United States v. Rosemary Zavrel

STAPLETON, Circuit Judge,

dissenting.

I agree with the Court’s conclusion that the mailing of an envelope containing a white powdery substance in October 2001 constituted a “communication” within the meaning of 18 U.S.C. § 876 . I cannot, however, agree with its interpretation of the phrase “containing ... any threat to injure.” In my view, the “threat to injure” contemplated by 18 U.S.C. § 876 requires the relevant communication to convey that some prospective action will be taken by the sender or the sender's confederates. To the extent that the Court would apply a broader reading of the statute than the one I suggest, I would conclude that the doctrine of lenity is clearly implicated. Accordingly, I respectfully dissent.

I.

Rosemary Zavrel’s conviction on counts one and two of her indictment cannot be sustained unless her conduct fell within the proscription of 18 U.S.C. § 876 . That statute prohibits the mailing of “any communication ... containing ... any threat to injure,” and the dispositive question, therefore, is whether Zavrel sent a communication containing a threat to injure. An analysis of this issue must proceed in two steps. The first is to determine the substance of the message conveyed by Za-vrel’s conduct. The second is to determine whether that message contained any threat to injure.

A.

I agree with the majority that Zavrel’s conduct in this case was communicative. Determining the message that was conveyed by her communication, however, is no easy task. Obviously, Zavrel made no verbal or written communication. Rather, her communicative conduct consisted of mailing envelopes that contained a white powdery substance to certain addressees in October 2001.

Our decisions suggest that the most appropriate way to determine the message *138 conveyed by Zavrel’s conduct is to consider what a person receiving one of these envelopes would reasonably perceive the message to be. Cf. United States v. Himelright, 42 F.3d 777, 782 (3d Cir.1994) (“[T]o establish a violation of 18 U.S.C. § 875 (c), the government bore only the burden of proving that [the defendant] acted knowingly and willfully when he placed the threatening telephone calls and that those calls were reasonably perceived as threatening bodily injury.”). Applying this test, I have little trouble concluding that a person receiving and opening Zavrel’s envelope in October 2001 would believe that he had just been exposed to anthrax. I would therefore conclude that the message conveyed by this conduct would be reasonably interpreted as: “I have just exposed you to anthrax.” This message, I believe, would also reasonably be perceived to include all additional inferences that a recipient could make under the belief that he was being exposed to anthrax, such as: “You are now going to become ill as a result of this exposure,” or even: “You are now going to die as a result of this exposure.” In essence, however, the message conveyed by Zavrel’s conduct amounts to no more and no less than: “I have just poisoned you.” 3 The question therefore becomes whether the communication “I have just poisoned you” constitutes, as a matter of law, a “communication ... containing ... any threat to injure.”

B.

The term “threat” has not been defined by Congress. It must therefore be “interpreted as taking [its] ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 , 100 S.Ct. 311 , 62 L.Ed.2d 199 (1979). Applying this rule of construction, numerous courts have attempted to define the term “threat” in the context of the federal threat statutes, 18 U.S.C. §§ 871-880 . We have defined it as “ ‘a serious expression of an intention to inflict bodily harm.’ ” United States v. Kosma, 951 F.2d 549, 557 (3d Cir.1991) (quoting Roy v. United States, 416 F.2d 874, 877-78 (9th Cir.1969)). The definitions adopted by other courts are substantially similar. See, e.g., United States v. Fulmer, 108 F.3d 1486, 1490-91 (1st Cir.1997); United States v. Alkhabaz, 104 F.3d 1492, 1495 (6th Cir.1997); United States v. Malik, 16 F.3d 45, 51 (2d Cir.1994); United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990).

The message “I have just poisoned you” does not express the sender’s intent to engage in any future conduct. Rather, it expresses that the sender’s intent to inflict bodily harm has been satisfied upon receipt of the communication. This is significant because numerous courts require that, in order to constitute a “threat” within the context of the federal threat statutes, the communication must convey the message that bodily harm will be inflicted *139 by the speaker (or a confederate) in some future act.

For example, the Courts of Appeals for the Fifth and Eleventh Circuits have held that “[a] communication is a threat when ‘in its context [it] would have a reasonable tendency to create apprehension that its originator mil act according to its tenor.’ ” United States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir.2003) (quoting United States v. Bozeman, 495 F.2d 508, 510 (5th Cir.1974)) (internal quotations omitted) (emphasis added). The Second Circuit Court of Appeals has taken a similar approach, stating that to qualify as a “threat,” the communication must “ ‘on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution New York v. Operation Rescue National, 273 F.3d 184, 196 (2d Cir.2001) (quoting United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.1976)) (emphasis added). In distinguishing a “true threat” from a warning of danger, the same Court stated that “[although proof of the threat’s effect on its recipient is relevant to this inquiry, ... a court must be sure that the recipient is fearful of the execution of the threat by the speaker (or the speaker’s coconspirators).” Id. (citing Malik, 16 F.3d at 49 ) (emphasis in original). Furthermore, the Ninth Circuit Court of Appeals has stated that a threat exists when, after hearing the message, “the listener will believe he will be subjected to physical violence upon his person.” United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir.1990).

The requirement that a “threat” contemplate some future conduct by the speaker is also suggested in Black’s Law Dictionary, which defines the term as including “[a] declaration of an intention to injure another or his property by some unlawful act.” Black’s Law Dictionary 1480-81 (6th ed.1990) (emphasis added).

Based upon the foregoing, I cannot conclude that the message “I have just poisoned you” can constitute a “threat” within the meaning of § 876. Such a message bears no indication that any conduct will be forthcoming by the sender.

In this case, I have no doubt that a reasonable recipient of Zavrel’s envelopes would believe that his health, and even his life, was in danger. That belief, however, could only have arisen from an event that had already occurred, i.e., exposure to the white powdery substance, and not from any future conduct that was yet to be undertaken. Accordingly, I would conclude that Zavrel’s conduct did not fall within the proscription of 18 U.S.C. § 876 .

II.

The majority’s interpretation of § 876 is significantly broader than I believe justified by the language “any communication ... containing ... any threat to injure.” Even assuming, however, that the majority’s interpretation is another rational reading of § 876, such an assumption would lead only to the conclusion that the ambit of the statute is ambiguous as to whether it requires the 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 , 120 S.Ct. 1904 , 146 L.Ed.2d 902 (2000) (citing Rewis v. United States, 401 U.S. 808, 812 , 91 S.Ct. 1056 , 28 L.Ed.2d 493 (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 *140 language that is clear and definite.’ ” Id. (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 , 73 S.Ct. 227 , 97 L.Ed. 260 (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 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987) (quoting Fasulo v. United States, 272 U.S. 620, 629 , 47 S.Ct. 200 , 71 L.Ed. 443 (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 § 876,1 would reverse the District Court’s judgment and remand for sentencing solely on the count of making a false statement to a federal officer.

. The Court suggests that a person receiving one of Zavrel’s envelopes could also perceive a message that the sender will send more anthrax in the future. I simply cannot agree that a recipient of the message "I have just poisoned you” would reasonably expect to receive more poison at a later point in time. In a case such as this, where the message perceived is based solely upon an object put through the mail, the message reasonably perceived must be limited to that which is conveyed by the nature of the object itself. As the majority suggests, a picture of the recipient without his head may reasonably connote future violence. But anthrax is a bacterial poison, and the message that one can reasonably perceive from the receipt of what appears to be anthrax is that he or she has just been exposed to a lethal poison. Given the nature of the object contained in the letter, there would be no reasonable basis for inferring the need for a second exposure and, accordingly, no reasonable basis for expecting or fearing one.