                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                    ______

                     No. 12-2914
                       ______

          UNITED STATES OF AMERICA

                          v.

              ADRIAN PETER STOCK,

                      Appellant
                       ______

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
             (D.C. No. 2-11-cr-00182-001)
      District Judge: Honorable Nora B. Fischer
                        ______

                Argued May 14, 2013
Before: SMITH, FISHER and CHAGARES, Circuit Judges

               (Filed: August 26, 2013)
Elisa A. Long, Esq. (ARGUED)
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellant

Rebecca R. Haywood, Esq.
Laura S. Irwin, Esq. (ARGUED)
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee
                            ______

                OPINION OF THE COURT
                        ______

FISHER, Circuit Judge.

        Adrian Peter Stock appeals from the District Court‟s
order denying his motion to dismiss his indictment under
Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to
state the offense of transmitting a threat in interstate
commerce under 18 U.S.C. § 875(c). Stock argues that the
term “threat” means the expression of an intent to inflict
injury in the present or future, and that the statement
attributed to him does not meet that definition. For the
reasons stated below, we will affirm.




                              2
                             I.1

       On August 3, 2011, Stock was charged in a one-count
indictment that alleged:

      “On or about February 9, 2011, in the Western
      District of Pennsylvania, the defendant,
      ADRIAN PETER STOCK, did knowingly and
      willfully transmit in interstate commerce a
      communication containing a threat to injure the
      person of another, that is, the defendant,
      ADRIAN PETER STOCK, posted a notice on
      Craig‟s List, an Internet web site, that contained
      the following statements, among others,

             i went home loaded in my truck
             and spend the past 3 hours
             looking for this douche with the
             expressed intent of crushing
             him in that little piece of shit
             under cover gray impala
             hooking up my tow chains and
             dragging his stupid ass down to
             creek hills and just drowning

      1
         Because our consideration of a challenge under
Federal Rule of Criminal Procedure 12(b)(3)(B) is confined
to the facts alleged within the indictment, our factual
background is similarly circumscribed. See United States v.
Huet, 665 F.3d 588, 595-96 (3d Cir. 2012); United States v.
Bergrin, 650 F.3d 257, 265 (3d Cir. 2011).


                              3
              him in the falls. but alas i can’t
              fine that bastard anywhere . . . i
              really wish he would die, just
              like the rest of these stupid
              fucking asshole cops. so J.K.P.
              if you read this i hope you burn
              in hell. i only wish i could have
              been the one to send you there.

      In violation of Title 18, United States Code,
      Section 875(c).”

App. at 50.




                              4
       Stock moved to dismiss his indictment under Rule
12(b)(3)(B)2 for failure to state an offense, arguing that his
alleged statement did not constitute a threat under § 875(c) as
a matter of statutory interpretation, but disclaiming any First




       2
          Stock actually moved to dismiss his indictment under
both Federal Rule of Criminal Procedure 12(b)(2) and Rule
12(b)(3)(B). App. at 53. Stock may have cited Rule 12(b)(2)
because his argument that his indictment fails to state an
offense is based on our holding in United States v. Panarella
that “for purposes of Rule 12(b)(2), a charging document fails
to state an offense if the specific facts alleged in the charging
document fall beyond the scope of the relevant criminal
statute, as a matter of statutory interpretation.” 277 F.3d 678,
685 (3d Cir. 2002). But after we decided Panarella, Rule
12(b)(2) was re-numbered as Rule 12(b)(3)(B). United States
v. Al Hedaithy, 392 F.3d 580, 586 n.6 (3d Cir. 2004). Thus,
our discussion proceeds under Rule 12(b)(3)(B), which
provides that “at any time while the case is pending, the court
may hear a claim that the indictment . . . fails . . . to state an
offense.”


                                5
Amendment challenge.3 After holding a hearing and ordering
supplemental briefing, the District Court denied Stock‟s
motion to dismiss. Although the District Court concluded
that a threat must evince an intent to injure in the present or



       3
          To the extent that Stock initially suggested that his
statement was protected by the First Amendment, App. at 65,
he subsequently disclaimed that argument before the District
Court, id. at 125, 254. Stock also abandoned that issue in his
Opening Brief by affirmatively directing us to avoid
“grappl[ing] with the constitutional implications of the
statements in the indictment.” Opening Br. at 26 n.5
(citations omitted); see also Kost v. Kozakiewicz, 1 F.3d 176,
182 (3d Cir. 1993) (holding, where the appellant only
suggested the existence of an issue “in passing in a short
footnote in the[] opening brief, without argument or relevant
citation,” that the appellant had abandoned the issue on
appeal); United States v. Jongewaard, 567 F.3d 336, 339 n.2
(8th Cir. 2009) (noting, where a defendant “expressly
disclaims any challenge . . . under the First Amendment,” that
a court “need not address the question whether [the]
statements . . . contained a true threat rather than
constitutionally protected speech”). Indeed, we understand
Stock‟s passing references to the First Amendment to make
the reasonable point that because his statement is not a
“threat” within the ordinary meaning of that word as it is used
in 18 U.S.C. § 875(c), it cannot possibly be within the subset
of “true threats” that are unprotected by the First Amendment.
Opening Br. at 25; App. at 200-01 ¶ 1.


                              6
future, the court also determined that a reasonable jury could
find that Stock‟s statement was a threat.

        Stock then executed a plea agreement with the
Government pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), in which he generally waived his appellate
rights, but specifically preserved his right to seek review of
the District Court‟s denial of his motion to dismiss. The
District Court accepted Stock‟s guilty plea and imposed a
term of imprisonment of one year and one day and a term of
supervised release of two years. Stock timely appealed.

                              II.

       The District Court had jurisdiction over Stock‟s case
under 18 U.S.C. § 3231, and we have jurisdiction over his
appeal under 28 U.S.C. § 1291.

        We apply a mixed standard of review to a district
court‟s decision on a motion to dismiss an indictment,
exercising plenary review over legal conclusions and clear
error review over factual findings. United States v. Huet, 665
F.3d 588, 594 (3d Cir. 2012). In this appeal, Stock attacks the
sufficiency of his indictment, presenting a legal question over
which we have plenary review. United States v. McGeehan,
584 F.3d 560, 565 (3d Cir. 2009), vacated on other grounds,
625 F.3d 159, 159 (3d Cir. 2010). In particular, Stock
challenges the sufficiency of his indictment on the basis that
the specific facts alleged therein fall outside the scope of the
relevant criminal statute as a matter of statutory
interpretation, and statutory interpretation is a legal question
over which we have plenary review. United States v. Zavrel,

                               7
384 F.3d 130, 132 (3d Cir. 2004). Therefore, we exercise
plenary review over this appeal.

                               III.

        In this appeal, both parties ascribe errors to the District
Court‟s opinion. The Government argues that the indictment
is facially sufficient and that the term “threat” in § 875(c)
does not include a temporal element. Stock, in turn, asserts
that the issue of whether his statement is a threat is a question
of law and that his statement does not express an intent to
injure in the present or future. We address these points
below.

                                A.

        In reviewing Stock‟s motion to dismiss, the District
Court considered whether the word “threat” in § 875(c)
contains a temporal component. The Government argues that
this analysis was unnecessary because Stock‟s indictment is
facially sufficient. We disagree.

       Under Federal Rule of Criminal Procedure 7(c)(1), an
indictment “must be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged.” It is true that “[a]n indictment returned by a legally
constituted and unbiased grand jury, . . . if valid on its face, is
enough to call for trial of the charge on the merits.” Huet,
665 F.3d at 594-95 (emphasis omitted) (quotation omitted).
A facially sufficient indictment “(1) contains the elements of
the offense intended to be charged, (2) sufficiently apprises
the defendant of what he must be prepared to meet, and


                                8
(3) allows the defendant to show with accuracy to what extent
he may plead a former acquittal or conviction in the event of
a subsequent prosecution.” Id. at 595 (quotation omitted).
Usually, a recitation of the statutory language satisfies the
first requirement, “so long as there is sufficient factual
orientation to permit a defendant to prepare his defense and
invoke double jeopardy.” Id. (quotation omitted). And
typically, a factual orientation that includes a specification of
the time period of the alleged offense is sufficient for the
second and third requirements. Id. In short, “detailed
allegations” are unnecessary. Id. at 594.

        Under Rule 12(b)(3)(B), a defendant may contest the
sufficiency of an indictment on the basis that it “fails . . . to
state an offense” in at least two ways. First, a defendant may
contend that an indictment is insufficient on the basis that it
does not satisfy the first requirement in that it “fails to charge
an essential element of the crime.” Huet, 665 F.3d at 595
(citation omitted). Second, because an indictment that merely
“recites in general terms the essential elements of the offense”
does not satisfy the second and third requirements, a
defendant may also claim that an indictment fails to state an
offense on the basis that “the specific facts alleged . . . fall
beyond the scope of the relevant criminal statute, as a matter




                                9
of statutory interpretation.”4 United States v. Panarella, 277
F.3d 678, 685 (3d Cir. 2002).

        The Government asks us to ignore the statutory
interpretation issue because, according to the Government,
the indictment is facially sufficient. The Government relies
on Huet, in which we were asked to decide whether a district
court may find facts in ruling on a motion to dismiss an
indictment for failure to state an offense under Rule
12(b)(3)(B). Responding in the negative, we reversed the
district court‟s dismissal of the indictment, which we
concluded was facially sufficient.

       However, Huet is distinguishable because the “only
potential question of statutory interpretation” in that case was
“not at issue on appeal.” 665 F.3d at 597 n.7. For that
reason, we had no need to address “whether the facts alleged
in the indictment f[e]ll beyond the scope of the relevant
criminal statute as a matter of statutory interpretation.” Id. at
597 (citing, inter alia, Panarella, 277 F.3d at 685).

       4
           A court‟s review of a motion to dismiss an
indictment “is a narrow, limited analysis geared only towards
ensuring that legally deficient charges do not go to a jury.”
Bergrin, 650 F.3d at 268. The court‟s ruling “is not . . . a
permissible vehicle for addressing the sufficiency of the
government‟s evidence.” Id. at 265 (quotation omitted).
Thus, the court determines “whether the facts alleged in the
indictment, if accepted as entirely true, state the elements of
an offense and could result in a guilty verdict.” Id. at 268
(citation omitted).


                               10
Nonetheless, we reaffirmed that a defendant may attack the
sufficiency of an indictment on that basis. Id. at 595.

        Here, Stock is making the unmade challenge in Huet –
namely, that “as a matter of law, the indictment fails to state
an offense,” Opening Br. at 13, because “the statements
alleged in the indictment are not „threats‟ and thus fall beyond
the scope of 18 U.S.C. § 875(c),” id. at 12. Our precedent has
recognized such attacks as an appropriate, alternative way in
which to challenge the sufficiency of an indictment. See
McGeehan, 584 F.3d at 565 (“The sufficiency of an
indictment may be challenged not only on the basis that it
fails to charge the essential elements of the statutory offense,
but also on the ground that „the specific facts alleged . . . fall
beyond the scope of the relevant criminal statute, as a matter
of statutory interpretation.‟” (emphasis added) (quoting
Panarella, 277 F.3d at 685)). Thus, the District Court did not
err in considering whether the term “threat” in § 875(c)
includes a temporal element, a question to which we now
turn.

                               B.

       The District Court concluded that the word “threat” in
§ 875(c) means an “„express[ion of] an intention to inflict
injury at once or in the future.‟” App. at 10 (quoting Zavrel,




                               11
384 F.3d at 136).5 The Government counters that, under
controlling precedent, the term “threat” in § 875(c) is “a




      5
         We agree with the Government that the District Court
incorrectly concluded that we adopted a definition of the term
“threat” in United States v. Zavrel, 384 F.3d 130 (3d Cir.
2004). There, we reviewed a district court‟s denial of a
defendant‟s motion for judgment of acquittal, considering
whether the mailing of a substance resembling anthrax
constituted a communication containing a “threat” under 18
U.S.C. § 876(c).         The defendant argued that her
communications were immediately, not prospectively,
harmful, and that threats were limited to prospective, not
immediate, harm. We observed that the district court had
defined the word “threat” as:

      “[A] serious statement or communication which
      expresses an intention to inflict injury at once or
      in the future as distinguished from idle or
      careless talk, exaggeration or something said in
      a joking manner.              A statement or
      communication is a threat if it was made under
      such circumstances that a reasonable person
      hearing or reading the statement or receiving
      the communication would understand it as a
      serious expression of an intent to inflict injury.”


                              12
statement made by a speaker who „means to communicate a
serious expression of an intent to commit an act of unlawful
violence to a particular individual or group.‟” Response Br.
at 28 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).
We hold that the word “threat” in § 875(c) encompasses only
communications expressing an intent to inflict injury in the
present or future.

        The Government‟s proffered definition of the word
“threat” is pulled from precedent concerning whether certain
communications constitute “true threats” unprotected by the
First Amendment.        The Supreme Court‟s true threat
jurisprudence originated in Watts v. United States, 394 U.S.
705 (1969) (per curiam). There, the defendant was charged
with making a “threat” to harm the president in violation of
18 U.S.C. § 871(a). In reversing the denial of the defendant‟s
motion for judgment of acquittal, the Court instructed that a
statute that “makes criminal a form of pure speech[] must be
interpreted with the commands of the First Amendment
clearly in mind.” Id. at 707. Thus, the Court held that a
threat statute may criminalize only “a true „threat,‟” id. at


Id. at 136 (quotation omitted). Although “[w]e believe[d] this
to be the correct approach,” we declined “to decide the issue
definitively,” because even if we accepted the defendant‟s
assertion that a threat must relate to future harm, we
determined that the defendant‟s communications did threaten
future harm. Id. Thus, we did not resolve in Zavrel whether
the term “threat” in a federal threat statute includes a
temporal element.


                             13
708, which “must be distinguished from . . . constitutionally
protected speech,” id. at 707.

        Contrary to the Government‟s contention, the
definition of the word “threat” and the definition of the phrase
“true threat” are not co-extensive. To be sure, Watts taught us
to interpret threat statutes in light of the First Amendment.
But by distinguishing a “true threat” from a “threat” that
would otherwise fall within the scope of a statute were it not
protected by the First Amendment, Watts shows that “true
threats” are a specific subset of “threats.” Thus, the plain
meaning of a “threat” under § 875(c) is distinct from the
constitutional meaning of a “true threat” under the First
Amendment.6 See United States v. Jongewaard, 567 F.3d
336, 339 & n.2 (8th Cir. 2009) (noting that because the
defendant argued that § 875(c), not the First Amendment,
required that a communication be made to achieve a goal
through intimidation in order to constitute a threat, the court
did not need to address the question of whether the statement
constituted a true threat); United States v. Alkhabaz, 104 F.3d
1492, 1493 (6th Cir. 1997) (concluding that “the indictment
failed, as a matter of law, to allege violations of Section
875(c),” and accordingly declining “to address the First
Amendment issues raised by the parties”); United States v.
Havelock, 664 F.3d 1284, 1304 n.1 (9th Cir. 2012) (en banc)
       6
         For this reason, we will not rely on the definition of a
“true threat” as “a serious expression of an intention to inflict
bodily harm” that we adopted in United States v. Kosma, 951
F.2d 549, 557 (3d Cir. 1991) (emphasis omitted) (quotation
omitted).


                               14
(Reinhardt, J., concurring in part and dissenting in part)
(explaining that because the communications “were not a
threat in any sense of the word,” there was no need to “reach
the [First Amendment] question”).

        The Government also claims that the ordinary meaning
of the word “threat” in § 875(c) does not contain a temporal
component. Section 875(c) prohibits the “trans[mission] in
interstate . . . commerce [of] any communication containing
. . . any threat to injure the person of another.” The term
“threat” was not defined by congress in § 875(c) or in any of
the related federal threat statutes. See generally 18 U.S.C. §§
871-880.

        Our interpretation of the word “threat” in § 875(c)
begins with an inquiry into “whether the language used has a
plain and unambiguous meaning with regard to the particular
dispute in the case.” Zavrel, 384 F.3d at 133 (quotation
omitted); see also Perrin v. United States, 444 U.S. 37, 42
(1979) (“A fundamental canon of statutory construction is
that, unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.”
(citation omitted)). When § 875(c) was last amended in 1994,
one definition of the term “threat” expressly included a
temporal element. See Black‟s Law Dictionary 1480 (6th ed.
1990) (“The term, „threat‟ means an avowed present
determination or intent to injure presently or in the future.”
(emphasis added)). While other definitions did not do so
explicitly, see, e.g., id. (“[A threat is a] communicated intent
to inflict physical or other harm on any person or on
property.”), they did so implicitly by defining “threat” with
reference to the speaker‟s “intent,” which is an inherently

                              15
prospective concept, see id. at 810 (defining the word “intent”
as “[a] state of mind in which a person seeks to accomplish a
given result through a course of action”). Thus, the plain
meaning of the word “threat” in § 875(c) suggests that it is
confined to communications expressing an intent to injure in
the present or future.

       This conclusion is confirmed by a consideration of the
“placement and purpose” of the term “threat” in § 875(c).
Zavrel, 384 F.3d at 134 (quotation omitted). Turning to the
placement of the word “threat,” the Government argues that
Congress criminalized “any threat,” which includes past as
well as present and future threats. The Government cites
cases from two other courts of appeals adopting an expansive
understanding of the noun “threat” based on the adjective
“any.” In United States v. Jeffries, the Sixth Circuit held that
a music video was a threatening communication under
§ 875(c) because “the statute covers „any threat,‟ making no
distinction between threats delivered orally (in person, by
phone) or in writing (letters, emails, faxes), by video or by
song, in old-fashioned ways or in the most up-to-date.” 692
F.3d 473, 482 (6th Cir. 2012). And in Jongewaard, the
Eighth Circuit held that a threatening communication under §
875(c) need not be made to effect some change through
intimidation because the phrase “any threat” “criminalizes a
broad spectrum of threats to injure the person of another.”
567 F.3d at 340.

      Jeffries and Jongewaard do not advance the
Government‟s argument for several reasons. First, neither the
Sixth Circuit nor the Eighth Circuit analyzed whether the
word “threat” in § 875(c) contains a temporal component,

                              16
since the communications in those cases were expressly
prospective. Jeffries, 692 F.3d at 475-77; Jongewaard, 567
F.3d at 338. Second, and more significantly, the adjective
“any” can broaden the scope of the noun “threat” to its natural
boundary, but not beyond. Alkhabaz, 104 F.3d at 1495 (“To
emphasize the use of the term „any‟ without acknowledging
the limitation imposed by the term „threat‟ ignores the intent
of Congress.”). And third, Jeffries and Jongewaard lend
some support to an interpretation limiting the term “threat” to
communications revealing an intent to injure in the present or
future by demonstrating that such a definition would “not
render the word „any‟ superfluous.” Havelock, 664 F.3d at
1291 (citing Duncan v. Walker, 553 U.S. 167, 174 (2001)).
Thus, the placement of the word “threat” within § 875(c) does
not counsel an interpretation contrary to the plain meaning of
that term.

       Pushing on to the purpose of § 875(c), the Government
voices two concerns about cabining the word “threat” to its
plain meaning. The Government first points out that the
purpose of the true threat exception to the First Amendment is
to “protect[] individuals from the fear of violence, from the
disruption that fear engenders, and from the possibility that
the threatened violence will occur.” Response Br. at 30
(quoting Jeffries, 692 F.3d at 478). But even if the purposes
of § 875(c) are identical to the purposes of the true threat
exception to the First Amendment, one of those purposes is
expressly prospective. See R.A.V. v. City of St. Paul, Minn.,
505 U.S. 377, 388 (1992) (explaining that the reason true
threats are outside the First Amendment is to protect people
“from the possibility that the threatened violence will occur”


                              17
(emphasis added)). With respect to the other two purposes, a
communication demonstrating an intent to injure in the past
may excite some fear of violence and may engender some
disruption from that fear. But the quantum of fear and the
level of disruption experienced by the victim would usually
be less for an expression of an intent to injure in the past than
in the present or future.           For example, it seems
uncontroversial that the statement, “I tried to murder you
yesterday, but I will never do so again,” would normally
provoke less fear and disruption than the statement, “I will
murder you tomorrow.”

       The Government further posits that because we apply
an objective test to determine whether a communication is a
true threat, United States v. Kosma, 951 F.2d 549, 557 (3d
Cir. 1991), under which the speaker need only have a general
intent to communicate his statement, United States v.




                               18
Himelwright, 42 F.3d 777, 782 (3d Cir. 1994),7 “it cannot
matter when, in a temporal sense, the defendant intended to
injure the victim,” Response Br. at 32. Again assuming the
applicability of the true threat test to the definition of the term
“threat,” the sender‟s intent would normally be indiscernible
to a reasonable recipient, while the retrospective or
prospective nature of the message would typically be obvious
to a reasonable recipient. Thus, the purposes of § 875(c) do
not conflict with the plain meaning of the word “threat.”

       7
         In Virginia v. Black, the Supreme Court stated that
“„[t]rue threats‟ encompass those statements 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.” 538 U.S. 343, 359 (2003)
(emphasis added) (citations omitted). Some courts of appeals
have suggested that this language establishes a new subjective
standard under which the speaker must have the specific
intent that his statement be threatening, see, e.g., United
States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir.
2011); United States v. Parr, 545 F.3d 491, 498-500 (7th Cir.
2008), while others have reaffirmed the traditional objective
standard, see, e.g., United States v. Nicklas, 713 F.3d 435,
439-40 (8th Cir. 2013); United States v. Jeffries, 692 F.3d
473, 479-81 (6th Cir. 2012); United States v. White, 670 F.3d
498, 508-12 (4th Cir. 2012). Although we have continued to
apply the objective test, see, e.g., Zavrel, 384 F.3d at 135-37,
we have not yet considered whether Black called into
question our precedent on the issue, and Stock does not ask us
to do so here.


                                19
        Our interpretation of the term “threat” in § 875(c) is
also consistent with the reasoning of the other courts of
appeals that have addressed this issue. For example, in
Havelock, the defendant was convicted of mailing, a half hour
before opening kickoff, communications threatening to injure
spectators at the Super Bowl, in violation of 18 U.S.C. §
876(c). On appeal, the defendant argued that the district court
erred in denying his motion to dismiss on the basis that the
indictment alleged insufficient facts to state an offense
“because the communications did not threaten to injure
immediately or in the future, but instead contained a „post-
mortem confession or explanation of his actions, which never
came to fruition,‟” and so “were devoid of a „threat to
injure.‟” 664 F.3d at 1288. A three-judge minority,
concurring in the majority‟s judgment, but dissenting from its
rationale for reversing the convictions,8 determined that the
word “threat” is “by definition prospective,” id. at 1305
(Reinhardt, J., concurring in part and dissenting in part)
(citation omitted), because that term is defined as “an
„indication of impending danger or harm,‟” id. (quoting
United States v. Davila, 461 F.3d 298, 302 (2d Cir. 2006)).

       8
        The defendant also argued that the district court erred
in denying his motion to dismiss on the basis that the
indictment alleged insufficient facts to state an offense
because the word “person” in § 876(c) referred only to natural
people and the alleged communications were addressed to
corporations. Because the majority reversed the convictions
on this basis, it did not address the defendant‟s alternative
argument.


                              20
In other words, the minority would have ruled that threats
“may include announcements of future or impending action,
but not statements regarding past events or retrospective
harm.” Id. According to the minority:

      “Having deposited the [communications] in a
      United States Postal Service mailbox on the
      very day of the Superbowl, a mere thirty
      minutes before his intended rampage at the
      stadium, [the defendant‟s] [communications]
      could not have reached [their] intended
      destinations in time to put the recipients in fear
      of imminent danger or to constitute a threat of
      future action.”

Id. at 1305-06. For this reason, the minority would have held
that the communications “did not contain a threat.” Id. at
1307.

        Further, in United States v. Landham, 251 F.3d 1072
(6th Cir. 2001), the Sixth Circuit reached the same result,
albeit under a true threat analysis. There, the defendant was
convicted of, inter alia, transmitting a threat in interstate
commerce in violation of § 875(c) based on his statement,
“I’ve done more to you with a Parker 51 than what happened
to your father with a goddamn Taurus five-shot.” Id. at 1082
(emphasis added). On appeal, the defendant argued that the
district court erred in denying his motion to dismiss the
indictment because the alleged statement was not a true
threat.    Reasoning that it was “self-evident that [the
defendant] [wa]s referring to damaging remarks he had
previously made by transmitting written communications,”

                             21
the Sixth Circuit determined that the alleged statement
“refer[red] to past conduct, not present or future conduct.” Id.
Thus, the Sixth Circuit concluded that the statement was “not
a „communication containing a threat,‟” and held that “the
indictment failed, as a matter of law, to allege a violation of
§ 875(c).”9 Id. Based on our own statutory interpretation and
this persuasive authority, we hold that the term “threat” in §
875(c) refers to the expression of an intent to inflict injury in
the present or future.10

                               C.

       Notwithstanding the District Court‟s adoption of
Stock‟s preferred definition of the word “threat,” the court
determined that the case “d[id] not turn on the statutory
construction of section 875(c),” because “a reasonable jury
could conclude that the communication posted by Defendant
on Craigslist constituted a threat.” App. at 13 (citing Huet,
665 F.3d at 596). According to Stock, this conclusion was

       9
         As an alternative basis for its holding, the court
reasoned that “even if the statement were a veiled threat, it
was not an intent to inflict bodily harm” because “[a] Parker
fifty-one is a fountain pen.” United States v. Landham, 251
F.3d 1072, 1082 (6th Cir. 2001).
       10
          The parties cite countless cases to support their
competing definitions, some of which include, and others of
which do not include, a temporal element. We find these
cases, which do not directly address the issue, to be of little
value here.


                               22
erroneous because “[a] determination of whether the facts set
forth in the indictment are „threats‟ as used in § 875(c)
presents a question of law, not a question of fact for a jury.”
Opening Br. at 24 (citations omitted).11 Although we hold
that a court may conclude that a communication does not
constitute a threat as a matter of law in certain cases, we are
also satisfied that the District Court recognized its ability to
do so here.

        In the usual case, whether a communication constitutes
a threat or a true threat “is a matter to be decided by the trier
of fact.” Kosma, 951 F.2d at 555 (citations omitted); see also
United States v. White, 670 F.3d 498, 512 (4th Cir. 2012);
United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008);
United States v. Floyd, 458 F.3d 844, 848-49 (8th Cir. 2006);
United States v. Viefhaus, 168 F.3d 392, 397 (10th Cir. 1999);
United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994).
Nonetheless, “[a] few cases may be so clear . . . that they can
be resolved as a matter of law.” Kosma, 951 F.2d at 555
(quoting United States v. Merrill, 746 F.2d 458, 462-63 (9th


       11
          In the Government‟s view, “Stock fails to develop
this argument and, therefore it is waived.” Response Br. at 25
(citation omitted). We disagree. Stock‟s argument is
supported by citations to five cases and takes up a full page of
the argument section of his brief. See Opening Br. at 24-25;
cf. United States v. Rawlins, 606 F.3d 73, 82 n.11 (3d Cir.
2010) (determining that a challenge was waived where it was
suggested in the statement of issues section of a brief but was
not developed in the argument section of the brief).


                               23
Cir. 1984)); see also Viefhaus, 168 F.3d at 397; Malik, 16
F.3d at 51.

       It is not unprecedented for a court to conclude that a
communication does not legally qualify as a threat or a true
threat. Indeed, in Watts, the Supreme Court held as a matter
of law that the defendant‟s statement was merely “political
hyperbole” that did not fit within the definition of the phrase
“true „threat.‟” 394 U.S. at 708. Additionally, in Landham,
the Sixth Circuit reversed the district court‟s denial of the
defendant‟s motion to dismiss, concluding that “the
indictment failed, as a matter of law, to allege a violation of
§ 875(c)” since the alleged statement was “not a
„communication containing a [true] threat.‟” 251 F.3d at
1082.

       Especially relevant is the decision in Alkhabaz, where
the Sixth Circuit affirmed the district court‟s dismissal of the
indictment charging the defendant with violations of § 875(c).
Ruling that a communication cannot constitute a threat unless
it is made to achieve a goal through intimidation, and
reasoning that the defendant‟s messages did not satisfy this
requirement, the court concluded that those messages “d[id]
not constitute „communications containing a threat‟ under
Section 875(c).” 104 F.3d at 1496. Thus, the Sixth Circuit
held that the indictment “fail[ed] to set forth . . . all the
elements necessary to constitute the offense intended to be
punished and [had to] be dismissed as a matter of law.” Id.
(emphasis omitted) (quotation omitted). In light of this
precedent, we reaffirm that a court may properly dismiss an
indictment as a matter of law if it concludes that no
reasonable jury could find that the alleged communication

                              24
constitutes a threat or a true threat. See Huet, 665 F.3d at
596.

        Here, the record reflects that the District Court clearly
recognized its authority to dismiss the indictment as a matter
of law. App. at 13 (“The Court does not foreclose the
possibility that an indictment charging an individual with a
violation of section 875(c) may „fall beyond the scope of the
relevant criminal statute, as a matter of statutory
interpretation‟ if the „specific facts‟ charged in such an
indictment are clearly deficient.” (quoting Huet, 665 F.3d at
595)). The District Court simply declined to exercise this
authority because it determined that “reasonable jurors could
certainly conclude that these statements constitute „a serious
statement or communication which expresses an intention to
inflict injury‟ on JKP „at once or in the future.‟” Id. at 15
(quoting Zavrel, 384 F.3d at 136). We agree that, based on
this underlying determination, the District Court properly
concluded that the question necessarily became one of fact for
the jury to resolve. The propriety of the District Court‟s
underlying determination is the final issue we now address.

                               D.

        The District Court determined that “a reasonable jury
could conclude that the communication posted by Defendant
on Craigslist constituted a threat” based on a consideration of
the alleged statement “as a whole, and in the context in which
the statements were made.” App. at 13 (citing Huet, 665 F.3d
at 596). Stock, however, claims that, “viewed in its



                               25
entirety,”12 the alleged posting reveals only “statements that
describe past conduct with an intent to harm, followed by a
statement indicating a resignation or abandonment of
purpose, followed, in turn, by expressions of ill wishes and
hopes,” and does not evidence an intent to injure in the
present or future. Opening Br. at 21. We conclude that a
reasonable jury could find that the posting, in context and as a
whole, constitutes a threatening communication.

       At the outset, Stock contends that the District Court
erred in “assum[ing] the truth not just of the making of the
statement, but of the content of the statement.”13 Opening Br.
       12
          Normally, we look at the context and totality of a
communication to determine whether it constitutes a true
threat outside the protection of the First Amendment. See
United States v. Fullmer, 584 F.3d 132, 154 (3d Cir. 2009).
Nonetheless, Stock adopts this test in asserting that the
posting does not constitute a threat within the meaning of
§ 875(c). See Reply Br. at 5 (“[V]iewed in their entirety and
in context, the statements in the indictment fall beyond the
scope of 18 U.S.C. § 875(c).”). We agree that this standard,
which is irrelevant to the definition of the phrase “true threat”
but relevant to the test of whether a communication meets
that definition, is the appropriate inquiry to apply in deciding
whether Stock‟s posting is an expression of an intent to injure
in the present or future.
       13
         Again, the Government insists that Stock waived
this argument by neglecting to develop it. Response Br. at
25. Again, we disagree. See Opening Br. at 26-27; cf.
Rawlins, 606 F.3d at 82 n.11.

                               26
at 24. In other words, Stock believes that the District Court
erroneously assumed that he actually engaged in the conduct
described in the first sentence of his posting. “In evaluating a
Rule 12 motion to dismiss, a district court must accept as true
the factual allegations set forth in the indictment.” Huet, 665
F.3d at 595 (emphasis added) (citing, inter alia, United States
v. Sampson, 371 U.S. 75, 78-79 (1962)). Here, the only fact
alleged in the indictment was that Stock “posted a notice on
Craig‟s List, an Internet web site, that contained [specific]
statements.” App. at 50. The description of certain conduct
was part of the statement that Stock allegedly made, not a
second factual allegation. Thus, under normal circumstances,
we would agree that, to the extent the District Court assumed
that the communication was an admission of the conduct
described therein, it did so in error.

       Here, however, even if the District Court committed
the alleged error, it is doubtful that the error affected the
court‟s analysis. As the court correctly observed, “an
objective test is applied to determine whether the Defendant‟s
statements constitute a threat under section 875(c).” App. at
14 (citations omitted); see also Kosma, 951 F.2d at 559.
Since Stock does not even argue that the statement was a joke
or political hyperbole, it is obvious that a reasonable person
would be entitled to believe not only that Stock made the
statement, but also that the statement accurately described his
conduct. Thus, Stock‟s sole remaining claim of error is that
the District Court incorrectly interpreted his statement.

       According to Stock, his first sentence:



                              27
       “i went home loaded in my truck and spend the
       past 3 hours looking for this douche with the
       expressed intent of crushing him in that little
       piece of shit under cover gray impala hooking
       up my tow chains and dragging his stupid ass
       down to creek hills and just drowning him in
       the falls,”

App. at 50 (emphasis omitted), “unambiguously refer[s] to a
situation past and cannot amount to [a] threat[],” Opening Br.
at 23 (citations omitted). We agree that this statement, by
itself, reveals only an “expressed intent” to injure in “the past
3 hours,” and so does not constitute a threat. See Landham,
251 F.3d at 1082-83 (holding that a statement that refers only
to past conduct does not constitute a true threat). But the first
sentence does not stand alone; it provides context for the four
sentences that follow.        See Watts, 394 U.S. at 708
(considering whether a communication constitutes a true
threat “in context”). And in the right context, an expression
of an intent to injure in the past may be circumstantial
evidence of an intent to injure in the present or future. See
United States v. Fullmer, 584 F.3d 132, 156 (3d Cir. 2009)
(holding that speech that “used past incidents to instill fear in
future targets” constituted true threats when “viewed in
context”).

       Stock argues that his second sentence, “but alas i can‟t
fine that bastard anywhere,” App. at 50 (emphasis omitted),
“describes a resignation of purpose or abandonment of that
[prior] intent,” Opening Br. at 19. But Stock‟s suggested
reading of this statement is only one possible interpretation.
We believe that a jury could reasonably find, from his use of

                               28
the present tense in the second sentence together with his
description of his past conduct in the first sentence, that Stock
had not abandoned his prior intent, but that he still harbored a
present intent that he was unable to fulfill at that time. See
Himelwright, 42 F.3d at 782 (explaining that a determination
of whether statements constitute true threats does not depend
on the speaker‟s “ability at the time to carry out the threats”
(citations omitted)).

       This alternative understanding of the second sentence
becomes even more reasonable in light of the last three
sentences: “i really wish he would die, just like the rest of
these stupid fucking asshole cops. so J.K.P. if you read this i
hope you burn in hell. i only wish i could have been the one
to send you there.” App. at 50 (emphasis omitted). These
three sentences confirm that at the time Stock made the
posting, he still desired J.K.P.‟s death. Moreover, in the
context of the first and second sentences, a reasonable jury
could have found that when he made the posting, not only did
Stock desire J.K.P.‟s death, but that if he found him, he would
execute his intent, possibly by the means he had previously
employed.

       Stock asserts that this reading of the final three
sentences is flawed for two reasons. First, he alleges that
“[t]hese expressions do not suggest that Mr. Stock himself
would harm J.K.P.” Opening Br. at 20 (citations omitted).
We have said that a significant factor in evaluating whether a
communication is a true threat is whether a speaker identifies
himself as the person who will inflict injury on another or
whether the speaker merely suggests that harm will befall
another by someone‟s hand. See Kosma, 951 F.2d at 554.

                               29
Here, Stock‟s statement that he wished he could have been
the one to kill J.K.P. arguably implies that Stock would not be
the one to do so. However, Stock‟s earlier statement that he
was disappointed that he could not find J.K.P., arguably
implies the opposite, namely, that if he could find J.K.P., he
would be the one to kill him. Thus, a jury could reasonably
find that Stock implicated himself as the person who would
kill J.K.P. See id. at 554 n.8 (holding that a conditional threat
may constitute a true threat).

        Second, Stock claims that the final three sentences are
“expressions of a hope and a wish that harm would come to
J.K.P.,” Opening Br. at 20, and that “[m]erely wishing[] or
hoping that harm would come to another falls outside the
scope of the statute,” id. (quotation omitted). The authority
on whether a wish can constitute a threat is divided.
Compare United States v. Christenson, 653 F.3d 697, 701-02
(8th Cir. 2011) (rejecting the argument that simply expressing
a wish that a person suffer harm cannot constitute a true
threat) with United States v. Daulong, 60 F. Supp. 235, 236
(W.D. La. 1945) (holding that a federal threat statute “d[id]
not penalize the imagining, wishing or hoping that the act
w[ould] be committed by someone else”). Stock has offered
no reason, and we can think of none, why a wish could not
constitute a threat in the right context. Applying Stock‟s
requested rule would be especially inappropriate here
because, in the context of the first and second sentences, a
reasonable jury could find that Stock did not simply wish that
J.K.P. would suffer harm, but that he was prepared to commit
the act himself.



                               30
        Before concluding our discussion, we take this
opportunity to comment on the unique procedural challenge
posed by this particular case. While a court‟s review of a
motion to dismiss under Rule 12(b)(3)(B) is limited to a
consideration of the facts alleged in the indictment, Huet, 665
F.3d at 595-96, the court‟s determination of whether a
statement constitutes a threat under § 875(c) is based on the
context and totality of the communication, Fullmer, 584 F.3d
at 154. Thus, “[a]lthough the Government is not required to
set forth its entire case in the indictment,” Huet, 665 F.3d at
595, it is at least “incumbent on the Government to make that
context clear” in an indictment charging a violation of a threat
statute, Landham, 251 F.3d at 1080. Here, we are satisfied
that the Government included sufficient context in the
indictment for the District Court to determine that a
reasonable jury could find that Stock‟s statement expressed
an intent to injure in the present or future.

                              IV.

       For the reasons stated above, we will affirm the
District Court‟s denial of Stock‟s motion to dismiss the
indictment pursuant to Rule 12(b)(3)(B) for failure to state an
offense under § 875(c).




                              31
