                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2004

USA v. Zavrel
Precedential or Non-Precedential: Precedential

Docket No. 03-1474




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"USA v. Zavrel" (2004). 2004 Decisions. Paper 272.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/272


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                    PRECEDENTIAL          Scranton, PA 18503

          UNITED STATES                   Attorney for Appellant
        COURT OF APPEALS
       FOR THE THIRD CIRCUIT              John C. Gurganus [Argued]
                                          Office of the United States Attorney,
                                          Middle District of Pennsylvania
                                          235 North Washington Avenue
              No. 03-1474                 Scranton, PA 18501

                                          Attorney for Appellee
   UNITED STATES OF AMERICA

                   v.
                                                 _______________________
        ROSEMARY ZAVREL,
                                                 OPINION OF THE COURT
                                                 _______________________
                    Appellant
       ___               ______
                                          FUENTES, Circuit Judge:
On Appeal from the United States
                                                  This case arises in the context of the
          District Court
                                          anthrax scare of 2001. In October of that
for the Middle District of Pennsylvania
                                          year, Rosemary Zavrel mailed seventeen
                                          envelopes containing a white powdery
District Court Judge: The Honorable A.
                                          substance she intended to resemble anthrax
         Richard Caputo
                                          to various local officials, school and
       (D.C. No. 01-cr-00356)
                                          hospital workers, and to the President of
          ___________
                                          the United States. The envelopes actually
                                          contained cornstarch, and each listed a
    Argued on January 26, 2004
                                          name and return address that belonged to
                                          either of two local juveniles. Zavrel and
Before: NYGAARD, FUENTES &
                                          her roommate, Emily Forman, planned to
STAPLETON, Circuit Judges
                                          frame the two boys whom Zavrel felt had
                                          unfairly accused Zavrel’s son of making
(Opinion Filed: September 21, 2004 )
                                          terroristic threats. The scheme went awry
                                          after a local resident discovered loose
                                          white powder when she opened the inside
Patrick A. Casey [Argued]
                                          slot of a public mailbox. Police were
Office of the Federal Public Defender,
                                          called and the ensuing investigation led
Middle District of Pennsylvania
                                          directly to Zavrel and Forman. Against
116 North Washington Avenue
this backdrop, we consider the narrow                     addressees.
question of whether the mailing of an
                                                                  During the course of the
envelope containing cornstarch meant to
                                                          investigation, Nanticoke Police Detective
resemble anthrax, but containing no
                                                          William Schultz spoke with Dr. Mary
w r i t te n m e s s a g e , c o n s t i t u te s a
                                                          Scott, Principal of the Nanticoke Middle
“communication . . . containing any threat
                                                          School, who informed him that the
. . . to injure the person of the addressee”
                                                          juveniles whose addresses appeared on the
under 18 U.S.C. § 876. For the reasons
                                                          letters had been students in 1999 at the
that follow, we hold that it does, and we
                                                          Lincoln Elementary School where she had
therefore affirm the judg men t of
                                                          been principal. Schultz then discovered
conviction.
                                                          that in May 1999 he had been the
      I. F ACTUAL AND P ROCEDURAL                         investigating officer in an incident in
              B ACKGROUND                                 which the two juveniles were the reported
                                                          victims. The case was handled in juvenile
       On the morning of October 23,
                                                          court, and Zavrel’s son, also a juvenile,
2001, Cindy Donlyn went to the
                                                          was charged with making “terroristic”
Nanticoke, Pennsylvania Post Office to
                                                          threats against the boys. Zavrel’s son had
drop off some mail. When she opened the
                                                          apparently threatened to bring an
mailbox outside of the post office, she
                                                          automatic handgun to school and shoot the
noticed some white powder on the chute
                                                          two juveniles as well as a third student.
inside the box and informed a postal
                                                          After a period of suspension from school,
worker. The Postmaster inspected the
                                                          Zavrel’s son was prosecuted, adjudicated
mailbox and quickly notified his superiors
                                                          delinquent and placed in juvenile
in Harrisburg and Washington, D.C., as
                                                          detention. Schultz recalled that Zavrel
well as the local police. The police
                                                          contacted his department numerous times
unbolted the box from the ground and
                                                          during the pendency of the case, urging
moved it to the back loading dock of the
                                                          that her son was innocent and that the
post office so that no customers could
                                                          other boys were lying.
come near it. When the police opened the
box they discovered several letters                               A search of Zavrel’s apartment
containing white powder. At this point,                   turned up envelopes with the juveniles’
the Postmaster closed the entire post                     names and addresses typed onto them, a
office. The Luzerne County Emergency                      partially used book of “Love USA” stamps
Management Agency sent a team in                          (the same stamps that were affixed to the
protective suits to investigate further. The              letters found in the Nanticoke post office),
emergency personnel discovered the                        a partially empty box of cornstarch, and
remaining letters, all containing a white                 latex gloves. A number of clippings about
powdery substance that w as later                         the anthrax scare facing the nation were
determined to be cornstarch. The letters                  also found in the apartment. After Zavrel
were seized and never delivered to the                    was arrested and taken from her residence

                                                      2
by the police, her roommate, Forman,               the evidence, we should apply a de novo
admitted to investigators that she and             standard in reviewing this case; the
Zavrel had mailed the letters in retaliation       government argues that a “particularly
against the boys whom they believed had            deferential” standard should apply. See
lied about the actions of Zavrel’s son.            United States v. Cartwright, 359 F.3d 281,
                                                   286 (3d Cir. 2004) (“The verdict must be
        By indictment filed in July 2002,
                                                   sustained if there is substantial evidence to
Zavrel was charged with conspiracy to
                                                   support it”) (citations omitted). Although
mail threatening communications, in
                                                   Zavrel frames her appeal as one about the
violation of 18 U.S.C. §§ 371 and 876
                                                   sufficiency of the evidence, her arguments
(Count 1); aiding and abetting the mailing
                                                   actually concern issues of statutory
of threatening communications, in
                                                   interpretation, and we will therefore
violation of 18 U.S.C. § 876 (Count 2);
                                                   exercise plenary review. United States v.
and making a false statement to a federal
                                                   Thayer, 201 F.3d 214, 219 (3d Cir. 1999).
officer, in violation of 18 U.S.C. § 1001
(Count 3).
                                                                III. D ISCUSSION
       Following a five-day jury trial,
Zavrel was convicted on all counts, and                    Zavrel c onc e de s that th e
the District Court imposed a sentence of           government proved the following facts at
30 months’ imprisonment for each count,            trial: In October 2001, Zavrel and her
to be served concurrently. At the end of           then-roommate Emily Forman addressed
the government’s case and again at the end         seventeen envelopes containing loose
of the defense’s case, defense counsel             cornstarch (but no written message) to the
unsuccessfully moved for a judgment of             President of the United States, local
acquittal on all counts. Following the jury        public officials, school administrators, and
verdict, defense counsel again filed a             judges, and deposited them in a mailbox in
motion for judgment of acquittal, which            the Nanticoke, Pennsylvania Post Office.
the District Court denied.                         The envelopes bore the names and return
                                                   addresses of two boys who had reported
       This appeal followed.
                                                   the criminal acts committed by Zavrel’s
 II. J URISDICTION AND S TANDARD OF                son, which Zavrel felt unjustly led to her
               R EVIEW                             son’s placement in juvenile detention.
                                                   Zavrel informed an investigator that the
        The District Court had jurisdiction
                                                   letters were mailed “to make those kids
over this case pursuant to 18 U.S.C. §
                                                   pay for what they did,” (Zavrel Brief at 5),
3231. We exercise jurisdiction over the
                                                   and she admitted to Agent Bill Salvoski of
final judgment in this case under 28 U.S.C.
                                                   the United States Secret Service that the
§ 1291.
                                                   cornstarch was used to make the envelopes
       Zavrel argues that because the              appear as if they contained anthrax, and
issues on appeal concern the sufficiency of        that she hoped it would result in the

                                               3
juveniles being placed in detention.               875(c) for threats made to a person other
                                                   than the person the defendant intended to
        Zavrel argues on appeal that this
                                                   threaten).
evidence was insufficient to convict her
under counts one and two (the charges                      Zavrel claims that her actions do
brought under 18 U.S.C. § 876), because            not amount to a violation of the statute for
she contends that mailing of cornstarch            two main reasons. First, she argues that
alone is insufficient to prove that she            absent the enclosure of a written message,
mailed a “communication” containing a              the mailing of cornstarch cannot constitute
“threat to injure” the addressee, under the        a “communication” within the meaning of
statute. The relevant portion of the statute       the statute. Second, Zavrel argues that she
states:                                            did not threaten the addressees of the
                                                   letters, as required under the statute,
       Whoever knowingly so
                                                   because any harm caused by the mailings
       deposits or causes to be
                                                   would have been immediate, and, she
       delivered [by the United
                                                   asserts, the statute only envisions
       States Postal Service] . . .
                                                   prospective threats.
       any communication with or
       without a name or                           A.W HETHER M AILING C ORNSTARCH
       designating mark subscribed                 C ONSTITUTES “C OMMUNICATION”
       thereto, addressed to any
                                                          Zavrel claims that Congress did not
       other person and containing
                                                   intend for the mailing of cornstarch to
       . . . any threat to injure the
                                                   constitute “communication” under 18
       person of the addressee or
                                                   U.S.C. § 876. The first step in discerning
       of another, shall be fined
                                                   the meaning of a statute is to determine
       u n d e r t h i s t i tl e o r
                                                   whether the language used “has a plain and
       imprisoned not more than
                                                   unambiguous meaning with regard to the
       five years, or both.
                                                   particular dispute in the case.” Ki Se Lee
                                                   v. Ashcroft, 368 F.3d 218, 222 (3d Cir.
                                                   2004) (citations omitted). See also Liberty
18 U.S.C. § 876(c). The primary purpose
                                                   Lincoln-Mercury, Inc. v. Ford Motor Co.,
of the statute is to prohibit the use of the
                                                   171 F.3d 818, 822 (3d Cir. 1999) (“In the
mails to send threatening communications.
                                                   absence of a specific statutory definition,
Under this provision, the government must
                                                   the language of the statute should be given
establish that Zavrel deposited, in the
                                                   its ordinary meaning and construed in a
mails, a “communication” containing a
                                                   common sense manner to accomplish the
“threat to injure” the addressee. It does
                                                   legislative purpose.”) (internal quotations
not matter whether the communication is
                                                   and citations omitted).
actually delivered. See Seeber v. United
States, 329 F.2d 572, 573 (9th Cir. 1964)                Zavrel argues that because
(upholding a conviction under 18 U.S.C. §          Congress did not define “communication”

                                               4
in 1948 when it amended the statute and             consider not only the bare meaning of the
codified the language under which Zavrel            word but also its placement and purpose in
was charged, we must interpret the                  the statutory scheme. [T]he meaning of
language as it would have been commonly             statutory language, plain or not, depends
understood in 1948. She argues that                 on context.” United States v. Loney, 219
dictionaries in 1948 did not consider the           F.3d 281, 285 (3d Cir. 2000) (quoting
mailing of cornstarch as falling within the         Bailey v. United States, 516 U.S. 137, 145
definition of “communication.” (Zavrel              (1995) (internal quotations and additional
Brief at 11-12.) To support this point,             citations omitted) (alternation in original).
Zavrel asserts that the 1948 American
College Dictionary, published by Random
                                                             Although it is unlikely that
House, defines communication as “the
                                                    Congress envisioned this particular activity
imparting or interchange of thoughts,
                                                    when enacting the statute, we are confident
opinions, or information by speech,
                                                    that mailing a white powdery substance
writing or signs.” 1 (Zavrel Brief at 21.) It
                                                    intended to cause fear and distress plainly
is Zavrel’s position that this definition
                                                    constitutes a communication under § 876.
could not possibly encompass the mailing
                                                    Dictionaries today, as well as those dating
of cornstarch.
                                                    from Zavrel’s preferred timetable, define
        We disagree with Zavrel’s assertion         communication as not only the transfer of
that only the 1948 dictionary definitions of        information through speech and writing,
“communication” are relevant to our                 but also through “signs” or “signals.” See,
inquiry.      Zavrel correctly notes that           e.g., M ERRIAM W EBSTER’S C OLLEGIATE
dictionary definitions can be helpful in            D ICTIONARY 233 (10th ed. 1996) (defining
discerning congressional intent, but we do          “communication” as “a process by which
not limit ourselves to dictionaries dating          inform ation is exchanged between
from a statute’s enactment. See, e.g.,              individuals through a common system of
Contents of Account Number 03001288 v.              symbols, signs, or behavior”); see also T HE
United States, 344 F.3d 399, 406 (3d Cir.           A MERICAN C OLLEGE D ICTIONARY (1948)
2003) (citing to a 1993 dictionary to define        ( Z a v re l Brief at 21) ( defin in g
term in a statute enacted in 1930). Indeed,         communication as “the imparting or
we recently cautioned that “[t]here is a            interchange of thoughts, opinions, or
limit . . . to how much can be proved by            information by speech, writing, or signs”).
invoking dictionary definitions and usage.          They define communication as the process
As the Supreme Court has said: We                   by which information is conveyed between
                                                    individuals. It can be verbal, written or
                                                    symbolic. Symbols and objects that are
  1
   Zavrel cites a number of other                   used at the time a message is conveyed can
dictionaries from roughly the same                  affect the message’s meaning, as can the
period, which defined communication                 environment in which the communication
similarly.

                                                5
is made. See United States v. Lewis, 220            1948, the statute criminalized the mailing
F. Supp. 2d 548, 555 (S.D. W. Va. 2002).            of “any written or printed letter or other
                                                    communication . . . containing . . . any
        Art, photography, dance, facial
                                                    threat to injure the person of the
expression –        all may be used to
                                                    addressee.” 18 U.S.C. § 338(a), 52 Stat.
communicate ideas from one individual to
                                                    742, § 1, par. (b) (1939) (App. 29). In
another. The message does not have to be
                                                    1948, the statute was amended to
in writing to constitute a communication.
                                                    criminalize the m ailing of “any
For example, if an individual were to send
                                                    communication . . . containing . . . any
another person a letter containing a
                                                    threat to injure the person of the
photograph of the addressee with the
                                                    addressee.” 18 U.S.C. § 876, par. 3 (1948)
addressee’s head cut off, few would doubt
                                                    (App. 30). The amended statute omits any
that the sender in that case intends to
                                                    reference to “written or printed” material,
convey a message of fear, fright, or alarm.
                                                    thus making it clear that a communication
In Pratt v. United States, 129 F.3d 54, 56
                                                    need not be in writing.
(1st Cir. 1997), the defendant was
convicted under § 876 for mailing a                         In this case, we believe that in
mutilated pig carcass to a local police chief       sending a substance meant to resemble
after the officer had confiscated several of        anthrax, in envelopes addressed to various
the defendant’s firearms. The defendant             persons, Zavrel intended to convey a
was found guilty and sentenced to a                 message – a message of fear, fright and
lengthy prison term. Id. In a different             alarm. Ultimately, Zavrel wanted to frame
context, the Supreme Court has held cross           the boys whose addresses were typed on
burning, another non-verbal act, as one of          the envelopes. United States v. Lewis, a
“those forms of intimidation that are most          case decided in the context of the anthrax
likely to inspire fear of bodily harm.”             scare, presented a similar scenario. In
Virginia v. Black, 538 U.S. 343, 363                Lewis, the defendant tried to frame his ex-
(2003).                                             girlfriend by sending four letters to public
                                                    officials, including the President,
          Regardless of whether we accept
                                                    containing an unidentified white powder,
Zavrel’s 1948 definition or look to a more
                                                    a cigarette butt, and a short note reading,
current source, we are convinced that, in
                                                    “I were you [sic], I’d change my attitude.”
the context of the 2001 anthrax scare, the
                                                    (A fifth letter was mailed to a private
mailing of cornstarch, meant to resemble
                                                    citizen and contained a different note
a n t h r a x spo res, c o n s t it u t e d a
                                                    reading, “It is on.”) 220 F. Supp. 2d at
“communication” under § 876. We also
                                                    549. The court in Lewis determined that,
note that Congress likely intended the
                                                    viewed together, these items constituted
statute to have a broader reach than Zavrel
                                                    threatening communications. The court
suggests, as evidenced in part by the fact
                                                    noted specifically that, “[i]n the context of
that the 1948 amendment to the statute
                                                    the post-September 11 anthrax outbreaks,
seems to have expanded its reach. Prior to

                                                6
the mailing of any powdery substance                his life, but would also be fearful of future
through the postal system is clearly                harmful action on the part of the sender.
capable of being interpreted as a
                                                            Zavrel offers no precedential
‘threatening’ communication under
                                                    support for her notion that the phrase
sections 876 and 871.” Id. at 557-58. The
                                                    “threat to injure” in § 876 should be
court also pointed out, “[t]he white powder
                                                    interpreted as prospective in nature.2 The
included in the envelopes was mailed to
                                                    government contends that the focus of the
various individuals at a time when people
                                                    inquiry here should be whether a
were receiving mail containing the
                                                    reasonable person, familiar with the
biological agent anthrax.” Id. at 558.
                                                    context in which a threat is communicated,
       As in Lewis, the sender of the white         would perceive the communication as a
powder-filled envelopes in this case                threat of harm. The government’s position
communicated a message of apprehension,             comports with how the District Court
anxiety and fear about exposure to the              instructed the jury in this case:
powder. We therefore conclude that
Zavrel’s mailin gs co nstituted
communications within the meaning of §
                                                      2
876. We next consider whether the                       Zavrel does cite to United States v.
communications conveyed a threat to harm            Taylor, No. 02 Cr. 73 RPP, 2003 WL
the addressees.                                     22073040 (S.D.N.Y. Sept. 5, 2003) for
                                                    the proposition that § 876 mandates that
B.W HETHER Z AVREL ’ S M AILINGS                    threatening communications be
C ONTAINED T HREATS
                                                    prospective. Taylor concerned a fake
        Zavrel argues that the phrase “threat       anthrax scare at the ABC Carpet store in
to injure” in § 876 contemplates a                  New York City, and the defendant in that
prospective, not immediate, threat.                 case was charged under 18 U.S.C. §
Specifically, Zavrel contends that “§ 876           2332a(a)(2), which makes it unlawful to
does not criminalize the mailing of                 “threaten to use a weapon of mass
injurious materials; it only criminalizes the       destruction . . . against persons within the
mailing of communications containing a              United States.” Id. at *1. The court in
‘threat to injure.’” (Zavrel Brief at 15.)          that case held that the statute
Although she concedes that her letters              contemplated prospective threats. Taylor
were injurious, she contends that they were         is an unpublished district court decision
immediately harmful to recipients, and did          from New York, decided under a
not contain prospective threats to injure.          different statute than the one at issue
The government responds that a                      here. And, in any case, we are not
reasonable recipient of one of Zavrel’s             persuaded that the phrase “threaten to
letters would not only be immediately               use” as interpreted in Taylor has the
injured in the sense that he would fear for         same impact as the phrase “threat to
                                                    injure” as does our case.

                                                7
       A threat is a serious                              Our interpretation of the phrase
       statement or communication                  “threat to injure” comports with case law
       which expresses an intention                from other jurisdictions. In United States
       to inflict injury at once or in             v. Malik, 16 F.3d 45 (2d Cir. 1994), a
       the future as distinguished                 defendant in several lawsuits sent letters to
       from idle or careless talk,                 judges threatening his adversaries. The
       exaggeration or something                   Malik court defined “threat” as follows:
       said in a joking manner. A
                                                          A threat is a statement
       statement or communication
                                                          expressing an intention to
       is a threat if it was made
                                                          inflict bodily harm to
       under such circumstances
                                                          someone of such a nature as
       that a reasonable person
                                                          could reasonably induce fear
       hearing or reading the
                                                          as distinguished from idle,
       statement or receiving the
                                                          careless talk, exaggeration
       comm unica tion would
                                                          or something said in a
       understand it as a serious
                                                          joking manner. . . . A
       expression of intent to
                                                          serious expression of intent
       inflict injury . . . .
                                                          to inflict injury and not
                                                          merely a vehement or
                                                          emotional expression of
(App. at 1001-02).
                                                          political opinion, hyperbole
We believe this to be the correct approach,               o r a r g u m e n t s a g a i n st
although we do not need to decide the                     government officials.
issue definitively here, because we believe
the jury could have reasonably concluded
that Donlyn and others who were exposed            Id. at 51. We believe that Zavrel’s actions
to Zavrel’s mailings experienced both              accord with the Malik definition: a
immediate harm as well as threats of future        recipient of one of Zavrel’s envelopes
injury. A reasonable person opening an             would fear imminent harm and perhaps
envelope containing a white powdery                death upon seeing the white powder. The
substance, during the height of the anthrax        envelopes with white powder were non-
crisis in this country, would doubtless fear       verbal messages of the sender’s intent to
immediate and future injury. That is               harm the recipients.
precisely what happened in this case. The
                                                           Even if we adopted Zavrel’s
same day that she opened the mailbox and
                                                   assertion that the threats in the mailings
touched the white powder, Cindy Donlyn
                                                   must be prospective, we believe that
went to a hospital emergency room for
                                                   Zavrel’s mailings did contain threats of
diagnosis. She testified that she remained
                                                   future harm. No doubt persons who were
there for about three hours.
                                                   first exposed to Zavrel’s mailings at the

                                               8
Nanticoke post office were immediately             We also conclude that Zavrel’s mailings
dismayed when they discovered Zavrel’s             constituted threats to injure the recipient
letters. It would be natural for any person        within the meaning of the statute, and we
in such a circumstance to be fearful of            therefore affirm the judgment of the
future harm. Donlyn’s actions exemplify            District Court.
this. She testified that after she came in
contact with the white powder at the post
office she went to the hospital out of fear
that exposure to the powder might cause
her health problems.
        Mailing cornstarch, or real anthrax
for that matter, may be analogized to
mailing a bomb (real or fake) or, as in the
Pratt case discussed earlier, a dead animal.
129 F.3d at 56. The fact that some of the
contents of these mailings may be
immediately harmful does not alter the fact
that the sender in each case intends to
communicate prospective harm as well.
Additionally, opening an envelope
containing a white powder, in the
circumstances described, could not only
create an apprehension of immediate fear
and future harm, but also communicates to
the intended victim the sender’s hostility
and the idea that the sender has access to a
deadly agent that he or she can use again
in the future.
        For these reasons, we determine
that the jury in Zavrel’s case properly
concluded that Zavrel deposited a
communication in the mails containing a
threat to injure.
            IV. C ONCLUSION
       For these reasons, we conclude that,
in the wake of the 2001 anthrax scare,
mailing cornstarch does constitute a
communication under 18 U.S.C. § 876.

                                               9
UNITED STATES v. ZAVREL – NO. 03-                   message contained any threat to injure.
1474
                                                                        A.
                                                           I agree with the majority that
STAPLETON, Circuit Judge, dissenting:               Zavrel’s conduct in this case was
                                                    communicative. Determining the message
        I agree with the Court’s conclusion
                                                    that was conveyed by her communication,
that the mailing of an envelope containing
                                                    however, is no easy task. Obviously,
a white powdery substance in October
                                                    Zavrel made no verbal or written
2001 constituted a “communication”
                                                    c o m m u n i c a ti o n . Rather, her
within the meaning of 18 U.S.C. § 876. I
                                                    communicative conduct consisted of
cann ot, howeve r, agree with its
                                                    mailing envelopes that contained a white
interpretation of the phrase “containing . .
                                                    powdery substance to certain addressees in
. any threat to injure.” In my view, the
                                                    October 2001.
“threat to injure” contemplated by 18
U.S.C. § 876 requires the relevant                          Our decisions suggest that the most
communication to convey that some                   appropriate way to determine the message
prospective action will be taken by the             conveyed by Zavrel’s conduct is to
sender or the sender’s confederates. To             consider what a person receiving one of
the extent that the Court would apply a             these envelopes would reasonably perceive
broader reading of the statute than the one         the message to be. Cf. United States v.
I suggest, I would conclude that the                Himelwright, 42 F.3d 777, 782 (3d Cir.
doctrine of lenity is clearly implicated.           1994) (“[T]o establish a violation of 18
Accordingly, I respectfully dissent.                U.S.C. § 875(c), the government bore only
                                                    the burden of proving that [the defendant]
                     I.
                                                    acted knowingly and willfully when he
       Rosemary Zavrel’s conviction on              placed the threatening telephone calls and
counts one and two of her indictment                that those calls were reasonably perceived
cannot be sustained unless her conduct fell         as threatening bodily injury.”). Applying
within the proscription of 18 U.S.C. § 876.         this test, I have little trouble concluding
That statute prohibits the mailing of “any          that a person receiving and opening
communication . . . containing . . . any            Zavrel’s envelope in October 2001 would
threat to injure,” and the dispositive              believe that he had just been exposed to
question, therefore, is whether Zavrel sent         anthrax. I would therefore conclude that
a communication containing a threat to              the message conveyed by this conduct
injure. An analysis of this issue must              would be reasonably interpreted as: “I
proceed in two steps. The first is to               have just exposed you to anthrax.” This
determine the substance of the message              message, I believe, would also reasonably
conveyed by Zavrel’s conduct.          The          be perceived to include all additional
second is to determine whether that                 inferences that a recipient could make


                                               10
under the belief that he was being exposed                “communication . . . containing . . . any
to anthrax, such as: “You are now going to                threat to injure.”
become ill as a result of this exposure,” or
                                                                               B.
even: “You are now going to die as a result
of this exposure.” In essence, however,                          The term “threat” has not been
the message conveyed by Zavrel’s conduct                  defined by Congress. It must therefore be
amounts to no more and no less than: “I                   “interpreted as taking [its] ordinary,
have just poisoned you.” 3 The question                   contemporary, common meaning.” Perrin
t h e r e fo r e b e c o m e s w h e t h e r t h e        v. United States, 444 U.S. 37, 42 (1979).
communication “I have just poisoned you”                  Applying this rule of construction,
constitutes, as a matter of law, a                        numerous courts have attempted to define
                                                          the term “threat” in the context of the
                                                          federal threat statutes, 18 U.S.C. §§ 871-
   3                                                      880. We have defined it as “‘a serious
    The Court suggests that a person
                                                          expression of an intention to inflict bodily
receiving one of Zavrel’s envelopes
                                                          harm.’” United States v. Kosma, 951 F.2d
could also perceive a message that the
                                                          549, 557 (3d Cir. 1991) (quoting Roy v.
sender will send more anthrax in the
                                                          United States, 416 F.2d 874, 877-78 (9th
future. I simply cannot agree that a
                                                          Cir. 1969)). The definitions adopted by
recipient of the message “I have just
                                                          other courts are substantially similar. See,
poisoned you” would reasonably expect
                                                          e.g., United States v. Fulmer, 108 F.3d
to receive more poison at a later point in
                                                          1486, 1490-91 (1st Cir. 1997); United
time. In a case such as this, where the
                                                          States v. Alkhabaz, 104 F.3d 1492, 1495
message perceived is based solely upon
                                                          (6th Cir. 1997); United States v. Malik, 16
an object put through the mail, the
                                                          F.3d 45, 51 (2d Cir.1994); United States v.
message reasonably perceived must be
                                                          Khorrami, 895 F.2d 1186, 1192 (7th Cir.
limited to that which is conveyed by the
                                                          1990).
nature of the object itself. As the
majority suggests, a picture of the                              The message “I have just poisoned
recipient without his head may                            you” does not express the sender’s intent
reasonably connote future violence. But                   to engage in any future conduct. Rather, it
anthrax is a bacterial poison, and the                    expresses that the sender’s intent to inflict
message that one can reasonably perceive                  bodily harm has been satisfied upon
from the receipt of what appears to be                    receipt of the communication. This is
anthrax is that he or she has just been                   significant because numerous courts
exposed to a lethal poison. Given the                     require that, in order to constitute a
nature of the object contained in the                     “threat” within the context of the federal
letter, there would be no reasonable basis                threat statutes, the communication must
for inferring the need for a second                       convey the message that bodily harm will
exposure and, accordingly, no reasonable                  be inflicted by the speaker (or a
basis for expecting or fearing one.

                                                     11
confederate) in some future act.                          v. Orozco-Santillan, 903 F.2d 1262, 1265-
                                                          66 (9th Cir. 1990).
          For example, the Courts of Appeals
for the Fifth and Eleventh Circuits have                         The requirement that a “threat”
held that “[a] communication is a threat                  contemplate some future conduct by the
when ‘in its context [it] would have a                    speaker is also suggested in Black’s Law
r e a s o n a b l e t e n d e n c y t o c r e at e        Dictionary, which defines the term as
apprehension that its originator will act                 including “[a] declaration of an intention
according to its tenor.’” United States v.                to injure another or his property by some
Alaboud, 347 F.3d 1293, 1296 (11th Cir.                   unlawful act.” Black’s Law Dictionary
2003) (quoting United States v. Bozeman,                  1480-81 (6th ed. 1990) (emphasis added).
495 F.2d 508, 510 (5th Cir. 1974))
                                                                Based upon the foregoing, I cannot
(internal quotations omitted) (emphasis
                                                          conclude that the message “I have just
added). The Second Circuit Court of
                                                          poisoned you” can constitute a “threat”
Appeals has taken a similar approach,
                                                          within the meaning of § 876. Such a
stating that to qualify as a “threat,” the
                                                          message bears no indication that any
communication must “‘on its face and in
                                                          conduct will be forthcoming by the sender.
the circumstances in which it is made is so
unequivocal, unconditional, immediate and                         In this case, I have no doubt that a
specific as to the person threatened, as to               reasonable recipient of Zavrel’s envelopes
convey a gravity of purpose and imminent                  would believe that his health, and even his
prospect of execution . . . .’” New York v.               life, was in danger. That belief, however,
Operation Rescue National, 273 F.3d 184,                  could only have arisen from an event that
196 (2d Cir. 2001) (quoting United States                 had already occurred, i.e., exposure to the
v. Kelner, 534 F.2d 1020, 1027 (2d Cir.                   white powdery substance, and not from
1976)) (emphasis ad ded ).                     In         any future conduct that was yet to be
distinguishing a “true threat” from a                     undertaken.       Accordingly, I would
warning of danger, the same Court stated                  conclude that Zavrel’s conduct did not fall
that “[a]lthough proof of the threat’s effect             within the proscription of 18 U.S.C. § 876.
on its recipient is relevant to this inquiry, .
                                                                               II.
. . a court must be sure that the recipient is
fearful of the execution of the threat by the                        The majority’s interpretation of §
s p e a k e r ( o r t h e s p e a k e r ’ s co -          876 is significantly broader than I believe
conspirators).” Id. (citing Malik, 16F.3d at              jus t if i e d by the langua ge “ a ny
49) (emphasis in original). Furthermore,                  communication . . . containing . . . any
the Ninth Circuit Court of Appeals has                    threat to injure.”         Even assuming,
stated that a threat exists when, after                   however, that the majority’s interpretation
hearing the message, “the listener will                   is another rational reading of § 876, such
believe he will be subjected to physical                  an assumption would lead only to the
violence upon his person.” United States                  conclusion that the ambit of the statute is


                                                     12
ambiguous as to whether it requires the              false statement to a federal officer.
relevant communication to state that the
recipient will be injured by some future
conduct of the sender.        Any such
ambiguity must be resolved in favor of
lenity. Jones v. United States, 529 U.S.
848, 858 (2000) (citing Rewis v. United
States, 401 U.S. 808, 812 (1971)).
        “‘[W]hen choice has to be made
between two readings of what conduct
Congress has made a crime, it is
appropriate, before we choose the harsher
alternative, to require that Congress should
have spoken in language that is clear and
definite.’” Id. (quoting United States v.
Universal C.I.T. Credit Corp., 344 U.S.
218, 221-22 (1952)). As the Supreme
Court has stated, “[t]here are no
constructive offenses; and before one can
be punished, it must be shown that his case
is plainly within the statute.” McNally v.
United States, 483 U.S. 350, 360 (1987)
(quoting Fasulo v. United States, 272 U.S.
620, 629 (1926)).
        Using the mails to induce fear is not
plainly within the ambit of § 876. The
plain language of the statute, as I have
suggested, indicates that the scope of
conduct it proscribes is significantly more
limited. I would therefore apply the rule
of lenity and construe § 876 to cover only
the more limited conduct.
                    III.
       Because I conclude that Zavrel’s
conduct does not fall within the
proscription of § 876, I would reverse the
District Court’s judgment and remand for
sentencing solely on the count of making a

                                                13
