Opposition Brief — Parr v. United States (No. 08-757)

No. 08-757 0° 7

In the Supreme Court of the Gnited States

STEVEN J. PARR, PETITIONER

>)

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

EDWIN S. KNEEDLER

Acting Solicitor General

Counsel of Record

RITA M. GLAVIN

Acting Assistant Attorney

Generul

KIRBY A. HELLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

t. Whether a conviction for threatening to use a

weapon or mass destruction against a federal govern-

ment building, in violation of 18 U.S.C. 2332a(a)(3) (2000

& Supp. i/' 2003), requires proof that a reasonable per-

son would regard the communication as threatening, or

instead requires proof that the defendant intended for

the communication to be taken as threatening.

2. Whether evidence that is probative of the defen-

dant’s intent is admissible, even if the listener were un-

aware of the information.

(I)

TABLE OF CONTENTS

Page

5 da cons we ad ahe ka Raed sean Velen ee 1

NS ns Shay da Pade unig ER RA OS ea Pa 1

a ohne a eel ged eee eee ee ee 1

ibs 50a kn ce he oo ee cork as Nea ee ae 7

RN 5c i ae re eee aoe ace eae 17

TABLE OF AUTHORITIES

Cases:

Fogel v. Collins, 531 F.3d 824 (2008) .................. 12

Hamailton-Brown Shoe Co. v. Wolf Bros. & Co.,

Se ee Se 558 ool ee nea ke haar ces 7

Huddleston v. United States, 485 U.S. 681 (1988) ....... 14

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ........ 8,10

United States v. Alaboud, 347 F.3d 1293

Se CI ono yp ee era 10

United States v. Cassel, 408 F.3d 622 (9th Cir. 2005) .... 12

United States v. Cope, 283 Fed. Appx. 384

I ao cp win eo ee ek Gk bow A we ce 10

United States v. Darby, 37 F.3d 1059 (4th Cir. 1994),

cert. denied, 514 U.S. 1097 (1995) .................. 10

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

cert. denied, 549 U.S. 1266 (2007) .................. 10

United States v. Floyd, 458 F.3d 844 (8th Cir. 2006) .... 11

United States v. Guevara, 408 F.3d 252 (5th Cir.

2005), cert. denied, 546 U.S. 1115 (2006) ............ 10

United States v. Hankins, 195 Fed. Appx. 295

MII dare Gr ara a Pe eect 10

(ITT)

Cases—Continued: Page

United States v. Himelwright, 42 F.3d T77

Rte aE OE 7 ae a aa ee 10

United States v. Koski, 424 F.3d 812 (8th Cir. 2005),

cert. denied, 549 U.S. 1236 (2007) ............... 11,14

United States v. Magleby, 420 F.3d 1136 (10th Cir.

2005), cert. denied, 547 U.S. 1097 (2006) ............ 11

United States v. Nishnianidze, 342 F.3d 6 (1st Cir.

2003), cert. denied, 540 U.S. 1132 (2004) ............. 9

United States v. Patrick, 117 F.3d 375 (8th Cir. 1997) ... 10

United States v. Pinson, 542 F.3d 822 (10th Cir.),

cert. denied, 129 S. Ct. 657 (2008) ............... 11,12

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

cert. denied, 547 U.S. 1048 (2006) .................. 12

'/ntted States v. Sovie, 122 F.3d 122 (2d Cir. 1997) ...... 14

United States v. Stewart, 411 F.3d 825 (7th Cir.),

cert. denied, 546 U.S. 980 (2005) ................... 10

United States v. Sutcliffe, 505 F.3d 944 (9th Cir.

ers ca Cur ea ee tie et ee ea aa wl are 14

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

cert. denied, 527 U.S. 1040 (1999) .................. 15

United States v. Welch, 745 F.2d 614 (10th Cir. 1984),

eert. denied, 470 U.S. 1006 (1985) .................. 10

Virginia v. Black, 538 U.S. 343 (2003) ........... passim

Virginia Military Inst. v. United States,

a re ae Be ck sass bee ew ae Ke we 7

Watts v. United States, 394 U.S. 705 (1969) .......... 8,15

Constitution, statutes and guideline:

ne eg owe g 7,8,9,15

V

Statutes and guideline—Continued: Page

i a ui baa hand oboe a eee ee 11

i eos Ae wd ou eda Ue ee 1Z, i

a a, 6 4 i a's eights owe eS 12

18 U.S.C. 2332a (2000 & Supp. ITI 2003) ........... 2, 3, 10

18 U.S.C. 2332a(a)(3) (2000 & Supp. III 2003) ......... 7,8

Wa. See Fee FOOSE CIES)... ween ccc c ts cces 8

United States Sentencing Guidelines § 3A1.4(a) ......... 6

In the Supreme Court of the Anited States

No. 08-757

STEVEN J. PARR, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1la-28a)

is reported at 545 F.3d 491.

JURISDICTION

The judgment of the court of appeals was entered on

September 18, 2008. The petition for a writ of certiorari

was filed on December 10, 2008. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Wisconsin, petitioner

was convicted of threatening to use a weapon of mass

destruction against property leased and used by depart-

ments and agencies of the United States, in violation of

(1)

2

18 U.S.C. 2832a (2000 & Supp. III 2003). He was sen-

tenced to 120 months of imprisonment, to be followed by

five years of supervised release. The court of appeals

affirmed petitioner’s conviction, but vacated his sen-

tence and remanded for resentencing. Pet. App. la-28a,

48a; Pet. C.A. Br. App. 3.

1. Inthe summer of 2004, while petitioner was incar-

cerated in a Wisconsin prison, his cellmate John Schultz

wrote to the FBI warning that petitioner repeatedly

threatened to blow up a federal building in Milwaukee.

The letter indicated that petitioner was due to be re-

leased soon and that petitioner should be taken seriously

because he knew about making bombs and was a devotee

of Timothy McVeigh. The FBI’s preliminary investiga-

tion confirmed some of Schultz’s information. Pet. App.

oa.

The day before petitioner was to be released, Schultz

secretly recorded a conversation with petitioner. Peti-

tioner expounded on his hatred of the government and

described his past experiences with making and detonat-

ing explosives. He admitted that he burned down an ex-

girlfriend’s house using napalm and that he constructed

a bomb hidden in a cosmetics container that he initially

intended to use to disfigure another ex-girlfriend. The

two men also engaged in a technical discussion of bomb-

making components. Pet. App. 3a-5a.

Petitioner described his detailed plan to blow up the

Reuss Federal Plaza in Milwaukee. Pet. App. 4a-5a. He

explained that he chose the Reuss building because it

was a predominantly glass structure located close to the

street and that bombing a federal building in “down-

home America” would “make a wonderful statement.”

Id. at 5a. The plan involved parking a delivery truck

containing the device outside the building as if he were

3

making a delivery. He would then briefly enter the

building, dressed in clothing that would appear similar

to a delivery service uniform, and escape quickly before

the bomb detonated. Although he did not specify when

he would carry out his plan, he intended to spend the

eight years of his probation refining his technique and

assured Schultz that he “absolutely” intended to follow

through with the bombing within ten years. /d. at 5a-6a;

Pet. C.A. App. Tab 7, at 87-94.

The next day, petitioner was released from prison to

a halfway house, and FBI agents arrested him. During

an interview with the agents, he denied making verbal

threats to blow up the Reuss Federal Plaza. Pet. App.

6a.

2. Petitioner was charged with threatening to use a

weapon of mass destruction against a federal building,

in violation of 18 U.S.C. 2332a (2000 & Supp. III 2003).

At trial, Schultz described his discussions with peti-

tioner, and the jury heard the recorded conversation.

Schultz testified that he took petitioner’s threats seri-

ously. Pet. App. la, 6a-7a.

Three of petitioner’s ex-girlfriends and two of his

former neighbors testified to petitioner’s hatred of the

government and his admiration fer domestic terrorists,

including Timothy McVeigh and Theodore Kaczynski.

Petitioner’s nickname was “Uni,” a reference to the

Unabomber. The testimony revealed petitioner’s obses-

sion with bomb making, experience with explosives (in-

cluding the construction of about a dozen pipe bombs),

prior threats to blow up buildings, and possession of

chemicals. An expert witness testified that petitioner

would have been capable of carrying out his threat. The

government also introduced books and notebooks found

in petitioner’s possession at the time of his earlier arrest

4

for drug distribution that contained detailed explana-

tions of how to construct various explosive devices. Peti-

tioner’s collection included The Anarchist Cookbook, a

1970s handbook that contained instructions for conduct-

ing a myriad of illegal activities, including manufactur-

ing explosives. Pet. App. 6a-8a, 12a.

Petitioner testified in his own defense. He did not

deny the statements in the recording but claimed that he

had been joking. Pet. App. 6a.

Petitioner requested that the court instruct the jury

that it had to find that he “actually intended to threaten

to use a weapon of mass destruction.” Pet. Proposed

Substantive Jury Instruction 2. Accordingly, in in-

structing the jury that it had to find that the “threat was

a true threat,” Pet. App. 97a, the court defined “true

threat” as follows:

To constitute a true threat, you must find that the

statement attributed to the defendant was made in a

context or under such circumstances wherein a rea-

sonable person would foresee that the statement

would be interpreted by those to whom the maker

communicates the statement as a serious expression

of an intention to use a weapon of mass destruction

to damage Reuss Federal Plaza. You must also be

satisfied that the defendant intended his statement

to be understood in that manner. A “true threat” is

a serious statement expressing an intention to do an

act which under the circumstances would cause ap-

prehension in a reasonable person, as distinguished

from idle or careless talk, exaggeration, or some-

thing said in a careless manner. To constitute a true

threat, however, it is not necessary that the defen-

dant actually intended to use a weapon of mass de-

struction to damage the building or that he had the

~

o

capacity todo so. Nor it is required that he commu-

nicated the threat to anyone connected with the

Reuss Federal Plaza.

ld. at 97a-98a (emphasis added). The jury found peti-

tioner guilty. /d. at 8a. After calculating an advisory

Sentencing Guidelines range of 360 months to life im-

prisonment, the district court sentenced petitioner to

120 months of imprisonment. /bid.

3. The court of appeals affirmed petitioner’s convic-

tion, but remanded for resentencing. Pet. App. la-28a.

As relevant here, the court first observed that “[a] state-

ment qualifies as a ‘true threat,’ unprotected by the

First Amendment, if it is ‘a serious expression of an in-

tent to commit an act of unlawful violence to a particular

individual or group of individuals.’” Jd. at 9a (quoting

Virginia v. Black, 5388 U.S. 348, 359 (2003)). Because

petitioner “explicitly disclaimed” any challenge to the

jury instruction on the definition of “true threat,” id. at

10a, the court construed his claim as a challenge to the

sufficiency of the evidence, zbid. The court held that

“abundant” evidence supported the jury’s finding that

petitioner’s threats were “true threats” as defined by

the district court. /bid.

The court also concluded that, with the exception of

The Anarchist Cookbook, the evidence about petitioner’s

interest in and past use of explosives, as well as the ex-

pert testimony about petitioner’s ability to carry out his

threat, was properly admitted as probative of peti-

tioner’s intent. Pet. App. 18a, 20a-2la. The court rea-

soned that the evidence was relevant to whether peti-

tioner was serious or joking when he made the threat:

“A person who says he is going to bomb a building is

more likely to give the impression he is serious if he ac-

tually is serious—if he actually plans to carry out his

6

threat and is able to do so.” /d. at 12a-18a. The court

concluded that the evidence was “highly relevant” be-

cause, at petitioner’s request, the jury had to find that

petitioner “intended his statement to be understood” as

a threat in order to convict. /d. at 17a. Although it

noted its belief that the courts are not in accord over

whether a true threat is purely objective or whether this

Court’s decision in Black introduced a subjective ele-

ment into the test, the court ruled that it “need not re-

solve the issue here” because petitioner “put his intent”

at issue by “ask[ing] the district court to instruct the

jury on his intent.” /d. at 14a-17a. For similar reasons,

the court also rejected petitioner’s argument that such

contextual background information is not relevant if the

recipient of the threat is unaware of it. /d. at 17a-20a.

Finally, the court held that the district court abused its

discretion in admitting The Anarchist Cookbook in its

entirety because portions of the book had nothing to do

with explosives, and was therefore more prejudicial than

probative, but it concluded that the error was harmless.

Id. at 20a-22a.

The court agreed with petitioner on one of his sen-

tencing claims, holding that the district court improp-

erly applied a 12-level enhancement, under Sentencing

Guidelines § 3A1.4(a), for an “offense * * * that in-

volved, or was intended to promote, a federal crime of

terrorism.” Pet. App. 24a-26a. Because the court re-

manded for resentencing on that basis, it did not reach

the government’s cross-appeal, which challenged peti-

tioner’s below-Guidelines sentence as unreasonable. /d.

at 26a-27a.

7

ARGUMENT

1. Asan initial matter, this Court’s review is unwar-

ranted at this time because this case is in an interlocu-

tory posture. The court of appeals vacated petitioner’s

sentence and remanded for resentencing. Following the

district court’s disposition of the case on remand, peti-

tioner will be able to raise the instant claims—together

with any other claims that may arise on remand—in a

single petition for a writ of certiorari seeking review of

the final judgment against him. The interlocutory pos-

ture of the case “of itself alone furnishe[s] sufficient

ground for the denia!” of the petition. Hamilton-Brown

Shoe Co. v. Wolf Bros. & Co., 249 U.S. 251, 258 (1916);

see Virginia Military Inst. v. United States, 508 U.S.

946 (1993) (Sealia, J., respecting the denial of the peti-

tion).

2. Petitioner contends (Pet. 16-35) that the circuits

are in conflict on “[wJhether the ‘true threat’ doctrine, as

articulated by this Court in Virginia v. Black, 538 U.S.

343 (2003), requires a speaker to have a subjective intent

to threaten in order for the speech to be constitutionally

proscribable under the First Amendment, or whether

the speech need only be objectively threatening.” Pet. i.

This case does not present an occasion for resolving the

purported conflict, as the jury was required to find that

both standards were satisfied, and no further review is

warranted.

a. Section 23832a(a)(3) makes it unlawful to

“threaten[{] * * * to use, a weapon of mass destruction

* * * against any property that is owned, leased or

used by the United States or by any department or

agency of the United States.” 18 U.S.C. 2332a(a)(3)

(2000 & Supp. III 2003). Because Section 2332a(a)(3)

targets communications, it “must be interpreted with

8

the commands of the First Amendment clearly in mind.”

Watts v. United States, 394 U.S. 705, 707 (1969) (per

curiam). Accordingly, like other statutes that tar-

get threatening communications, Section 2332a(a)(3)

reaches only “true ‘threat[s].’” /d. at 708. It does not

reach “political hyperbole” or “vehement,” “caustic,” or

“unpleasantly sharp attacks” that fall short of true

threats. Jbid. Once Section 2332a(a)(3) is confined to

true threats, its application is consistent with the First

Amendment. As the Court has explained, true threats

are “outside the First Amendment,” #.A.V. v. City of St.

Paul, 505 U.S. 377, 388 (1992), and “(t]he speaker need

not actually intend to carry out the threat.” Black, 538

U.S. at 359-360.

Although petitioner relies on Black (e.g., Pet. 18),

that case did not present the question whether a subjec-

tive intent to threaten is always required to satisfy the

First Amendment. This Court held that a Virginia stat-

ute prohibiting cross burning with “an intent to intimi-

date,” Black, 538 U.S. at 347 (quoting Va. Code Ann.

§ 18.2-423 (1996)), was not unconstitutionally content-

based, but a plurality concluded that the statute’s provi-

sion that the burning of a cross was “prima facie evi-

dence of an intent to intimidate,” zd. at 363 (plurality

opinion) (quoting Va Code Ann. § 18.2-4238 (1996)), im-

permissibly diluted the statutory requirement of an in-

tent to intimidate, 7d. at 364-367 (plurality opinion). The

Court observed that “‘[t]rue threats’ encompass those

statements where the speaker means to communicate a

serious expression of an intent to commit an act of un-

lawful violence,” id. at 359 (emphasis added), and that a

statement made “with the intent of placing the victim in

fear of bodily harm or death” is a “type of true threat,”

id. at 360 (emphasis added). But Black did not hold that

9

the category of true threats is limited to such state-

ments. The Court had no occasion to consider whether

the fear and disruption brought about by true threats

justify a prohibition of such statements when a person

knowingly making statements would reasonably under-

stand them as expressing a serious intent to do harm.

In this case, the district court instructed the jury

that it had to find that petitioner made a “true threat.”

Pet. App. 97a. The court expiained that petitioner’s

statement had to be “made in a context or under such

circumstances wherein a reasonable person would fore-

see that the statement would be interpreted by those to

whom the maker communicates the statement as a seri-

ous expression of an intention to use a weapon of mass

destruction to damage Reuss Federal Plaza.” Jd. at 97a-

98a. At petitioner’s request, 7d. at 17a, the court further

instructed the jury that it had to find that petitioner

“intended his statement to be understood in that man-

ner.” Jd. at 98a. Accordingly, even assuming that Black

articulated a subjective-intent requirement for a “true

threat,” see Black, 538 U.S. at 359, the jury instructions

in this case satisfied that requirement.

b. Petitioner contends (Pet. 18) that, since Black,

the courts of appeals have divided on what the govern-

ment must show to prove a “true threat.” No review of

that claim is currently warranted.

As was the case before Black, a majority of the

courts of appeals have interpreted various federal threat

statutes to reach communications that, objectively

viewed, constitute “true threats,” without requiring the

government to prove that the defendant specifically in-

tended for the statement to be taken as a threat. See,

e.g., United States v. Nishnianidze, 342 F.3d 6, 15-17

(Ist Cir. 2003), cert. denied, 540 U.S. 1132 (2004);

10

United States v. Davila, 461 F.3d 298, 304-305 (2d Cir.

2006), cert. denied, 549 U.S. 1266 (2007); United States

v. Guevara, 408 F.3d 252, 257-258 (5th Cir. 2005), cert.

denied, 546 U.S. 1115 (2006); United States v. Hankins,

195 Fed. Appx. 295, 301 (6th Cir. 2006) (per curiam);

United States v. Stewart, 411 F.3d 825, 827-828 (7th

Cir.), cert. denied, 546 U.S. 980 (2005); United States v.

Alabow 1, 347 F.3d 1298, 1297-1298 (11th Cir. 2003); see

also United States v. Himelwright, 42 F.3d 777, 782 (3d

Cir. 1994) (pre-Black decision); United States v. Darby,

37 F.3d 1059, 1063-1066 (4th Cir. 1994) (same), cert. de-

nied, 514 U.S. 1097 (1995); United States v. Patrick, 117

F.3d 375, 377 (8th Cir. 1997) (same); United States v.

Welch, 745 F.2d 614, 619-620 (10th Cir. 1984) (same),

cert. denied, 470 U.S. 1006 (1985). That interpretation

is correct. The text of threat statutes such as Section

2332a contains no requirement that the government

prove that the defendant subjectively intended for his

communication to be regarded as a threat. And a re-

quirement of subjective intent to threaten would under-

mine the purposes that are served by a prohibition

against threats. In addition to protecting persons from

the possibility that threatened violence will occur, a pro-

hibition against threats “protect[s] individuals from the

fear of violence” and “from the disruption that fear en-

genders.” R.A.V., 505 U.S. at 388; see Black, 538 U.S. at

360 (quoting same). A statement that a reasonable per-

son would regard as a threat creates fear and disruption,

regardless of whether the speaker intended for the

statement to be regarded as a threat.

None of those circuits has held that Black altered the

objective standard for “true threats.” See Pet. App. 17a

(“We need not resolve the issue here.”); United States v.

Cope, 283 Fed. Appx. 384, 389 (6th Cir. 2008) (concluding

11

that it need not decide whether Black requires adding a

subjective-intent requirement to “threat statutes * * *

that do not already contain such a requirement”); United

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

ing to post-Black precedent that “specifically noted that

the intent of the sender is not an element of a section

876(c) offense”) (citing United States v. Koski, 424 F.3d

812, 817 (8th Cir. 2005)), cert. denied, 549 U.S. 1236

(2007).' Contrary to petitioner’s contention (Pet. 22, 28),

the Tenth Circuit in United States v. Magleby, 420 F.3d

1136 (2005), cert. denied, 547 U.S. 1097 (2006), did not

“depart[] from its ‘reasonable speaker test’” (Pet. 28).

Although the Tenth Circuit did cite Black for the propo-

sition that “[t}he threat must be made ‘with the intent of

placing the victim in fear of bodily harm or death,’” 7d. at

1139 (quoting Black, 538 U.S. at 360), that statement was

dicta. The court was reviewing petitioner’s claim on col-

lateral review that his appellate counsel rendered inef-

fective assistance by failing to challenge the jury instruc-

tions on the ground that they did not “convey that he

could be convicted only if his cross burning constituted

a threat of unlawful violence to identifiable persons.”

Ibid. The court’s decision did not turn on whether sub-

jective intent to threaten is required for a “true threat.”

Td. at 1141-1143.°

' The court noted that only the en banc court could correct whether

its reasoning in Koski was “faulty in light of Black.” Floyd, 458 F.3d at

848. The Eighth Circuit subsequently denied the Floyd defendants’

petition for rehearing en banc.

* In United States v. Pinson, 542 F.3d 822 (10th Cir.), cert. denied,

129 S. Ct. 657 (2008), the court, in reviewing the jury instructions in a

prosecution under 18 U.S.C. 871, stated that “fojur Court, like most

others, employs an objective standard to evaluate whether a defendant

‘willfully’ made a threat.” Pinson, 542 F.3d at 831-832. Although the

12

As was true before Black, the Ninth Circuit has failed

to establish a consistent standard. In United States v.

Cassel, 408 F.3d 622 (2005), the court of appeals held

that, in order to obtain a conviction for intimidating a

person from bidding on federal land in violation of 18

U.S.C. 1860, the government must prove an intent to in-

timidate. After canvassing its prior decisions and noting

their inconsistency, the Ninth Circuit concluded that,

under Black, “speech may be deemed unprotected by the

First Amendment as a ‘true threat’ only upon proof that

the speaker subjectively intended the speech as a

threat.” Cassel, 408 F.3d at 633. After Cassel, however,

the Ninth Circuit reaffirmed its earlier holding that, in

order to prove a threat against the President in violation

of 18 U.S.C. 871(a), the government need only establish

that a reasonable person would view the statement as

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

& n.6 (2005), cert. denied, 547 U.S. 1048 (2006). The

court explained that Cassel “did not address whether

statutes like 18 U.S.C. § 871(a) require intent.” Jd. at

1051 n.6. Most recently, the Ninth Circuit has noted that

“(tlhis circuit has thus far avoided deciding whether to

use an objective or subjective standard in determining

whether there has been a ‘true threat,’” and that, since

Black, it has “analyzed speech under both an objective

and a subjective standard.” Fogel v. Collins, 531 F.3d

824, 831 (2008).

Thus, as matters currently stand, a majority of the

circuits apply an objective standard. to measure “true

court also stated that “[t]he burden is on the prosecution to show that

the defendant understood and meant his words as a threat, and not as

a joke,” id. at 832, that language is at most dicta, because the issue on

appeal was whether the instructions required that the jury find that the

defendant actually intended to carry out the threat, ibid.

13

threats.” And with the exception of the Ninth Circuit—in

which the law is in a state of flux—no court of appeals

has squarely held that Black altered that standard.

There is therefore no conflict in the circuits that war-

rants this Court’s review at this time.

ce. Even if the question whether a “true threat” re-

quires a speaker to have a subjective intent to threaten

would otherwise merit this Court’s review, this case is

not a suitable vehicle to resolve that question, for several

reasons. First, the court of appeals did not reach it. In-

stead, it expressly left open whether Black redefined the

constitutional requirements for a “true threat.” Pet.

App. 16a-17a. Second, as the court of appeals noted (id.

at 17a), the district court gave a subjective-intent in-

struction at petitioner’s request, and petitioner expressly

disclaimed any objection to the “true threat” instruction

on appeal. /bid. Third, petitioner would not benefit from

the resolution of any purported conflict in the circuits

because the verdict demonstrated that petitioner’s com-

munication was a true threat under either the subjective

or the objective standards. Further review is not war-

ranted.

3. Petitioner also challenges (Pet. 34-42) the admissi-

bility of evidence of his statements and conduct before

the date of his recorded conversation with Schultz. That

claim does not warrant further review.

As an initial matter, petitioner’s contention that his

evidentiary claim warrants this Court’s review is largely

dependent on his claim that the courts below applied the

wrong standard to assess whether his statements were

“true threats.” See Pet. 35 (describing the evidentiary

consequences as the “crux” of the infirmity with the

court’s standard). For the reasons stated above, that

claim does not merit this Court’s review, and there is no

14

reason to conclude that petitioner’s evidentiary claim is

independently certworthy.

In any event, the decision below is correct. As the

court noted, petitioner put his intent at issue by request-

ing an instruction that required the jury to find that he

“intended that his statements be understood as a threat.”

Pet. App. 18a. The court of appeals applied basic eviden-

tiary principles to hold that the evidence of petitioner’s

past conduct and statements was probative of that intent.

That ruling is consistent with those of other courts of

appeals, and petitioner does not claim otherwise. See

United States v. Sutcliffe, 505 F.3d 944, 958-959 (9th Cir.

2007) (distinguishing cases where intent was not re-

quired, and holding that district court did not abuse its

discretion in admitting evidence of defendant’s prior

weapon possession to rebut defendant’s claim that his

threatening statements were ambiguous and to demon-

strate that he actually intended to threaten violence);

United States v. Sovie, 122 F.3d 122, 126 (2d Cir. 1997)

(holding that evidence that defendant physically abused

e€x-wives was admissible to show that defendant intended

to communicate threat of injury to victim of charged

threat); cf. Koski, 424 F.3d at 818 (holding that prior con-

viction for mailing threatening communications was ad-

missible to rebut defendant’s defense that his threats

were “cr[ies] for help” and to show that he “was aware

that his previous correspondence had been found threat-

ening”). See generally Huddleston v. United States, 485

U.S. 681, 685 (1988) (“Extrinsic acts evidence may be

critical to the establishment of the truth as to a disputed

issue, especially when that issue involves the actor’s state

of mind and the only means of ascertaining that mental

state is by drawing inferences from conduct.”).

15

Petitioner further contends (Pet. 38-39) that the court

of appeals erred in concluding that “{cjontextual informa-

tion” about a defendant is “potentially admissible” even

when the recipient of the threat is unaware of that infor-

mation. Pet. App. 20a. As this Court has recognized, the

meaning of a communication—and, in particular, whether

a communication can reasonably be regarded as a serious

threat of harm—requires consideration of context. See

Black, 538 U.S. at 360; id. at 367 (plurality opinion) (ana-

lyzing message of intimidation of cross burning in light

of the “history of cross burning in this country” and in-

validating Virginia cross-burning statute because its

prima facie evidence provision, which permits a finding

of an intent to intimidate based solely on the act of cross

burning, “ignores all the contextual factors that are nec-

essary to decide whether a particular cross burning is

intended to intimidate”); Watts, 394 U.S. at 708 (deter-

mining whether a statement was a “true ‘threat’” under

18 U.S.C. 871(a) in light of the “context” of the state-

ment); see United States v. Viefhaus, 168 F.3d 392, 397-

398 (10th Cir.) (evidence of racially inflammatory mate-

rial seized from defendant’s home was admissible to show

context in which defendant made his threatening re-

marks recorded on hotline operated by white suprema-

cists), cert. denied, 527 U.S. 1040 (1999). And limiting

instructions protect against the jury’s improper use of

such evidence.”

* The district court below gave the jury cautionary instructions,

explaining that the extrinsic evidence should be considered solely on the

question of knowledge and intent; that petitioner’s right to express

subversive views was protected by the First Amendment; and that the

jury should not convict petitioner on the basis of his political views. Pet.

App. 93a-94a.

16

Even assuming that the evidence here was improperly

admitted, any error was harmless. The evidence gener-

ally duplicated petitioner’s statements to Schultz, includ-

ing his admission that he committed arson and told a

woman (who subsequently testified) that he was going to

blow up a building, Pet. C.A. App. Tab 7, at 16, 73, 97-98,

115-116; see Pet. App. 7a; his descriptions of explosives

that he designed or actually detonated, Pet. C.A. App.

Tab 7, at 58-60, 71-72, 75, 77, 79-81, 96, including one that

could have killed petitioner and blown up his house, 7d.

at 37-38; another that “lifted the roof off the building and

moved it about six inches,” id. at 46-47, and a third that

would have exploded in the victim’s face when she opened

a can of Noxzema face cream because he “was out to dis-

figure someone,” zd. at 61-65; his possession of books,

including The Anarchist Cookbook, that instructed the

reader on how to make a bomb and his possession of

bomb-making ingredients and equipment, zd. at 22-23,

33-36, 50-51, 68;* his application of his chemistry knowl-

edge to bomb making, zd. at 25-32; his knowledge of

Kaczynski’s bombs and his own nickname of “Uni,” id. at

72, 95; his anti-government beliefs, id. at 73, 99-101; and

his desire to be “the next McVeigh,” zd. at 101.

* The court of appeals held that portions of The Anarchist Cookbook,

including those referring to homemade explosives, were relevant and

admissible, even though other portions (referring, for example, to drugs

and other weapons) were not. Pet. App. 21a.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

EDWIN S. KNEEDLER

Acting Solicitor General

RITA M. GLAVIN

Acting Assistant Attorney

General

KIRBY A. HELLER

Attorney

MARCH 2009