                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.



                                    2
names and photographs appeared in several newspaper stories and

on the internet.

            Napa’s    email,   which   bore   the   return       email   address

“SeungCho     <seunghuichorevenge@yahoo.com>,”             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.

                                       3
            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

                                                4
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



                                         5
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



                                           6
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




                                    7
