United States v. Anthony Elonis , 730 F.3d 321 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3798
___________
UNITED STATES OF AMERICA
v.
ANTHONY DOUGLAS ELONIS,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 5-11-cr-00013-001
(Honorable Lawrence F. Stengel)
______________
Argued: June 14, 2013
Before: SCIRICA, HARDIMAN, and ALDISERT, Circuit
Judges
(Filed: September 19, 2013 )
Ronald H. Levine, Esq. [ARGUED]
Abraham J. Rein, Esq.
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103
Counsel for Appellant
Sherri A. Stephan, Esq.
Office of United States Attorney
504 West Hamilton Street
Suite 3701
Allentown, PA 18101
Robert A. Zauzmer, Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
This case presents the question whether the true threats
exception to speech protection under the First Amendment
requires a jury to find the defendant subjectively intended his
statements to be understood as threats. Anthony Elonis
challenges his jury conviction under 18 U.S.C. § 875(c),
2
arguing he did not subjectively intend his Facebook posts to
be threatening. In United States v. Kosma, 951 F.2d 549, 557
(3d Cir. 1991) we held a statement is a true threat when a
reasonable speaker would foresee the statement would be
interpreted as a threat. We consider whether the Supreme
Court decision in Virginia v. Black, 538 U.S. 343, 359 (2003),
overturns this standard by requiring a subjective intent to
threaten.
I.
In May 2010, Elonis’s wife of seven years moved out
of their home with their two young children. Following this
separation, Elonis began experiencing trouble at work. Elonis
worked at Dorney Park & Wildwater Kingdom amusement
park as an operations supervisor and a communications
technician. After his wife left, supervisors observed Elonis
with his head down on his desk crying, and he was sent home
on several occasions because he was too upset to work.
One of the employees Elonis supervised, Amber
Morrissey, made five sexual harassment reports against him.
According to Morrissey, Elonis came into the office where
she was working alone late at night, and began to undress in
front of her. She left the building after he removed his shirt.
Morrissey also reported another incident where Elonis made a
minor female employee uncomfortable when he placed
himself close to her and told her to stick out her tongue. On
October 17, 2010 Elonis posted on his Facebook page a
photograph taken for the Dorney Park Halloween Haunt. The
photograph showed Elonis in costume holding a knife to
Morrissey’s neck. Elonis added the caption “I wish” under
the photograph. Elonis’s supervisor saw the Facebook
3
posting and fired Elonis that same day.
Two days after he was fired, Elonis began posting
violent statements on his Facebook page. One post regarding
Dorney Park stated:
Moles. Didn’t I tell ya’ll I had several? Ya’ll
saying I had access to keys for the fucking
gates, that I have sinister plans for all my
friends and must have taken home a couple.
Ya’ll think it’s too dark and foggy to secure
your facility from a man as mad as me. You
see, even without a paycheck I’m still the main
attraction. Whoever thought the Halloween
haunt could
be so fucking scary?
Elonis also began posting statements about his
estranged wife, Tara Elonis, including the following: “If I
only knew then what I know now, I would have smothered
your ass with a pillow, dumped your body in the back seat,
dropped you off in Toad Creek, and made it look like a rape
and murder.” Several of the posts about Tara Elonis were in
response to her sister’s status updates on Facebook. For
example, Tara Elonis’s sister posted her status update as:
“Halloween costume shopping with my niece and nephew
should be interesting.” Elonis commented on this status
update, writing, “Tell [their son] he should dress up as
matricide for Halloween. I don’t know what his costume
would entail though. Maybe [Tara Elonis’s] head on a stick?”
Elonis also posted in October 2010:
There’s one way to love you but a thousand
4
ways to kill you. I’m not going to rest until
your body is a mess, soaked in blood and dying
from all the little cuts. Hurry up and die, bitch,
so I can bust this nut all over your corpse from
atop your shallow grave. I used to be a nice guy
but then you became a slut. Guess it’s not your
fault you liked your daddy raped you.
So hurry up and die, bitch, so I can forgive you.
Based on these statements a state court issued Tara
Elonis a Protection From Abuse order against Elonis on
November 4, 2010. Following the issuance of the state court
Protection From Abuse order, Elonis posted several
statements on Facebook expressing intent to harm his wife.
On November 7 he wrote: 1
Did you know that it’s illegal for me to say I
want to kill my wife?
It’s illegal.
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not
allowed to say.
Now it was okay for me to say it right then
because I was just telling you that it’s illegal for
me to say I want to kill my wife.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me
to say that.
It’s kind of like a public service.
I’m letting you know so that you don’t
accidently go out and say something like that
1
This statement was the basis of Count 2 of the indictment.
5
Um, what’s interesting is that it’s very illegal to
say I really, really think someone out there
should kill my wife.
That’s illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
It’s an incomplete sentence but it may have
nothing to do with the sentence before that.
So that’s perfectly fine.
Perfectly legal.
I also found out that it’s incredibly illegal,
extremely illegal, to go on Facebook and say
something like the best place to fire a mortar
launcher at her house would be from the
cornfield behind it because of easy access to a
getaway road and you’d have a clear line of
sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated
diagram.
===[ __ ] =====house
: : : : : : : ^ : : : : : : : : : : : :cornfield
::::::::::::::::::::
::::::::::::::::::::
::::::::::::::::::::
######################getaway road
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle
of the night and they will lock me up.
Extremely against the law.
6
Uh, one thing that is technically legal to say is
that we have a group that meets Fridays at my
parent’s house and the password is sic simper
tyrannis.
Tara Elonis testified at trial that she took these statements
seriously, saying, “I felt like I was being stalked. I felt
extremely afraid for mine and my children’s and my families’
lives.” Trial Tr. 97, Oct. 19, 2011. Ms. Elonis further
testified that Elonis rarely listened to rap music, and that she
had never seen Elonis write rap lyrics during their seven years
of marriage. She explained that the lyric form of the
statements did not make her take the threats any less
seriously.
On November 15 Elonis posted on his Facebook page:
Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
And prison time will add zeroes to my
settlement
Which you won’t see a lick
Because you suck dog dick in front of children
****
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff's
department
[link: Freedom of Speech, www.wikipedia.org]
7
This statement was the basis both of Count 2, threats to
Elonis’s wife, and Count 3, threats to local law enforcement.
A post the following day on November 16 involving an
elementary school was the basis of Count 4:
That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
imagined
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?
By this point FBI Agent Denise Stevens was
monitoring Elonis’s public Facebook postings, because
Dorney Park contacted the FBI claiming Elonis had posted
threats against Dorney Park and its employees on his
Facebook page. After reading these and other Facebook posts
by Elonis, Agent Stevens and another FBI agent went to
Elonis’s house to interview him. When the agents knocked
on his door, Elonis’s father answered and told the agents
Elonis was sleeping. The agents waited several minutes until
Elonis came to the door wearing a t-shirt, jeans, and no shoes.
Elonis asked the agents if they were law enforcement and
asked if he was free to go. After the agents identified
themselves and told him he was free to go, Elonis went inside
and closed the door. Later that day, Elonis posted the
following on Facebook:
You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
8
Took all the strength I had not to turn the bitch
ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner
[laughter]
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all
goin’
[BOOM!]
These statements were the basis of Count 5 of the indictment.
After she observed this post on Elonis’s Facebook page,
Agent Stevens contacted the U.S. Attorney’s Office.
II.
Elonis was arrested on December 8, 2010 and charged
with transmitting in interstate commerce communications
containing a threat to injure the person of another in violation
of 18 U.S.C. § 875(c). The grand jury indicted Elonis on five
9
counts of making threatening communications: Count 1
threats to patrons and employees of Dorney Park &
Wildwater Kingdom, Count 2 threats to his wife, Count 3
threats to employees of the Pennsylvania State Police and
Berks County Sheriff’s Department, Count 4 threats to a
kindergarten class, and Count 5 threats to an FBI agent.
Elonis moved to dismiss the indictments against him,
contending the Supreme Court held in Virginia v. Black, 538
U.S. 343, 347-48 (2003) that a subjective intent to threaten
was required under the true threat exception to the First
Amendment and that his statements were not threats but were
protected speech. The District Court denied the motion to
dismiss because even if the subjective intent standard applied,
Elonis’s intent and the attendant circumstances showing
whether or not the statements were true threats were questions
of fact for the jury. United States v. Elonis, No. 11-13, 2011
WL 5024284, at *3 (E.D. Pa. Oct. 20, 2011).
Elonis testified in his own defense at trial. A jury
convicted Elonis on Counts 2 through 5, and the court
sentenced him to 44 months’ imprisonment followed by three
years supervised release. Elonis filed a post-trial Motion to
Dismiss Indictment with Prejudice under Rule 12(b)(3); and
for New Trial under Rule 33(a), to Arrest Judgment under
Rule 34(b) and/or Dismissal under Rule 29(c). The District
Court denied the motion to dismiss the indictment, finding the
indictment correctly tracked the language of the statute and
stated the nature of the threat, the date of the threat and the
victim of the threat. The court also stated the objective intent
standard conformed with Third Circuit precedent. The court
found the evidence supported the jury’s finding that the
statements in Count 3 and Count 5 were true threats. Finally,
10
the court held that the jury instruction presuming
communications over the internet were transmitted through
interstate commerce was supported by our precedent in
United States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006).
III. 2
A.
Elonis was convicted under 18 U.S.C. § 875(c) for
“transmit[ting] in interstate or foreign commerce any
communication containing any threat to kidnap any person or
any threat to injure the person of another . . . .” Elonis
contends the trial court incorrectly instructed the jury on the
standard of a true threat. The court gave the following jury
instruction:
A statement is a true threat when a defendant
intentionally makes a statement in a context or
2
The District Court had jurisdiction over this case under 18
U.S.C. § 3231. We exercise appellate jurisdiction under 28
U.S.C. § 1291. We review statutory interpretations and
conclusions of law de novo. Kosma, 951 F.2d at 553. We
exercise plenary review over the sufficiency of indictments.
United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007).
“We apply a particularly deferential standard of review when
deciding whether a jury verdict rests on legally sufficient
evidence.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.
1998). Because Elonis failed to object to the jury instructions
at trial, we review whether the jury instructions stated the
correct legal standard for plain error. United States v. Lee,
612 F.3d 170, 191 (3d Cir. 2010).
11
under such circumstances wherein a reasonable
person would foresee that the statement would
be interpreted by those to whom the maker
communicates the statement as a serious
expression of an
intention to inflict bodily injury or take the life
of an individual.
Trial Tr. 127, Oct. 20, 2011. Elonis posits that the Supreme
Court decision in Virginia v. Black requires that a defendant
subjectively intend to threaten, and overturns the reasonable
speaker standard we articulated in United States v. Kosma,
951 F.3d 549, 557 (3d Cir. 1991).
In United States v. Kosma, we held a true threat
requires that
the defendant intentionally make a statement,
written or oral, in a context or under such
circumstances wherein a reasonable person
would foresee that the statement would be
interpreted by those to whom the maker
communicates the statement as a serious
expression of an intention to inflict bodily harm
upon or to take the life of the President, and that
the statement not be the result of mistake,
duress, or coercion.
Id. at 557 (quoting Roy v. United States, 416 F.2d 874, 877-
78 (9th Cir. 1969) (emphasis omitted)). We rejected a
subjective intent requirement that the defendant “intended at
least to convey the impression that the threat was a serious
one.” Id. at 558 (quoting Rogers v. United States, 422 U.S.
1235, 46 (1975) (Marshall, J., concurring)). We found “any
subjective test potentially frustrates the purposes of section
871—to prevent not only actual threats on the President’s life,
but also the harmful consequences which flow from such
threats.” Id. (explaining “it would make prosecution of these
threats significantly more difficult”). We have held the same
“knowingly and willfully” mens rea Kosma analyzed under
18 U.S.C. § 871, threats against the president, applies to
§ 875(c). United States v. Himelwright, 42 F.3d 777, 782 (3d
Cir. 1994) (holding “the government bore only the burden of
proving that Himelwright acted knowingly and willfully when
he placed the threatening telephone calls and that those calls
were reasonably perceived as threatening bodily injury”).
Since our precedent is clear, the question is whether the
Supreme Court decision in Virginia v. Black overturned this
standard.
The Supreme Court first articulated the true threats
exception to speech protected under the First Amendment in
Watts v. United States, 394 U.S. 705 (1969). During a rally
opposing the Vietnam war, Watts told the crowd, “I am not
going. If they ever make me carry a rifle the first man I want
to get in my sights is L.B.J.” Id. at 706 (internal quotation
marks omitted). The Court reversed his conviction for
making a threat against the president because the statement
was “political hyperbole,” rather than a true threat. Id. at 708.
The Court articulated three factors supporting its finding: 1.
the context was a political speech; 2. the statement was
“expressly conditional”; and 3. “the reaction of the listeners”
who “laughed after the statement was made.” Id. at 707-08.
The Court did not address the true threats exception again
13
until Virginia v. Black in 2003. 3
In Virginia v. Black the Court considered a Virginia
statute that banned burning a cross with the “intent of
intimidating” and provided “[a]ny such burning of a cross
shall be prima facie evidence of an intent to intimidate a
person or group of persons.” 538 U.S. at 348 (citation and
internal quotation marks omitted). The Court reviewed three
separate convictions of defendants under the statute and
concluded that intimidating cross burning could be proscribed
as a true threat under the First Amendment. Id. at 363. But
the prima facie evidence provision violated due process,
because it permitted a jury to convict whenever a defendant
exercised his or her right to not put on a defense. Id. at 364-
65.
The Court reviewed the historic and contextual
meanings behind cross burning, and found it conveyed a
political message, a cultural message, and a threatening
message, depending on the circumstances. Id. at 354-57. The
Court then described the true threat exception generally
before analyzing the Virginia statute:
“True threats” encompass those statements
where the speaker means to communicate a
serious expression of an intent to commit an act
of unlawful violence to a particular individual
or group of individuals. See Watts v. United
States, supra, at 708 . . . (“political hyperbole”
3
The Court did discuss the constitutional limits on banning
“fighting words” in R.A.V. v. City of St. Paul, 505 U.S. 377,
388 (1992).
14
is not a true threat); R.A.V. v. City of St. Paul,
505 U.S., at 388. . . . The speaker need not
actually intend to carry out the threat. Rather, a
prohibition on true threats “protect[s]
individuals from the fear of violence” and
“from the disruption that fear engenders,” in
addition to protecting people “from the
possibility that the threatened violence will
occur.” Ibid. Intimidation in the
constitutionally proscribable sense of the word
is a type of true threat, where a speaker directs a
threat to a person or group of persons with the
intent of placing the victim in fear of bodily
harm or death. Respondents do not contest that
some cross burnings fit within this meaning of
intimidating speech, and rightly so. As noted in
Part II, supra, the history of cross burning in
this country shows that cross burning is often
intimidating, intended to create a pervasive fear
in victims that they are a
target of violence.
Id. at 359-60 (citation omitted). Elonis contends that this
definition of true threats means that the speaker must both
intend to communicate and intend for the language to threaten
the victim. 4 But the Court did not have occasion to make
4
Elonis also points to the passage “[i]ntimidation in the
constitutionally proscribable sense of the word is a type of
true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear
of bodily harm or death.” Black, 538 U.S. at 360. But this
15
such a sweeping holding, because the challenged Virginia
statute already required a subjective intent to intimidate. We
do not infer from the use of the term “intent” that the Court
invalidated the objective intent standard the majority of
circuits applied to true threats. 5 Instead, we read “statements
where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful
violence” to mean that the speaker must intend to make the
communication. It would require adding language the Court
did not write to read the passage as “statements where the
speaker means to communicate [and intends the statement to
be understood as] a serious expression of an intent to commit
an act of unlawful violence.” Id. at 359. This is not what the
Court wrote, and it is inconsistent with the logic animating
the true threats exception.
The “prohibition on true threats ‘protect[s] individuals
from the fear of violence’ and ‘from the disruption that fear
engenders,’ in addition to protecting people ‘from the
possibility that the threatened violence will occur.’” Id. at
sentence explains when intimidation can be a true threat, and
does not define when threatening language is a true threat.
5
See, e.g., United States v. Whiffen, 121 F.3d 18, 20-21 (1st
Cir. 1997); United States v. Francis, 164 F.3d 120, 122 (2d
Cir. 1999); United States v. Darby, 37 F.3d 1059, 1066 (4th
Cir. 1994); United States v. Myers, 104 F.3d 76, 80-81 (5th
Cir. 1997); United States v. DeAndino, 958 F.2d 146, 148 (6th
Cir. 1992); United States v. Schneider, 910 F.2d 1569, 1570
(7th Cir. 1990); United States v. Manning, 923 F.2d 83, 86
(8th Cir. 1991); United States v. Hart, 457 F.2d 1087, 1091
(10th Cir. 1972); United States v. Callahan, 702 F.2d 964,
965 (11th Cir. 1983); Metz v. Dep’t of Treasury, 780 F.2d
1001, 1002 (Fed. Cir. 1986).
16
360 (quoting R.A.V., 505 U.S. at 388). Limiting the definition
of true threats to only those statements where the speaker
subjectively intended to threaten would fail to protect
individuals from “the fear of violence” and the “disruption
that fear engenders,” because it would protect speech that a
reasonable speaker would understand to be threatening. Id.
Elonis further contends the unconstitutionality of the
prima facie evidence provision in Black indicates a subjective
intent to threaten is required. The Court found the fact that
the defendant burned a cross could not be prima facie
evidence of intent to intimidate. Id. at 364-65. The Court
explained that while cross burning was often employed as
intimidation or a threat of physical violence against others, it
could also function as a symbol of solidarity for those within
the white supremacist movement. Id. at 365-66. Less
frequently, crosses had been burned outside of the white
supremacist context, such as stage performances. Id. at 366.
Since the burning of a cross could have a constitutionally-
protected political message as well as a threatening message,
the prima facie evidence provision failed to distinguish
protected speech from unprotected threats. Furthermore, the
prima facie evidence provision denied defendants the right to
not put on a defense, since the prosecution did not have to
produce any evidence of intent to intimidate, which was an
element of the crime. Id. at 364-65.
We do not find that the unconstitutionality of
Virginia’s prima facie evidence provision means the true
threats exception requires a subjective intent to threaten.
First, the prima facie evidence provision did not allow the
factfinder to consider the context to construe the meaning of
the conduct, id. at 365-66, whereas the reasonable person
17
standard does encompass context to determine whether the
statement was a serious expression of intent to inflict bodily
harm. Second, cross-burning is conduct that may or may not
convey a meaning, as opposed to the language in this case
which has inherent meaning in addition to the meaning
derived from context. Finally, the prima facie evidence
provision violated the defendant’s due process rights to not
put on a defense, because the defendant could be convicted
even when the prosecution had not proven all the elements of
the crime. Id. That is not an issue here because the
government had to prove that a reasonable person would
foresee Elonis’s statements would be understood as threats.
The majority of circuits that have considered this
question have not found the Supreme Court decision in Black
to require a subjective intent to threaten. See United States v.
White, 670 F.3d 498, 508 (4th Cir. 2012) (“A careful reading
of the requirements of § 875(c), together with the definition
from Black, does not, in our opinion, lead to the conclusion
that Black introduced a specific-intent-to-threaten
requirement into § 875(c) . . . .”); United States v. Jeffries,
692 F.3d 473, 479 (6th Cir. 2012) (“[T]he position reads too
much into Black.”); United States v. Mabie, 663 F.3d 322,
332-33 (8th Cir. 2011), cert. denied, 133 S. Ct. 107 (2012)
(noting the objective test had been applied many times after
Black) 6; United States v. Nicklas, 713 F.3d 435, 440 (8th Cir.
6
The Eighth Circuit cited the following cases applying an
objective standard after the Supreme Court’s decision in
Black:
United States v. Beale, 620 F.3d 856, 865 (8th
Cir. 2010) . . . ; United States v. Armel, 585
18
2013) (quoting extensively from Jeffries, the court
“concluded § 875(c) does not require the government to prove
a defendant specifically intended his or her statements to be
threatening”).
The Fourth Circuit in United States v. White
considered the same criminal statute, 18 U.S.C. § 875(c), and
found the Court in Black “gave no indication it was
redefining a general intent crime such as § 875(c) to be a
specific intent crime.” 670 F.3d at 509. The Fourth Circuit
reasoned that Black had analyzed a statute that included a
specific intent element, whereas § 875(c) had consistently
been applied as a general intent statute. Id. at 508. The court
further distinguished Black by noting the multiple meanings
of cross-burning necessitated a finding of intent to distinguish
protected speech from true threats. Id. at 511. The court in
White found this same problem did not exist for threatening
language because it has no First Amendment value. Id.
Finally, the court found the general intent standard for §
875(c) offenses did not chill “statements of jest or political
F.3d 182, 185 (4th Cir. 2009) (applying an
objective test in a true threat analysis); Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 616–
17 (5th Cir. 2004) (“[T]o lose the protection of
the First Amendment and be lawfully punished,
the threat must be intentionally or knowingly
communicated to either the object of the threat
or a third person.”); United States v. Zavrel, 384
F.3d 130, 136 (3d Cir. 2004) (applying an
objective test in a true threat analysis).
Mabie, 663 F.3d at 332.
19
hyperbole” because “any such statements will, under the
objective test, always be protected by the consideration of the
context and of how a reasonable recipient would understand
the statement.” Id. at 509. 7
In United States v. Jeffries the Sixth Circuit agreed that
Black does not require a subjective intent to threaten to
convict under 18 U.S.C. § 875(c). 692 F.3d at 479. Because
Black interpreted a statute that already had a subjective intent
requirement, the Sixth Circuit found the Court was not
presented with the question whether an objective intent
standard is constitutional. Id. Jeffries also found that the
Court’s ruling on the prima facie evidence provision did not
address the specific intent question because “the statute
lacked any standard at all.” Id. at 479-80. Like the Fourth
Circuit in White, the Sixth Circuit explained that the prima
facie evidence provision failed to distinguish between
protected speech and threats by not allowing for consideration
of any contextual factors. Id. at 480. In contrast, “[t]he
reasonable-person standard winnows out protected speech
because, instead of ignoring context, it forces jurors to
examine the circumstances in which a statement is made.” Id.
The Ninth Circuit took a different view, and found the
true threats definition in Black requires the speaker both
intend to communicate and “intend for his language to
threaten the victim.” United States v. Cassel, 408 F.3d 622,
631 (9th Cir. 2005). The Ninth Circuit reasoned that the
unconstitutionality of the prima facie provision meant that the
Court required a finding of intent to threaten for all speech
7
The Fourth Circuit test focuses on the reasonable recipient,
but our test asks whether a reasonable speaker would foresee
the statement would be understood as a threat.
20
labeled as “true threats,” and not just cross burning. Id. at
631-32 (“[T]he prima facie evidence provision rendered the
statute facially unconstitutional because it effectively
eliminated the intent requirement.”). “We are therefore
bound to conclude that speech may be deemed unprotected by
the First Amendment as a ‘true threat’ only upon proof that
the speaker subjectively intended the speech as a threat.” Id.
at 633. 8
Regardless of the state of the law in the Ninth Circuit,
we find that Black does not alter our precedent. We agree
with the Fourth Circuit that Black does not clearly overturn
the objective test the majority of circuits applied to § 875(c).
Black does not say that the true threats exception requires a
subjective intent to threaten. Furthermore, our standard does
require a finding of intent to communicate. The jury had to
find Elonis “knowingly and willfully” transmitted a
“communication containing . . . [a] threat to injure the person
of another.” 18 U.S.C. § 875(c). A threat is made
“knowingly” as when it is “made intentionally and not [as]
the result of mistake, coercion or duress.” Kosma, 951 F.2d
at 557 (quotation omitted). A threat is made willfully when
“a reasonable person would foresee that the statement would
be interpreted by those to whom the maker communicates the
statement as a serious expression of an intention to inflict
bodily harm.” Id. (citation and emphasis omitted). This
objective intent standard protects non-threatening speech
8
Similarly, in United States v. Bagdasarian the Ninth Circuit
wrote in dicta that, in light of Black, “[a] statement that the
speaker does not intend as a threat is afforded constitutional
protection and cannot be held criminal.” 652 F.3d 1113, 1122
(9th Cir. 2011).
21
while addressing the harm caused by true threats.
Accordingly, the Kosma objective intent standard applies to
this case and the District Court did not err in instructing the
jury.
B.
Elonis contends the indictment was insufficient
because it did not quote the language of the allegedly
threatening statements. An indictment “must be a plain,
concise, and definite written statement of the essential facts
constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).
An indictment is sufficient when it “(1) contains the elements
of the offense intended to be charged, (2) sufficiently apprises
the defendant of what he must be prepared to meet, and (3)
allows the defendant to show with accuracy to what extent he
may plead a former acquittal or conviction in the event of a
subsequent prosecution.” United States v. Vitillo, 490 F.3d
314, 321 (3d Cir. 2007) (internal quotations omitted). We
have found an indictment is sufficient “where it informs the
defendant of the statute he is charged with violating, lists the
elements of a violation under the statute, and specifies the
time period during which the violations occurred.” United
States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012), cert. denied,
133 S. Ct. 422 (2012).
In Huet we found an indictment for aiding and abetting
a felon in possession of a firearm was sufficient because it
alleged the previous felony conviction of the principal, the
time period of the violation and the specific weapon involved,
and alleged the defendant “knowingly aided and abetted
Hall’s possession of that firearm.” Id. at 596. “No more was
required to allow Huet to prepare her defense and invoke
double jeopardy.” Id.
22
The Eighth Circuit considered an indictment that did
not include the verbatim contents of a letter, the date it was
written, or the name of the author. Keys v. United States, 126
F.2d 181, 184-85 (8th Cir. 1942). The indictment for
communicating a threat to injure with the intent to extort
merely stated the letter threatened to harm the reputation of
the victim with intent to extort. Id. at 182-83. Since the
indictment summarized the contents of the letter, provided the
date it was mailed and the name of the addressee, the Eighth
Circuit found there could be no confusion as to the elements
and subject of the crime. Id. at 185 (“The fact that the
defendant upon reading the indictment recognized the letter
referred to and made no objection to the description at the
time indicates the want of merit in his present criticism.”).
To find a violation of 18 U.S.C. § 875(c) a defendant
must transmit in interstate or foreign commerce a
communication containing a threat to injure or kidnap a
person. 18 U.S.C. § 875(c). Here the indictment on Count 2
stated:
On or about November 6, 2010, through on or
about November 15, 2010, in Bethlehem, in the
Eastern District of Pennsylvania, and elsewhere,
defendant ANTHONY DOUGLAS ELONIS
knowingly and willfully transmitted in interstate
and foreign commerce, via a computer and the
Internet, a communication to others, that is, a
communication containing a threat to injure the
person of another, specifically, a threat to injure
and kill T.E., a person known to the grand jury.
23
In violation of Title 18, United States Code,
Section 875(c).
The indictment on the other counts was identical, but stated
each date of the threat, the nature of the threat, and the
subjects of the threat. Count 3 alleged “a threat to injure
employees of the Pennsylvania State Police and the Berks
County Sheriff’s Department”; Count 4 alleged “a threat to
injure a kindergarten class of elementary school children”;
and Count 5 alleged “a threat to injure an agent of the Federal
Bureau of Investigation.” Elonis contends the indictment was
deficient because they did not include the allegedly
threatening statements.
The indictment was sufficient because the counts
describe the elements of the violation, the nature of the threat,
the subject of the threat, and the time period of the alleged
violation. For example, Count Four alleged defendant
communicated over the internet on November 16, 2010 “a
threat to injure a kindergarten class.” If Elonis had already
been charged with this statement, the indictment provided
enough information to challenge a subsequent prosecution.
Based on the indictment, defendant was notified he needed to
dispute that the statement was a threat, that he communicated
the statement, and that he transmitted the statement through
interstate commerce. Moreover, like the defendant in Keys,
Elonis was able to identify which internet communications
the indictment described, since he did not raise the issue until
after trial. 9
9
Elonis did challenge the sufficiency of the indictment prior
to trial, but only on constitutional grounds. The indictment
did not include a subjective intent to threaten.
24
C.
Elonis contends there was insufficient evidence to
convict on Counts 3 and 5 of the indictment because the
statements on which they were based were not threats. “A
claim of insufficiency of evidence places a very heavy burden
on the appellant.” United States v. Coyle, 63 F.3d 1239, 1243
(3d Cir. 1995). “[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
omitted).
1.
Elonis contends Count 3 was based on a conditional
statement, which he asserts cannot be a true threat. In Watts
the Supreme Court found the conditional nature of
defendant’s statement to be one of the three factors
demonstrating it was not a true threat. Watts, 394 U.S. at 708
(“Taken in context, and regarding the expressly conditional
nature of the statement and the reaction of the listeners, we do
not see how it could be interpreted otherwise.”). Elonis
posted the following on his Facebook page:
Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
25
And prison time will add zeroes to my
settlement
Which you won’t see a lick
Because you suck dog dick in front of children
****
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s
department
[link: Freedom of Speech, www.wikipedia.org]
We considered the impact of conditional statements on
the true threat analysis in Kosma, 951 F.2d at 554. We found
that Watts did not hold conditional statements can never be
true threats. Id. at 554 n.8 (“Even if Kosma’s threats were
truly conditional, they could still be considered true threats.”).
We explained the conditional statements in Watts “were
dependent on the defendant’s induction into the armed
forces—a condition which the defendant stated would never
happen.” Id. at 554. Because the defendant’s threats in
Kosma stated a precise time and place for carrying out the
alleged threats, they were true threats. Id.
Here the District Court found that a reasonable jury
could find the statement to be a true threat. United States v.
Elonis, 897 F. Supp. 2d 335, 346 (E.D. Pa. 2012). Unlike in
Watts, Elonis did not vow the condition precedent would
never occur. However, this case is also unlike Kosma, where
the statement included a particular time and place. Elonis’s
statement only conveys a vague timeline or condition. But,
taken as a whole, a jury could have found defendant was
threatening to use explosives on officers who “[t]ry to enforce
an Order” of protection that was granted to his wife. Since
26
there is no rule that a conditional statement cannot be a true
threat—the words and context can demonstrate whether the
statement was a serious expression of intent to harm—and we
give substantial deference to a jury’s verdict, there was not
insufficient evidence for the jury to find the statement was a
threat.
2.
Defendant contends that the statement on which Count
5 is based is a description of past conduct, not a future intent
to harm:
You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch
ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner
[laughter]
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
27
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all
goin’
[BOOM!]
A threat under § 875(c) is a communication
“expressing an intent to inflict injury in the present or future.”
United States v. Stock, No. 12-2914, slip op. at 13 (3d Cir.
Aug. 26, 2013). It was possible for a reasonable jury to
conclude that the statement “the next time you knock, best be
serving a warrant [a]nd bring yo’ SWAT and an explosives
expert” coupled with the past reference to a bomb was a
threat to use explosives against the agents “the next time.”
Indeed, the phrase “the next time” refers to the future, not a
past event. Accordingly, a reasonable jury could have found
the statement was a true threat.
D.
Elonis contends the jury instruction stating
communications that travel over the internet necessarily travel
in interstate commerce violated his due process rights because
the government was required to prove interstate transmission
as an element of the crime. The District Court instructed the
jury: “Because of the interstate nature of the Internet, if you
find beyond a reasonable doubt that the defendant used the
Internet in communicating a threat, then that communication
traveled in interstate commerce.” Trial Tr. 126, Oct. 11, 2011.
In United States v. MacEwan we explained the
difference between interstate transmission and interstate
28
commerce. 445 F.3d 237, 243-44 (3d Cir. 2006). The
defendant in MacEwan contended the government failed to
prove he received child pornography through interstate
commerce because a Comcast witness testified it was
impossible to know whether a particular transmission traveled
through computer servers located entirely within
Pennsylvania, or to any other server in the United States. Id.
at 241-42. “[W]e conclude[d] that because of the very
interstate nature of the Internet, once a user submits a
connection request to a website server or an image is
transmitted from the website server back to [the] user, the
data has traveled in interstate commerce.” Id. at 244.
“Having concluded that the Internet is an instrumentality and
channel of interstate commerce . . . . [i]t is sufficient that
MacEwan downloaded those images from the Internet, a
system that is inexorably intertwined with interstate
commerce.” Id. at 245.
Elonis distinguishes MacEwan by stating that in that
case the government presented evidence on how the internet
worked. But the government’s evidence in MacEwan did not
show that any one of the defendant’s internet transmissions
traveled outside of Pennsylvania. 10 We found that fact to be
irrelevant to the question of interstate commerce because
submitting data on the internet necessarily means the data
travels in interstate commerce. Id. at 241. Instead, we held
10
Notably, the government did present testimony on how
Facebook works. A computer forensic expert, Michael
Moore, testified about privacy settings and that when a
Facebook account is made public the postings can be seen by
“whoever has access to it through the internet throughout the
world.” Trial Tr. 15-17, Oct. 17, 2011.
29
“[i]t is sufficient that [the defendant] downloaded those
images from the Internet.” Id. at 245. Based on our
conclusion that proving internet transmission alone is
sufficient to prove transmission through interstate commerce,
the District Court did not err in instructing the jury.
IV.
For the foregoing reasons we will uphold Elonis’s
convictions under 18 U.S.C. § 875(c).
30