United States v. Abraham Jacob Alkhabaz, Also Known as Jake Baker , 104 F.3d 1492 ( 1997 )

MABTIN, C. J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KRUPANSKY, J. (pp. 1496-1507), delivered a separate dissenting opinion.

BOYCE F. MARTIN, Jr., Chief Judge.

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 Gon-da — 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 “ne,” 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, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974) (emphasis added)), cert. denied, 505 U.S. 1206, 112 S.Ct. 2997, 120 L.Ed.2d 874 (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. United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir.1994); United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990).

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(e): “(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, 100 S.Ct. 948, 957 n. 13, 63 L.Ed.2d 250 (1980) (quoting William Shakespeare’s Measure for Measure, Act V, Scene 1; G. Williams, Criminal Law, The General Part 1 (2d ed. 1961)).

Although its language does not specifically contain a mens rea element, this Court has interpreted Section 875(e) as requiring only general intent. DeAndino, 958 F.2d at 148-50. 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(e).

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 F.2d 1469 (10th Cir.), cert. denied, 498 U.S. 867, 111 S.Ct. 181, 112 L.Ed.2d 145 (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. DeAndino, 958 F.2d at 149-50. 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. United States v. Aman, 31 F.3d 550 (7th Cir.1994); United States v. Bellrichard, 994 F.2d 1318 (8th Cir.1993); see, e.g., R.AV. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (threats of violence are proscribable because of the fear caused by the threat, the disruption engendered by such fear, and the possibility that the threat of violence will occur). 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 “eommunication[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, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (emphasis added)). We agree with the district court, that “[wjhatever 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.