F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 15 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 98-4177
MATTHEW JOSEPH
KAMMERSELL,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 97-CR-084-C)
Richard McKelvie (Paul M. Warner, United States Attorney and Richard Lambert,
Assistant United States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff
- Appellee.
Deirdre A. Gorman, Ogden, Utah, for Defendant - Appellant.
Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Matthew Joseph Kammersell entered a conditional
guilty plea to a charge of transmitting a threatening communication in interstate
commerce, in violation of 18 U.S.C. § 875(c). Upon recommendation of the
magistrate judge, the district court rejected Mr. Kammersell’s contention that
federal jurisdiction did not exist because both he and the recipient of the threat
were located in the same state when the transmission occurred. He was sentenced
to four months imprisonment, and twenty-four months supervised release. Our
jurisdiction arises under 28 U.S.C. § 1291 and we affirm.
Background
The facts in this case are undisputed. On January 16, 1997, Mr.
Kammersell, then nineteen years old, logged on to the Internet service provider
(ISP) America On Line (“AOL”) from his home computer in Riverdale, Utah. Mr.
Kammersell’s girlfriend was employed at AOL’s service center in Ogden, Utah.
He sent a bomb threat to her computer terminal via “instant message,” hoping that
the threat would enable her to leave work early so they could go on a date.
When he sent the bomb threat, it was automatically transmitted through
interstate telephone lines from his computer in Utah to the AOL server in Virginia
and then back to Utah to his girlfriend’s terminal at the Ogden service center.
Every message sent via AOL automatically goes from the state of origin to AOL’s
main server in Virginia before going on to its final destination. This pattern of
transmission is the same whether the communication is an electronic mail (e-mail)
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message or an instant message.
Mr. Kammersell does not contest that the threat traveled out of Utah to
Virginia before returning to Utah. Nor does he contest that his message
constituted a sufficient “threat” to trigger § 875(c). His only claim is that the
jurisdictional element of § 875(c) cannot be met if based solely on the route of the
transmission, where the sender and recipient are both in the same state.
Discussion
The district court’s refusal to dismiss the case on jurisdictional grounds
was based upon its interpretation of § 875(c), therefore, its conclusion is reviewed
de novo. See United States v. Brown , 164 F.3d 518, 521 (10th Cir. 1998).
Section 875(c), provides:
Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person or any
threat to injure the person of another, shall be fined under this title or
imprisoned not more than five years, or both.
This provision was enacted in 1934, and its last significant amendment was in
1939. At that time, the telegraph was still the primary mode of interstate
communication.
Mr. Kammersell argues that the statute must be interpreted in light of the
sweeping changes in technology over the past 60 years and with reference to
Congressional intent. The government urges the court to adhere to the plain
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meaning of the statute; because Mr. Kamersell’s threat was transmitted from Utah
to Virginia to Utah, it was “transmit[ted] in interstate commerce.” Because so
many local telephone calls and locally-sent Internet messages are routed out of
state, under the government’s interpretation, federal jurisdiction would exist to
cover almost any communication made by telephone or modem, no matter how
much it would otherwise appear to be intrastate in nature. Mr. Kammersell argues
that such an interpretation will immeasurably broaden federal criminal
jurisdicition without any discussion by Congress of the matter, and it would be
wrong to view sixty years of Congressional inaction on the statute as clear intent.
This may be a compelling argument that Congress should re-examine the
statute, but it cannot remove Mr. Kammersell from the reach of the current
statute. A federal court must “‘give effect to the will of Congress, and where its
will has been expressed in reasonably plain terms, that language must ordinarily
be regarded as conclusive.’” Negonsott v. Samuels , 507 U.S. 99, 104 (1993)
(citation omitted). “[A]s long as the statutory scheme is coherent and consistent,
there generally is no need for a court to inquire beyond the plain language of the
statute.” United States v. Ron Pair Enters. , 489 U.S. 235, 240-41 (1989). A
threat that was unquestionably transmitted over interstate telephone lines falls
within the literal scope of the statute and gives rise to federal jurisdiction.
Mr. Kammersell argues that the threat should not be considered as
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transmitted interstate because only the recipient could have viewed this “instant
message.” An “instant message” can only be sent if the recipient is online at the
time of transmission, whereas an e-mail may be held in a holding center until it is
retrieved. According to Mr. Kammersell, this distinction is crucial because it
means that no one outside of the State of Utah could have seen the threat. The
distinction, even if correct, is immaterial. No requirement exists under § 875(c)
that the threat actually be received or seen by anyone out of state. “The gravamen
of the crime is the threat itself,” United States v. Cooper , 523 F.2d 8, 10 (6th Cir.
1975).
The “instant message” distinction does enable Kammersell to distinguish
the primary case upon which the Government relies, but in the end this does not
help him either. Because this is a case of first impression, both sides must rely on
analogies. The Government relies upon United States v. Kelner , 534 F.2d 1020
(2d Cir. 1976). There, the defendant was convicted under § 875(c) for
threatening to assassinate Yasser Arafat during a television interview that was
broadcast over three states. Both the defendant and Arafat were in New York at
the time the threat was made. Like Mr. Kammersell, Kelner argued that the
“nexus of his activity was predominantly local, and that the statute should not be
read literally to reach into spheres of primarily local concern.” Kelner , 534 F.2d
at 1024. In upholding Kelner’s conviction, the court noted:
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However much we might agree as a matter of principle that the
congressional reach should not be overextended or that prosecutorial
discretion might be exercised more frequently to permit essentially
local crimes to be prosecuted locally, we do not feel that Congress is
powerless to regulate matters in commerce when the interstate
features of the activity represent a relatively small, or in a sense
unimportant, portion of the overall criminal scheme. Our problem is
not whether the nexus of the activity is “local” or “interstate”; rather,
under the standards which we are to apply, so long as the crime
involves a necessary interstate element, the statute must be treated as
valid.
Id. (citations omitted). While Kelner can be distinguished on the ground that it
involved a transmission that was seen by people in more than one state, the
Second Circuit’s logic remains just as cogent when applied to the current case.
Finally, Mr. Kammersell contends that, based on the spirit of the Supreme
Court’s decision in United States v. Lopez , 514 U.S. 549 (1995), federal
jurisdiction is inappropriate in this case. “ Lopez stands for the proposition that
Congress may not limitlessly expand the federal criminal jurisdiction based on the
commerce clause,” and “after Lopez the constitutionality of assertions of federal
jurisdiction over what are essentially local crimes must be closely scrutinized.”
Aplt. Br. at 34. Yet, we cannot overlook plain language in favor of the “spirit” of
Lopez , particularly given the difference between the deficient statute in Lopez , 18
U.S.C. § 922(q)(1)(A), and § 875(c). The deficient statute in Lopez did not
require an interstate jurisdictional nexus. See Lopez , 514 U.S. at 561 (noting that
statute does not contain a requirement that would ensure that the firearm
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possession in question would affect interstate commerce). Because § 875(c)
requires the use of a channel of interstate commerce, it is not subject to the same
limiting interpretation as Lopez .
AFFIRMED.
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