PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4486
SCOTT LEWIS RENDELMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Roger W. Titus, District Judge.
(8:07-cr-00331-RWT-1)
Argued: December 10, 2010
Decided: April 8, 2011
Before NIEMEYER and KING, Circuit Judges, and
Patrick Michael DUFFY, Senior United States District
Judge for the District of South Carolina,
sitting by designation.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Niemeyer and Senior Judge Duffy joined.
2 UNITED STATES v. RENDELMAN
COUNSEL
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Sujit Raman, OFFICE OF THE UNITED STATES ATTOR-
NEY, Baltimore, Maryland, for Appellee. ON BRIEF: James
Wyda, Federal Public Defender, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
KING, Circuit Judge:
Following a jury trial in the District of Maryland, appellant
Scott Lewis Rendelman was convicted and sentenced for mul-
tiple offenses relating to the mailing of communications con-
taining threats against various persons, including the President
of the United States, in violation of 18 U.S.C. § 876(c). On
appeal, Rendelman challenges two of those convictions
(Counts Two and Seven of the seven-count indictment) on
several grounds: first, that both charges were fatally defective
for failure to properly allege § 876(c) offenses; second, that
the evidence was insufficient to prove either offense; and,
third, that both charges were constructively amended such
that Rendelman was deprived of his Fifth Amendment right
to indictment by a grand jury. As explained below, we reject
each of those contentions and affirm.
I.
A.
In 2005 and 2006, Rendelman mailed letters to the United
States Marshals Service in Sacramento, California, threaten-
ing to kill the President of the United States and others. Those
UNITED STATES v. RENDELMAN 3
mailings constitute the predicate actions for the offenses
underlying this appeal. Rendelman mailed the threatening let-
ters from Maryland correctional institutions where he was
incarcerated.
Rendelman’s jury trial, in which he represented himself,
was conducted in Greenbelt over a four-day period in Decem-
ber 2007. Rendelman contended at trial that the government’s
evidence was insufficient to support his convictions on
Counts Two and Seven. More specifically, he maintained that
the letters were simply protests against the authorities and that
nothing in them constituted a threat. Rendelman also asserted
that the evidence supporting Count Seven failed to show that
the threatening communication mailed to the Marshals Ser-
vice in California was "addressed to" the President or White
House employees engaged in the performance of their official
duties. On appeal, Rendelman has refined and further devel-
oped his arguments, a proper understanding of which requires
us to identify the relevant allegations of the grand jury, ascer-
tain and explain the pertinent statutory provisions, and assess
whether the purported grounds for reversal were properly pre-
served in the district court.
B.
In July 2007, the grand jury in the District of Maryland
returned its indictment against Rendelman. Prior to trial, the
district court dismissed Count One at the request of the gov-
ernment. At trial, the jury found Rendelman guilty of the
other six charges — Counts Two through Seven — each of
which charged the mailing of a threatening communication, in
contravention of 18 U.S.C. § 876(c). Although discussed in
greater detail below, § 876(c) provides, in pertinent part:
Whoever knowingly so deposits or causes to be
delivered as aforesaid, any communication . . .
addressed to any other person and containing . . . any
threat to injure the person of the addressee or of
4 UNITED STATES v. RENDELMAN
another, shall be . . . imprisoned not more than five
years . . . . If such a communication is addressed to
. . . an official who is covered by section 1114, the
individual shall be . . . imprisoned not more than 10
years . . . .
§ 876(c) (emphasis added).1 As explained further below, the
last sentence of § 876(c) is not pertinent to the Count Two
offense, but relates only to the potential punishment on Count
Seven.
According to the indictment, Rendelman mailed the threat-
ening letter underlying Count Two on about November 11,
2005 (the "2005 Letter"). Four months later, on March 7,
2006, he mailed another threatening letter (the "2006 Letter"),
which underpins Count Seven.
With respect to the 2005 Letter, the grand jury alleged,
inter alia, that Rendelman "did knowingly cause to be deliv-
ered by the United States Postal Service according to the
directions thereon a written communication" that was "ad-
dressed to" the "‘United States Marshal’s Service’ Sacra-
mento, CA 95814," and which threatened "[t]he President of
the United States," in violation of 18 U.S.C. § 876(c). J.A. 14.2
Therein, Rendelman expressed several grievances against the
government, particularly its penal system, and threatened to
kill "government scumbags" and the President after being
released from prison:
1
The language of § 876(c) — that "[w]hoever knowingly so deposits or
causes to be delivered as aforesaid" — adopts by reference the portion of
subsection (a) specifying that
[w]hoever 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 Ser-
vice, according to the directions thereon . . . .
18 U.S.C. § 876(a).
2
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
UNITED STATES v. RENDELMAN 5
I’ve decided I’m going to commit suicide, and I’m
going to take as many government scumbags with
me as I possibly can. When I’m released, I’m going
to go to the White House, and I will suicide bomb
the White House. . . . I will kill the President, who-
ever will be in the office at the time.
Id. at 625. Rendelman signed the 2005 Letter and placed it in
an envelope directed to the Marshals Service in California. He
then deposited the Letter in the mail at the Montgomery
County Correctional Facility in Boyds, Maryland.
Regarding the 2006 Letter, the grand jury charged Rendel-
man with a separate violation of § 876(c), alleging that he
did knowingly cause to be delivered by the United
States Postal Service according to the directions
thereon a written communication addressed to "U.S.
Marshall’s Service, Federal Building, 501 I Street,
Sacramento, CA 95814," and containing a threat to
injure officers and employees of the United States
engaged in the performance of official duties and
covered by [18 U.S.C. § 1114,] as follows: "the Pres-
ident and all White House employees."
J.A. 15. In the 2006 Letter, Rendelman again expressed his
disdain for the federal prison system and threatened to kill
"the President and all White House employees" by bombing
the White House. The 2006 Letter specified:
The President must die. When I am released I will
kill him. I will suicide bomb the White House. I will
strap a bomb to my body and go to the White House
and set myself off. The President will die in the blast
and the White House will be reduced to ruins. . . . So
I will kill the President and all White House employ-
ees.
6 UNITED STATES v. RENDELMAN
Id. at 627. Rendelman signed and mailed the 2006 Letter to
the Marshals Service from the Maryland Correctional Institu-
tion in Hagerstown.
C.
About a week before his trial was to begin, Rendelman
moved to dismiss his court-appointed counsel and represent
himself. The trial court granted Rendelman’s request and
appointed the federal public defender as standby trial counsel.
See Faretta v. California, 422 U.S. 806, 834 n.46 (1975)
(explaining that trial court may appoint standby counsel for
pro se defendant).3 When the trial began on December 11,
2007, the prosecution’s opening statement discussed Rendel-
man’s history of sending threatening letters, and then
described the communications underlying the relevant
charges. A Marshals Service witness produced the 2005 and
2006 Letters, as well as the envelopes in which they had been
mailed, and all were admitted into evidence.
At the close of the prosecution’s case, Rendelman moved
for judgment of acquittal on Counts Two and Seven, contend-
ing, inter alia, that the communications underlying those
charges were not "true threats." J.A. 589.4 The trial court
denied the acquittal motions, however, explaining its view
that there was sufficient evidence for the jury to conclude that
the communications were indeed threatening and that both
charges had been proved. Rendelman, who did not present
any evidence, then rested his case and renewed his motions
for judgment of acquittal.
3
Rendelman does not pursue this appeal pro se, but is instead repre-
sented by the federal public defender.
4
The jury was instructed — without objection — that a communication
constitutes a true threat if an ordinary reasonable recipient who is familiar
with the context would interpret it as a threat of injury. See United States
v. Roberts, 915 F.2d 889, 891 (4th Cir. 1990).
UNITED STATES v. RENDELMAN 7
At that point, Rendelman asserted an alternative ground for
acquittal on Count Seven: that the 2006 Letter "was addressed
to ‘U.S. Marshals Service,’" and that, as a result, "there is no
evidence that it was addressed to" a federal law enforcement
officer or an official covered by § 1114. J.A. 597.5 Rendelman
thus argued that the threatening communication underlying
Count Seven was not addressed to the President or any White
House employee engaged in the performance of official
duties. The significance of § 1114 to the proof of Count Seven
was that, pursuant to the last sentence of § 876(c), if the
threatening communication underlying a § 876(c) charge "is
addressed to . . . an official who is covered by section 1114,"
the maximum term of imprisonment increases from "not more
than five years" to "not more than 10 years" (the "Enhance-
ment Element").6
In its response to Rendelman’s motion, the prosecution
argued that, although the envelope containing the 2006 Letter
was addressed to the Marshals Service in California, the jury
was entitled to assess the contents and context of the entire
communication and decide whether, pursuant to § 1114, it
was addressed or directed to the President and White House
employees engaged in their official duties. The trial court then
denied Rendelman’s renewed motion for judgment of acquit-
tal, explaining that,
[f]irst of all, it’s not necessary that the addressee of
the communication be the person threatened; sec-
ondly from the context of the communication, it’s
5
Section 1114 of Title 18 — entitled "Protection of officers and employ-
ees of the United States" — criminalizes the killing or attempted killing
of "any officer or employee of the United States . . . while such officer or
employee is engaged in . . . the performance of official duties."
6
Rendelman does not dispute that, for purposes of the Enhancement
Element, the President and White House employees are officers and
employees of the United States, and that, when engaged in their official
duties, they are covered by § 1114. This very proposition was also judi-
cially noticed by the trial court in its instructions on Count Seven.
8 UNITED STATES v. RENDELMAN
clear that it is threatening somebody within the scope
of Section 1114.
J.A. 600.
Rendelman also objected to certain aspects of the proposed
instructions on Count Seven, maintaining that they did not
properly reflect the allegations of the indictment. As a result,
the trial court modified its proposed instructions, and gave the
following instruction concerning Count Seven:
As to Count Seven only, the government must also
prove beyond a reasonable doubt that the threat was
addressed to the officers or employees of the United
States engaged in the performance of his, her or their
duties. I instruct you that the President of the United
States and all White House employees are such offi-
cers and employees of the United States, as defined
in [18 U.S.C. § 1114].
J.A. 719.
Although Rendelman did not present any evidence, he did,
in representing himself, offer an opening statement and a clos-
ing argument. Notably, his closing argument admitted a sub-
stantial part of the prosecution’s case, advising the jury as
follows:
Now, there are three things I would like to get out of
the way very quickly: 1. Did I write the letters? That
is not an issue in this case. The defense concedes I
wrote the letters. . . .
2. Did I mail the letters? That is not an issue in this
case. The defense concedes that I mailed the letters.
There is really no reason for you to have to discuss
that in the jury room either.
UNITED STATES v. RENDELMAN 9
3. Did I know — did I know what was in the letters
that I was mailing? The defense — well of course.
I wrote the letters. But in case there’s any question,
the defense concedes that, yes, I knew what was in
the letters that I was mailing. That is no longer an
issue that you need to discuss.
That only leaves one issue for you to decide: Do
these letters contain threats as defined for you by the
judge in the jury instructions.
J.A. 756-57 (emphasis added).7
The verdict form included an interrogatory on the Enhance-
ment Element, which related to the statutory maximum pen-
alty on Count Seven. The interrogatory posed this inquiry:
If you find the defendant guilty as to COUNT
SEVEN, do you find that the communication was
addressed to the President and all White House
employees while those officers or employees were
engaged in the performance of their official duties?
7
On appeal, Rendelman does not pursue the contention that the 2005
and 2006 Letters did not contain threats. Rendelman argued to the jury
that the 2006 Letter’s threat to kill the President and White House employ-
ees was not proven to be a threat to kill them while they were engaged in
official duties. He maintained that, because he did not specify when he
would suicide bomb the White House, there was a reasonable doubt on
whether the threat was directed to the President and White House employ-
ees while they were discharging their official duties. Indeed, he argued as
follows:
An example: The act could be committed at night when the presi-
dent and White House employees are sleeping, when they are not
discharging their duties . . . . There is nothing in the evidence to
support that this act was threatened to be committed at a time
when these people were discharging their duties.
J.A. 778-79. Because Rendelman has not pursued this argument on appeal,
it has been abandoned.
10 UNITED STATES v. RENDELMAN
J.A. 853. On December 14, 2007, the jury returned its verdict
against Rendelman, convicting him, inter alia, on Counts Two
and Seven. The jury also answered "yes" to the Enhancement
Element interrogatory. Id. As a result, the maximum term of
imprisonment for Count Seven was ten years, pursuant to
§§ 876(c) and 1114 of Title 18.
At the sentencing proceedings conducted on April 21,
2008, the district court sentenced Rendelman to 180 months
in prison, that is, five concurrent terms of 60 months on each
of Counts Two through Six, plus a consecutive term of 120
months on Count Seven.8 Rendelman has filed a timely notice
of appeal, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
Whether an indictment properly charges a criminal offense
is a question of law that we assess de novo. See United States
v. Bly, 510 F.3d 453, 458 (4th Cir. 2007). When an appellant
challenges the sufficiency of the evidence, the "verdict must
be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
(emphasis and internal quotation marks omitted). An appellate
contention that was not preserved in the trial court is reviewed
for plain error only. See United States v. Rooks, 596 F.3d 204,
210 (4th Cir. 2010). The constructive amendment of an indict-
ment, however — as opposed to a variance between the alle-
gations of the charge and the proof at trial — constitutes error
per se and must be corrected on appeal, regardless of whether
the issue was preserved. See United States v. Randall, 171
F.3d 195, 203 (4th Cir. 1999).
8
The district court calculated Rendelman’s advisory sentence range,
under the applicable Guidelines, as 151 to 188 months. There are no issues
raised on appeal concerning the court’s application of the Guidelines.
UNITED STATES v. RENDELMAN 11
III.
Rendelman maintains on appeal that his convictions on
Counts Two and Seven should be vacated for several reasons:
first, that both charges were fatally defective for failure to
properly allege § 876(c) offenses; second, that the evidence
was insufficient to prove either offense; and, third, that both
charges were constructively amended such that he was
deprived of his Fifth Amendment right to indictment by a
grand jury. As explained below, if Rendelman is unsuccessful
on his challenges to the legal sufficiency of Counts Two and
Seven, his other contentions are substantially undermined.
Notably, Rendelman’s challenge to the sufficiency of the evi-
dence on the Enhancement Element of Count Seven was pre-
served in the district court, so we review that assertion for
harmless error. By contrast, for the first time on appeal, Ren-
delman challenges the legal sufficiency of Counts Two and
Seven and the sufficiency of the evidence on Count Two (on
a different ground than that advanced at trial). He also asserts
for the first time that both charges were constructively
amended. As a result, our review of those contentions is con-
fined to ascertaining that no plain error occurred.9 We will
assess and dispose of Rendelman’s contentions in turn.
A.
Rendelman first asserts that Counts Two and Seven are
fatally defective for failure to allege § 876(c) violations. Prior
to assessing that contention, we will first identify the require-
9
To demonstrate plain error, a defendant bears the burden of showing
(1) that an error occurred, (2) that it was plain, and (3) that it affected his
substantial rights. See United States v. Olano, 507 U.S. 725, 732 (1993).
If the defendant can make such a showing, correction of plain error lies
solely within our discretion, which, under Olano, we "should not exercise
. . . unless the error seriously affects the fairness, integrity, or public repu-
tation of judicial proceedings." Id. (internal quotation marks and alter-
ations omitted).
12 UNITED STATES v. RENDELMAN
ments of a valid indictment and the essential elements of a
§ 876(c) offense.
1.
a.
In the federal system, an indictment need merely contain a
"plain, concise, and definite written statement of the essential
facts constituting the offense charged." Fed. R. Crim. P.
7(c)(1). As a general proposition, an indictment is sufficient
if it alleges an offense in the words of the statute, as long as
the words used in the indictment "‘fully, directly and
expressly, without any uncertainty or ambiguity, set forth all
the elements necessary to constitute the offence.’" United
States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002) (quoting
Hamling v. United States, 418 U.S. 87, 117 (1974)). More
specifically, an indictment is legally sufficient (1) if it alleges
the essential elements of the offense, that is, it fairly informs
the accused of what he is to defend; and (2) if the allegations
will enable the accused to plead an acquittal or conviction to
bar a future prosecution for the same offense. See Brandon,
298 F.3d at 310; see also Fed. R. Crim. P. 7(c)(1).
b.
The specific statute underlying Counts Two and Seven,
Section 876(c) of Title 18, was enacted "to prohibit the use of
the mails to send threatening communications." United States
v. Zavrel, 384 F.3d 130, 133 (3d Cir. 2004). A violation of
§ 876(c) requires three elements: first, that the accused caused
a communication to be delivered by the Postal Service,
addressed to any other person (the "Mailing Element"); sec-
ond, that the communication contained a threat to injure the
person of the addressee or another (the "Threat Element");
and, third, that the defendant knowingly mailed the threaten-
ing communication (the "Mens Rea Element"). See § 876(c);
see also United States v. Bellrichard, 62 F.3d 1046, 1050 (8th
UNITED STATES v. RENDELMAN 13
Cir. 1995) (observing that portion of § 876 now codified as
subsection (c) has three elements).10 The second sentence of
§ 876(c) contains a provisional fourth element, the Enhance-
ment Element, which, in this case, relates to Count Seven
only. The Enhancement Element increases the maximum pen-
alty for the § 876(c) offense to ten years.11
2.
With these principles in mind, we first analyze Rendel-
man’s contention that Count Two fails to charge a § 876(c)
offense. Rendelman explains his position like this: (1)
§ 876(c) applies only to a communication "addressed to any
other person and containing . . . any threat to injure the person
of the addressee or of another"; (2) because an inanimate
entity is generally incapable of suffering physical injury, the
threatening communication must be addressed to a living per-
son; (3) Count Two alleges that the 2005 Letter was "ad-
dressed to" the Marshals Service in California; and (4) the
10
Some courts have merged the Mailing Element and the Mens Rea Ele-
ment and described § 876(c) as having only two elements, the Threat Ele-
ment and the Mailing Element. See, e.g., United States v. Floyd, 458 F.3d
844, 847 (8th Cir. 2006); United States v. Geisler, 143 F.3d 1070, 1071-
72 (7th Cir. 1998). The trial court in this case, however, treated the
§ 876(c) offenses as having the three elements described above. We are
satisfied to treat the § 876(c) offense in that same manner for purposes of
this appeal.
11
The Enhancement Element, found in the second sentence of § 876(c),
provides as follows:
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.
§ 876(c). We observe that the United States Attorney and the grand jury
did not allege the Enhancement Element in Count Two, and the trial court
treated that charge as having a five-year maximum penalty. Although the
proof on Count Two might well have satisfied the Enhancement Element,
the prosecutorial decision not to include that allegation is not relevant to
this appeal.
14 UNITED STATES v. RENDELMAN
Marshals Service is not a living person. Thus, Count Two is
fatally defective because the Marshals Service is not a "per-
son" under § 876(c).
a.
In our recent decision in United States v. Bly, we addressed
a somewhat analogous contention concerning the meaning of
the word "person," as it is used in subsection (b) of § 876. See
510 F.3d 453 (4th Cir. 2007). Section 876(b) relates only to
a threatening communication that is mailed with the "intent to
extort from any person any money or other thing of value."
Consequently, a § 876(b) violation requires an extortion ele-
ment that is not present in § 876(c). See Bly, 510 F.3d at 458.
In contending that the § 876(b) charge underlying his convic-
tion was defective, Bly maintained that the statute criminal-
ized only a threatening communication that was mailed with
the intention of extorting a living person. According to Bly,
his indictment failed to properly charge a § 876(b) offense
because it alleged that he only intended to extort an educa-
tional institution (the University of Virginia), and not a "liv-
ing person." Id. at 460.
We rejected Bly’s contention that the University was not a
"person" for purposes of the extortion element of § 876(b),
ruling that the word "person" was subject to different mean-
ings within that subsection. See Bly, 510 F.3d at 460-61. We
reasoned that, "[a]lthough threats to kidnap a person and to
injure the person of another are realistically limited to live
persons, it is entirely reasonable to conclude that an artificial
entity, such as [the University], can be the victim of an extor-
tion demand." Id. at 461. In so ruling, we disagreed with Bly
that the so-called "uniform usage rule" barred us from limit-
ing "person" in some aspects of § 876(b) to a living person,
and yet deeming the University to be a "person" for other
aspects of the statute. See id.
We also discounted the argument that the University did
not qualify as a "person" under § 876(b) because it was an
UNITED STATES v. RENDELMAN 15
arm of the sovereign — the Commonwealth of Virginia. See
Bly, 510 F.3d at 463-64. We then explained that our accep-
tance of Bly’s contention would lead to an absurd result: a
state university would not be protected from extortion
attempts under § 876(b), yet a private university would be
protected. See id. at 462 n.12. Thus, our conclusion in Bly —
that the University is a "person" subject to extortion under
§ 876(b) — was buttressed by the rule that, when possible, we
construe a statute to avoid an absurd result. See id. (citing
Aremu v. Dep’t of Homeland Sec., 450 F.3d 578, 583 (4th Cir.
2006)).
b.
Turning to the merits of Rendelman’s contention that Count
Two fails to allege a § 876(c) violation, we reiterate the essen-
tial elements of that offense: the Mailing, Threat, and Mens
Rea Elements. Count Two alleged each of those elements, and
Rendelman does not seriously contend otherwise. First, Count
Two alleged that Rendelman "did knowingly cause to be
delivered by the United States Postal Service according to the
directions thereon a written communication," that was "ad-
dressed to" the Marshals Service, thus alleging the Mailing
and Mens Rea Elements. J.A. 14. Count Two then alleged that
the communication contained "a threat to injure" the Presi-
dent, satisfying the Threat Element. Id. Rendelman challenges
the Mailing Element, contending that the communication,
which was addressed to the Marshals Service, was not
addressed to "any other person" as required by the statute and
the indictment. More specifically, he focuses on the proposi-
tion that the Marshals Service is not a living person.
Two of our sister circuits — the Second and Tenth — have
recognized that a threatening communication addressed to the
office of a public prosecutor can be reasonably understood as
"addressed to" a government official, who is undoubtedly a
"person" under § 876(c). See United States v. Davila, 461
F.3d 298, 308 (2d Cir. 2006) (rejecting on plain error review
16 UNITED STATES v. RENDELMAN
contention that threatening communication to "Connecticut
State’s Attorney’s Office" was not addressed to "specific per-
son"); United States v. Williams, 376 F.3d 1048, 1052 (10th
Cir. 2004) (recognizing that threatening communication
addressed to "U.S. Dist. Attorney Office’s" was directed to
"natural person" holding that office). We agree with those
decisions and conclude that Count Two, which alleges that the
2005 Letter was "addressed to" the Marshals Service, can rea-
sonably be understood as addressed to the United States Mar-
shal himself — a natural person. Nevertheless, the person or
entity to whom the threatening communication is addressed is
not an essential element of a § 876(c) offense. Section 876(c)
merely requires proof that the accused knowingly mailed the
threatening communication, not that he also intended to
threaten the person of the recipient thereof. See United States
v. Floyd, 458 F.3d 844, 847 (8th Cir. 2006). The phrase "ad-
dressed to any other person" in § 876(c) simply means that an
accused does not violate that provision by mailing a threaten-
ing letter addressed to himself. In these circumstances, Count
Two sufficiently alleges a violation of § 876(c), and there is
no error — much less plain error — in its allegations.
3.
a.
Next, Rendelman challenges the legal sufficiency of Count
Seven, asserting that it is also fatally defective because it
alleges the 2006 Letter was "addressed to" the Marshals Ser-
vice in California rather than to a living person. The conten-
tion that Count Seven is defective in that regard is misplaced.
Count Seven plainly alleges that Rendelman "did knowingly
cause to be delivered by the United States Postal Service
according to the directions thereon a written communication,"
satisfying both the Mailing and Mens Rea Elements. J.A. 15.
It then alleges that the communication contained "a threat to
injure officers and employees of the United States," satisfying
the Threat Element. Id. Count Seven thus passes legal muster
UNITED STATES v. RENDELMAN 17
under plain error review, as it sufficiently alleges a § 876(c)
offense.
b.
To fully assess Rendelman’s contention on Count Seven,
however, we must also decide whether it sufficiently alleged
the Enhancement Element.12 The United States Attorney and
the grand jury apparently included the Enhancement Element
in Count Seven because, in a federal criminal prosecution,
facts that increase the statutory maximum penalty for a fed-
eral offense (other than a prior conviction) should be alleged
in the indictment and proved beyond a reasonable doubt. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The
Apprendi proposition developed in federal drug prosecutions
and has never been directly applied to § 876(c). We will
assume, however, for purposes of this appeal, that an allega-
tion by the grand jury of the Enhancement Element was nec-
essary here.
When an indictment’s sufficiency is challenged for the first
time on appeal — as here — the indictment is entitled to be
"construed more liberally" and "every intendment is then
indulged in support of [its] sufficiency." United States v. Sut-
ton, 961 F.2d 476, 479 (4th Cir. 1992) (internal quotation
marks omitted). In gauging the sufficiency of an indictment,
we need only decide "whether the necessary facts appear in
any form, or by a fair construction can be found within [its]
terms." Id. (internal quotation marks omitted, alteration in
original). Indeed, as to the "elements of the offense, the
indictment will be held sufficient if it contains words of simi-
lar import" to the underlying statute. United States v. Quinn,
359 F.3d 666, 673 (4th Cir. 2004) (internal quotation marks
omitted).
12
Rendelman presents the question of whether Count Seven properly
alleged the Enhancement Element as a constructive amendment issue. This
contention, however, is more appropriately assessed as a challenge to the
sufficiency of Count Seven’s allegation of the Enhancement Element.
18 UNITED STATES v. RENDELMAN
Count Seven first alleges that "a written communication"
(the 2006 Letter) was "addressed to" the Marshals Service in
California. J.A. 15. It then goes on to allege that the commu-
nication contained "a threat to injure officers and employees
of the United States . . . covered by . . . Section 1114." Id.
Section 876(c) provides, in the Enhancement Element, that
"[i]f such a communication is addressed to . . . an official who
is covered by section 1114" the maximum term of imprison-
ment is ten years.
Rendelman’s position — as we understand it — is that
Count Seven’s allegation of the Enhancement Element does
not reflect the language of § 876(c), and that it is therefore
fatally defective. This position misconstrues § 876(c) in two
important respects. First, the words "such a communication"
in the last sentence of § 876(c) are simply a shorthand adop-
tion by reference of the phrase in § 876(c)’s first sentence of
"any communication . . . containing a threat to injure." Con-
gress was entitled to write and adopt § 876(c) as it saw fit, and
the requirement "such a communication" in the last sentence
of § 876(c) is satisfied in Count Seven by the allegation that
the communication underlying that charge contained "a threat
to injure officers and employees of the United States . . . cov-
ered by . . . Section 1114." J.A. 15; see Quinn, 359 F.3d at
673 (finding allegations of indictment sufficient that "con-
tain[ ] words of similar import" to statutory language).
Second, the "addressed to" provision of the Enhancement
Element also means "directed to." Under its ordinary usage
the word "address" means, inter alia, "to direct by way of
communication: communicate directly," and "to direct by the
words of (oneself)." Webster’s Third New International Dic-
tionary 24 (2002). As such, the threat contained in the 2006
Letter was sufficiently alleged as being "addressed to," i.e.,
"directed to," the President and White House employees, even
though the letter was not mailed to them. In sum, the
Enhancement Element of Count Seven passes legal muster,
and there is no plain error to be identified therein. We thus
UNITED STATES v. RENDELMAN 19
reject the contention that Count Seven is flawed with respect
to the Enhancement Element.
B.
1.
We turn next to Rendelman’s sufficiency of the evidence
contention, which is closely related to his assertions that we
have just rejected — that the indictment failed to fully allege
the Count Two and Count Seven offenses. Notably, Rendel-
man does not contend that evidence was lacking to support
the jury’s conclusion on both offenses that the Mailing,
Threat, and Mens Rea Elements had been proved beyond a
reasonable doubt. In fact, Rendelman’s closing argument con-
ceded all the elements of both offenses except the Threat Ele-
ment, and he has abandoned the latter contention on appeal.
Instead, Rendelman now challenges the proof of the two
offenses on the identified grounds he used to test the legal
sufficiency of Counts Two and Seven. That is, he maintains
that the Marshals Service is not a "living person," and that an
essential element of a § 876(c) violation thus could not be
proven. As explained heretofore, we reject this contention.
2.
Next, Rendelman challenges the sufficiency of the evidence
underlying the jury’s affirmative answer to the interrogatory
on Count Seven — that is, the jury’s finding that the threaten-
ing communication "was addressed to the President and all
White House employees while those officers or employees
were engaged in the performance of official duties." J.A. 853.
That finding established that the Enhancement Element had
been satisfied, and increased the maximum prison term for
Count Seven to ten years. See § 876(c). If the evidence did not
sufficiently support the Enhancement Element, the maximum
sentence on that offense was five years and Rendelman
should be resentenced. The determination of whether there
20 UNITED STATES v. RENDELMAN
was sufficient evidence to support the jury’s affirmative
response to the interrogatory — that the threatening commu-
nication was "addressed to the President and all White House
employees" — turns on the meaning of "addressed to," as it
is used in the Enhancement Element.
Although we partially resolved this issue earlier, it is fair
to say that some courts have disagreed about whom a threat-
ening communication is "addressed to" under § 876(c). Com-
pare, e.g., United States v. Havelock, 619 F.3d 1091, 1095
(9th Cir. 2010) (deciding that communication only "addressed
to" person named on outside of envelope), with, e.g., United
States v. Williams, 376 F.3d 1048, 1052-53 (10th Cir. 2004)
(concluding that word "communication" includes contents of
letter, and that, at minimum, jury was entitled to consider
address on envelope and salutation on letter to decide whom
it was "addressed to"). In ruling as we do today, we are per-
suaded by the plain terms of § 876(c), our Bly precedent, the
Williams decision, and common sense. At its essence,
§ 876(c) criminalizes the use of the postal system to deliver
a threatening communication. Indeed, that subsection deals
with threatening communications and not just the envelopes
containing them. Hence, a threatening communication
includes more than the envelope — it includes the contents
thereof. See Williams, 376 F.3d at 1052.13
13
We recognize that our ruling today may be at odds with that of the
Ninth Circuit in Havelock, concluding that a "communication" under
§ 876(c) is only "addressed to" the person named on the envelope. See 619
F.3d at 1096. The Havelock majority’s interpretation is troubling, as
emphasized by the dissenting judge in that case. Under that interpretation,
§ 876(c) does not criminalize mailing a letter to the "Ninth Circuit Court
of Appeals" containing the threat:
"I will hunt down and take vengeance on the judges responsible
for today’s decision. It is an outrageous injustice, and you will
not escape."
Id. at 1100 (Graber, J., dissenting). As the dissenting opinion appropriately
observed, "[t]he majority’s interpretation produces absurd results." Id.
UNITED STATES v. RENDELMAN 21
Importantly, the term "addressed to" is twice found in
§ 876(c) — in the first sentence (concerning the Mailing Ele-
ment) and again in the second sentence (concerning the
Enhancement Element). Like the word "person" at the heart
of Bly, the term "addressed to" in § 876(c) is subject to more
than one meaning. In the Mailing Element of Count Seven,
the term "addressed to" referred to the Marshals Service in
California, as reflected on the envelope containing the 2006
Letter. On the other hand, the Enhancement Element alleged
that the communication contained a "threat to injure" the
President and White House employees. In evaluating the evi-
dence, the jury was entitled to find — as it did — that the
envelope was "addressed to" the Marshals Service, but that
the "threat to injure" was "addressed to" the President and
others. In evaluating Rendelman’s position, we view the evi-
dence — all of it — in the light most favorable to the prosecu-
tion, and we accord the jury, speaking through its verdict, the
respect it is due. See United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc).14 Having done so, we readily
conclude that there was no defect in the proof of either of
these offenses.
C.
Finally, Rendelman maintains — for the first time on
appeal — that Counts Two and Seven were constructively
amended at trial. In so doing, Rendelman relies in part on
statements made by the prosecutors characterizing the 2005
and 2006 Letters as letters to the President. On Count Seven,
Rendelman also predicates his constructive amendment con-
tention on the instructions and the Enhancement Element
interrogatory.
14
In the light most favorable to the prosecution, Rendelman addressed
and mailed the 2006 Letter to the Marshals Service in California, and
threatened to kill the President and White House employees. The threat to
injure in the 2006 Letter was, as the jury found, addressed to (i.e., directed
to) the President and White House employees while engaged in the perfor-
mance of official duties.
22 UNITED STATES v. RENDELMAN
Unfortunately for Rendelman, our rulings on the propriety
of the charges and the supporting evidence render this conten-
tion meritless. As a result, we reject the proposition that
Counts Two and Seven were constructively amended.
IV.
Pursuant to the foregoing, we reject each of Rendelman’s
contentions and affirm the judgment of the district court.
AFFIRMED