United States v. Havelock

FISHER, Circuit Judge,

with whom

JOHNNIE B. RAWLINSON, Circuit Judge, joins, dissenting:

I respectfully dissent. Although I agree with the majority that we may look to the contents of a communication to determine to whom it is addressed, I disagree with the majority that Havelock’s communications were not “addressed to any other person.” 18 U.S.C. § 876(c).

As an initial matter, I have some doubts regarding the majority’s conclusion that § 876(c) applies only to communications addressed to natural persons. Although there is some reason to reach that conclusion, the context in which the phrase “addressed to any other person” appears, the purpose of § 876 and the importance of construing federal statutes to avoid absurd results suggest that § 876(c) may apply to communications addressed both to natural persons and, as relevant here, to corporations.

I need not resolve that question, however, because even assuming § 876(c) applies only to communications addressed to natural persons, as the majority holds, I would hold that Havelock’s communications were so addressed. Havelock mailed his manifesto to media outlets such as the New York Times, presumably for publication. Although neither the manifesto nor the threats it contains were directed at any specific person, Havelock plainly intended his manifesto to be read by the general public — which is made up of natural persons. Unlike the majority, I see no reason to preclude liability under § 876(c) when a threatening communication is addressed *1315to, and threatens mass murder against, a community rather than a specific individual. Here, Havelock threatened to “slay your children,” to “sacrifice your children upon the alter of your excess” and to “take as many of you with me as I can.” In doing so, he directed his manifesto (as well as his threats) to natural persons. I would accordingly hold that the government satisfied the “addressed to any other person” element in this case.

I.

In July 1932, Congress enacted an Act to punish the sending through the mails of certain threatening communications. See Act of July 8, 1932, ch. 464, 47 Stat. 649. That law provided in pertinent part:

[W]hoever, with intent to extort from any person any money or other thing or value, shall knowingly deposit or cause to be deposited in any post office or station thereof, or in any authorized depository for mail matter, to be sent or delivered by the post-office establishment of the United States, any written or printed letter or other communication with or without a name or designating mark subscribed thereto, addressed to any other person, and containing any threat (1) to injure the person, property, or reputation of the addressee or of another or the reputation of a deceased person, or (2) to kidnap any person, or (3) to accuse the addressee or any other person of a crime, or containing any demand or request for ransom or reward for the release of any kidnaped person, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

Id.1 Despite several amendments, the current version of the 1932 statute, now codified at 18 U.S.C. § 876, remains largely unchanged. It provides:.

(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 *1316section 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 person, 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.

18 U.S.C. § 876.2

In 1934, Congress adopted a related statute prohibiting the transmission of threatening communications in interstate commerce. See Act of May 18, 1934, ch. 300, 48 Stat. 781. The 1934 law, entitled “An Act Applying the powers of the Federal Government, under the commerce clause of the Constitution, to extortion by means of telephone, telegraph, radio, oral message, or otherwise,” provided as follows:

[WJhoever, with intent to extort from any person, firm, association, or corporation any money or other thing of value, shall transmit in interstate commerce, by any means whatsoever, any threat (1) to injure the person, property, or reputation of any person, or the reputation of a deceased person, or (2) to kidnap any person, or (3) to accuse any person of a crime, or (4) containing any demand or request for a ransom or reward for the release of any kidnaped person, shall upon conviction be fined not more than $5,000 or imprisoned not more than twenty years, or both.... Provided further. That nothing herein shall amend or repeal section 338a, title 18, United States Code (47 Stat. 649) [now codified as 18 U.S.C. § 876].

Id. Like § 876, this 1934 law has been amended several times, but remains fundamentally unchanged from its original form.3 Now codified at 18 U.S.C. § 875, it provides:

(a) Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a 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.
*1317(b) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than twenty years, or both.
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person 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.

18 U.S.C. § 875.

Sections 875 and 876 are similar in many respects, and a side-by-side comparison shows that subsections (a) through (d) of the two statutes closely track one another. There are, however, some notable differences. First, whereas § 876 applies to threatening communications sent by mail, § 875 applies to threatening communications transmitted by any means.4 Second, whereas § 875 applies only to interstate communications, § 876 applies to all communications by mail, whether interstate or intrastate. Third, and as relevant here, although both statutes use the word “person” many times, § 875 on occasion employs the more specific phrase “person, firm, association, or corporation.” I discuss the significance of this difference in language below.

Havelock was convicted of violating § 876(c). Section 876(c) has several elements, including: (1) the knowing use of the mails, (2) a communication, (3) “addressed to any other person” and (4) “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).5 At issue here is the third element — the requirement that a communication containing a threat be “addressed to any other person.” We are asked to decide whether “person,” as used in this phrase, means a “natural person” or, in accordance with the Dictionary Act, includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1 (providing the Dictionary Act definition of “person” that applies to federal statutes “unless the context indicates otherwise”). We are also asked to decide whether, assuming § 876(c) applies only to a communication addressed to a natural person, Havelock’s communications were so addressed.

*1318II.

The first question is whether § 876(c) applies only to a communication addressed to natural persons. Because I conclude that Havelock’s communications were addressed to natural persons, I need not resolve this question. Nonetheless, given that the majority reaches the issue, I write to explain why I think this is a close question, and why I have some doubts about the majority’s decision not to apply the Dictionary Act definition. A strong case can be made that § 876(e) applies to a communication addressed to a corporation.

A.

The majority concludes that the narrower definition applies because “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). According to the majority, the two other uses of the word person in § 876(c) refer to a natural person, so this same definition must apply to the use of the word “person” in the operative phrase “addressed to any other person.”

Brown’s canon of construction may not apply here, however. Brown applies when a word is given the same meaning throughout a statute. Here, even under the majority’s view § 876(c) employs at least two definitions of the word “person.”

The word “person” has many meanings. Among these are:

(a) “A living human” (i.e., a natural person),
(b) “The living body of a human: searched the prisoner’s person,” and
(c) “Law A human or organization with legal right and duties” (i.e., the Dictionary Act definition).

American Heritage Dictionary of the English Language 1310 (4th ed. 2000). Section 876(c) uses the word “person” three times:

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.

18 U.S.C. § 876(c) (emphasis added). I assume that no one disputes that the second use of the word “person” employs the first definition. In the phrase “kidnap any person,” the word “person” must refer to “[a] living human” (i.e., a natural person), because only a natural person can be kidnapped. I also assume that no one disputes that the third use of the word “person” employs the second definition. In the phrase “injure the person of the addressee or of another,” the word “person” must refer to “[t]he living body of a human.” No other definition makes sense. Thus, without deciding whether the first use of the word “person” employs the first definition or the third, it is questionable whether Brown’s presumption — that “a given term is used to mean the same thing throughout a statute” — applies to § 876(c). The majority’s reliance on Brown therefore appears to be misplaced.

B.

The majority’s second argument rests on more solid footing. As the majority points out, § 876(c) refers to a “threat to injure the person of the addressee or of another.” 18 U.S.C. § 876(c) (emphasis added). This language suggests that the *1319addressee has a person — a “living body”— that can be injured. If that is the case, then perhaps the “person” to whom a communication must be addressed must be a natural person.

This language is not dispositive, however. The highlighted phrase could also reasonably be understood to mean a “threat to injure the person of the addressee, if the addressee is a natural person, or the person of another.” This language thus lends only modest support to the majority’s position.

C.

The majority’s analysis also relies on a comparison of §§ 875 and 876. As the majority points out, § 875 employs the word “person,” standing alone, in some contexts, but uses the phrase “person, firm, association, or corporation” in others. This suggests that for purposes of § 875 Congress intended the word “person,” when standing alone, to apply only to natural persons. It also shows that Congress knows how to employ the Dictionary Act definition explicitly when it wants to. I agree with the majority that Congress’ use of “person” in § 876 and its selective use of “person, firm, association, or corporation” in § 875 supports, to a degree, the inference that Congress intended the word “person” in § 876 to apply to only natural persons.

The comparison between §§ 875 and 876, however, also cuts in the opposite direction. If the majority is correct that every use of the word “person” in § 876 refers to a natural person, then Congress drew distinctions between §§ 875 and 876 that are difficult to fathom. I glean this lesson from comparisons between §§ 875(b) and 876(b) and §§ 875(d) and 876(d). These pairs of subsections are virtually identical, except that § 875(b) and (d) apply to extortion “from any person, firm, association, or corporation,” whereas § 876(b) and (d) apply to extortion “from any person.” If the majority is correct, then § 875 prohibits extortion from corporations, but § 876 does not. Why would Congress have intended this result? Presumably Congress was equally concerned about extortion whether it was committed through the mail or interstate transmission. If so, then the word “person” in the phrases “intent to extort from any person,” in § 876(b) and (d), likely employs the Dictionary Act definition. And if that is the case, then the premise that the word “person” always means “natural person,” when it is used in § 876, does not hold up.

D.

The majority also fails to entirely dispel the concern that its approach would produce absurd results — something we all agree we should avoid. See In re Pac.-Atl. Trading Co., 64 F.3d 1292, 1303 (9th Cir.1995) (“We will not presume Congress intended an absurd result.”).

If § 876(c) applies only to a communication addressed to a natural person, then there would be no § 876 liability in the case of a communication, addressed to the New York Times, and containing a threat to kill the paper’s executive editor. There also would be no § 876 liability if the same communication threatened to kill the news staff, or their children, or members of the public attending a concert in Central Park. It is difficult to imagine why Congress would have intended such results.6

The majority’s approach could also produce implausible results when applied to *1320§ 876’s other subsections. Section 876(a), for instance, prohibits the mailing of a communication, “addressed to any other person,” and containing “any demand or request for ransom or reward for the release of any kidnapped person.” 18 U.S.C. § 876(a). Under the majority’s reading of “person,” there would be no liability where a defendant mails to a corporation a ransom demand for the release of a person who has been kidnapped.

These results would be avoided were “person” defined in accordance with the Dictionary Act. “Identical words appearing more than once in the same act, and even in the same section, 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, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932)). Here, Congress may have employed three distinct definitions of “person” when it enacted § 876(e) — the second use referring to natural persons, the third use referring to the living body of a human being and the first use referring to the Dictionary Act definition.

Thus, although I agree with some of the majority’s analysis, a strong case can also be made § 876(c) applies to communications addressed to natural persons and corporations alike. However, even if § 876(c) applies only to communications addressed to natural persons, I would hold that Havelock’s communications were so addressed. I agree with the majority that we may look beyond the outside of the envelope to the salutation line and the content of a communication to determine to whom a communication is addressed. I disagree, however, with the majority’s conclusion that Havelock’s communications were not addressed to natural persons.

III.

I would hold that Havelock’s communications were addressed to natural persons for two distinct reasons. First, as Judge Graber explained in her panel dissent, Havelock must have intended his manifesto to be read by employees at the media outlets to which he sent the manifesto. Mail must be read by human beings, so Havelock’s communications were implicitly addressed to the media outlet employees who would have opened and read his mailings. See United States v. Havelock, 619 F.3d 1091, 1101 (9th Cir.2010) (Graber, J., dissenting) (“I would hold that communications mailed to the New York Times, the Los Angeles Times, the Phoenix New Times, the Associated Press, theshizz.org, and azpunk.com ... [we]re implicitly addressed to the natural person who necessarily will open and read them.”).

Second, Havelock addressed his manifesto to the general public, who, of course, are natural persons.7 This is evident from the nature of the communications and his choice of recipients. Havelock mailed the manifesto to media outlets, plainly intend*1321-1333ing for it to be published. The manifesto uses language such as “you” and “your,” making clear that he intended it to be read by the public. It says, for example, that Havelock would “go down fighting and take as many of you with me as I can” (emphasis added). It says, “I can get an axe or a sword from the Knife Shop in the mall. I can get a machete or a chainsaw at Home Depot. I can get a dozen knives from any dollar store. If I’m going to kill, there’s nothing anyone can do to stop me.” He wrote, “I have the confidence to do what must be done.... More will come. And it will not just be scared little school children.... And you cannot stop it. Change your world before we change it for you ” (emphasis added). He wrote, “I will reciprocate in kind.... It will be swift, and bloody. I will sacrifice your children upon the altar of your excess.... I must go out and fight” (emphasis added). Saying he could “outgun” his enemies for a “brief moment,” he said he would “make the ultimate sacrifice; I will give my life. And I will take as many of the baneful and ruinous ones with me.... I will slay your children. I will shed the blood of the innocent” (emphasis added). Havelock directed the messages in the manifesto, including both its political messages and its threats, to members of the public, who he hoped would read the manifesto following its publication by the media outlets he sent it to.

Disagreeing, the majority concludes that Havelock’s manifesto was not addressed to natural persons because it indicates nothing about the identity of any individual person to whom the communication supposedly was addressed. Unlike the majority, however, I can find nothing in § 876(c) that precludes liability when a threatening communication is addressed to, and threatens mass murder against, a community rather than a specific individual. I also can think of no reason why Congress would not have been concerned about threats to commit mass murder. I would therefore hold that Havelock’s communications were addressed to natural persons.

Accordingly, I respectfully dissent.

. This legislation may have been motivated by the March 1932 kidnapping for ransom and murder of the 18-month-old son of aviator Charles Lindbergh, which also spurred congressional passage of the Federal Kidnapping Act, see Act of June 22, 1932, ch. 271, 47 Stat. 326 (codified as amended at 18 U.S.C. § 1201).

. Congress amended the 1932 Act in 1935, 1939, 1970, 1994 and 2002. See Act of June 28, 1935, ch. 326, 49 Stat. 427; Act of May 15, 193 9, ch. 133, 53 Stat. 742; Postal Reorganization Act, Pub. L. No. 91-375, § 6(j)(7), 84 Stat. 719, 777 (1970); Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title XXXIII, §§ 330016(1)(G), (H), (K), 330021(2), 108 Stat. 1796, 2147, 2150; Federal Judiciary Protection Act of 2002, Pub. L. No. 107-273, Div. C, Title I, § 11008(d), 116 Stat. 1818, 1818.

. Congress amended the 1934 Act in 1939, 1986 and 1994. See Act of May 15, 1939, ch. 133, 53 Stat. 742, 744; Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99-646, § 63, 100 Stat. 3592, 3614; Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title XXXIII, § 330016(1)(G), (H), (K), 108 Stat. 1796, 2147.

. Although the issue is not presented here, it appears that § 875 applies to threats transmitted by interstate mail. Here, Havelock appears to have mailed several of his communications from Arizona to entities outside of the state, including the Los Angeles Times and the New York Times. The government, however, did not charge Havelock with violating § 875(c).

. We have also held that § 876(c) requires the additional element of a specific intent to threaten. See United States v. Twine, 853 F.2d 676, 680 (9th Cir.1988).

. If these threats were mailed interstate, the sender might be liable under § 875(b), which *1320does not have an addressee requirement. When the threats are mailed intrastate, however, the majority's approach produces a gap in the statutory scheme that I am concerned about.

. To "address” means "To speak to,” “To make a formal speech to,” or “To direct (a spoken or written message) to the attention of.” American Heritage Dictionary of the English Language 20 (4th ed. 2000). I rely on the third definition here, and conclude that Havelock directed the written messages in his manifesto to members of the public who he intended to read it.