                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 18-3036


                            UNITED STATES OF AMERICA

                                             v.

                              CHAD MICHAEL STONER,
                                           Appellant
                                  ______________

                       Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-16-cr-00357-001)
                            District Judge: Hon. Yvette Kane
                                     ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     July 8, 2019
                                  ______________

             Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges.

                                   (Filed: July 18, 2019)

                                     ______________

                                        OPINION ∗
                                     ______________

SHWARTZ, Circuit Judge.




       ∗
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Chad Stoner was convicted of conspiring to make and making threatening

communications as well as mailing threatening communications. He appeals his

convictions and the application of three sentencing enhancements. Because there was

sufficient evidence to convict Stoner on all counts and because the District Court

properly applied the sentencing enhancements, we will affirm.

                                             I

                                             A

       Stoner was charged in a superseding indictment with conspiracy to transmit a

threat in interstate commerce, 18 U.S.C. § 371; transmission of a threat in interstate

commerce, 18 U.S.C. § 875(c); mailing threatening communications, 18 U.S.C. § 876(c);

and various firearm offenses. Stoner pled guilty to one count of unlawful possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g), and the Government dismissed the

remaining firearms counts. Stoner went to trial on four threat-related counts.

                                             B

       At trial, the jury heard testimony from township supervisor Loretta Wilhide,

Officer Zachary Grey, township manager Lou Anne Bostic, Detective Mark Baker, FBI

Special Agent Gary Leone, and Trooper Hugh Earhart. The Government also presented

copies of letters Stoner sent to his girlfriend and co-conspirator Emily Winand from

prison, recordings of phone calls between the two from prison, and two recordings of

interactions between Stoner and township officials.

       Wilhide testified that Stoner, a resident of Conewago Township, frequently

attended township meetings. One evening, he caused a disturbance, prompting Wilhide

                                             2
to call the police. Officer Grey arrested Stoner and charged him with disorderly conduct

and disruption of a public meeting.

       The following day, Stoner and Winand went to the township building to speak to

Bostic. Stoner was wearing a “long machete type knife and a holster” strapped to his leg.

JA 102. Stoner demanded a written statement concerning whether township meetings

were recorded and the addition of an item to a future meeting agenda addressing the

“official corruption” between the police department and Wilhide and the “clear and

present prejudicial attacks that she is taking upon [Stoner].” Recording at Township

Building, Aug. 4, 2016, at 2:58-3:44. Stoner told Bostic that if Wilhide “continues to act

in the way that she is, I think Houston, Texas, is going to turn into Conewago

Township,” 1 Recording at Township Building at 4:00-4:08, explaining to her that he was

referring to “where they shot all them cops,” Recording at Township Building at 4:11-

4:14. Finally, as Stoner and Winand were leaving the building, Stoner told Bostic to let

Wilhide know that he was “out” of jail. JA 102. Winand recorded the interaction.

       Bostic “was a little shaken up.” JA 102. She composed herself and then called the

chief of police to inform him that “Chad Stoner had just been in the office and stated

what [she] felt was a threat that they should be aware of.” JA 102. After reviewing

surveillance footage of the incident, Detective Baker arrested Stoner for terroristic

threats.


       1
         In a later prison call, Winand and Stoner discussed how Stoner said Houston
rather than Dallas, where the shooting of several police officers had actually occurred,
and that Stoner meant that Conewago would be like Dallas, not that Dallas would be like
Conewago.
                                             3
       In recorded phone calls from prison, Winand and Stoner discussed posting on the

internet the recording of the interaction between Bostic and Stoner despite his lawyer’s

likely disapproval. In these discussions, Stoner remarked to Winand “once again you

wonder why the people of Dallas did what they did.” JA 216. Less than a week after

Stoner’s encounter with Bostic and his arrest, the video was posted on YouTube.

       Around the same time, Stoner was the subject of a separate firearms investigation.

In connection with that investigation, Trooper Earhart and Special Agent Leone searched

Stoner’s home, where they found a safe containing letters from Stoner to Winand and a

list of names and addresses of local police officers and their families. In the letters,

Stoner said that “we do need to kill more ‘law enforcement[’] or in other words ‘domestic

terrorist[s].’” JA 225; see JA 111. He expressed “hope” that “more people start killing

cops again,” JA 225, and referred to a quote he attributed to a founding father about

replenishing the “tree of Liberty” with “the blood of . . . Tyrants and Patriots,” JA 226.

Expressing frustration with his incarceration, Stoner wrote that there are “people that are

going to have hell to pay, when I do get out. I’ve decided that some of them have caused

more [than] enough harm to myself and my family to justify a retaliation. What’s even

better is, I have a lot of time to plan.” JA 234. Stoner’s letters also directed Winand to

purchase “as much of the 5.56 armor-piercing Raufoss rounds [as she could]” for his AR-

15 rifle. JA 245. He referred to the ammunition as “the ‘cop killers.’” JA 245.

       The jury returned guilty verdicts on all counts.

                                              C



                                              4
       At sentencing, the District Court adopted the Probation Office’s Presentence

Report (“PSR”) calculations, which recommended a total offense level of 26 for each

count and a criminal history category of VI, resulting in a sentencing range of 120-150

months.

       Stoner objected to the application of Guideline enhancements for intent to carry

out threats under U.S.S.G. § 2A6.1(b)(1), an official victim under U.S.S.G. § 3A1.2(b),

and stolen firearms under U.S.S.G. § 2K2.1(b)(4). The District Court concluded that the

trial record supported the six-level enhancements for both an intent to carry out threats

and an official victim. At sentencing, the Court heard evidence in support of the stolen

firearm enhancement. Leone testified about the investigation into Stoner’s illegal

possession of fourteen firearms, including an AR-15. Leone explained that Stoner stole

firearms from the Hilton Brothers and later offered to sell them to another individual.

The Hiltons identified the firearms based on unique characteristics. Leone also recounted

a meeting with Donald Hamilton, who agreed to hold the AR-15 at Stoner’s request when

Stoner grew worried that law enforcement would come to his home. The Court

concluded that this evidence supported the two-level stolen firearm enhancement. The

Court then imposed a 150-month sentence.

       Stoner appeals both the trial verdicts and his sentence.

                                             II 2




       2
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
                                              5
                                              A3

       Stoner argues that there was insufficient evidence to support the jury verdicts

finding him guilty of conspiring to and transmitting a threat in interstate commerce under

§ 875(c) and mailing threatening communications under § 876(c).

       Under § 875(c), it is illegal to “transmit[] in interstate or foreign commerce any

communication containing . . . any threat to injure the person of another.” Under

§ 876(c), it is illegal to “deposit[] [in any post office or unauthorized depository for mail

matter] or cause[] to be delivered [by the Postal Service] . . . any threat to injure the

person of the addressee or of another.” To prove a threat under these statutes, the

Government must prove beyond a reasonable doubt that: (1) “the defendant transmitted a

communication for the purpose of issuing a threat or with knowledge that the

communication would be viewed as a threat,” and (2) “the defendant transmitted a

communication that a reasonable person would view as a threat.” United States v. Elonis,

841 F.3d 589, 596 (3d Cir. 2016). 4 The first element is subjective and requires proof of

the defendant’s purpose or knowledge. Id. at 596. The second element is objective and



       3
          Stoner failed to move for acquittal before the District Court, and therefore, we
review his sufficiency challenges for plain error. United States v. Wolfe, 245 F.3d 257,
260-61 (3d Cir. 2001). This entails “review[ing] the record in the light most favorable to
the prosecution to determine whether any rational trier of fact could have found proof of
guilt beyond a reasonable doubt based on the available evidence.” Id. at 261.
        4
          Because no party challenges applying Elonis to § 876(c), and two other circuit
courts have done so, we will too. See, e.g., United States v. Mabie, 862 F.3d 624, 631
(7th Cir. 2017); United States v. Crawford, 665 F. App’x 539, 541 (7th Cir. 2016) (noting
that the Supreme Court’s holding in Elonis, reading a subjective mens rea requirement
into § 875(c), “also applies to § 876(c)”); United States v. Twitty, 641 F. App’x 801, 802
n.1 (10th Cir. 2016).
                                               6
“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.” 5 Id. at

597.

       The jury convicted Stoner of making threats in both the YouTube video of his

encounter with Bostic and the letters he sent to Winand. We address the sufficiency of

the evidence to support these convictions below.

                                               1

       Posting the YouTube video documenting Stoner’s interaction with Bostic at the

township building is sufficient to support a conviction for conspiracy to transmit a threat

and transmitting a threat in interstate commerce under § 875(c). The content of the video

satisfies the subjective element. First, Stoner directly referenced violence targeting

police officers in Texas, likening Conewago Township to Texas, in connection with his

displeasure with Willhide. By saying that if Willhide “continues to act in the way that

she is” and alluding to a desire for a police massacre in Conewago, Stoner demonstrated

an awareness of a violent event and a desire to convey a threat to commit similar

violence. Recording at Township Building at 4:00-4:14. Referencing a highly sensitive

subject matter in a threat, such as a mass shooting of police officers, “make[s] it

impossible to believe [Stoner] was unaware it would be interpreted as a threat.” Elonis,



       5
        For the reasons described herein, the video Stoner and Winand posted on
YouTube and the letters Stoner sent Winand from prison contained threats that constitute
criminal conduct not protected by the First Amendment. See Elonis, 841 F.3d at 597.
                                               7
841 F.3d at 600. Second, Bostic’s decision to call the police and Stoner’s subsequent

arrest for terroristic threats placed Stoner on notice that others viewed his conduct as

threatening, and thus he had “knowledge that the communication” and contents of the

YouTube video “would be viewed as a threat.” Id. at 596; id. at 598-99 (holding that the

fact that the defendant’s ex-wife sought a restraining order against him due to prior

violent Facebook posts established that he had the requisite knowledge and thus

subjective intent under § 875(c) when he made subsequent violent Facebook posts).

Third, Stoner and Winand decided to post the video, even though Stoner expected that his

attorney would not approve. In other words, “[b]y the time he made [his YouTube post],

he was clearly aware of how his audience would understand it.” Id. at 600.

       The contents of the video are also objectively threatening. A reasonable person

seeing how Stoner was dressed, wearing a large knife and gun holster strapped to his leg,

together with his reference to the Texas police shooting if Willhide “continues to act in

the way that she is,” and hearing his statement that Bostic should tell Wilhide that Stoner

was “out” of jail, 6 were facts that would cause a reasonable person to feel threatened.

Recording at Township Building at 4:00-4:14. Bostic said she felt “shaken” by the

interaction and called the police. JA 102. For these reasons, a reasonable person would

view the video of the incident as containing a threat.

                                              2



       6
         “The language of § 875(c) does not require that the threat be made directly to the
intended target; it simply prohibits ‘any threat to injure the person of another’ made in
interstate commerce.” United States v. Morales, 272 F.3d 284, 288 (5th Cir. 2001).
                                              8
       Stoner’s letters are sufficient to support convictions for mailing threatening

communications under § 876(c). The letters demonstrate both Stoner’s subjective intent

to make a threat and knowledge that his communications would be received as threats.

Stoner was incarcerated on charges of terroristic threats at the time he sent the letters, and

thus, as with the YouTube video, he was aware that his statements about shooting law

enforcement incited fear and prompted action against him.

       In addition, a reasonable person would find the letters threatening given the

context and circumstances. In these letters, Stoner explicitly stated that more police

officers, whom he called domestic terrorists, needed to be killed, and expressed “hope”

that “more people start killing cops again.” JA 225. He wrote that there are “people that

are going to have hell to pay, when I do get out[,]” and that he had “time to plan” his

“retaliation.” JA 234. Stoner also directed Winand to purchase “cop killer[]”

ammunition, asking her to get “as much of the 5.56 armor-piercing Raufoss rounds that

[she could].” JA 121, 245. These letters were found in a safe in his home alongside a list

of local police officers and their family members. This information, in totality, would

instill fear in a reasonable person, and a reasonable person would believe that Stoner had

a specific plan to carry out violent conduct.

       Because there was overwhelming evidence to support Stoner’s convictions for

conspiring to and making threats under both §§ 876(c) and 875(c), there is no error, plain

or otherwise, in allowing the convictions to stand.




                                                9
                                            B7

       Stoner argues that the District Court improperly applied three sentencing

enhancements based on the intent to carry out a threat, an official victim, and unlawful

possession of stolen firearms. We address each enhancement in turn.

                                             1

       The Guidelines provide for a six-level sentencing enhancement where the offense

of conviction “involved any conduct evidencing an intent to carry out [a] threat.”

U.S.S.G. § 2A6.1(b)(1). In assessing this enhancement, courts can consider conduct that

occurred both during the offense and before the offense that is “substantially and directly

connected to the offense.” Id. at application n.1.

       The trial evidence showed that Stoner had an intent to carry out the threats made

in the YouTube video and in his letters. He possessed an AR-15, he told Winand that he

would have time in jail to plan how would retaliate against those who had hurt him, he

directed Winand to purchase as much “cop killer[]” ammunition as she could, JA 245,

and he had prepared a list of local police officers and their family members. Thus, the

District Court had sufficient evidence to impose the six-level enhancement under

§ 2A6.1(b).

                                             2


       7
         We “exercise plenary review over a district court’s interpretation of the
Guidelines,” but “factual findings relevant to the Guidelines” are reviewed for clear error.
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). “A finding is clearly
erroneous when[,] although there is evidence to support it, the reviewing [body] on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Id. (alteration in original) (internal quotation marks and citation omitted).
                                            10
       The District Court also had sufficient evidence to impose a separate six-level

sentencing enhancement under U.S.S.G. § 3A1.2(b). This enhancement applies where

the offense victim was a government officer or employee, the offender’s conduct “was

motivated by such status,” and the offense was an offense against the person. U.S.S.G.

§ 3A1.2 & application n.3.

       Stoner’s threats were targeted at township officials and police officers and their

families. Stoner made the threatening comments contained in the YouTube video while

speaking with the township manager at the township building about the township

supervisor and alleged corruption between the township supervisor and local police. His

letters expressed his desire to “kill more ‘law enforcement,’” and his hope that people

“start killing cops again.” JA 225. His statements in phone calls with and letters to

Winand show that his threats against these individuals were motivated by their status as

law enforcement or government officials.

       Stoner’s claim that his threats were born out of policy disagreement rather than

motivated by official status is irrelevant. Stoner disagreed with Wilhide and the police

for actions they took in their official capacities, or as he put it, for their “clear and

present prejudicial attacks” against him, Recording at Township Building at 2:58-3:44,

and inactions they took as police officers and township officials. 8 Thus, the District

Court did not err in applying the six-level enhancement under § 3A1.2.



       8
        Stoner’s assertion that the enhancement does not apply because he had personal
disputes with the Township officials is unavailing. Application note 3 to U.S.S.G.
§ 3A1.2 excludes, for example, personal disputes where “the defendant and victim were
                                               11
                                            3

      The record also supports the two-level stolen firearm enhancement under U.S.S.G.

§ 2K2.1(b)(4). At sentencing, Special Agent Leone testified that Stoner stole firearms,

including the AR-15, from the Hilton Brothers, who identified the firearms based on

their unique characteristics. According to the PSR, Stoner specifically asked a friend to

keep the AR-15 for him because he anticipated that law enforcement would be searching

his home. Thus, the evidence supported the stolen firearm enhancement.

      In sum, the District Court did not clearly err in applying these three Guidelines

enhancements.

                                           III

      For the foregoing reasons, we will affirm.




employed by the same government agency.” Stoner was not employed by a government
agency.
                                           12
