United States v. Napa

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4651
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNMARLO BALASTA NAPA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:08-cr-00030-jct-1)
Submitted: February 25, 2010 Decided: March 19, 2010
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Craig J.
Jacobsen, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnmarlo B. Napa entered a conditional guilty plea,
Fed. R. Crim. P. 11(a)(2), to willfully transmitting a threat to
injure another person in violation of 18 U.S.C. § 875(c) (2006).
The conditional plea preserved Napa’s right to challenge the
district court’s denial of his motion to dismiss the indictment.
On appeal, Napa contends that the district court erred
in rejecting his argument that the communications that formed
the basis for the indictment do not fall within the parameters
of § 875(c). Napa argues that the communications were not
threats because they did not contain an expression of an intent
to commit an unlawful act of violence to a particular person or
group. As a result, he argues, the communications are protected
by the First Amendment. Finding no error, we affirm.
Napa’s indictment arose from an email message that he
sent to two Virginia Tech students. The two students, H.H. and
C.L., attended Virginia Tech on April 16, 2007, when Seung-Hui
Cho killed thirty-two people. * H.H. and C.L. had been stalked by
Cho and had received disturbing messages from him in the months
prior to the shooting. After the shooting, H.H. and C.L. were
interviewed about their prior interactions with Cho, and their
*
Because the victims did not testify in the proceedings
below, and in light of Fed. R. Crim. P. 6(e), the Government has
identified the two victims only as H.H. and C.L.
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names and photographs appeared in several newspaper stories and
on the internet.
Napa’s email, which bore the return email address
“SeungCho ,” was specifically
directed to H.H. and C.L., and was sent from Nevada to their
email addresses at Virginia Tech on the eve of the first
anniversary of the Virginia Tech shooting. The message which is
a quote from a videotape Cho sent to NBC News just prior to the
mass shooting in Norris Hall, stated:
You have never felt a single ounce of pain your whole
life. Did you want to inject as much misery in our
lives as you can just because you can? I didn’t have
to do this. I could have left. I could have fled.
But No, I will no longer run. It’s not for me. For
my children, for my brothers and sisters that you
fucked. I did it for them . . .
Napa included in the email message a hyperlink to a
“My Space” internet web page that contained information about
Cho, photographs of Cho with guns, a ballad glorifying Cho’s
acts, and photographs of both H.H. and C.L. that Napa found on
the internet. Adjacent to a photo of Cho was the statement
“Continue the Rampage.” Among the pictures on Napa’s My Space
page was a photo that showed Cho holding cutout paper dolls on
which the faces of H.H. and C.L. and Virginia Tech shooting
victims had been pasted. There were also several individual
photographs of H.H. and C.L. among the pictures on the My Space
page.
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When H.H. opened the message, she became hysterical
and called the Blacksburg Police. She also called C.L. to warn
her about the email. When C.L. opened the email, she became
very frightened and feared for her safety because the person who
had sent the email “could be anywhere.” C.L. believed that the
person who sent the message had researched the events
surrounding the shooting at Virginia Tech, discovered who H.H.
and C.L. were, found their photographs, and found their email
addresses. Upon reading the email, C.L. immediately felt
threatened.
After receiving H.H.’s call, the Blacksburg Police
reported the incident to federal authorities. The email message
was traced back to Napa, who ultimately admitted to sending the
message.
We review de novo whether a written communication is
constitutionally protected speech or “an unprotected ‘true
threat.’” United States v. Bly, 510 F.3d 453, 457 (4th Cir.
2007).
The transmission of threats in interstate commerce is
prohibited by 18 U.S.C. § 875(c). To prove a violation of
§ 875(c), “the government must establish that the defendant
intended to transmit the interstate communication and that the
communication contained a true threat.” United States v. Darby,
37 F.3d 1059, 1066 (4th Cir. 1994). The government need not
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show that the speaker actually intended to carry out the threat.
Darby, 37 F.3d at 1064 n.3 (a violation of 18 U.S.C. § 875(c) is
not a specific intent crime and “the government need not prove
intent (or ability) to carry out the threat”).
In determining whether the communication contains a
true threat, the communication must be viewed in the context in
which it is received. See United States v. Spruill, 118 F.3d
221, 228 (4th Cir. 1997) (when considering whether a statement
is a threat, “[c]ontext is important”). The communication must
be viewed using an objective standard, - that is, whether “an
ordinary, reasonable person who is familiar with the context of
the communication would interpret it as a threat of injury.”
United States v. Spring, 305 F.3d 276, 280 (4th Cir. 2002)
(internal quotation marks and alterations omitted); Darby, 37
F.3d at 1064.
In Watts v. United States, 394 U.S. 705 (1969), the
Supreme Court identified four factors in determining that
Watts’s statement was not a true threat. The Court noted that
the communication was: (1) made in jest; (2) to a public
audience; (3) in political opposition to the President; and (4)
conditioned upon an event the speaker himself vowed would never
happen. Id. at 707-08. See also United States v. Lockhart, 382
F.3d 447, 451-52 (4th Cir. 2004) (applying these four factors
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and finding that Lockhart’s statement was a true threat upon the
life of the President).
In applying these four factors to Napa’s case, we find
that the email he sent to H.H. and C.L. was a true threat. In
so finding, we note first that any ordinary, reasonable person
familiar with the context would have felt threatened by the
message and would not have construed it as a joke. Second,
unlike the statement made to the public in Watts, the statement
here was specifically directed at H.H. and C.L. Third, the
message was not constructed in a manner to engage H.H. and C.L.
in the free trade of ideas regarding the Virginia Tech shooting
or their specific interactions with the shooter. Finally,
viewing the expression in the context in which it was received,
Napa’s statement on the My Space page “Continue the Rampage,”
taken with his return email address of
seunghuichorevenge@yahoo.com, would indicate to an ordinary,
reasonable person that Napa planned on avenging Cho’s death by
committing future violent acts, and the threat of such violence
was imminent, and not conditional.
We accordingly conclude, the district court properly
denied Napa’s motion to dismiss the indictment, and affirm
Napa’s conviction. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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