United States v. Havelock

N.R. SMITH, Circuit Judge,

concurring in the result:

I agree with the majority’s conclusion, but not with its analysis. The majority reads 18 U.S.C. § 876(c) too narrowly when it concludes that § 876(c) refers exclusively to mailing threatening communications to natural persons. Section 876(c) also prohibits mailing threatening communications to corporations and other entities. I, therefore, do not join the majority’s analysis of the meaning of the term “person” in § 876(c). However, Havelock’s convictions should be reversed, because the government did not present any evidence that Havelock had a specific intent to threaten when he mailed the “media packets.”

I

In this case, we are called upon to interpret 18 U.S.C. § 876(c). “In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). Thus, to determine the meaning of “person” in § 876(c), we must examine both § 876(c) and the language and design of § 876 as a whole. 18 U.S.C. § 876 states:

(a)Whoever knowingly deposits in any post office or authorized depository for mail matter, to be sent or delivered by the Postal Service or knowingly causes to be delivered by the Postal Service according to the direction thereon, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person, and containing any demand or request for ransom or reward for the release of any -kidnapped person, shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered, as aforesaid, any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both. If such a communication is addressed to a United States judge, a Federal law enforcement officer, or an official who is covered by section 1114, the individual shall be fined under this title, imprisoned not more than 10 years, or both.
(d) Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased *1298person, or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both. If such a communication is addressed to a United States judge, a Federal law enforcement officer, or an official who is covered by section 1114, the individual shall be fined under this title, imprisoned not more than 10 years, or both.

A

“Statutory interpretation must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (internal quotations omitted). However, “[o]nly in the absence of a statutory definition does this court normally look to the ordinary meaning or dictionary definition of a term.” United States v. Lettiere, 640 F.3d 1271, 1274 (9th Cir.2011).

In this statute, the term “person” has a statutory definition provided by the Dictionary Act. The Dictionary Act defines “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. This definition of “person” applies when determining the meaning of a statute “unless the context indicates otherwise.” Id. “Context” is “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts.” Rowland v. Cal. Men’s Colony, 506 U.S. 194, 199, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Thus, the Dictionary Act definition of “person” applies every time the term is used in a statute, unless the context indicates otherwise.

B

While there is a “presumption that a given term is used to mean the same thing throughout a statute,” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994), “this presumption is not absolute.” Barber v. Thomas, — U.S. -, 130 S.Ct. 2499, 2506, 177 L.Ed.2d 1 (2010).

[T]he presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent. Where the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.

Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). Put differently, the presumption of uniformity “relents when a word used has several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation, without being confused or getting confusing.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595-96,124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004). “Statutory language must be read in context [because] a phrase gathers meaning from the words around it.” Id. at 596, 124 S.Ct. 1236 (internal quotation marks omitted). Thus, “[identical words appearing more than once in the same act, and even in the same *1299section, may be construed differently if it appears they were used in different places with different intent.” Vanscoter v. Sullivan, 920 F.2d 1441, 1448 (9th Cir.1990) (citing Atl. Cleaners & Dyers, 286 U.S. at 433, 52 S.Ct. 607).

C

Section 876(c) begins with the clause: “Whoever knowingly so deposits or causes to be delivered as aforesaid----” The phrase “knowingly so deposits or causes to be delivered as aforesaid” refers to the opening clauses in § 876(a): “Whoever knowingly deposits in any post office or authorized depository for mail matter, to be sent or delivered by the Postal Service or knowingly causes to be delivered by the Postal Service according to the direction thereon....” Because § 876(c) refers to § 876(a), the principles of statutory construction require us to examine the use of “person” in § 876(a) in deciding how to interpret § 876. See K Mart Corp., 486 U.S. at 291, 108 S.Ct. 1811.

The first instance where “person” appears in § 876(a), the phrase “addressed to any other person,” must be interpreted by the statutory Dictionary Act definition of “person.” The statutory Dictionary Act definition may also be used, because the context does not indicate otherwise. One could address communications to both natural persons and entities. Communications regarding demands or requests for ransom or rewards could be addressed to entities such as corporations just as easily as they could be addressed to natural persons. See Diaz v. Gates, 420 F.3d 897, 905 (9th Cir.2005) (discussing hypothetical scenario where businesses pay ransoms for their kidnapped business executives). Therefore, the Dictionary Act definition of “person” is proper in interpreting the phrase “addressed to any other person.”

In contrast, the context indicates otherwise regarding the second instance where “person” appears in § 876(a) — “release of any kidnapped person.” The context indicates that the Dictionary Act definition of “person” does not apply to that particular phrase, because an entity such as a corporation cannot be kidnapped. Thus, the use of “person” in that phrase indicates a natural person definition of the term.

Examining the other instances where “person” is used in § 876 reveals the same pattern: the statute uses the statutory Dictionary Act definition unless the context of a particular phrase indicates otherwise.

Other phrases that use the Dictionary Act definition of “person” include “with intent to extort from any person,” 18 U.S.C. § 876(b) and (d), and “any threat to accuse the addressee or any other person of a crime,” id. § 876(d). Those phrases use the Dictionary Act definition, because their context does not indicate otherwise. Corporations and other entities may be threatened with extortion or accused of crimes. See, e.g., Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1322 (9th Cir.1998) (stating that defendant engaged in scheme for the purpose of extorting money from a limited partnership); Boise Dodge, Inc. v. United States, 406 F.2d 771, 772 (9th Cir.1969) (per curiam) (mentioning the established rule that a corporation, through the conduct of its agents and employees, may be convicted of a crime).

The majority points out that a natural person definition of “person” must necessarily be used in the phrases “any threat to kidnap any person or any threat to injure the person of the addressee or of another,” id. § 876(b), and “the reputation of a deceased person, or any threat to accuse the addressee or any other person *1300of a crime,” id. § 876(d). Indeed, the context of those particular phrases indicates they do not use the statutory Dictionary Act definition of “person.” Corporations or other entities cannot be injured in their person, and there is no such thing as a deceased entity or corporation.

Because the context of some phrases in § 876 indicates they do not use the Dictionary Act definition, the majority mistakenly suggests that those phrases “clearly require that ‘person’ mean a natural person” throughout the statute. However, the majority’s conclusion appears to rest on faulty statutory interpretation. The context of each use of “person” in § 876 indicates that the statute instead alternates between two commonly understood meanings: the Dictionary Act definition and a natural person definition. The particular phrases, that use a natural person definition of “person,” share a context that indicates they use that definition instead of the statutory Dictionary Act definition. Those phrases gather a natural person meaning from the words like “kidnap,” “injure the person,” or “deceased” around the uses of “person” in those phrases. Conversely, the other phrases using the term “person” in § 876 do not share that context, and so the statutory Dictionary Act definition is applicable.

This use of two different definitions of “person” in the same statute, or even in the same sentence, is not confused or confusing. See Gen. Dynamics, 540 U.S. at 595-96, 124 S.Ct. 1236. The context and the words around each use of “person” show which definition applies to each use. A speaker in an ordinary conversation, for example, could alternate between the Dictionary Act and natural person definitions in § 876(a), so that the provision would prohibit threatening communications, regarding the kidnapping of natural persons, mailed to natural persons and mailed to entities.

D

Given the statutory interpretation of § 876(a), we then use it in interpreting § 876(c). The first instance where the term “person” is used in § 876(c), the phrase “addressed to any other person,” must be interpreted by the statutory Dictionary Act definition of “person.” Like the context of the phrase “addressed to any other person” in § 876(a), the context of this phrase also does not indicate that the phrase uses another definition of “person.” Thus, the phrase “addressed to any other person” in § 876(c) should be interpreted in the same manner. Without any context indicating otherwise, the statutory Dictionary Act definition of “person” is applicable.

The next two instances where “person” is used in § 876(c), the phrases “threat to kidnap any person” and “threat to injure the person of the addressee or of another,” instead use a natural person definition. As seen above with similar phrases from other parts of § 876, the context of these phrases indicates they do not use the Dictionary Act definition of “person.” An entity such as a corporation cannot be kidnapped or injured in its person. While the latter two phrases use a natural person definition, that does not imply that the phrase “addressed to any other person” must also use a natural person definition. The context and words around each use of “person” in § 876(c) indicate which definition applies to each use. Only the latter two phrases in the clause necessarily require that “person” mean a natural person, because those uses of “person” gather meaning from the words “kidnap” and “injure” around them.

*1301In fact, the phrase “threat to injure the person of the addressee or of another,” does not require that the “person” receiving the communication be a natural person. According to that phrase, the recipient of the threatening communication does not need to be the target of the threat of injury. The communication only need to threaten to injure the person of the addressee or another. For example, a communication could be addressed to a corporation and contain a threat to injure the person of a natural person employed at that corporation. In other words, it is the target of the threat who must be capable of being injured, not the recipient of the communication.

In sum, § 876(c) prohibits mailing threatening communications to natural persons and to corporations and other entities.

II

The majority’s argument that § 876(c) refers only to natural persons, because it should be read in concert with § 875, is unavailing. I generally endorse some of Judge Fisher’s comments on interpreting § 876 with § 875, with the following additional comments.

While it is true that “context” includes “texts of other related congressional Acts,” Rowland, 506 U.S. at 199, 113 S.Ct. 716, the majority does not demonstrate that the enactment of § 875 is in any way related to the enactment of § 876. Indeed, the majority admits that the predecessors to §§ 875 and 876 were not enacted as part of the same act. Also, while the context of a statute does not extend to its legislative history, see id. at 200, 113 S.Ct. 716, the majority has pointed to no statutory history that otherwise indicates § 875 is related to § 876.

Other Congressional acts may be related to a statute at issue if they “help illuminate the meaning” of the statute. See Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767, 778 (9th Cir.2008). The majority, however, does not establish that § 875 helps illuminate the meaning of § 876.

Without a stronger demonstration of why § 875 is related to § 876, I am not convinced that § 875 helps to interpret the meaning of § 876.

Ill

I would also renew Judge Graber’s argument that limiting the meaning of “person” in § 876(c) to natural persons produces absurd results. “[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982).

As Judge Graber highlighted in her dissent to the three-judge panel’s decision, the purpose of § 876 is “to deter the sending of death threats and threats of bodily injury.” United States v. Havelock, 619 F.3d 1091, 1100 (9th Cir.2010) (Graber, J., dissenting). When Congress first enacted § 876, it “went to some trouble to define broadly the prohibited communications— the original version of § 876 expressly covered ‘any’ letter or other communication, written or printed, with or without any sort of signature, sent by almost any conceivable method of mailing, containing a threat against either the addressee or another.” Id. at 1099. The current version of § 876(c) contains similarly broad language: it prohibits “any communication with or without a name or designating *1302mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another.” 18 U.S.C. § 876(c) (emphases added). Thus, “[a]t its essence, § 876(c) criminalizes the use of the postal system to deliver a threatening communication.” United States v. Rendelman, 641 F.3d 36, 48 (4th Cir.2011).

The majority’s narrow interpretation of § 876(c) runs counter to the broad legislative purpose of § 876, by insulating senders of death threats and threats of bodily injury from liability so long as they carefully (or accidentally) address their threatening communications to entities and not to natural persons. See Havelock, 619 F.3d 1091 at 1099-1100 (Graber, J., dissenting). The majority’s interpretation thus produces absurd results through substantially frustrating the purpose of § 876(c). See id.; see also Rowland, 506 U.S. at 210,113 S.Ct. 716 (discussing cases where the Supreme Court held that the Dictionary Act definition of “person” applied to statutes, because a natural person definition would have “substantially frustrated” the purposes of those statutes). In contrast, applying the Dictionary Act definition of “person,” except where the context indicates otherwise, supports § 876’s broad legislative purpose of deterring threatening communications. See Havelock, 619 F.3d 1091 at 1100 (Graber, J., dissenting); see also Rendelman, 641 F.3d at 48.

Because a natural person definition of “person” throughout § 876 produces absurd results and because the Dictionary Act definition of “person” accords with § 876’s legislative purpose of deterring threatening communications, I cannot agree with the majority’s interpretation of § 876(c).

IY

Finally, because I disagree with the manner in which the majority reached its conclusion in this case but in the end agree with the majority’s ultimate conclusion (that Havelock’s six convictions should be reversed), I must briefly address the manner in which I get to that conclusion. In general, I support Judge Reinhardt’s view as to “specific intent to threaten.”

A

In United States v. Twine, 853 F.2d 676, 679-81 (9th Cir.1988), we determined that convictions under 18 U.S.C. § 876 require the government to prove the specific intent to threaten. While we acknowledged that requirement was endorsed by only some of our sister circuits, we have never overruled Twine. E.g., United States v. King, 122 F.3d 808 (9th Cir.1997). Therefore, in order to prove Havelock’s convictions, the government bears a higher burden of proof. The government must prove that Havelock had a specific intent to threaten when he mailed the “media packets.” Pri- or to trial, Havelock moved to dismiss the indictment, partially because the “media packets” were devoid of “any threat to injure.” He argued that the packets instead contained an explanation of his violent actions (to be read after the fact). At the close of the evidence, Havelock moved for a judgment of acquittal. In support of his motion, he made the same arguments he had presented in the motion to dismiss. The district court denied both motions. Now he challenges the sufficiency of the evidence for the jury to make such a finding.

When a claim of sufficiency of evidence is preserved by making a motion for acquittal at the close of the evidence, this *1303court reviews the district court’s denial of the motion de novo. See United States v. Munoz, 233 F.3d 1117, 1129 (9th Cir.2000), superceded by statute on other grounds, 18 U.S.C. § 1341. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Crawford, 239 F.3d 1086, 1092 (9th Cir.2001).

Reviewing the evidence in this record, Havelock was correct. The totality of the evidence shows that Havelock intended the “media packet” envelopes to be read after he died. He intended the “media packet” to be a Manifesto explaining what he believed to be wrong in this world and why he did what he did.

Havelock mailed the envelopes just prior to going to the Super Bowl that day with his newly purchased rifle and ammunition. After leaving the post office, he drove to a parking lot near the Super Bowl stadium. He never followed through with the actions he had previously contemplated.

There is no proof that Havelock specifically intended to threaten, if the envelopes were posted on a Sunday and the acts were to later occur on that very day. The mail would not even be delivered until at least the day after the Super Bowl. He did not intend anyone reading the “media packet” to be threatened by future harm or additional harm from him. Reviewing the “media packet,” it mostly contains statements of the perceived social ills of modern society and numerous quotations from and references to the Bible, popular music, movies, bumper stickers, literature, and the Founding Fathers. Though containing statements of harm in the future tense, the “media packet” demonstrates that Havelock planned to commit “suicide by cops,” showing that he intended the “media packet” not to be read by anyone until after he was already dead. When reporting his actions to the Tempe police, the police could not even determine whether a crime had been committed. Based on this evidence, the government did not prove that Havelock had the specific intent to harm someone.

B

The Supreme Court has held that certain threatening communications (called “true threats”) are a form of speech but do not merit First Amendment protection. See Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). While Judge Reinhardt may be correct that these communications were not true threats (or threats at all), my conclusion is rather based on the failure to prove “specific intent to threaten.” I stop there because we do not undertake Constitutional analysis unless there is no other basis for deciding a case. E.g., United States v. Kaluna, 192 F.3d 1188, 1197 (9th Cir.1999). Because we may resolve this matter based on the government’s failure to prove “specific intent to threaten,” I do not reach the question of whether Havelock’s communications were true threats.

V

In conclusion, I do not join the majority’s analysis of the meaning of “person” in 18 U.S.C. § 876(c). However, the majority correctly reverses Havelock’s criminal convictions. I therefore concur in the result.