Before the Court are Defendant's Brief on Issue of Threat in Count One (Doc. 114) and the Government's Memorandum of Law Concerning Non-Verbal Threatening Communications (Doc. 106). Defendant's Brief is offered in support of the oral Rule 29 Motion he made at trial, seeking a judgment of acquittal on count one of the indictment, which the Court reserved. Defendant argues the Government's evidence is insufficient to convict him of "willfully mak[ing] any threat" through the mail, 18 U.S.C. § 844(e), because (1) there was no testimony that Joseph Arpaio received or felt threatened by the package in this case and (2) the bomb-type device in the package did not suggest the sender intended to take future, as opposed to present, action against Arpaio.
The Ninth Circuit has not expressly defined a "threat" for the purposes of § 844(e). "A threat has been defined for application in other statutes as 'an expression of an intention to inflict evil, injury, or damage on another.'" United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) (quoting United States v. Gilbert, 884 F.2d 454, 457 (9th Cir. 1989)) (defining "threat" for purposes of 18 U.S.C. § 115, which prohibits threatening a federal law enforcement officer). "Whether a particular statement may properly be considered 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 communicates the statement as a serious expression of intent to harm or assault." Id. (citing United States v. Mitchell, 812 F.2d 1250, 1255-56 (9th Cir. 1987)). As this definition makes clear, it is irrelevant whether Arpaio himself received the package sent by Defendant or how he reacted upon receipt. As long as a rational jury can conclude that a "reasonable person" would foresee a recipient's fearful reaction, a communication qualifies as a threat. See id. at 1266 (denying motion for acquittal because "a rational jury could construe [the defendant's] statements as threats"). Here, although the device in question may have lacked a bridge wire, and therefore was arguably not intended to detonate, a jury could rationally conclude the device would reasonably be interpreted as "a serious expression of intent to harm or assault." The Court therefore has little trouble dispensing with Defendant's first ground for his Motion.
Defendant's second ground presents a closer question. Defendant asserts that a "threat," by its nature, refers exclusively to action that the threat-maker proposes to take in the future, not action that has already occurred or is occurring in the present. This construction has intuitive appeal. If warnings of present as well as future action could be considered threats, § 844(e) would collapse the difference between a threat and a simple assault. Yet the statutory text, which speaks only of "threat[s]" and the "convey[ing]" of "false information," evidences no intent to accomplish this result. 18 U.S.C. § 844(e). The rule of lenity, which "requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government," therefore counsels against interpreting the statute in this expansive manner. United States v. Millis, 621 F.3d 914, 916-17 (9th Cir. 2010) (citations and internal quotation marks omitted) ("[F]undamental principles of due process mandate that 'no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.'" (citation omitted)). The interstitial nature of the federal criminal code provides further reason to proceed cautiously. Where the "Government's reading of [a statute] would alter sensitive federal- state relationships, convert an astonishing amount of traditionally local criminal conduct into a matter for federal enforcement, and involve a substantial extension of federal police resources," courts should be "reluctant to conclude that Congress meant to punish [the defendant's] crime with a federal prosecution." See Bond v. United States, 134 S. Ct. 2077, 2091-92 (2014) (citation and internal quotation marks omitted). In light of "basic principles of federalism embodied in the Constitution," courts "can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute's expansive language in a way that intrudes on the police power of the States." See id. at 2090 (citing United States v. Bass, 404 U.S. 336, 349 (1971)). That clear indication is lacking in § 844(e).
Unfortunately for Defendant, his favored construction finds limited support in the case law. Defendant cites to the dissent in United States v. Zavrel, 384 F.3d 130 (3d Cir. 2004), which concludes that "a 'threat' contemplate[s] some future conduct by the speaker." 384 F.3d at 139 (Stapleton, J., dissenting). But the Zavrel majority, without actually deciding the issue, rejected that position, making clear it did not believe "the phrase 'threat to injure' ... should be interpreted as prospective in nature." Id. at 135-36.
The Ninth Circuit's formulation of what constitutes a "true threat"—one "where a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person," Orozco-Santillan, 903 F.2d at 1265-66 (emphasis added) (citing United States v. Merrill, 746 F.2d 458, 462 (9th Cir. 1984))—does not require a different conclusion. The "true threat" test is rooted in constitutional free speech principles, see Merrill, 746 F.2d at 462 (holding that "'true' threats" made against the president of the United States, as proscribed by 18 U.S.C. § 871, are not "political expressions protected by the first amendment"), which have no bearing in the instant case. More important, courts that have considered similar language have almost uniformly found that it applies to past or present action.
One district court, citing circuit precedent requiring that a threat convey "imminent prospect of execution," granted a motion for acquittal on the basis that the defendant's actions—writing a note with the words "Anthrax is here" that a co-defendant left in a carpet store's register area—did not suggest she was threatening to inflict future harm on the store owner or employees. United States v. Taylor, No. 02 Cr. 73 (RPP), 2003 U.S. Dist. LEXIS 15506, at *2-3, *18-21 (S.D.N.Y. Sept. 8, 2003) (emphasis added) (citing New York v. Operation Rescue, 273 F.3d 184, 196 (2d Cir. 2001)). But this case was an outlier when it was decided, and the Second Circuit has since implicitly overruled it, explaining that "nothing in the definitions [on which Taylor relied] suggests that they apply only to warnings of future acts." United States v. Davila, 461 F.3d 298, 302 (2d Cir. 2006). The Fifth Circuit also defines a threat using language that could plausibly be read as requiring the intention to commit future action, United States v. Bozeman, 495 F.2d 508, 510 (5th Cir. 1974) (defining a threat under 18 U.S.C. § 875(c) as a communication that "in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor" (emphasis added) (citations and internal quotation marks omitted)), yet it, too, has expressly declined to limit the term to such communications, United States v. Reynolds, 381 F.3d 404, 406 (5th Cir. 2004) ("We have found no credible support for a definition of 'threat' that requires reference to a future act."). The Court is aware of no Ninth Circuit case addressing whether the "will be subjected" language in Orozco-Santillan can bear the weight Defendant would like it to.
Ultimately, however, it is unnecessary to decide broader questions about the reach of § 844(e). On the narrow facts of this case, the evidence well supports the conclusion that the bomb-type device Defendant mailed was not constructed to explode. The evidence at trial showed the device may have lacked a bridge wire, which would have rendered it incapable of detonation. In addition, the lid was detached from the container of smokeless powder, which cuts against its likelihood of exploding. The jury could take the mailing of such a device—which had the appearance of a bomb, but lacked the ability to explode—as intending its obvious effect on a recipient: a suggestion that a real bomb might be sent in the future.
IT IS THEREFORE ORDERED that Defendant's oral Motion for Judgment of Acquittal is denied.
Dated this 1st day of October, 2014.
Neil V. Wake
United States District Judge