Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding D.C. No. 2:08-cr-00116-ROS-1
The opinion of the court was delivered by: Canby, Circuit Judge
Argued and Submitted November 2, 2009-San Francisco, California
Before: Betty B. Fletcher, William C. Canby, Jr., and Susan P. Graber, Circuit Judges.
Opinion by Judge Canby; Dissent by Judge Graber
Kurt William Havelock appeals his jury conviction of six counts of mailing threatening communications in violation of 18 U.S.C. § 876(c), which makes it a felony to mail a communication "addressed to any other person and containing . . . any threat to injure the person of the addressee or of another." Havelock argues, among other things, that the packets he mailed do not come within this statute because on their faces they were addressed to media corporations or other media organizations rather than individual persons. We conclude that § 876(c) does indeed require that the mailed item containing the threat be addressed to an individual person, as reflected in the address on the mailed item. Because Have-lock's communications were not so addressed to individual persons, we reverse his convictions.
BACKGROUND AND PROCEDURAL HISTORY
Havelock had various reasons for being angry with the world, and he resolved to end his life in a blaze of publicity by appearing at the site of Super Bowl XLII in Glendale, Arizona, in February 2008, and randomly shooting people coming to the game. He expected to be killed in the process.
On "Super Bowl Sunday," approximately half an hour before the opening kickoff, Havelock put his newly-purchased assault rifle and several clips of ammunition in his car and drove to a post office near the stadium, where he deposited six Priority Mail envelopes into a mailbox. Four of the envelopes were addressed to media outlets, specifically, The New York Times, the Los Angeles Times, the Phoenix New Times, and the Associated Press; the other envelopes were addressed to two music-related Websites, theshizz.org and azpunk.com. Within these envelopes, or "media packets," as Havelock called them, were a hodgepodge of documents: a five-page "econo-political" manifesto entitled "Karma Leveller: Bad Thoughts on a Beautiful Day" (the "Manifesto"); a brief account of a recent incident involving Havelock, faux pipe bombs, and the police of Tempe, Arizona; an apologetic letter to "the Police," directing them to his car, "which [would be] parked in Glendale somewhere around the stadium," and imploring that the police "not take [their] hatred for [him] out on [his] dogs"; and another letter comprised of self-described "random blatherings."
Havelock's Manifesto was, in equal parts, a fractured meditation on the purported evils of American society and a paranoid, past-tense account of the experiences, beliefs, and convictions that had sparked the would-be "econopolitical confrontation" at the Super Bowl. It also contained some passages referring to Havelock's planned massacre. For example, he stated: "It will be swift and bloody. I will sacrifice your children upon the altar of your excess." In another passage he stated: "I will slay your children. I will shed the blood of the innocent."
After leaving the post office, Havelock, according to his later statements, drove to a parking lot near the stadium to "wait for an opportunity to shoot people"-"a crowd of people"-and quite likely "commit suicide by cops." Minutes after arriving, however, a sense of "numbness" overcame him, and he experienced "a change of heart." Havelock called his father and told him, "Dad, I've done something wrong." He arranged to meet with his parents and his fiancee in Tempe. Havelock showed a copy of one of the letters to his father, who promptly told Havelock that they "need[ed] to go and talk to the Tempe police." Havelock agreed and, together with his parents, went to the police station. The Tempe police could not determine that any crime had been committed in Tempe, and they notified the Federal Bureau of Investigation ("FBI"). Shortly thereafter, agents of the FBI and the Bureau of Alcohol, Tobacco, and Firearms arrived at the station, conducted a recorded interview with Havelock, and took him into custody.
A federal grand jury indicted Havelock on six counts of mailing threatening communications in violation of 18 U.S.C. § 876(c).*fn1 Each count was identical except for the naming of the addressee. Count 1, for example, charged that Havelock "knowingly deposited in the United States mail, with intent to threaten, a communication, addressed to the New Times, containing a threat to injure the person of another, specifically children and persons in the vicinity of the Super Bowl XLII event in Arizona." Prior to trial, Havelock moved to dismiss the indictment. In his motion, Havelock argued that the phrase "any other person" in § 876(c) refers exclusively to natural persons and, because the indictment alleged that the envelopes containing the media packets were addressed to corporations and other institutions, the indictment failed to allege facts sufficient to constitute an offense.*fn2 Havelock also argued for dismissal on the ground that the media packets were devoid of "any threat to injure" and instead contained "a post-humous explanation for his violent actions." The district court denied the motion to dismiss. As to the natural-person argument, the court agreed that the words "any other person" in § 876(c) referred exclusively to natural persons, but held that a jury could scrutinize the envelopes, salutation, and general contents of the media packets in determining whether they were addressed to natural persons. See United States v. Havelock, 560 F. Supp.2d 828, 830-31 (D. Ariz. 2008). As to the true-threat argument, the court ruled that it was a fact question for the jury whether the materials in the media packets contained true threats. Id. at 834.
At the close of evidence, Havelock moved for a judgment of acquittal, and incorporated his earlier motion to dismiss the indictment in his acquittal motion. The district court denied the motion. Havelock was subsequently convicted by the jury on all six counts. He was sentenced to a 366-day term of ...