U.S. v. Zavrel

Citation384 F.3d 130
Decision Date21 September 2004
Docket NumberNo. 03-1474.,03-1474.
PartiesUNITED STATES OF AMERICA v. Rosemary ZAVREL, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Appeal from the United States District Court for the Middle District of Pennsylvania, A. Richard Caputo, J Patrick A. Casey [Argued], Office of the Federal Public Defender, Middle District of Pennsylvania, Scranton, PA, for Appellant.

John C. Gurganus [Argued], Office of the United States Attorney, Middle District of Pennsylvania, Scranton, PA, for Appellee.

Before NYGAARD, FUENTES and STAPLETON, Circuit Judges.

FUENTES, Circuit Judge.

This case arises in the context of the anthrax scare of 2001. In October of that year, Rosemary Zavrel mailed seventeen envelopes containing a white powdery substance she intended to resemble anthrax to various local officials, school and hospital workers, and to the President of the United States. The envelopes actually contained cornstarch, and each listed a name and return address that belonged to either of two local juveniles. Zavrel and her roommate, Emily Forman, planned to frame the two boys whom Zavrel felt had unfairly accused Zavrel's son of making terroristic threats. The scheme went awry after a local resident discovered loose white powder when she opened the inside slot of a public mailbox. Police were called and the ensuing investigation led directly to Zavrel and Forman. Against this backdrop, we consider the narrow question of whether the mailing of an envelope containing cornstarch meant to resemble anthrax, but containing no written message, constitutes a "communication ... containing any threat... to injure the person of the addressee" under 18 U.S.C. § 876. For the reasons that follow, we hold that it does, and we therefore affirm the judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the morning of October 23, 2001, Cindy Donlyn went to the Nanticoke, Pennsylvania Post Office to drop off some mail. When she opened the mailbox outside of the post office, she noticed some white powder on the chute inside the box and informed a postal worker. The Postmaster inspected the mailbox and quickly notified his superiors in Harrisburg and Washington, D.C., as well as the local police. The police unbolted the box from the ground and moved it to the back loading dock of the post office so that no customers could come near it. When the police opened the box they discovered several letters containing white powder. At this point, the Postmaster closed the entire post office. The Luzerne County Emergency Management Agency sent a team in protective suits to investigate further. The emergency personnel discovered the remaining letters, all containing a white powdery substance that was later determined to be cornstarch. The letters were seized and never delivered to the addressees.

During the course of the investigation, Nanticoke Police Detective William Schultz spoke with Dr. Mary Scott, Principal of the Nanticoke Middle School, who informed him that the juveniles whose addresses appeared on the letters had been students in 1999 at the Lincoln Elementary School where she had been principal. Schultz then discovered that in May 1999 he had been the investigating officer in an incident in which the two juveniles were the reported victims. The case was handled in juvenile court, and Zavrel's son, also a juvenile, was charged with making "terroristic" threats against the boys. Zavrel's son had apparently threatened to bring an automatic handgun to school and shoot the two juveniles as well as a third student. After a period of suspension from school, Zavrel's son was prosecuted, adjudicated delinquent and placed in juvenile detention. Schultz recalled that Zavrel contacted his department numerous times during the pendency of the case, urging that her son was innocent and that the other boys were lying.

A search of Zavrel's apartment turned up envelopes with the juveniles' names and addresses typed onto them, a partially used book of "Love USA" stamps (the same stamps that were affixed to the letters found in the Nanticoke post office), a partially empty box of cornstarch, and latex gloves. A number of clippings about the anthrax scare facing the nation were also found in the apartment. After Zavrel was arrested and taken from her residence by the police, her roommate, Forman, admitted to investigators that she and Zavrel had mailed the letters in retaliation against the boys whom they believed had lied about the actions of Zavrel's son.

By indictment filed in July 2002, Zavrel was charged with conspiracy to mail threatening communications, in violation of 18 U.S.C. §§ 371 and 876 (Count 1); aiding and abetting the mailing of threatening communications, in violation of 18 U.S.C. § 876 (Count 2); and making a false statement to a federal officer, in violation of 18 U.S.C. § 1001 (Count 3).

Following a five-day jury trial, Zavrel was convicted on all counts, and the District Court imposed a sentence of 30 months' imprisonment for each count, to be served concurrently. At the end of the government's case and again at the end of the defense's case, defense counsel unsuccessfully moved for a judgment of acquittal on all counts. Following the jury verdict, defense counsel again filed a motion for judgment of acquittal, which the District Court denied.

This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over the final judgment in this case under 28 U.S.C. § 1291.

Zavrel argues that because the issues on appeal concern the sufficiency of the evidence, we should apply a de novo standard in reviewing this case; the government argues that a "particularly deferential" standard should apply. See United States v. Cartwright, 359 F.3d 281, 286 (3d Cir.2004) ("The verdict must be sustained if there is substantial evidence to support it") (citations omitted). Although Zavrel frames her appeal as one about the sufficiency of the evidence, her arguments actually concern issues of statutory interpretation, and we will therefore exercise plenary review. United States v. Thayer, 201 F.3d 214, 219 (3d Cir.1999).

III. DISCUSSION

Zavrel concedes that the government proved the following facts at trial: In October 2001, Zavrel and her then-roommate Emily Forman addressed seventeen envelopes containing loose cornstarch (but no written message) to the President of the United States, local public officials, school administrators, and judges, and deposited them in a mailbox in the Nanticoke, Pennsylvania Post Office. The envelopes bore the names and return addresses of two boys who had reported the criminal acts committed by Zavrel's son, which Zavrel felt unjustly led to her son's placement in juvenile detention. Zavrel informed an investigator that the letters were mailed "to make those kids pay for what they did," (Zavrel Brief at 5), and she admitted to Agent Bill Salvoski of the United States Secret Service that the cornstarch was used to make the envelopes appear as if they contained anthrax, and that she hoped it would result in the juveniles being placed in detention.

Zavrel argues on appeal that this evidence was insufficient to convict her under counts one and two (the charges brought under 18 U.S.C. § 876), because she contends that mailing of cornstarch alone is insufficient to prove that she mailed a "communication" containing a "threat to injure" the addressee, under the statute. The relevant portion of the statute states:

Whoever knowingly so deposits or causes to be delivered [by the United States Postal Service] ... any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing ... any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 876(c). The primary purpose of the statute is to prohibit the use of the mails to send threatening communications. Under this provision, the government must establish that Zavrel deposited, in the mails, a "communication" containing a "threat to injure" the addressee. It does not matter whether the communication is actually delivered. See Seeber v. United States, 329 F.2d 572, 573 (9th Cir.1964) (upholding a conviction under 18 U.S.C. § 875(c) for threats made to a person other than the person the defendant intended to threaten).

Zavrel claims that her actions do not amount to a violation of the statute for two main reasons. First, she argues that absent the enclosure of a written message, the mailing of cornstarch cannot constitute a "communication" within the meaning of the statute. Second, Zavrel argues that she did not threaten the addressees of the letters, as required under the statute, because any harm caused by the mailings would have been immediate, and, she asserts, the statute only envisions prospective threats.

A. WHETHER MAILING CORNSTARCH CONSTITUTES "COMMUNICATION"

Zavrel claims that Congress did not intend for the mailing of cornstarch to constitute "communication" under 18 U.S.C. § 876. The first step in discerning the meaning of a statute is to determine whether the language used "has a plain and unambiguous meaning with regard to the particular dispute in the case." Ki Se Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir.2004) (citations omitted). See also Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 171 F.3d 818, 822 (3d Cir.1999) ("In the absence of a specific statutory definition, the language of the statute should be given its ordinary meaning and construed in a common sense manner to accomplish the legislative purpose.") (internal quotations and citations omitted).

Zavrel argues that because Congress did not define "communication" in 1948 when it amended the statute and codified the language under which Zavrel was charged, we must interpret the...

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