PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3798
___________
UNITED STATES OF AMERICA
v.
ANTHONY DOUGLAS ELONIS,
Appellant
_______________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 5-11-cr-00013-001
District Judge: Honorable Lawrence F. Stengel
On Remand from the Supreme Court of the United States
on June 1, 2015
Argued after Remand on May 2, 2016
Before: MCKEE, Chief Judge, HARDIMAN, and
SCIRICA, Circuit Judges
(Filed: October 28, 2016)
Ronald H. Levine, Esq.
Abraham J. Rein, Esq. [ARGUED]
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 13th Floor
Philadelphia, PA 19103
Counsel for Appellant
Michael L. Levy, Esq. [ARGUED]
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Sherri A. Stephan, Esq.
Office of United States Attorney
504 West Hamilton Street
Suite 3701
Allentown, PA 18101
Counsel for Appellee
Judge McKee was Chief Judge at the time this appeal was
argued. Judge McKee completed his term as Chief Judge on
September 30, 2016. Judge D. Brooks Smith, assumed Chief
Judge status on October 1, 2016.
2
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
Anthony Elonis was convicted of violating 18 U.S.C. §
875(c), which prohibits transmitting in interstate commerce a
communication containing a threat to injure the person of
another. We affirmed his conviction on appeal, but the
Supreme Court reversed our judgment. It held that the jury
instruction regarding Elonis’s mental state was insufficient
and therefore erroneous. On remand, we will once again
affirm Elonis’s conviction because we hold the error was
harmless.
I.
In May 2010, Elonis’s wife left him, moved out of
their home, and took their two children with her. Shortly
thereafter Elonis began having problems at work. He was an
operations supervisor and communications technician at
Dorney Park & Wildwater Kingdom amusement park. His
supervisors observed him with his head down on his desk
crying, and he was sent home on several occasions because he
was too upset to work.
One of the employees Elonis supervised, Amber
Morrissey, made five sexual harassment reports against him.
According to Morrissey, on one occasion Elonis came into
her office late at night and began to undress in front of her.
3
She left after he removed his shirt. Morrissey also reported
another incident in which Elonis made an employee who was
a minor female uncomfortable when he placed himself close
to her and told her to stick out her tongue.
Elonis’s problems came to a head on October 17,
2010, when he posted a photograph from a Halloween event
at the park to his Facebook page, showing him holding a
knife to Morrissey’s neck. He added the caption “I wish”
under the photo. When his supervisor saw the Facebook post,
Elonis was fired.
Two days later, on October 19, Elonis posted another
violent statement to his Facebook page. He wrote:
Someone once told me that I was a firecracker.
Nah. I’m a nuclear bomb and Dorney Park just
f***ed with the timer. If I was the general
manager, I’d be on the phone with Sandusky1
discussing a damage control plan. But I’m not
and y’all haven’t heard the last of Anthony
Elonis.
This post raised concern among Elonis’s coworkers, who
followed him on Facebook. They voiced their concern in
Facebook posts of their own. One post stated, “I hope that
Dan Hall [chief of patrol at Dorney Park] is aware that
security needs to be looking out for him . . . ,” and another
expressed fear that Elonis would “hurt or kill” someone.
1
Sandusky, Ohio is the location of Dorney Park’s corporate
headquarters.
4
Elonis was aware of these fears. He admitted at trial that he
had saved screenshots of the posts on his computer.
The fear among Dorney Park employees was not
limited to these Facebook posts. Hall, the chief of patrol,
testified at trial that he took steps to enhance park security
and informed local police and the FBI of Elonis’s statements.
Morrissey testified that she had chosen a hiding place in case
Elonis ever came back to Dorney Park.
Despite his knowledge that his violent post had scared
coworkers, Elonis posted another violent message two days
after viewing his coworkers’ exchanges. He wrote:
Moles. Didn’t I tell ya’ll I had several? Ya’ll
saying I had access to keys for the f***ing
gates, that I have sinister plans for all my
friends and must have taken home a couple.
Ya’ll think it’s too dark and foggy to secure
your facility from a man as mad as me. You
see, even without a paycheck I’m still the main
attraction. Whoever thought the Halloween
haunt could be so f***ing scary?
This post became the basis for Count One of Elonis’s
indictment, threatening park patrons and employees. He was
acquitted of the charges in this count.
Around the same time, Elonis began posting crude,
degrading, and violent material to his Facebook page about
his (soon-to-be former) wife. One post states, “If I only knew
then what I know now, I would have smothered your ass with
a pillow, dumped your body in the back seat, dropped you off
5
in Toad Creek,2 and made it look like a rape and murder.”
Another post was in response to a status update posted to
Facebook by Elonis’s sister-in-law. Her status update read,
“Halloween costume shopping with my niece and nephew
should be interesting.” Elonis commented on this status,
writing, “Tell [their son] he should dress up as matricide for
Halloween. I don’t know what his costume would entail
though. Maybe [his mother’s] head on a stick?” Elonis also
posted in October 2010:
There’s one way to love you but a thousand
ways to kill you. I’m not going to rest until
your body is a mess, soaked in blood and dying
from all the little cuts. Hurry up and die,
b****, so I can bust this nut all over your
corpse from atop your shallow grave. I used to
be a nice guy but then you became a slut.
Guess it’s not your fault you liked your daddy
raped you. So hurry up and die, b****, so I
can forgive you.
At trial, Elonis’s wife testified that her husband’s posts “made
[her] extremely afraid for [her] life.” The posts made her feel
“like [she] was being stalked,” and made her feel “extremely
afraid for [her] and [her] children’s and [her] families’ lives.”
She sought a Protection From Abuse order—essentially, a
restraining order—against Elonis in state court. Elonis
attended the proceeding at which the court issued the
restraining order on November 4, 2010.
2
Toad Creek runs behind Elonis’s father-in-law’s house,
where Elonis’s wife was living at the time of the post.
6
The issuance of the restraining order did not stop
Elonis’s violent rhetoric. On November 7, 2010, he posted an
adaptation of a stand-up comedy routine to his Facebook. In
the actual routine, a comedian explains that it is illegal for a
person to say he wishes to kill the President, but not illegal to
explain that it is illegal for him to say that. Elonis’s version
substituted his wife for the President:
Hi, I’m Tone Elonis.
Did you know that it’s illegal for me to say I
want to kill my wife? . . .
It’s one of the only sentences that I’m not
allowed to say. . . .
Now it was okay for me to say it right then
because I was just telling you that it’s illegal
for me to say I want to kill my wife. . . .
Um, but what’s interesting is that it’s very
illegal to say I really, really think someone out
there should kill my wife. . . .
But not illegal to say with a mortar launcher.
Because that’s its own sentence. . . .
I also found out that it’s incredibly illegal,
extremely illegal to go on Facebook and say
something like the best place to fire a mortar
launcher at her house would be from the
cornfield behind it because of easy access to a
getaway road and you’d have a clear line of
sight through the sun room. . . .
Yet even more illegal to show an illustrated
diagram.
[diagram of the house]. . . .
The diagram of the home was accurate. At the end of the
post, Elonis linked to a YouTube video of the original stand-
7
up routine, writing, “Art is about pushing limits. I’m willing
to go to jail for my Constitutional rights. Are you?”
This was not the last violent remark Elonis made about
his wife on his Facebook page. On November 15, referencing
the Protection From Abuse order, Elonis wrote:
Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
And prison time will add zeros to my settlement
Which you won’t see a lick
Because you suck dog d*** in front of the
children . . .
And if worse comes to worse
I’ve got enough explosives to take care of the
state police and Sheriff’s Department.
These posts formed the basis of Count Two of Elonis’s
indictment, threatening his wife. The reference to the police
at the bottom of the November 15 post formed the basis of
Count Three of his indictment, threatening law enforcement
officers.
The next day, November 16, Elonis escalated his
violent rhetoric to include elementary schools:
That’s it, I’ve had about enough
I’m checking out and making a name for
myself
8
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting
ever imagined
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?
This post formed the basis of Count Four of Elonis’s
indictment.
By this point, the FBI was monitoring Elonis’s
Facebook posts, because Dorney Park had contacted the FBI
regarding Elonis’s violent rhetoric against Dorney Park and
its employees. The threat to initiate a school shooting
prompted the FBI to visit Elonis at his house on November
30. Elonis did not cooperate with the agents who attempted
to interview him. Later that day, he posted:
You know your s***’s ridiculous when you
have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the b***
ghost
Pull my knife, flick my wrist, and slit her
throat
Leave her bleedin’ from her jugular in the arms
of her partner
[laughter]
So the next time you knock, you best be
serving a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
9
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for ya’ll to handcuff me and
pat me down
Touch the detonator on my pocket and we’re
all goin’
[BOOM!]
Are all the pieces comin’ together?
S***, I’m a crazy sociopath
that gets off playin’ you stupid f***s like a
fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the
attention
who happens to be under investigation for
terrorism
cause y’all think I’m ready to turn the Valley
into Fallujah
But I ain’t gonna tell you which bridge is
gonna fall into which river or road
And if you really believe this s***
I’ll have some bridge rubble to see you
tomorrow
[BOOM!][BOOM!][BOOM!]
This post formed the basis of Count Five of Elonis’s
indictment.
II.
10
Elonis was arrested on December 8, 2010, and charged
with transmitting in interstate commerce communications
containing a threat to injure the person of another in violation
of 18 U.S.C. § 875(c). Following his indictment, he moved to
dismiss all five counts, contending his speech was protected
by the First Amendment. The District Court denied his
motion and his case proceeded to trial.
Elonis testified in his own defense at trial. He claimed
he did not intend to make any threats, and would never act
violently. He testified, “These were—these were lyrics.
These—these were for entertainment purposes only. They
weren’t intended for anyone to feel like I was threatening
them or feel scared. I didn’t want anyone to feel scared.”
When asked how he thought people might interpret his posts,
Elonis responded, “You know, I didn’t really care what other
people thought.” He further testified, “I made an on-line
persona and I figured the worse I made myself seem, you
know, I didn’t care what people said about me.”
Applying circuit precedent, the District Court
instructed the jury that
a statement is a true threat when a defendant
intentionally makes a statement in a context or
under such circumstances wherein 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 an intention to inflict bodily
injury or take the life of an individual.
11
The government’s closing argument emphasized that it was
irrelevant whether Elonis intended the postings to be threats,
saying:
Even if you were to believe absolutely
everything that he said to you today, it has
absolutely no[] impact on whether or not you
should find him guilty or not. . . . Again, it
doesn’t matter what he thinks.
The jury convicted Elonis on Counts Two through
Five of his indictment, acquitting him only of Count One,
threatening park patrons and employees. He was sentenced to
forty-four months’ imprisonment.
On appeal, Elonis argued that the Supreme Court’s
decision in Virginia v. Black, 538 U.S. 343 (2003), requires a
jury to find that a defendant subjectively intended his
statements to be understood as threats for them to fall under
the true-threat exception to the First Amendment. Applying
circuit precedent, we upheld his conviction.3
3
Except for the Court of Appeals for the Ninth Circuit, see
United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th Cir.
2011); United States v. Cassel, 408 F.3d 622, 631–32 (9th
Cir. 2005), our opinion conformed to the general agreement at
the time among other sister circuits that an objectively
threatening communication falls into the true-threat exception
to the First Amendment, see, e.g., United States v. White, 670
F.3d 498, 510 (4th Cir. 2012) (collecting cases), abrogated by
Elonis v. United States, 135 S. Ct. 2001 (2015). None have
had a chance to reconsider in light of the Supreme Court’s
opinion in this case.
12
The Supreme Court granted certiorari and reversed.
Elonis v. United States, 135 S. Ct. 2001 (2015). The Court
did not reach the First Amendment issues presented by the
case. Instead, it based its ruling on its interpretation of the
statute under which Elonis was convicted, Section 875(c).
Reasoning that “[f]ederal criminal liability generally does not
turn solely on the results of an act without considering the
defendant’s mental state,” the Court rejected the objective
standard under which the jury was instructed. Id. at 2012.
While the Court added that in this case, there was no dispute
that a knowledge or purpose standard would satisfy Section
875(c)’s mental state requirement, it declined to address
whether a recklessness standard would be sufficient. Id.
Accordingly, it reversed our judgment and remanded the case
for further proceedings consistent with its opinion.
Justice Alito concurred in part and dissented in part
from the majority’s opinion. He would have decided the
recklessness issue and held that a recklessness standard
satisfies Section 875(c)’s mental state requirement. Id. at
2016 (Alito, J., concurring). He also suggested that on
remand we “consider whether [Elonis’s] conviction can be
upheld on harmless-error grounds.” Id. at 2018 (Alito, J.,
concurring).
III.
A.
The jury at Elonis’s trial was instructed it could
convict him under Section 875(c) if it found that “a
reasonable person in [his] position” would have “foreseen
13
that the communication he made would have been interpreted
by the recipient as a serious expression of an intention to
inflict bodily injury or take the life of an individual.” The
Supreme Court held this instruction was insufficient and
therefore erroneous, because “negligence is not sufficient to
support a conviction under Section 875(c).” Elonis, 135 S.
Ct. at 2013. Instead, the Court explained, the jury should
have been instructed it could convict Elonis if it found he
“transmit[ted] a communication for the purpose of issuing a
threat, or with knowledge that the communication w[ould] be
viewed as a threat.” Id. at 2012. The Court left open the
question of whether an instruction on a standard of
recklessness would be sufficient under Section 875(c) or
under the First Amendment.
We believe Section 875(c) contains both a subjective
and objective component, and the Government must satisfy
both in order to convict a defendant under the statute. The
Supreme Court focused on the subjective component. It held
that to satisfy the subjective component of Section 875(c), the
Government must demonstrate beyond a reasonable doubt
that the defendant transmitted a communication for the
purpose of issuing a threat or with knowledge that the
communication would be viewed as a threat.4
The Government must also satisfy the objective
component, which requires it to prove beyond a reasonable
doubt that the defendant transmitted a communication that a
4
As noted, the Court did not address whether a finding of
recklessness would be sufficient.
14
reasonable person would view as a threat.5 The objective
component of Section 875(c) shields individuals from
culpability for communications that are not threatening to a
reasonable person, distinguishing true threats from hyperbole,
satire, or humor. See Watts v. United States, 394 U.S. 705,
708 (1969). It requires the jury to consider the context and
circumstances in which a communication was made to
determine whether a reasonable person would consider the
communication to be a serious expression of an intent to
inflict bodily injury on an individual. See Virginia v. Black,
538 U.S. 343, 360 (2003).6
While it is clear that a defendant can be convicted
under Section 875(c) for transmitting an objectively
threatening communication “with knowledge that the
communication will be viewed as a threat,” Elonis and the
Government disagree on the application of that standard.
Elonis contends the Government must show the defendant
“acted with knowledge of a reasonable person’s
5
The District Court’s instruction in this case properly states
the objective component.
6
We recognize that, in addition to this objective component,
the Ninth Circuit requires proof of a specific intent to threaten
to satisfy the First Amendment. See Bagdasarian, 652 F.3d
at 1118. But see United States v. Jeffries, 692 F.3d 473, 485
(6th Cir. 2012) (Sutton, J., dubitante) (explaining that as a
matter of statutory interpretation, Section 875(c) requires a
subjective component, but “as a matter of constitutional
avoidance . . . threat prohibitions like [Section 875(c)] cover
only ‘real’ threats, threats in other words that a reasonable
observer would take as true and real”), abrogated by Elonis,
135 S. Ct. 2001 (2015).
15
interpretation of the speech as threatening,” reasoning that
“knowledge that particular persons would consider the
communications threatening is not necessarily equivalent to
knowledge of how a reasonable person would understand
them.” Were this not the standard, Elonis argues, a defendant
could violate Section 875(c) merely by “post[ing] photos of
his pit bull on Facebook . . . knowing that some members of
the Facebook community unreasonably found photos of such
dogs threatening . . . .”
Elonis’s concerns are unfounded. The objective
component of Section 875(c) ensures that a defendant can
only be convicted for transmitting communications that are
objectively threatening. Moreover, his approach would
render the objective component meaningless. Instead of
asking the jury whether the defendant’s communication was
objectively threatening, Elonis would ask only whether the
defendant believed his communication was objectively
threatening. But it is not for the defendant to determine
whether a communication is objectively threatening—that is
the jury’s role. If a defendant transmits a communication for
the purpose of issuing a threat or with knowledge that the
recipient7 will view it as a threat, and a jury determines that
7
We recognize it may sometimes be difficult to pinpoint the
recipient of the communication. This is especially so in the
age of social media, when the recipient of the communication
may be a defendant’s Facebook followers or even the general
public. But Section 875(c) operates the same whether the
communication has one recipient or many. For example, if a
defendant transmits a communication on Facebook, he
violates Section 875(c) if the communication is objectively
threatening and the defendant transmitted it for the purpose of
16
communication is objectively threatening, then the defendant
has violated Section 875(c) whether or not he agrees the
communication was objectively threatening.
With this understanding of Section 875(c) in mind, we
will turn to Elonis’s trial to determine whether the error at his
trial was harmless.
B.
For a trial error to be harmless, we must “conclude
beyond a reasonable doubt that the jury verdict would have
been the same absent the error.” Neder v. United States, 527
U.S. 1, 19 (1999). Our inquiry “is not whether, in a trial that
occurred without the error, a guilty verdict would surely have
been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.”
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). When the
error involves a mens rea instruction, “[a] verdict may still
stand, despite erroneous jury instructions, where the predicate
facts ‘conclusively establish [mens rea], so that no rational
jury could find that the defendant committed the relevant
criminal act’” without also finding the requisite mens rea.
Whitney v. Horn, 280 F.3d 240, 260 (3d Cir. 2002) (quoting
Rose v. Clark, 478 U.S. 570, 580–81 (1986)).8
issuing a threat or with knowledge that it would be viewed as
a threat by his Facebook followers.
8
In Whitney, the jury was improperly instructed regarding the
element of intent in a first-degree murder case. We found
that, due to the strong circumstantial evidence of intent within
the record, no “reasonable jury could have had any doubt
17
Elonis was convicted on four counts of violating 18
U.S.C. § 875(c), which prohibits “transmit[ting] in interstate
or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person
of another . . . .” The jury was erroneously instructed under
an objective standard. The parties dispute whether a
recklessness standard or a knowledge standard is sufficient.
But under either standard, we find the District Court’s error
was harmless. The record contains overwhelming evidence
demonstrating beyond a reasonable doubt that Elonis knew
the threatening nature of his communications, and therefore
would have been convicted absent the error.
1.
Count Two of the indictment charged Elonis with
violating Section 875(c) by communicating a threat to injure
his ex-wife. The jury convicted Elonis on this count under an
objective standard, finding that the Facebook posts about his
ex-wife would be regarded as threatening by a reasonable
person. A review of the evidence surrounding these posts
unequivocally demonstrates the jury would have convicted
Elonis were it required to find that he either knew his ex-wife
would feel threatened by the posts or that he purposely
threatened her.
In October 2010, just five months after Elonis’s wife
left him, Elonis posted three messages to Facebook that
referenced, among other things, his desire to rape her, kill her,
about whether Whitney . . . form[ed] the intent to kill.” 280
F.3d at 261.
18
put her head on a stick, and “bust this nut all over [her]
corpse.” Following these posts, Elonis’s wife sought a
restraining order against him. Elonis attended the proceeding
at which the order was issued, on November 4, 2010. Despite
knowing his wife felt threatened enough to seek a restraining
order against him, Elonis continued his violent rhetoric with
his November 7 post expressing, once again, his desire to kill
his ex-wife. Just eight days later, he again posted a violent
message about his ex-wife that explicitly referenced the
restraining order she had obtained and asked whether it was
thick enough to stop a bullet.
Elonis contends the jury may have acquitted him had it
not been instructed on an incorrect objective standard.
According to Elonis, these errors “rendered irrelevant” his
testimony regarding his mental state at the time he posted the
messages to Facebook. But as Elonis concedes, Section
875(c)’s mental state requirement can be met with proof of
purpose or knowledge. His testimony at trial focused on his
purpose of his Facebook posts, but never contested that he
knew his posts would be viewed as threats.9 Thus, even if the
jury believed Elonis’s testimony, it could still have found that
he knew the threatening nature of his posts.
Moreover, even if Elonis had testified he did not know
his ex-wife would feel threatened, “harmless-error cases do
not turn on whether the defendant conceded the factual issue
9
For example, Elonis testified his posts “weren’t intended for
anyone to feel like I was threatening them or feel scared.” He
further testified, “I’m not trying to threaten anyone.” These
statements offer his explanation for the purpose of his posts,
but do not address whether he knew his ex-wife would feel
threatened by them.
19
on which the error bore.” Rose, 478 U.S. at 583. “[T]he fact
that [Elonis] denied that he had [the requisite mens rea] does
not dispose of the harmless-error question.” Id. at 583–84.
Instead, harmless error review “mandates consideration of the
entire record” to determine whether the error was harmless
beyond a reasonable doubt. Id at 583.
Reviewing the whole record, we find that even if
Elonis had contested the knowledge element in his testimony,
no rational juror would have believed him. Considering the
graphic nature of the three messages Elonis posted in
October, it is not at all credible that Elonis did not know his
ex-wife would interpret them as threats. But it is less credible
still that, having attended the court proceeding at which she
sought a restraining order against him, Elonis remained
unaware of his ex-wife’s fears as he posted more violent
messages on November 7 and 15. The evidence
overwhelmingly shows that Elonis posted those two messages
with either the purpose of threatening his ex-wife, or with
knowledge that she would interpret the posts as threats. No
rational juror could conclude otherwise.
2.
Count Three of the indictment charged Elonis with
violating Section 875(c) by communicating a threat to injure
employees of the Pennsylvania State Police and Berks County
Sheriff’s Department. Just as with Count Two, the jury
convicted Elonis of this Count under an objective standard,
finding that the Facebook post about the police would be
regarded as threatening by a reasonable person.
20
Elonis’s post regarding the police came at the end of
his November 15 post about his ex-wife. It stated, “And if
worse comes to worse / I’ve got enough explosives to take
care of the state police and Sheriff’s Department.” Elonis
advances several arguments for why the jury would not have
convicted him had it been instructed under a knowledge
standard.
First, he contends again that the objective standard
prevented the jury from considering his testimony that he did
not know his posts would be regarded as threatening. This
argument fails for the same reasons as above. Contrary to his
suggestion, Elonis never testified that he was unaware of the
threatening nature of his posts referencing the State Police
and the Sheriff’s Department. Elonis knew that both his
coworkers and his ex-wife felt threatened by the violent
rhetoric in his previous Facebook posts. Despite that, he
posted yet another violent message stating his intention to
detonate explosives near State Police officers and the
Sheriff’s Department if “worse comes to worse.” If anything,
this post is a more explicit threat than those that he knew had
frightened his coworkers and ex-wife. It is difficult to
imagine how Elonis could have believed it would be
interpreted as anything but a threat.
Second, Elonis contends the fact that his statements
were in lyric form suggests he did not know they would be
regarded as threats. The evidence suggests otherwise. This
was not the first time Elonis used a lyric form to post
threatening statements. He previously posted statements
about Dorney Park on October 19 and 22 with a lyric form
similar to his post about the police. But despite the use of a
lyric form, several of Elonis’s coworkers at Dorney Park
21
regarded the posts as threatening, and Elonis was aware of
their fears. He knew that his use of a lyric form did not lessen
the threatening nature of his posts. His continued use of the
form only heightens the likelihood he knew a reasonable
person would interpret his post as a threat.
Third, Elonis contends the fact he communicated his
statements on Facebook— which he claims is “a medium that
magnifies the potential for disconnect between the speaker’s
intent and the audience’s understanding”—suggests he did
not know his statements would be regarded as threats. But
whatever disconnect there may have been surely disappeared
when Elonis read his coworkers’ posts about how they felt
threatened, and when he discovered his ex-wife was seeking a
restraining order against him. By the time he made his
statement regarding the police, he was clearly aware of how
his audience would understand it. His Facebook post was
written either with the purpose to threaten the police, or with
knowledge that the post would be interpreted as a threat.
3.
Count Four of the indictment charged Elonis with
violating Section 875(c) by communicating a threat to injure a
kindergarten class of elementary school children. The
Facebook post that formed the basis for this charge states:
That’s it, I’ve had about enough
I’m checking out and making a name for
myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting
ever imagined
22
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?
As with the other counts, Elonis contends the jury may not
have convicted him of this count were it required to find he
knew the post would be threatening to a reasonable person.
We disagree.
Elonis’s post is graphic and specific in ways that make
it impossible to believe he was unaware it would be
interpreted as a threat. He specifically threatens elementary
schools in a ten-mile radius, narrows his threat further to
kindergarten classes within those elementary schools, and
ends his post with a haunting question that suggests he will
carry out his threat imminently. Given the understandable
sensitivity regarding school shootings in this country, of
which Elonis was no doubt aware, no rational juror could
conclude that Elonis did not have the purpose to threaten, or
did not know that a reasonable person would feel threatened,
when he said he would “initiate the most heinous school
shooting ever imagined.”
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4.
Finally, Count Five of the indictment charged Elonis
with violating Section 875(c) by communicating a threat to
injure an FBI agent. As with the other counts, the jury
convicted Elonis under an objective standard, finding that the
Facebook post about the FBI agent would be regarded as
threatening by a reasonable person.
The post forming the basis for Count Five stated,
referring to the FBI agent that visited Elonis’s house earlier in
the day, “Little Agent Lady stood so close / Took all the
strength I had not to turn the b**** ghost / Pull my knife,
flick my wrist, and slit her throat / Leave her bleedin’ from
her jugular in the arms of her partner.” The post further
stated that if the FBI returned, he would detonate an explosive
device he had strapped to his body.
Elonis once more contends the jury may not have
convicted him of threatening the FBI agent had it not been
erroneously instructed under an objective standard. Once
again, we disagree. By the time the FBI visited Elonis on
November 30, he knew his former coworkers felt threatened
by his posts. The chief of patrol at Dorney Park, a friend of
Elonis’s on Facebook, felt so threatened that he enhanced
park security, informed the local police, and notified the FBI.
Elonis knew his ex-wife felt threatened enough by his posts to
take out a restraining order against him. And when FBI
agents showed up at his door, Elonis knew his followers on
Facebook felt threatened enough to contact the FBI, and the
FBI took those concerns seriously. Despite that knowledge,
Elonis posted yet another violent message, this time about
one of the FBI agents that visited him. The evidence
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overwhelmingly demonstrates Elonis knew how this post
would be interpreted. No rational juror could have found
Elonis did not have the purpose of threatening FBI agents or
did not know his post about FBI agents would be regarded as
a threat.
C.
Our disposition on the issue of harmless error decides
this case. Accordingly, we have no occasion to determine
whether a finding of recklessness would be sufficient to
satisfy the mental state requirement of Section 875(c). We
will leave that question for another day.
IV.
Based on our review of the record, we conclude
beyond a reasonable doubt that Elonis would have been
convicted if the jury had been properly instructed. We
therefore hold that the error was harmless, and uphold his
conviction.
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