted to define

the term “threat” in the context of the

federal threat statutes, 18 U.S.C. §§ 871-

3 880. We have defined it as “‘a serious

The Court suggests that a person

expression of an intention to inflict bodily

receiving one of Zavrel’s envelopes

harm.’” United States v. Kosma, 951 F.2d

could also perceive a message that the

549, 557 (3d Cir. 1991) (quoting Roy v.

sender will send more anthrax in the

United States, 416 F.2d 874, 877-78 (9th

future. I simply cannot agree that a

Cir. 1969)). The definitions adopted by

recipient of the message “I have just

other courts are substantially similar. See,

poisoned you” would reasonably expect

e.g., United States v. Fulmer, 108 F.3d

to receive more poison at a later point in

1486, 1490-91 (1st Cir. 1997); United

time. In a case such as this, where the

States v. Alkhabaz, 104 F.3d 1492, 1495

message perceived is based solely upon

(6th Cir. 1997); United States v. Malik, 16

an object put through the mail, the

F.3d 45, 51 (2d Cir.1994); United States v.

message reasonably perceived must be

Khorrami, 895 F.2d 1186, 1192 (7th Cir.

limited to that which is conveyed by the

1990).

nature of the object itself. As the

majority suggests, a picture of the The message “I have just poisoned

recipient without his head may you” does not express the sender’s intent

reasonably connote future violence. But to engage in any future conduct. Rather, it

anthrax is a bacterial poison, and the expresses that the sender’s intent to inflict

message that one can reasonably perceive bodily harm has been satisfied upon

from the receipt of what appears to be receipt of the communication. This is

anthrax is that he or she has just been significant because numerous courts

exposed to a lethal poison. Given the require that, in order to constitute a

nature of the object contained in the “threat” within the context of the federal

letter, there would be no reasonable basis threat statutes, the communication must

for inferring the need for a second convey the message that bodily harm will

exposure and, accordingly, no reasonable be inflicted by the speaker (or a

basis for expecting or fearing one.

11

confederate) in some future act. v. Orozco-Santillan, 903 F.2d 1262, 1265-

66 (9th Cir. 1990).

For example, the Courts of Appeals

for the Fifth and Eleventh Circuits have The requirement that a “threat”

held that “[a] communication is a threat contemplate some future conduct by the

when ‘in its context [it] would have a speaker is also suggested in Black’s Law

r e a s o n a b l e t e n d e n c y t o c r e at e Dictionary, which defines the term as

apprehension that its originator will act including “[a] declaration of an intention

according to its tenor.’” United States v. to injure another or his property by some

Alaboud, 347 F.3d 1293, 1296 (11th Cir. unlawful act.” Black’s Law Dictionary

2003) (quoting United States v. Bozeman, 1480-81 (6th ed. 1990) (emphasis added).

495 F.2d 508, 510 (5th Cir. 1974))

Based upon the foregoing, I cannot

(internal quotations omitted) (emphasis

conclude that the message “I have just

added). The Second Circuit Court of

poisoned you” can constitute a “threat”

Appeals has taken a similar approach,

within the meaning of § 876. Such a

stating that to qualify as a “threat,” the

message bears no indication that any

communication must “‘on its face and in

conduct will be forthcoming by the sender.

the circumstances in which it is made is so

unequivocal, unconditional, immediate and In this case, I have no doubt that a

specific as to the person threatened, as to reasonable recipient of Zavrel’s envelopes

convey a gravity of purpose and imminent would believe that his health, and even his

prospect of execution . . . .’” New York v. life, was in danger. That belief, however,

Operation Rescue National, 273 F.3d 184, could only have arisen from an event that

196 (2d Cir. 2001) (quoting United States had already occurred, i.e., exposure to the

v. Kelner, 534 F.2d 1020, 1027 (2d Cir. white powdery substance, and not from

1976)) (emphasis ad ded ). In any future conduct that was yet to be

distinguishing a “true threat” from a undertaken. Accordingly, I would

warning of danger, the same Court stated conclude that Zavrel’s conduct did not fall

that “[a]lthough proof of the threat’s effect within the proscription of 18 U.S.C. § 876.

on its recipient is relevant to this inquiry, .

II.

. . a court must be sure that the recipient is

fearful of the execution of the threat by the The majority’s interpretation of §

s p e a k e r ( o r t h e s p e a k e r ’ s co - 876 is significantly broader than I believe

conspirators).” Id. (citing Malik, 16F.3d at jus t if i e d by the langua ge “ a ny

49) (emphasis in original). Furthermore, communication . . . containing . . . any

the Ninth Circuit Court of Appeals has threat to injure.” Even assuming,

stated that a threat exists when, after however, that the majority’s interpretation

hearing the message, “the listener will is another rational reading of § 876, such

believe he will be subjected to physical an assumption would lead only to the

violence upon his person.” United States conclusion that the ambit of the statute is

12

ambiguous as to whether it requires the false statement to a federal officer.

relevant communication to state that the

recipient will be injured by some future

conduct of the sender. Any such

ambiguity must be resolved in favor of

lenity. Jones v. United States, 529 U.S.

848, 858 (2000) (citing Rewis v. United

States, 401 U.S. 808, 812 (1971)).

“‘[W]hen choice has to be made

between two readings of what conduct

Congress has made a crime, it is

appropriate, before we choose the harsher

alternative, to require that Congress should

have spoken in language that is clear and

definite.’” Id. (quoting United States v.

Universal C.I.T. Credit Corp., 344 U.S.

218, 221-22 (1952)). As the Supreme

Court has stated, “[t]here are no

constructive offenses; and before one can

be punished, it must be shown that his case

is plainly within the statute.” McNally v.

United States, 483 U.S. 350, 360 (1987)

(quoting Fasulo v. United States, 272 U.S.

620, 629 (1926)).

Using the mails to induce fear is not

plainly within the ambit of § 876. The

plain language of the statute, as I have

suggested, indicates that the scope of

conduct it proscribes is significantly more

limited. I would therefore apply the rule

of lenity and construe § 876 to cover only

the more limited conduct.

III.

Because I conclude that Zavrel’s

conduct does not fall within the

proscription of § 876, I would reverse the

District Court’s judgment and remand for

sentencing solely on the count of making a

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