U.S. v. Alkhabaz

[NOTE: This case has been edited for classroom use by the omission of text, notes, and citations. See this alternate source for more (but not all) of full opinion.]

Boyce F. Martin, Jr., Chief Judge, delivered the opinion of the court, in which Judge Daughtrey, J., joined. Krupansky, J., delivered a separate dissenting opinion.

Claiming that the district court erred in determining that certain electronic mail messages between Abraham Jacob Alkhabaz, a.k.a. Jake Baker, and Arthur Gonda did not constitute "true threats," the government appeals the dismissal of the indictment charging Baker with violations of 18 U.S.C. § 875(c).

From November 1994 until approximately January 1995, Baker and Gonda exchanged e-mail messages over the Internet, the content of which expressed a sexual interest in violence against women and girls. Baker sent and received messages through a computer in Ann Arbor, Michigan, while Gonda--whose true identity and whereabouts are still unknown--used a computer in Ontario, Canada.

Prior to this time, Baker had posted a number of fictional stories to "alt.sex.stories," a popular interactive Usenet news group. Using such shorthand references as "B&D," "snuff," "pedo," "mf," and "nc," Baker's fictional stories generally involved the abduction, rape, torture, mutilation, and murder of women and young girls. On January 9, Baker posted a story describing the torture, rape, and murder of a young woman who shared the name of one of Baker's classmates at the University of Michigan.

On February 9, Baker was arrested and appeared before a United States Magistrate Judge on a criminal complaint alleging violations of 18 U.S.C. § 875(c), which prohibits interstate communications containing threats to kidnap or injure another person. The government made the complaint based on an FBI agent's affidavit, which cited language from the story involving Baker's classmate. The Magistrate Judge ordered Baker detained as a danger to the community and a United States District Court affirmed his detention. Upon Baker's motion to be released on bond, this Court ordered a psychological evaluation. When the evaluation concluded that Baker posed no threat to the community, this Court ordered Baker's release.

On February 14, a federal grand jury returned a one-count indictment charging Baker with a violation of 18 U.S.C. § 875(c). On March 15, 1995, citing several e-mail messages between Gonda and Baker, a federal grand jury returned a superseding indictment, charging Baker and Gonda with five counts of violations of 18 U.S.C. § 875(c). The e-mail messages supporting the superseding indictment were not available in any publicly accessible portion of the Internet.

On April 15, Baker filed a Motion to Quash Indictment with the district court. In United States v. Baker, 890 F. Supp. 1375, 1381 (E.D. Mich. 1995), the district court dismissed the indictment against Baker, reasoning that the e-mail messages sent and received by Baker and Gonda did not constitute "true threats" under the First Amendment and, as such, were protected speech. The government argues that the district court erred in dismissing the indictment because the communications between Gonda and Baker do constitute "true threats" and, as such, do not implicate First Amendment free speech protections. In response, Baker urges this Court to adopt the reasoning of the district court and affirm the dismissal of the indictment against him.

Neither the district court's opinion, nor the parties' briefs contain any discussion regarding whether Baker's e-mail messages initially satisfy the requirements of Section 875(c). For the reasons stated below, we conclude that the indictment failed, as a matter of law, to allege violations of Section 875(c). Accordingly, we decline to address the First Amendment issues raised by the parties.

An indictment is sufficient if it "set[s] forth the offense in the words of the statute itself, as long as 'those words . . . fully, directly, and expressly . . . set forth all the elements necessary to constitute the offense intended to be punished.' " United States v. DeAndino, 958 F.2d 146, 147 (6th Cir. 1992) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974) (emphasis added)), cert. denied, 505 U.S. 1206 (1992). Accordingly, in determining the sufficiency of the indictment against Baker, we must consider the elements of the offense that Congress intended to prohibit when it created Section 875(c). Because Congress's intent is essentially a question of statutory interpretation, we review the district court's decision de novo.

Title 18, United States Code, Section 875(c) states:

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.

The government must allege and prove three elements to support a conviction under Section 875(c): "(1) a transmission in interstate [or foreign] commerce; (2) a communication containing a threat; and (3) the threat must be a threat to injure [or kidnap] the person of another." DeAndino, 958 F.2d at 148. In this case, the first and third elements cannot be seriously challenged by the defendant. However, the second element raises several issues that this Court must address. As this Court has recognized, "[i]t is one of the most fundamental postulates of our criminal justice system that conviction can result only from a violation of clearly defined standards of conduct." United States v. Monasterski, 567 F.2d 677, 683 (6th Cir. 1977). Indeed, "[o]ur law does not punish bad purpose standing alone, however; instead we require that mens rea accompany the actus reus specifically proscribed by statute." Id. As the Supreme Court has recognized, William Shakespeare's lines here illustrate sound legal doctrine.

His acts did not o'ertake his bad intent;
And must be buried but as an intent
That perish'd by the way: thoughts are no subjects,
Intents but merely thoughts.

United States v. Apfelbaum, 445 U.S. 115, 131 n.13 (1980) (quoting William Shakespeare's Measure for Measure, Act V, Scene 1).

Although its language does not specifically contain a mens rea element, this Court has interpreted Section 875(c) as requiring only general intent. Accordingly, Section 875(c) requires proof that a reasonable person would have taken the defendant's statement as "a serious expression of an intention to inflict bodily harm." Id. at 148 (citing United States v. Lincoln, 462 F.2d 1368, 1369 (6th Cir. 1972)).

Additionally, Section 875(c) does not clearly define an actus reus. The language of Section 875(c) prohibits the transmission of "any communication containing any threat to kidnap any person or any threat to injure the person of another." However, in United States v. Bellrichard, 779 F. Supp. 454, 459 (D. Minn 1991), aff'd, 994 F.2d 1318 (8th Cir. 1993), a Minnesota district court recognized the absurdity of a literal interpretation of this language in the context of Section 876, the companion statute of Section 875(c).

The statute should not be interpreted to cover every letter which, apart from its context, seems to threaten a person other than the addressee or letter recipient, as the government argues. For example, if a prosecutor mailed defendant's letters to another government official for analysis or review, that conduct could be covered by the statute--mailing a threat to injure the person of another. Similarly, if the court mails this opinion to West Publishing Company, having quoted verbatim the language used by defendant which is alleged to be threatening, that conduct could be covered by the statute. Also covered would be conduct of a member of the general public, who, attending this trial of widespread interest, took notes of defendant's statements and mailed them to a family member, law professor, or newspaper for their information.

The Bellrichard court concluded that such contingencies could be avoided by requiring that proscribable threats be communicated either to the threatened individual, or to a third party with "some connection" to the threatened individual.

We agree with the district court in Bellrichard that a literal interpretation of Section 875(c) would lead to absurd results not intended by Congress. However, instead of applying a test that requires "some connection," the unintended results noted in Bellrichard may be avoided simply by considering the type of offense that Congress intended to prohibit when it enacted Section 875(c).

To determine what type of action Congress intended to prohibit, it is necessary to consider the nature of a threat. At their core, threats are tools that are employed when one wishes to have some effect, or achieve some goal, through intimidation. This is true regardless of whether the goal is highly reprehensible or seemingly innocuous.

For example, the goal may be extortionate or coercive. In United States v. Cox, 957 F.2d 264 (6th Cir. 1992), a bank repossessed the defendant's vehicle, including several personal items. The defendant then telephoned the bank and threatened to "hurt people" at the bank, unless the bank returned his property. Similarly, in United States v. Schroeder, 902 F2d 1469 (10th Cir.), cert. denied, 498 U.S. 876 (1990), the defendant informed an Assistant United States Attorney that "people would get hurt" if the government did not give him money. In both cases, the defendant used a threat in an attempt to extort property from the threatened party.

Additionally, the goal, although not rising to the level of extortion, may be the furtherance of a political objective. For example, in United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976), the defendant threatened to assassinate Yasser Arafat, leader of the Palestine Liberation Organization (PLO), during a news conference. Kelner claimed that his sole purpose in issuing the threat was to inform the PLO that "we (as Jews) would defend ourselves and protect ourselves." Id. at 1021-22. Although Kelner's threat was not extortionate, he apparently sought to further the political objectives of his organization by intimidating the PLO with warnings of violence.

Finally, a threat may be communicated for a seemingly innocuous purpose. For example, one may communicate a bomb threat, even if the bomb does not exist, for the sole purpose of creating a prank. However, such a communication would still constitute a threat because the threatening party is attempting to create levity (at least in his or her own mind) through the use of intimidation.

The above examples illustrate threats because they demonstrate a combination of the mens rea with the actus reus. Although it may offend our sensibilities, a communication objectively indicating a serious expression of an intention to inflict bodily harm cannot constitute a threat unless the communication also is conveyed for the purpose of furthering some goal through the use of intimidation.

Accordingly, to achieve the intent of Congress, we hold that, to constitute "a communication containing a threat" under Section 875(c), a communication must be such that a reasonable person (1) would take the statement as a serious expression of an intention to inflict bodily harm (the mens rea), and (2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus).

The dissent argues that Congress did not intend to include as an element of the crime the furthering of some goal through the use of intimidation. Emphasizing the term "any" in the language of the statute, the dissent maintains that Congress did not limit the scope of communications that constitutes criminal threats. While we agree that Congress chose inclusive language to identify the types of threats that it intended to prohibit, we cannot ignore the fact that Congress intended to forbid only those communications that in fact constitute a "threat." The conclusion that we reach here is one that the term "threat" necessarily implies. To emphasize the use of the term "any" without acknowledging the limitations imposed by the term "threat" ignores the intent of Congress and results in the absurd conclusions identified in Bellrichard, 779 F. Supp. at 459.

It is important to note that we are not expressing a subjective standard. This Court has held that the mens rea element of a Section 875(c) violation must be determined objectively. The rationale for applying an objective standard to establish the mens rea element of a Section 875(c) violation is equally as compelling with regard to establishing the actus reus element. Accordingly, for reasons expressed in DeAndino, the actus reus element of a Section 875(c) violation must be determined objectively, from the perspective of the receiver.

Our interpretation of the actus reus requirement of Section 875(c) conforms not only to the nature of a threat, but also to the purpose of prohibiting threats. Several other circuits have recognized that statutes prohibiting threats are designed to protect the recipient's sense of personal safety and well being. If an otherwise threatening communication is not, from an objective standpoint, transmitted for the purpose of intimidation, then it is unlikely that the recipient will be intimidated or that the recipient's peace of mind will be disturbed.

For example, under a hypothetical expressed in Bellrichard, "if the court mails this opinion to West Publishing Company, having quoted verbatim the language used by defendant which is alleged to be threatening," it is unlikely that any reader's sense of personal safety and well being would be jeopardized. Likewise, if "a member of the general public, who, attending this trial of widespread interest, took notes of defendant's statements and mailed them to a family member, law professor, or newspaper for their information," such communication would not, from an objective standpoint, compromise the recipient's sense of personal safety. In both cases, the recipient's sense of well-being is not endangered because, from an objective standpoint, the sender has no desire to intimidate.

Applying our interpretation of the statute to the facts before us, we conclude that the communications between Baker and Gonda do not constitute "communication[s] containing a threat" under Section 875(c). Even if a reasonable person would take the communications between Baker and Gonda as serious expressions of an intention to inflict bodily harm, no reasonable person would perceive such communications as being conveyed to effect some change or achieve some goal through intimidation. Quite the opposite, Baker and Gonda apparently sent e-mail messages to each other in an attempt to foster a friendship based on shared sexual fantasies.

Ultimately, the indictment against Baker fails to "set forth . . . all the elements necessary to constitute the offense intended to be punished" and must be dismissed as a matter of law. DeAndino, 958 F.2d at 146 (quoting Hamling v. United States, 418 U.S. 87, 117 (1974) (emphasis added)). We agree with the district court, that "[w]hatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C. § 875(c)." United States v. Baker, 890 F. Supp. at 1390, 1391.

For the foregoing reasons, the judgment of the district court is affirmed.

Krupansky, Circuit Judge, dissenting.

The panel majority has ruled that an interstate or international "communication containing any threat" to kidnap or injure another person is criminalized by 18 U.S.C. § 875(c) only when the subject communication was conveyed with the general intent "to effect some change or achieve some goal through intimidation." The majority concludes that because the instant indictment alleges only communications purportedly intended to foster a perverse camaraderie between the correspondents, rather than "to effect some change or realize some goal through intimidation," the indictment must be dismissed because each count fails to allege an essential element of a section 875(c) charge. Because the majority has intruded upon Congressional prerogatives by judicially legislating an exogenous element into section 875(c) that materially alters the plain language and purpose of that section and ignores the prevailing precedents of the Supreme Court and this circuit, I respectfully dissent from the majority's decision.

. . . .

Although the majority of this panel now affirms the judgment of the district court, it has avoided addressing the First Amendment issue. Instead it mandates, by judicial license, that the communications charged in the superseding indictment did not constitute "threats" of any kind because the panel majority interprets section 875(c) to require, as a matter of law, that a "threatening" communication must be accompanied by an intent to intimidate or coerce someone to attain some "change" or "goal." It is obvious, however, from the concise language of 18 U.S.C. § 875(c) that Congress refused to include an "intent to intimidate or coerce someone to attain some change or goal" as an element of the criminal act addressed therein:

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.

18 U.S.C. § 875(c) (emphases added).

The words in section 875(c) are simple, clear, concise, and unambiguous. The plain, expressed statutory language commands only that the alleged communication must contain any threat to kidnap or physically injure any person, made for any reason or no reason. Section 875(c) by its terms does not confine the scope of criminalized communications to those directed to identified individuals and intended to effect some particular change or goal. This circuit has already considered and decided the meaning of section 875(c) in United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.), cert. denied, 505 U.S. 1206 (1992), a decision in which a member of this panel concurred, wherein it defined, to the exclusion of "intimidation," the three essential elements under 18 U.S.C. § 875(c):

(1) a transmission in interstate [or foreign] commerce;

(2) a communication containing a threat; and

(3) the threat must be a threat to injure the person of another[.]

Accordingly, DeAndino imposes its interpretation of 18 U.S.C. § 875(c) as prevailing precedent in this circuit until it is modified or overruled by the entire court sitting en banc or by Supreme Court direction. By contrast, the majority's extra-legislative graft upon specific Congressional language materially deforms the criminal act defined by the enactment by judicially implanting "intent to intimidate or coerce someone to attain some change or goal" as an element of the criminal act, thus enhancing the government's threshold burden of proof in pursing prosecutions pursuant to this criminal statute.

By contrast to section 875(c), a companion statutory provision, 18 U.S.C. § 875(b), criminalizes similar communications made with the intent to extort money or other value, coupled with more severe penalties than those appertaining to a threat illegalized by section 875(c):

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.

Patently, Congress sought to punish all interstate or international communications containing a threat to kidnap or injure any person; such communications accompanied by an intent to extort value (section 875(b)) could be punished more severely than those which are not coupled with the intent to extort (section 875(c)). If Congress, by enacting section 875(c), had desired to proscribe only those threats intended by the maker to intimidate someone, it could have clearly accomplished that result as it did under section 875(b) wherein it directed that threats under that subsection must be issued with the intent to extort value.

The panel majority attempts to justify its improper fusion of an extra-legislative element re the "intent to intimidate some change or goal" upon section 875(c) by embracing an artificially narrow legal definition of the term "threat." The panel majority posits, "[a]t their core, threats are tools that are employed when one wishes to have some effect, or achieve some goal, through intimidation." However, this interpretation does not comprise the exclusive ordinary or legal meaning of the word "threat." Undeniably, a simple, credible declaration of an intention to cause injury to some person, made for any reason, or for no reason whatsoever, may also constitute a "threat."

. . . .

Although some reported threat convictions have embraced a form or degree of intimidation, this circuit has not previously adopted that element as an essential component of a prosecution under 18 U.S.C. § 875(c). To the contrary, controlling precedents clearly reflect the principle that a message is a "threat" if a reasonable recipient would tend to believe that the originator of the message was serious about his words and intended to effect the violence or other harm forewarned, regardless of the speaker's actual motive for issuing the communication. In United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.), cert. denied, 505 U.S. 1206 (1992), this court reversed the trial court's dismissal of a section 875(c) indictment, commanding that the government need prove only the author's objective (or general) intent, as opposed to a subjective (or specific) intent, to threaten a person. Id. at 148-50. A "general intent" to threaten exists where a reasonable person would objectively take the defendant's statement to be a "serious expression of an intention to inflict bodily harm[,]" whereas a "specific intent" to threaten exists only where the speaker subjectively intended, in fact, to threaten a person. Because under DeAndino the prosecution need prove only that the speaker objectively intended to threaten a person by his statement(s), no proof that the publisher of the threat subjectively intended to threaten anyone by his communication is necessary. Id. at 148 (citation omitted). Similarly, no proof that the speaker had intended to intimidate anyone to attain some change or goal was required in DeAndino; the opinion does not suggest that the burden placed upon the government to prove a threat under section 875(c) included proof of motivation for conveying the threat.

. . . .

Thus, the plain language of 18 U.S.C. § 875(c), together with its interpretive precedents, compels the conclusion that "threats" within the scope of the statute in controversy include all reasonably credible communications which express the speaker's objective intent to kidnap or physically injure another person. Whether the originator of the message intended to intimidate or coerce anyone thereby is irrelevant. Rather, the pertinent inquiry is whether a jury could find that a reasonable recipient of the communication would objectively tend to believe that the speaker was serious about his stated intention. There can be no doubt that a rational jury could find that some or all of the minacious communications charged in the superseding indictment against Baker constituted threats by the defendant to harm a female human being,n10 which a reasonable objective recipient of the transmissions could find credible.n11

Because the communications charged against Baker could be found by a rational jury to constitute "threats" within the ambit of 18 U.S.C. § 875(c), the district court's resolution that a rational jury could not find that any of these communications comprised constitutionally unprotected "true threats" is ripe for review. . . .

Consequently, a communication which an objective, rational observer would tend to interpret, in its factual context, as a credible threat, is a "true threat" which may be punished by the government. The majority's disposition notwithstanding, logic dictates that any objectively credible representation of an intent to harm someone should be considered both a "threat" by the statement's originator, as well as a "true threat" beyond the scope of the First Amendment's free speech guarantees.

The majority's disposition leads to absurd results where, as in the case at bench, minacious communications have been made which may satisfy the constitutional "true threat" standard because a reasonable jury could find that those communications contained believable expressions of an intention to injure a person, yet those same communications are nonetheless deemed beyond the reach of 18 U.S.C. § 875(c) as not constituting "threats" as a matter of law, merely because the subject communications were not made with the intent to realize a specific purpose through intimidation. Although Congress, via section 875(c), clearly intended to punish every credible interstate or transnational expression of an intent to kidnap or injure another person, the majority's legally erroneous unduly restrictive interpretation of the word "threat" as used in section 875(c) effectively divests Congress of its constitutional lawmaking authority by artificially confining the intended scope of section 875(c) to a degree not compelled by the First Amendment.

Accordingly, in order to prove a "true threat" proscribed by 18 U.S.C. § 875(c) and unprotected by the First Amendment, the prosecution must evidence to a rational jury's satisfaction only the following: (1) that the defendant transmitted the subject communication in interstate or foreign commerce, (2) that the communication contained a threat, (3) that the threat was one against the physical safety or freedom of some individual or class of persons (irrespective of the identity of the person or group threatened, the originator's motivation for issuing the threat, or the existence or nonexistence of any goal pursued by the threat), and (4) that the subject communication in its factual context would lead a reasonable, objective recipient to believe that the publisher of the communication was serious about his threat (regardless of the subjective intent of the speaker to make an actual threat or whether anyone actually felt frightened, intimidated, or coerced by the threat).

Finally, the facts of the instant case justify reversal and remand because they even satisfy the judicially legislated edict articulated in the majority opinion. Assuming arguendo that a threat under 18 U.S.C. § 875(c) requires a general intent by the speaker to attain some result or change through intimidation (which it does not), a rational jury could conclude that this element was proved in this case. By publishing his sadistic Jane Doe story on the Internet, Baker could reasonably foresee that his threats to harm Jane Doe would ultimately be communicated to her (as they were), and would cause her fear and intimidation, which in fact ultimately occurred. The panel majority may casually conclude within the security of chambers that Baker's threats conveyed to Jane Doe in his articles published on the Internet were nonintimidating. However, Jane Doe's reaction to those threats when brought to her attention evinces a contrary conclusion of a shattering traumatic reaction that resulted in recommended psychological counselling. See note 3 above.

A jury in the instant case could reasonably infer, in the light of all the evidence, that Baker intended the foreseeable, natural, and ordinary consequences of his voluntary actions. Indeed, a rational jury could infer that the reason Baker published his Jane Doe story featuring the actual name of a young woman was the probability that its threats would be communicated to her and cause her to suffer fear, anxiety, and intimidation. Moreover, the e-mail correspondence between Baker and Gonda evidenced overt acts of a conspiracy to violate 18 U.S.C. § 875(c) in that the two men clearly agreed at the least to threaten, and otherwise implement their conspiracy by intimidating, one or more women or young girls with physical harm as discussed in their plans.

Accordingly, I would reverse the district court's judgment which dismissed the superseding indictment as purportedly not alleging "true threats," and remand the cause to the lower court.

10 Section 875(c) does not require that actionable threats be made against a specific identifiable person. Rather, a credible threat made against an identifiable category of individuals is sufficient. In the instant action, count one of the superseding indictment quoted language communicated by Baker to Gonda which reflected a desire to injure a specific although unnamed hometown neighbor of Baker's. Additionally, the government's bill of particulars filed on April 10, 1995 identified, as additional alleged targeted victims, girls aged 13 and 14 years who resided near Baker in Ann Arbor, Michigan and teenaged girls who lived near Baker's home in Boardman, Ohio; female students who resided in Baker's university dormitory; and women who were the subjects of Baker's e-mail transmissions to Gonda and his stories posted on the Internet, including Jane Doe. In any event, the identity of specific targets was not crucial to the credibility of Baker's threats because his expressed purpose was to harm some female, not necessarily any particular woman.

11 The majority's concern that interpreting 18 U.S.C. § 875(c) to encompass threatening messages sent by persons who did not intend to achieve some coercive result would effectively criminalize the legitimate and innocent reiteration, such as by news reporters, trial watchers, or publishers of judicial opinions, of communications initiated by another, is misplaced. To constitute a threat under section 875(c), the communication at issue must be accompanied by the perpetrator's general intent to kidnap or harm someone. Stated differently, by promulgating the menacing verbiage, the speaker must be expressing a credible intention to perform, or cause to be performed, the forbidden actions. Typically, only the originator of the minatorial communication, or a confederate, could possess or express this intent. By contrast, a person who republishes the threatening language for legitimate or otherwise innocuous purposes cannot reasonably be deemed to have articulated an intent to kidnap or injure any person.