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Precedential or Non-Precedential: Precedential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

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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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