NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 16 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-30024
Plaintiff - Appellee, D.C. No. 2:09-cr-059-JLQ-1
v.
FABIAN VAKSMAN, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior Judge, Presiding
Argued and Submitted March 5, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and KOH,** District Judge.
Defendant Fabian Vaksman appeals a jury verdict in which he was found
guilty of violating 18 U.S.C. § 875(c), a statute prohibiting interstate
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lucy H. Koh, United States District Judge for the
Northern District of California, sitting by designation.
communications of a threat to injure. We have jurisdiction under 18 U.S.C. §
3742(a)(1), and we affirm.
Vaksman challenges the constitutionality of his conviction, claiming that the
e-mail for which he was convicted is not a “true threat,” and therefore is speech
protected by the First Amendment. Virginia v. Black, 538 U.S. 343, 359 (2003).
We conclude that sufficient evidence supports the jury’s verdict under both the
objective and subjective test of a true threat. See United States v. Bagdasarian,
652 F.3d 1113, 1116-17 (9th Cir. 2011).
First, sufficient evidence supports the jury’s finding that the March 20 e-
mail was objectively a true threat because “a reasonable person would foresee that
the statement would be interpreted . . . as a serious expression of intent to harm or
assault.” Id. at 1125 (citations omitted). In saying, “[i]f I were to murder him, I’d
have a legitimate claim that I was merely acting in self-defense,” Vaksman
threatened to kill Commissioner Adam Eisenberg. Vaksman urged U.S. Marshals
to take Commissioner Eisenberg “off the street into protective custody,” so that
Vaksman would “NOT be compelled to take the law into [his] own hands.”
Vaksman also stated that Commissioner Eisenberg “will merit every bullet that can
be fired into his criminal ass.” Taken as a whole, a reasonable person would
interpret the March 20 e-mail as a serious expression of intent to harm. See United
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States v. Sutcliffe, 505 F.3d 944, 961 (9th Cir. 2007) (explaining that the use of
conditional language is not dispositive in the true threat analysis). Moreover, the
recipients of the March 20 e-mail, including a U.S. Marshal and the victim,
perceived the e-mail as a threat and acted accordingly. See Bagdasarian, 652 F.3d
at 1119.
We reject Vaksman’s argument that Bagdasarian requires reversal. In
contrast to the statements in Bagdasarian, Vaksman’s March 20 e-mail was neither
a prediction, nor an imperative. See id. at 1119. Instead, Vaksman’s statements
indicated that he would kill the victim absent intervention or specific actions by
Commissioner Eisenberg.
We also reject Vaksman’s argument that the March 20 e-mail was not
objectively a true threat because it contained no threat of imminent action. The
government need only prove imminency where a speaker incites others to commit
violence. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Black, 538 U.S. at
359; Bagdasarian, 652 F.3d at 1115 n.9. Vaksman was not convicted because he
incited others to commit violence, but rather because he threatened to commit
violence against Commissioner Eisenberg.
Second, sufficient evidence supports the jury’s finding that Vaksman “made
the statements intending that they be taken as a threat.” Bagdasarian, 652 F.3d at
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1122; see also United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988) (holding
that a conviction under § 875(c) requires specific intent to threaten). The jury’s
credibility determination in rejecting Vaksman’s exculpatory testimony is entitled
to deference. Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal.
of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002) (en banc). Moreover, the
facts in the record support the jury’s finding that Vaksman intended to threaten
Commissioner Eisenberg. These facts include: the text of the March 20 e-mail,
Vaksman’s past contacts with Commissioner Eisenberg, and Vaksman’s disregard
of previous warnings from law enforcement that his choice of language could be
perceived as threatening.
Finally, Vaksman argues that his conviction should be overturned because
the jury deliberated for less than two hours. Even if the length of the jury’s
deliberations were a relevant consideration, the facts of this case do not support
overturning the jury verdict. The trial was one and a half days and consisted of
only one count of a criminal threat in violation of 18 U.S.C. § 875(c). In light of
the straightforward nature of the issues and the limited amount of evidence
presented, the deliberations were not unreasonably short.
AFFIRMED.
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