                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                          REVISED AUGUST 31, 2004
                                                                    August 10, 2004
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                                                                        Clerk


                                  03-41634



                      UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                     v.

                            LARRY D. REYNOLDS,

                                                      Defendant-Appellant.


            Appeal from the United States District Court
                  for the Eastern District of Texas



Before DAVIS, EMILIO M. GARZA, and PRADO, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     The defendant was convicted of threatening to use weapons of

mass destruction in violation of 18 U.S.C. § 2332a.           In this appeal

he argues that the evidence was insufficient to prove beyond a

reasonable doubt either that he actually made a “threat” to use a

weapon of mass destruction or that this threat affected interstate

commerce.     The   defendant     also    argues   that   §   2332a    is    an

unconstitutional    use    of   Congress’s   powers   under   the   Commerce

Clause.     The defendant’s arguments are without merit, and we

affirm.

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                                               I.

       In   the    fall       of   2001,     the    defendant,       Larry    D.       Reynolds

(Reynolds), was involved in an ongoing dispute with his mortgage

company,      Countrywide           Mortgage       (Countrywide).            Reynolds       was

delinquent on his mortgage payments and Countrywide was considering

foreclosure. On October 31, 2001, Reynolds called Countrywide from

his     office     in    Des       Moines,     Iowa,    and     attempted         to    access

Countrywide’s automated account system to review the status of his

loan.       Reynolds’s        delinquency          prohibited    him       from    using    the

automated system, and instead he was transferred to a customer

service representative in Plano, Texas.                   Upon connecting with the

operator, Reynolds yelled into the phone, “I just dumped anthrax in

your    air   conditioner.”             The        operator    immediately         contacted

security.     Shortly thereafter Countrywide security determined that

the threat was not credible and decided not to evacuate the

building.

       Reynolds         was    subsequently          arrested        and     charged       with

threatening to use a weapon of mass destruction in violation of 18

U.S.C. § 2332a.          A jury convicted Reynolds and he was sentenced to

51 months in prison.

                                              II.

       In   this    appeal         Reynolds    contends       that    the    evidence       was

insufficient       to     support       his     conviction.      Where        a    defendant

challenges the sufficiency of the evidence on which his conviction

was based, this court must determine whether “after viewing the

                                              -2-
evidence in the light most favorable to the verdict, any rational

trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.”           United States v. Daniel, 957

F.2d 162, 164 (5th Cir. 1992).

                                     A.

     Reynolds first argues that the term “threaten to use” in 18

U.S.C. § 2332a suggests that only threats of future use of a weapon

of mass destruction are prohibited by the statute.1              Reynolds

argues that because his statement indicated a past act, i.e, that

he had already dumped anthrax into the air conditioner, it cannot

be construed as a threat under the statute.

     This court has not previously considered what constitutes a

“threat” under § 2332a.    In the absence of a statutory definition,

terms are given their ordinary, contemporary, common meaning.



     1
         18 U.S.C. 2332a provides, in pertinent part:

     (a) A person who, without lawful authority, uses,
     threatens, or attempts or conspires to use, a weapon of
     mass destruction []-

                                 *        *   *

          (2) against any person within the United States,
     and the results of such use affect interstate or
     foreign commerce or, in the case of a threat, . . .
     would have affected interstate or foreign commerce;

                                 *        *   *

     shall be imprisoned for any term of years or for
     life[.]


                                  -3-
United States v. Singleton, 946 F.2d 23, 25 (5th Cir. 1991).

     Blacks Dictionary defines a “threat” as “[a] communicated

intent   to   inflict     harm   or   loss    on   another   or   on    another’s

property[.]”     Blacks Law Dictionary (8th ed. 2004).                  Webster’s

defines a “threat” as “[a]n expression of an intention to inflict

something     harmful.”      Webster’s       II,   New   Riverside     University

Dictionary (Anne H. Soukhanov ed., Houghton Mifflin Company 1984).

Furthermore, we have defined the term “threat” in 18 U.S.C. §875,

which prohibits threatening communications made through interstate

commerce.     We held under § 875(c) that a communication is a threat

if “in its context [it] would have a reasonable tendency to create

apprehension that its originator will act according to its tenor.”

United States v. Meyers, 104 F.3d 76, 79 (5th Cir. 1997); see also

United States v. Redden, 81 Fed.Appx. 96, 2003 WL 22682457 (9th

Cir. 2003) (unpublished)(defining “threat” under 18 U.S.C. § 175).

We have found no credible support for a definition of “threat” that

requires reference to a future act. We therefore conclude that the

proper definition of “threaten” in §2332a is that adopted by this

court in Meyers: a communication that has a reasonable tendency to

create apprehension that originator of the communication will act

as represented.     Under the circumstances of this case a rational

trier of fact could have found beyond a reasonable doubt that

Reynolds “threatened” to use anthrax.

                                       B.


                                       -4-
     Reynolds next argues that the evidence was insufficient to

prove beyond a reasonable doubt that the threat would have affected

interstate commerce.     In the case of threats to use weapons of mass

destruction, the Government must prove as an element of the offence

that the “use . . . would have affected interstate or foreign

commerce.”    18 U.S.C. § 2332a(a)(2).      Reynolds argues that because

there was no evacuation or stoppage of work at the company, the

evidence is insufficient to establish the interstate commerce

requirement of the statute.

     This argument is without merit.         The statute merely requires

that there would have been an effect on interstate commerce had the

threat been carried out.       Countrywide is a national company; had

Reynolds carried out his threat, the closing of Countrywide’s

office definitely would have affected Countrywide’s customers in

numerous different states. For these reasons, we conclude that the

evidence is sufficient to support Reynold’s conviction.2




     2
       Reynolds also argues that under United States v. Morrison, 529 U.S.
598 (2000), § 2332a violates the Commerce Clause.     Reynolds did not
challenge the constitutionality of § 2332a in the district court, so our
review is limited to plain error. United Stated v. Lankford, 196 F.3d 563,
570 (5th Cir. 1999). Under plain error, Reynolds must demonstrate that the
district court committed an obvious error that affected his substantial rights
and that seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.(quotations omitted).
      The district court committed no error, plain or otherwise.   Morrison
simply reaffirmed the position of the Supreme Court that Congress cannot use
the Commerce Clause to regulate non-economic, criminal conduct. See Morrison,
529 U.S. at 610. Clearly the use of weapons of mass destruction could
seriously affect interstate commerce. Section 2332a is therefore a
constitutional exercise of Congress’s powers under the Commerce Clause.


                                     -5-
                             III.

     For the reasons stated above, the judgment of the district

court is affirmed.

AFFIRMED.




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