concurring in part and dissenting in part:
The district court denied Havelock’s Rule 29 motion for acquittal, which incorporated the statutory and constitutional arguments underlying his earlier motion to dismiss the indictment. The district court first ruled that to violate 18 U.S.C. § 876(c), the communication must be addressed to a natural person; but to decide that question, the finder of fact may look to the contents of the communication. Second, the district court found that Havelock’s communications were addressed to the public, a group of natural persons. Third, it concluded that there was sufficient evidence of a “true threat” under Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), to sustain Havelock’s conviction. The panel majority reverses the district court on the ground that Havelock’s threat was not addressed to natural persons.
I agree with the panel majority that to violate § 876(c) the defendant must address the communication to a natural person, and that the finder of fact may look to the content of the communication. However, I conclude that Havelock’s communications were addressed to natural persons, as the district court found, but that they were not threats, much less “true threats,” as the district court permitted the jury to find.
By focusing on the identity of the individual addressees threatened by the Manifesto, the majority conflates the issue of whether the communications were addressed to natural persons with the question of whether Havelock’s communications were threatening as a matter of law. Havelock deposited self-described “media packets,” addressed to media outlets, in a mailbox on Super Bowl Sunday, with the expectation that the envelopes would be delivered following his shooting spree and death. The envelopes bore no names of individuals, but instead were directed to the New York Times, the Los Angeles Times, the Phoenix New Times and the Associated Press. Nonetheless, Havelock certainly intended that natural persons at the named media outlets would open them and ultimately publicize his irrational rationale for the planned “econopolitical confrontation” at Super Bowl XLII after it occurred. While we do not even need to examine the contents of the communications to determine that they were addressed to “persons,” I agree with the majority that in considering whether the person addressed is a natural person, a court may examine the contents of the communication.
A few examples illustrate this point. Suppose the address on the envelope is:
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500
Inside is a communication addressed to the United States President that threatens to *1313kidnap the President’s mother-in-law. This threat, deposited in a mailbox and delivered by the Postal Service to the White House, would certainly be punishable under § 876(c). Even if the contents of the communication were not addressed to the President, but threatened that the President’s mother-in-law would be kidnapped and held hostage unless the President took some action, we would find the threat prohibited by § 876(c). Similarly, a letter mailed to
One First Street NE
Washington, D.C. 20543
containing a conditional threat of harm to a Justice of the United States Supreme Court would be criminalized by § 876(c). In both of these examples, although only the address, and not the name of an individual, is written on the outside of the envelope, the contents reveal that a natural person is the addressee. Similarly, suppose an envelope deposited in the mail is addressed:
North Polar — Santa Claus
P.O. Box 56099
North Pole, AK 99705-1099
The contents of the missive threaten that unless the workers at North Polar stop answering children’s letters to Santa, giving them the false hope of a Christmas bounty, their office will be blown up, injuring all of them. Are the workers any less persons to whom a threat is addressed because they are not individually identified on the envelope that carried the threat? A person threatening harm through the Postal Service should not be able to evade § 876(c) by simply failing to place the name of the threatened individual above the address to which it is mailed.
Although, like Judge Fisher, I would conclude that Havelock’s communications were addressed to natural persons, I would reverse the district court’s denial of the motion for acquittal because there was insufficient evidence of a “true threat” to sustain the verdict. In Virginia v. Black, the Supreme Court held that the State may punish threatening expression only if the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 538 U.S. at 359, 123 S.Ct. 1536 (2003). “Because the true threat requirement is imposed by the Constitution, the subjective test set forth in Black must be read into all threat statutes that criminalize pure speech.” United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th Cir.2011). Moreover, as a matter of statutory construction, as the district court correctly instructed the jury, § 876(c) requires specific intent to threaten. See United States v. Twine, 853 F.2d 676, 680 (9th Cir.1988) (“Today we hold that the showing of an intent to threaten, required by §§ 875(c) and 876, is a showing of specific intent.”). Thus, “to ‘determine whether the verdict [under the statutory elements] is supported by sufficient evidence,’ we must answer the question “whether the facts as found by the jury establish the core constitutional fact of a ‘true threat.’ ’ ” Bagdasarian, 652 F.3d at 1118 (alterations in original) (quoting United States v. Stewart, 420 F.3d 1007, 1015 (9th Cir.2005)).
Havelock’s communications did not “contain a threat” to the public, as Judge Reinhardt’s concurrence ably demonstrates. “ ‘Whether a particular statement may properly be considered to be a threat is governed by an objective standard— whether 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 *1314intent to harm or assault.’ ” Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1074 (9th Cir.2002) (en banc) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)). Here, because Havelock deposited his communications in the mail on a Sunday, he ensured that they would not be received until after the only possible threatened action had occurred. Nor could Havelock have meant “to communicate a serious expression of an intent to commit an unlawful act of violence,” Black, 538 U.S. at 359, 123 S.Ct. 1536, because the communications clearly evidence his intent to commit suicide before his statements were received by anyone. In short, “threats” portend future— not past — action. Havelock’s statement to his fiancee following his change of heart that “he threatened a lot of people in the letters” is not evidence that meets the statutory or constitutional requirements of a “true threat,” and the district court erred as a matter of law in concluding that the evidence was sufficient to support a finding of subjective, specific intent.
In many ways, § 876(c) is anachronistic. It was enacted at a time when deposit of “mail matter” for delivery by the Postal Service was the primary means of written communication and one’s address was the place where a person received mail. Today, the Postal Service is in serious decline, and true threats are more likely to be emailed, texted, or posted on the Internet. See Bagdasarian, 652 F.3d at 1126-27 (Wardlaw, J., concurring in part, and dissenting in part) (collecting instances of online threats and postings that presaged tragic events). Havelock’s choice to use snail mail, particularly on a Sunday, thirty minutes before the Super Bowl where he intended to shoot attendees and commit “suicide by cop,” guaranteed that by the time anyone actually received the communication, the deed would be done — not merely threatened.