                                                                              FILED
                           NOT FOR PUBLICATION                                APR 08 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50339

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00072-JFW-1

  v.
                                                 MEMORANDUM*
MARTA BEATRIZ MASTRANGELO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                       Argued and Submitted March 3, 2014
                              Pasadena, California

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.

       Defendant Marta Mastrangelo (“Mastrangelo”) appeals her conviction for

mailing a threatening communication in violation of 18 U.S.C. § 876(c). We

affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.       Mastrangelo first argues that her conviction should be reversed

because the jury instructions failed to require the jury to find that Mastrangelo: (1)

acted with the specific intent to threaten, and (2) intended to threaten physical as

opposed to general harm. Because Mastrangelo failed to raise these arguments in

the district court, we review for plain error. See Fed. R. Crim. Proc. 30(d); United

States v. Pineda-Doval, 614 F.3d 1019, 1025 (9th Cir. 2010). We conclude that

there was no error in the instructions.

      With respect to the specific intent requirement, the instructions stated that

“the defendant [must have] intended to communicate a threat.” We reject

Mastrangelo’s argument that this instruction was rendered ambiguous by a

subsequent instruction which set forth the objective test for determining whether a

communication constituted a threat. We also reject Mastrangelo’s argument that

the district court’s “knowingly” instruction—which provided that “[t]he

government is not required to prove that the defendant knew that her acts or

omissions were unlawful”—was likely to confuse the jury as to the specific intent

requirement.

      We further conclude that the instructions required the jury to find that

Mastrangelo intended to communicate a threat of physical harm because they

required the jury to find that Mastrangelo “knowingly mailed or arranged to have


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mailed a communication addressed to Alan Tajer containing a threat to injure any

person.” (emphasis added). Injury to the person means physical injury in its

ordinary use. We are not persuaded by Mastrangelo’s argument that the portion

the instructions providing that a communication can be “implied” or “symbolic”

rendered the instructions ambiguous regarding the physical harm requirement.

      2.     Mastangelo also argues that her conviction should be reversed because

one of the theories upon which the government relied at trial was that her note

constituted a threat because it caused fear of immediate injury from potential

contact with the substance in the envelope (rat poison). Mastrangelo argues that, in

order to be convicted, her message must have conveyed a threat that she would

take some additional harmful action in the future, i.e., action beyond exposing the

victims to the chemical contained in the initial communication. See United States

v. Zavrel, 384 F.3d 130, 138–39 (3rd Cir. 2004) (Stapleton, J., disenting); cf United

States v. Havelock, 664 F.3d 1284, 1305 (9th Cir. 2012) (Reinhardt, J.,

concurring). However, the statute does not distinguish between threats causing

fear of immediate injury and threats of future harm. Moreover, the mailing of a

package containing some potentially harmful substance does convey a threat of

future harm because it causes the recipient to fear that exposure to the chemical

will cause health problems in the future. In United States v. Keyser, we held that a


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package containing a substance meant to resemble anthrax constituted a threat for

the purposes of § 876(c). 704 F.3d 631, 638-39 (9th Cir. 2012). Like the anthrax

samples in Keyser, the substance included in Mastrangelo’s note conveyed a threat

because it caused the recipient to fear that she had been exposed to a harmful

chemical.

      3.     Mastrangelo next argues that the evidence was insufficient to support

her conviction. We disagree. The evidence showed that Mastrangelo knowingly

mailed an envelope containing rat poison and a card bearing the inscription “A

Note of Sympathy.” Moreover, Mastrangelo enclosed a portion of the rat poison

label warning of the deleterious health effects that would occur should the poison

be consumed, e.g., “[m]ay be harmful or fatal if swallowed” and “[i]f swallowed

by human . . . call a poison control center doctor.” Furthermore, the employee who

opened the envelope testified to being “scared,” panicked,” and concerned that she

had been exposed to a “chemical thing[].” These facts were sufficient to show that

Mastrangelo knowingly mailed a communication which she intended to convey a

threat to injure the person of the addressee or of another, and that “a reasonable

person would foresee that the [communication] would be interpreted by [the

recipient] . . . as a serious expression of intent to harm or assault.” Keyser, 704

F.3d at 638; 18 U.S.C. § 876(c).


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      4.     Finally, Mastrangelo argues that we must independently review the

“constitutional facts,” here, “whether the statements were true threats.” Keyser,

704 F.3d at 638 n.1. On independent review, we conclude that the evidence

supports Mastrangelo’s conviction. The note was a true threat. See Virginia v.

Black, 538 U.S. 343, 344 (2003) (defining a true threat as a statement “where the

speaker means to communicate a serious expression of an intent to commit an act

of unlawful violence to a particular individual or group of individuals”).

      AFFIRMED.




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