United States v. Anthony Elonis ( 2016 )


Menu:
  •                                     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 District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal No. 5-11-cr-00013-001
    District Judge: Honorable Lawrence F. Stengel
    On Remand from the Supreme Court of the United States
    on June 1, 2015
    Argued after Remand on May 2, 2016
    Before: MCKEE, Chief Judge, HARDIMAN, and
    SCIRICA, Circuit Judges
    (Filed: October 28, 2016)
    Ronald H. Levine, Esq.
    Abraham J. Rein, Esq. [ARGUED]
    Post & Schell
    1600 John F. Kennedy Boulevard
    Four Penn Center, 13th Floor
    Philadelphia, PA 19103
    Counsel for Appellant
    Michael L. Levy, Esq. [ARGUED]
    Robert A. Zauzmer, Esq.
    Office of United States Attorney
    615 Chestnut Street
    Suite 1250
    Philadelphia, PA 19106
    Sherri A. Stephan, Esq.
    Office of United States Attorney
    504 West Hamilton Street
    Suite 3701
    Allentown, PA 18101
    Counsel for Appellee
    
    Judge McKee was Chief Judge at the time this appeal was
    argued. Judge McKee completed his term as Chief Judge on
    September 30, 2016. Judge D. Brooks Smith, assumed Chief
    Judge status on October 1, 2016.
    2
    _________________
    OPINION OF THE COURT
    _________________
    SCIRICA, Circuit Judge
    Anthony Elonis was convicted of violating 18 U.S.C. §
    875(c), which prohibits transmitting in interstate commerce a
    communication containing a threat to injure the person of
    another. We affirmed his conviction on appeal, but the
    Supreme Court reversed our judgment. It held that the jury
    instruction regarding Elonis’s mental state was insufficient
    and therefore erroneous. On remand, we will once again
    affirm Elonis’s conviction because we hold the error was
    harmless.
    I.
    In May 2010, Elonis’s wife left him, moved out of
    their home, and took their two children with her. Shortly
    thereafter Elonis began having problems at work. He was an
    operations supervisor and communications technician at
    Dorney Park & Wildwater Kingdom amusement park. His
    supervisors observed him 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, on one occasion Elonis came into
    her office late at night and began to undress in front of her.
    3
    She left after he removed his shirt. Morrissey also reported
    another incident in which Elonis made an employee who was
    a minor female uncomfortable when he placed himself close
    to her and told her to stick out her tongue.
    Elonis’s problems came to a head on October 17,
    2010, when he posted a photograph from a Halloween event
    at the park to his Facebook page, showing him holding a
    knife to Morrissey’s neck. He added the caption “I wish”
    under the photo. When his supervisor saw the Facebook post,
    Elonis was fired.
    Two days later, on October 19, Elonis posted another
    violent statement to his Facebook page. He wrote:
    Someone once told me that I was a firecracker.
    Nah. I’m a nuclear bomb and Dorney Park just
    f***ed with the timer. If I was the general
    manager, I’d be on the phone with Sandusky1
    discussing a damage control plan. But I’m not
    and y’all haven’t heard the last of Anthony
    Elonis.
    This post raised concern among Elonis’s coworkers, who
    followed him on Facebook. They voiced their concern in
    Facebook posts of their own. One post stated, “I hope that
    Dan Hall [chief of patrol at Dorney Park] is aware that
    security needs to be looking out for him . . . ,” and another
    expressed fear that Elonis would “hurt or kill” someone.
    1
    Sandusky, Ohio is the location of Dorney Park’s corporate
    headquarters.
    4
    Elonis was aware of these fears. He admitted at trial that he
    had saved screenshots of the posts on his computer.
    The fear among Dorney Park employees was not
    limited to these Facebook posts. Hall, the chief of patrol,
    testified at trial that he took steps to enhance park security
    and informed local police and the FBI of Elonis’s statements.
    Morrissey testified that she had chosen a hiding place in case
    Elonis ever came back to Dorney Park.
    Despite his knowledge that his violent post had scared
    coworkers, Elonis posted another violent message two days
    after viewing his coworkers’ exchanges. He wrote:
    Moles. Didn’t I tell ya’ll I had several? Ya’ll
    saying I had access to keys for the f***ing
    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 f***ing scary?
    This post became the basis for Count One of Elonis’s
    indictment, threatening park patrons and employees. He was
    acquitted of the charges in this count.
    Around the same time, Elonis began posting crude,
    degrading, and violent material to his Facebook page about
    his (soon-to-be former) wife. One post states, “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
    5
    in Toad Creek,2 and made it look like a rape and murder.”
    Another post was in response to a status update posted to
    Facebook by Elonis’s sister-in-law. Her status update read,
    “Halloween costume shopping with my niece and nephew
    should be interesting.” Elonis commented on this status,
    writing, “Tell [their son] he should dress up as matricide for
    Halloween. I don’t know what his costume would entail
    though. Maybe [his mother’s] head on a stick?” Elonis also
    posted in October 2010:
    There’s one way to love you but a thousand
    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,
    b****, 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, b****, so I
    can forgive you.
    At trial, Elonis’s wife testified that her husband’s posts “made
    [her] extremely afraid for [her] life.” The posts made her feel
    “like [she] was being stalked,” and made her feel “extremely
    afraid for [her] and [her] children’s and [her] families’ lives.”
    She sought a Protection From Abuse order—essentially, a
    restraining order—against Elonis in state court. Elonis
    attended the proceeding at which the court issued the
    restraining order on November 4, 2010.
    2
    Toad Creek runs behind Elonis’s father-in-law’s house,
    where Elonis’s wife was living at the time of the post.
    6
    The issuance of the restraining order did not stop
    Elonis’s violent rhetoric. On November 7, 2010, he posted an
    adaptation of a stand-up comedy routine to his Facebook. In
    the actual routine, a comedian explains that it is illegal for a
    person to say he wishes to kill the President, but not illegal to
    explain that it is illegal for him to say that. Elonis’s version
    substituted his wife for the President:
    Hi, I’m Tone Elonis.
    Did you know that it’s illegal for me to say I
    want to kill my wife? . . .
    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. . . .
    Um, but what’s interesting is that it’s very
    illegal to say I really, really think someone out
    there should kill my wife. . . .
    But not illegal to say with a mortar launcher.
    Because that’s its own sentence. . . .
    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. . . .
    Yet even more illegal to show an illustrated
    diagram.
    [diagram of the house]. . . .
    The diagram of the home was accurate. At the end of the
    post, Elonis linked to a YouTube video of the original stand-
    7
    up routine, writing, “Art is about pushing limits. I’m willing
    to go to jail for my Constitutional rights. Are you?”
    This was not the last violent remark Elonis made about
    his wife on his Facebook page. On November 15, referencing
    the Protection From Abuse order, Elonis wrote:
    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 zeros to my settlement
    Which you won’t see a lick
    Because you suck dog d*** in front of the
    children . . .
    And if worse comes to worse
    I’ve got enough explosives to take care of the
    state police and Sheriff’s Department.
    These posts formed the basis of Count Two of Elonis’s
    indictment, threatening his wife. The reference to the police
    at the bottom of the November 15 post formed the basis of
    Count Three of his indictment, threatening law enforcement
    officers.
    The next day, November 16, Elonis escalated his
    violent rhetoric to include elementary schools:
    That’s it, I’ve had about enough
    I’m checking out and making a name for
    myself
    8
    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?
    This post formed the basis of Count Four of Elonis’s
    indictment.
    By this point, the FBI was monitoring Elonis’s
    Facebook posts, because Dorney Park had contacted the FBI
    regarding Elonis’s violent rhetoric against Dorney Park and
    its employees. The threat to initiate a school shooting
    prompted the FBI to visit Elonis at his house on November
    30. Elonis did not cooperate with the agents who attempted
    to interview him. Later that day, he posted:
    You know your s***’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 b***
    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
    9
    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 ya’ll to handcuff me and
    pat me down
    Touch the detonator on my pocket and we’re
    all goin’
    [BOOM!]
    Are all the pieces comin’ together?
    S***, I’m a crazy sociopath
    that gets off playin’ you stupid f***s like a
    fiddle
    And if y’all didn’t hear, I’m gonna be famous
    Cause I’m just an aspiring rapper who likes the
    attention
    who happens to be under investigation for
    terrorism
    cause y’all think I’m ready to turn the Valley
    into Fallujah
    But I ain’t gonna tell you which bridge is
    gonna fall into which river or road
    And if you really believe this s***
    I’ll have some bridge rubble to see you
    tomorrow
    [BOOM!][BOOM!][BOOM!]
    This post formed the basis of Count Five of Elonis’s
    indictment.
    II.
    10
    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). Following his indictment, he moved to
    dismiss all five counts, contending his speech was protected
    by the First Amendment. The District Court denied his
    motion and his case proceeded to trial.
    Elonis testified in his own defense at trial. He claimed
    he did not intend to make any threats, and would never act
    violently. He testified, “These were—these were lyrics.
    These—these were for entertainment purposes only. They
    weren’t intended for anyone to feel like I was threatening
    them or feel scared. I didn’t want anyone to feel scared.”
    When asked how he thought people might interpret his posts,
    Elonis responded, “You know, I didn’t really care what other
    people thought.” He further testified, “I made an on-line
    persona and I figured the worse I made myself seem, you
    know, I didn’t care what people said about me.”
    Applying circuit     precedent,   the   District   Court
    instructed the jury that
    a statement is a true threat when a defendant
    intentionally makes a statement 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
    injury or take the life of an individual.
    11
    The government’s closing argument emphasized that it was
    irrelevant whether Elonis intended the postings to be threats,
    saying:
    Even if you were to believe absolutely
    everything that he said to you today, it has
    absolutely no[] impact on whether or not you
    should find him guilty or not. . . . Again, it
    doesn’t matter what he thinks.
    The jury convicted Elonis on Counts Two through
    Five of his indictment, acquitting him only of Count One,
    threatening park patrons and employees. He was sentenced to
    forty-four months’ imprisonment.
    On appeal, Elonis argued that the Supreme Court’s
    decision in Virginia v. Black, 
    538 U.S. 343
    (2003), requires a
    jury to find that a defendant subjectively intended his
    statements to be understood as threats for them to fall under
    the true-threat exception to the First Amendment. Applying
    circuit precedent, we upheld his conviction.3
    3
    Except for the Court of Appeals for the Ninth Circuit, see
    United States v. Bagdasarian, 
    652 F.3d 1113
    , 1117 (9th Cir.
    2011); United States v. Cassel, 
    408 F.3d 622
    , 631–32 (9th
    Cir. 2005), our opinion conformed to the general agreement at
    the time among other sister circuits that an objectively
    threatening communication falls into the true-threat exception
    to the First Amendment, see, e.g., United States v. White, 
    670 F.3d 498
    , 510 (4th Cir. 2012) (collecting cases), abrogated by
    Elonis v. United States, 
    135 S. Ct. 2001
    (2015). None have
    had a chance to reconsider in light of the Supreme Court’s
    opinion in this case.
    12
    The Supreme Court granted certiorari and reversed.
    Elonis v. United States, 
    135 S. Ct. 2001
    (2015). The Court
    did not reach the First Amendment issues presented by the
    case. Instead, it based its ruling on its interpretation of the
    statute under which Elonis was convicted, Section 875(c).
    Reasoning that “[f]ederal criminal liability generally does not
    turn solely on the results of an act without considering the
    defendant’s mental state,” the Court rejected the objective
    standard under which the jury was instructed. 
    Id. at 2012.
    While the Court added that in this case, there was no dispute
    that a knowledge or purpose standard would satisfy Section
    875(c)’s mental state requirement, it declined to address
    whether a recklessness standard would be sufficient. 
    Id. Accordingly, it
    reversed our judgment and remanded the case
    for further proceedings consistent with its opinion.
    Justice Alito concurred in part and dissented in part
    from the majority’s opinion. He would have decided the
    recklessness issue and held that a recklessness standard
    satisfies Section 875(c)’s mental state requirement. 
    Id. at 2016
    (Alito, J., concurring). He also suggested that on
    remand we “consider whether [Elonis’s] conviction can be
    upheld on harmless-error grounds.” 
    Id. at 2018
    (Alito, J.,
    concurring).
    III.
    A.
    The jury at Elonis’s trial was instructed it could
    convict him under Section 875(c) if it found that “a
    reasonable person in [his] position” would have “foreseen
    13
    that the communication he made would have been interpreted
    by the recipient as a serious expression of an intention to
    inflict bodily injury or take the life of an individual.” The
    Supreme Court held this instruction was insufficient and
    therefore erroneous, because “negligence is not sufficient to
    support a conviction under Section 875(c).” Elonis, 135 S.
    Ct. at 2013. Instead, the Court explained, the jury should
    have been instructed it could convict Elonis if it found he
    “transmit[ted] a communication for the purpose of issuing a
    threat, or with knowledge that the communication w[ould] be
    viewed as a threat.” 
    Id. at 2012.
    The Court left open the
    question of whether an instruction on a standard of
    recklessness would be sufficient under Section 875(c) or
    under the First Amendment.
    We believe Section 875(c) contains both a subjective
    and objective component, and the Government must satisfy
    both in order to convict a defendant under the statute. The
    Supreme Court focused on the subjective component. It held
    that to satisfy the subjective component of Section 875(c), the
    Government must demonstrate beyond a reasonable doubt
    that the defendant transmitted a communication for the
    purpose of issuing a threat or with knowledge that the
    communication would be viewed as a threat.4
    The Government must also satisfy the objective
    component, which requires it to prove beyond a reasonable
    doubt that the defendant transmitted a communication that a
    4
    As noted, the Court did not address whether a finding of
    recklessness would be sufficient.
    14
    reasonable person would view as a threat.5 The objective
    component of Section 875(c) shields individuals from
    culpability for communications that are not threatening to a
    reasonable person, distinguishing true threats from hyperbole,
    satire, or humor. See Watts v. United States, 
    394 U.S. 705
    ,
    708 (1969). It requires the jury to consider the context and
    circumstances in which a communication was made to
    determine whether a reasonable person would consider the
    communication to be a serious expression of an intent to
    inflict bodily injury on an individual. See Virginia v. Black,
    
    538 U.S. 343
    , 360 (2003).6
    While it is clear that a defendant can be convicted
    under Section 875(c) for transmitting an objectively
    threatening communication “with knowledge that the
    communication will be viewed as a threat,” Elonis and the
    Government disagree on the application of that standard.
    Elonis contends the Government must show the defendant
    “acted with knowledge of a reasonable person’s
    5
    The District Court’s instruction in this case properly states
    the objective component.
    6
    We recognize that, in addition to this objective component,
    the Ninth Circuit requires proof of a specific intent to threaten
    to satisfy the First Amendment. See 
    Bagdasarian, 652 F.3d at 1118
    . But see United States v. Jeffries, 
    692 F.3d 473
    , 485
    (6th Cir. 2012) (Sutton, J., dubitante) (explaining that as a
    matter of statutory interpretation, Section 875(c) requires a
    subjective component, but “as a matter of constitutional
    avoidance . . . threat prohibitions like [Section 875(c)] cover
    only ‘real’ threats, threats in other words that a reasonable
    observer would take as true and real”), abrogated by Elonis,
    
    135 S. Ct. 2001
    (2015).
    15
    interpretation of the speech as threatening,” reasoning that
    “knowledge that particular persons would consider the
    communications threatening is not necessarily equivalent to
    knowledge of how a reasonable person would understand
    them.” Were this not the standard, Elonis argues, a defendant
    could violate Section 875(c) merely by “post[ing] photos of
    his pit bull on Facebook . . . knowing that some members of
    the Facebook community unreasonably found photos of such
    dogs threatening . . . .”
    Elonis’s concerns are unfounded. The objective
    component of Section 875(c) ensures that a defendant can
    only be convicted for transmitting communications that are
    objectively threatening. Moreover, his approach would
    render the objective component meaningless. Instead of
    asking the jury whether the defendant’s communication was
    objectively threatening, Elonis would ask only whether the
    defendant believed his communication was objectively
    threatening. But it is not for the defendant to determine
    whether a communication is objectively threatening—that is
    the jury’s role. If a defendant transmits a communication for
    the purpose of issuing a threat or with knowledge that the
    recipient7 will view it as a threat, and a jury determines that
    7
    We recognize it may sometimes be difficult to pinpoint the
    recipient of the communication. This is especially so in the
    age of social media, when the recipient of the communication
    may be a defendant’s Facebook followers or even the general
    public. But Section 875(c) operates the same whether the
    communication has one recipient or many. For example, if a
    defendant transmits a communication on Facebook, he
    violates Section 875(c) if the communication is objectively
    threatening and the defendant transmitted it for the purpose of
    16
    communication is objectively threatening, then the defendant
    has violated Section 875(c) whether or not he agrees the
    communication was objectively threatening.
    With this understanding of Section 875(c) in mind, we
    will turn to Elonis’s trial to determine whether the error at his
    trial was harmless.
    B.
    For a trial error to be harmless, we must “conclude
    beyond a reasonable doubt that the jury verdict would have
    been the same absent the error.” Neder v. United States, 
    527 U.S. 1
    , 19 (1999). Our inquiry “is not whether, in a trial that
    occurred without the error, a guilty verdict would surely have
    been rendered, but whether the guilty verdict actually
    rendered in this trial was surely unattributable to the error.”
    Sullivan v. Louisiana, 
    508 U.S. 275
    , 279 (1993). When the
    error involves a mens rea instruction, “[a] verdict may still
    stand, despite erroneous jury instructions, where the predicate
    facts ‘conclusively establish [mens rea], so that no rational
    jury could find that the defendant committed the relevant
    criminal act’” without also finding the requisite mens rea.
    Whitney v. Horn, 
    280 F.3d 240
    , 260 (3d Cir. 2002) (quoting
    Rose v. Clark, 
    478 U.S. 570
    , 580–81 (1986)).8
    issuing a threat or with knowledge that it would be viewed as
    a threat by his Facebook followers.
    8
    In Whitney, the jury was improperly instructed regarding the
    element of intent in a first-degree murder case. We found
    that, due to the strong circumstantial evidence of intent within
    the record, no “reasonable jury could have had any doubt
    17
    Elonis was convicted on four counts of violating 18
    U.S.C. § 875(c), which prohibits “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 . . . .” The jury was erroneously instructed under
    an objective standard. The parties dispute whether a
    recklessness standard or a knowledge standard is sufficient.
    But under either standard, we find the District Court’s error
    was harmless. The record contains overwhelming evidence
    demonstrating beyond a reasonable doubt that Elonis knew
    the threatening nature of his communications, and therefore
    would have been convicted absent the error.
    1.
    Count Two of the indictment charged Elonis with
    violating Section 875(c) by communicating a threat to injure
    his ex-wife. The jury convicted Elonis on this count under an
    objective standard, finding that the Facebook posts about his
    ex-wife would be regarded as threatening by a reasonable
    person. A review of the evidence surrounding these posts
    unequivocally demonstrates the jury would have convicted
    Elonis were it required to find that he either knew his ex-wife
    would feel threatened by the posts or that he purposely
    threatened her.
    In October 2010, just five months after Elonis’s wife
    left him, Elonis posted three messages to Facebook that
    referenced, among other things, his desire to rape her, kill her,
    about whether Whitney . . . form[ed] the intent to 
    kill.” 280 F.3d at 261
    .
    18
    put her head on a stick, and “bust this nut all over [her]
    corpse.” Following these posts, Elonis’s wife sought a
    restraining order against him. Elonis attended the proceeding
    at which the order was issued, on November 4, 2010. Despite
    knowing his wife felt threatened enough to seek a restraining
    order against him, Elonis continued his violent rhetoric with
    his November 7 post expressing, once again, his desire to kill
    his ex-wife. Just eight days later, he again posted a violent
    message about his ex-wife that explicitly referenced the
    restraining order she had obtained and asked whether it was
    thick enough to stop a bullet.
    Elonis contends the jury may have acquitted him had it
    not been instructed on an incorrect objective standard.
    According to Elonis, these errors “rendered irrelevant” his
    testimony regarding his mental state at the time he posted the
    messages to Facebook. But as Elonis concedes, Section
    875(c)’s mental state requirement can be met with proof of
    purpose or knowledge. His testimony at trial focused on his
    purpose of his Facebook posts, but never contested that he
    knew his posts would be viewed as threats.9 Thus, even if the
    jury believed Elonis’s testimony, it could still have found that
    he knew the threatening nature of his posts.
    Moreover, even if Elonis had testified he did not know
    his ex-wife would feel threatened, “harmless-error cases do
    not turn on whether the defendant conceded the factual issue
    9
    For example, Elonis testified his posts “weren’t intended for
    anyone to feel like I was threatening them or feel scared.” He
    further testified, “I’m not trying to threaten anyone.” These
    statements offer his explanation for the purpose of his posts,
    but do not address whether he knew his ex-wife would feel
    threatened by them.
    19
    on which the error bore.” 
    Rose, 478 U.S. at 583
    . “[T]he fact
    that [Elonis] denied that he had [the requisite mens rea] does
    not dispose of the harmless-error question.” 
    Id. at 583–84.
    Instead, harmless error review “mandates consideration of the
    entire record” to determine whether the error was harmless
    beyond a reasonable doubt. Id at 583.
    Reviewing the whole record, we find that even if
    Elonis had contested the knowledge element in his testimony,
    no rational juror would have believed him. Considering the
    graphic nature of the three messages Elonis posted in
    October, it is not at all credible that Elonis did not know his
    ex-wife would interpret them as threats. But it is less credible
    still that, having attended the court proceeding at which she
    sought a restraining order against him, Elonis remained
    unaware of his ex-wife’s fears as he posted more violent
    messages on November 7 and 15.                   The evidence
    overwhelmingly shows that Elonis posted those two messages
    with either the purpose of threatening his ex-wife, or with
    knowledge that she would interpret the posts as threats. No
    rational juror could conclude otherwise.
    2.
    Count Three of the indictment charged Elonis with
    violating Section 875(c) by communicating a threat to injure
    employees of the Pennsylvania State Police and Berks County
    Sheriff’s Department. Just as with Count Two, the jury
    convicted Elonis of this Count under an objective standard,
    finding that the Facebook post about the police would be
    regarded as threatening by a reasonable person.
    20
    Elonis’s post regarding the police came at the end of
    his November 15 post about his ex-wife. It stated, “And if
    worse comes to worse / I’ve got enough explosives to take
    care of the state police and Sheriff’s Department.” Elonis
    advances several arguments for why the jury would not have
    convicted him had it been instructed under a knowledge
    standard.
    First, he contends again that the objective standard
    prevented the jury from considering his testimony that he did
    not know his posts would be regarded as threatening. This
    argument fails for the same reasons as above. Contrary to his
    suggestion, Elonis never testified that he was unaware of the
    threatening nature of his posts referencing the State Police
    and the Sheriff’s Department. Elonis knew that both his
    coworkers and his ex-wife felt threatened by the violent
    rhetoric in his previous Facebook posts. Despite that, he
    posted yet another violent message stating his intention to
    detonate explosives near State Police officers and the
    Sheriff’s Department if “worse comes to worse.” If anything,
    this post is a more explicit threat than those that he knew had
    frightened his coworkers and ex-wife. It is difficult to
    imagine how Elonis could have believed it would be
    interpreted as anything but a threat.
    Second, Elonis contends the fact that his statements
    were in lyric form suggests he did not know they would be
    regarded as threats. The evidence suggests otherwise. This
    was not the first time Elonis used a lyric form to post
    threatening statements. He previously posted statements
    about Dorney Park on October 19 and 22 with a lyric form
    similar to his post about the police. But despite the use of a
    lyric form, several of Elonis’s coworkers at Dorney Park
    21
    regarded the posts as threatening, and Elonis was aware of
    their fears. He knew that his use of a lyric form did not lessen
    the threatening nature of his posts. His continued use of the
    form only heightens the likelihood he knew a reasonable
    person would interpret his post as a threat.
    Third, Elonis contends the fact he communicated his
    statements on Facebook— which he claims is “a medium that
    magnifies the potential for disconnect between the speaker’s
    intent and the audience’s understanding”—suggests he did
    not know his statements would be regarded as threats. But
    whatever disconnect there may have been surely disappeared
    when Elonis read his coworkers’ posts about how they felt
    threatened, and when he discovered his ex-wife was seeking a
    restraining order against him. By the time he made his
    statement regarding the police, he was clearly aware of how
    his audience would understand it. His Facebook post was
    written either with the purpose to threaten the police, or with
    knowledge that the post would be interpreted as a threat.
    3.
    Count Four of the indictment charged Elonis with
    violating Section 875(c) by communicating a threat to injure a
    kindergarten class of elementary school children. The
    Facebook post that formed the basis for this charge states:
    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
    22
    And hell hath no fury like a crazy man in a
    kindergarten class
    The only question is . . . which one?
    As with the other counts, Elonis contends the jury may not
    have convicted him of this count were it required to find he
    knew the post would be threatening to a reasonable person.
    We disagree.
    Elonis’s post is graphic and specific in ways that make
    it impossible to believe he was unaware it would be
    interpreted as a threat. He specifically threatens elementary
    schools in a ten-mile radius, narrows his threat further to
    kindergarten classes within those elementary schools, and
    ends his post with a haunting question that suggests he will
    carry out his threat imminently. Given the understandable
    sensitivity regarding school shootings in this country, of
    which Elonis was no doubt aware, no rational juror could
    conclude that Elonis did not have the purpose to threaten, or
    did not know that a reasonable person would feel threatened,
    when he said he would “initiate the most heinous school
    shooting ever imagined.”
    23
    4.
    Finally, Count Five of the indictment charged Elonis
    with violating Section 875(c) by communicating a threat to
    injure an FBI agent. As with the other counts, the jury
    convicted Elonis under an objective standard, finding that the
    Facebook post about the FBI agent would be regarded as
    threatening by a reasonable person.
    The post forming the basis for Count Five stated,
    referring to the FBI agent that visited Elonis’s house earlier in
    the day, “Little Agent Lady stood so close / Took all the
    strength I had not to turn the b**** ghost / Pull my knife,
    flick my wrist, and slit her throat / Leave her bleedin’ from
    her jugular in the arms of her partner.” The post further
    stated that if the FBI returned, he would detonate an explosive
    device he had strapped to his body.
    Elonis once more contends the jury may not have
    convicted him of threatening the FBI agent had it not been
    erroneously instructed under an objective standard. Once
    again, we disagree. By the time the FBI visited Elonis on
    November 30, he knew his former coworkers felt threatened
    by his posts. The chief of patrol at Dorney Park, a friend of
    Elonis’s on Facebook, felt so threatened that he enhanced
    park security, informed the local police, and notified the FBI.
    Elonis knew his ex-wife felt threatened enough by his posts to
    take out a restraining order against him. And when FBI
    agents showed up at his door, Elonis knew his followers on
    Facebook felt threatened enough to contact the FBI, and the
    FBI took those concerns seriously. Despite that knowledge,
    Elonis posted yet another violent message, this time about
    one of the FBI agents that visited him. The evidence
    24
    overwhelmingly demonstrates Elonis knew how this post
    would be interpreted. No rational juror could have found
    Elonis did not have the purpose of threatening FBI agents or
    did not know his post about FBI agents would be regarded as
    a threat.
    C.
    Our disposition on the issue of harmless error decides
    this case. Accordingly, we have no occasion to determine
    whether a finding of recklessness would be sufficient to
    satisfy the mental state requirement of Section 875(c). We
    will leave that question for another day.
    IV.
    Based on our review of the record, we conclude
    beyond a reasonable doubt that Elonis would have been
    convicted if the jury had been properly instructed. We
    therefore hold that the error was harmless, and uphold his
    conviction.
    25