U.S. v. Bly

• Decision Date: 14 December 2007
• Docket Number: No. 06-4578.,06-4578.
• Citation: 510 F.3d 453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles A. BLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

510 F.3d 453

UNITED STATES of America, Plaintiff-Appellee, v. Charles A. BLY, Defendant-Appellant.

No. 06-4578.

United States Court of Appeals, Fourth Circuit.

Argued: September 26, 2007.

Decided: December 14, 2007.

ARGUED: Willis James Spaulding, Charlottesville, Virginia, for Appellant. Jennifer Rebecca Bockhorst, Office of the United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States Attorney, Roanoke, Virginia, Jean B. Hudson, Assistant United States Attorney, Office of the United States Attorney, Charlottesville, Virginia, for Appellee.

Before MOTZ and KING, Circuit Judges, and ROBERT J. CONRAD, JR., Chief United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge CONRAD joined. Judge MOTZ wrote a concurring opinion.

OPINION

KING, Circuit Judge:

Charles A. Bly appeals from the district court's refusal to dismiss the portion of an indictment charging him with a violation of 18 U.S.C. § 876(b) (the "§ 876(b) Offense"). Pursuant to a plea agreement, Bly entered a conditional guilty plea in the Western District of Virginia to the § 876(b) Offense, reserving his right of appeal. The charge underlying Bly's conviction alleged, inter alia, that he had "knowingly and with intent to extort from the University of Virginia a sum of money or other thing of value" mailed a written communication containing a threat to injure certain individuals. On appeal, Bly contends that the § 876(b) Offense should have been dismissed for two reasons: first, his statements were not "true threats," but instead were "political hyperbole" protected by the First Amendment; and, second, the charge was fatally defective because the University of Virginia is not a "person" subject to being extorted under § 876(b). As explained below, we reject Bly's contentions and affirm.

I.

A.

Bly earned bachelor's and master's degrees in engineering from the University of Virginia ("UVA," or the "University") in 1978 and 1983, respectively. In 1994, Bly returned to UVA to pursue doctorate studies. He thereafter grew concerned that members of his supervising committee were plagiarizing his work. Although Bly voiced complaints in this regard to the University administration, no action was taken in response. By 2002, having failed to make progress on his dissertation, Bly was dropped from his doctorate program. Soon thereafter, he began writing and sending threatening communications by mail and email, asserting that UVA personnel had plagiarized his work and treated him unfairly. As relevant here, Bly sent four communications on the following dates: July 30, 2003 (letter); August 12, 2003 (email message); November 29, 2003 (letter); and January 1, 2004 (letter). Bly's letter of January 1, 2004 (the "Letter"), comprised of fifteen pages and addressed to approximately forty-six individuals, is the source of the underlying conviction and gives rise to the issues in this appeal.¹

The addressees of the Letter included multiple officers and members of the Board of Visitors of the University, various government officials, officers of academic organizations, and others. In the Letter, Bly made various demands on the University, including removal of his thesis advisor's website; an investigation of his list of purported University abuses; publication of those abuses in major news outlets; an audit to expose University wrongdoing; replacement of the UVA President with the Governor of New York; and creation of a nuclear engineering program designed specifically for Bly. Bly also demanded that the University pay him "restitution for civil damages, [and] monetary recompense for these abuses," in the sum of $533,600. J.A. 50.²

Importantly, the Letter was replete with what the prosecution deemed threats made by Bly. For example, Bly signaled his intention to seek redress outside legal channels, asserting that "bullets are far cheaper and much more decisive. A person with my meager means and abilities can stand at a distance of two football fields and end elements of long standing dispute with the twitch of my index finger." J.A. 47. Bly also asserted in the Letter that "it would be a shame to brutalize Rydin and Brenizer [another thesis advisor] in order to guarantee that I receive a hearing of my story and a form of justice." Id. at 47. With the Letter, Bly enclosed copies of firearms practice targets with bullet holes near their centers to "give [] evidence of a talent I possess for gun control—hitting the target." Id. A cover sheet attached to these practice targets read, "TESTIMONY TO MY ABILITY WITH SMALL — BORE AND HIGH — POWER RIFLES. YOU WILL NOTE THIS WILL HAVE NO BEARING ON THE OUTCOME OF OUR WORK, AS LONG AS YOU NOW DO YOUR PART EXPEDITIOUSLY AND HONESTLY, WITH NO FURTHER OBFUSCATION WHATSOEVER." Id. at 53-57 (capitalization in original). Although Bly maintained in the Letter that "[t]hese comments are not to be interpreted as illegal brandishing of a firearm, blackmail, or extortion," he admonished his recipients that, "if this remains class warfare, I assure you tragic consequences." Id. at 47.

B.

On February 4, 2004, the federal grand jury in Charlottesville, Virginia, indicted Bly on five counts, including three offenses under 18 U.S.C. § 876(c) (Counts One, Three, and Five), an offense under § 875(c) (Count Two), and the § 876(b) Offense (Count Four). The § 876(b) Offense alleged, in pertinent part, that Bly had sent the Letter "knowingly, and with intent to extort from the University of Virginia a sum of money or other thing of value . . . containing a threat to injure" the persons of Drs. Rydin and Brenizer, in violation of § 876(b). J.A. 19-20.

On March 3, 2004, Bly filed a motion to dismiss the five counts of the indictment, contending, inter alia, that his communications were protected by the First Amendment, and that UVA is not a "per-son" subject to being extorted under § 876(b). By Order of May 10, 2004, this motion to dismiss was summarily denied. On October 9, 2005, Bly filed an amended motion to dismiss the indictment, seeking to clarify his earlier contentions. In response, the district court filed its Memorandum Opinion and Order of October 14, 2005, denying Bly's amended motion. See United States v. Bly, No. 3:04cr00011, 2005 WL 2621996 (W.D.Va. Oct. 14, 2005) (the "Opinion").³

By its Opinion, the district court denied Bly's amended motion to dismiss for two basic reasons. First, the court concluded that the statements made by Bly in the Letter were not protected by the First Amendment, in that they were "true threats" rather than constitutionally protected "political hyperbole." Opinion 4.⁴ Second, the court ruled that UVA was a "person" subject to being extorted under § 876(b).

On October 13, 2005, the day before the district court issued its Opinion, Bly entered into a plea agreement with the United States Attorney, in which he agreed to plead guilty to the § 876(b) Offense. On October 17, 2005, pursuant to that agreement, Bly entered his guilty plea to the § 876(b) Offense, as charged in Count Four of the indictment. He reserved his right, however, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, to appeal the denial of his dismissal motions.⁵ On that same day, Bly filed a second amended motion to dismiss, again seeking to clarify his grounds for dismissal, specifically his contention that UVA is not a "person" subject to being extorted under § 876(b). Bly's second amended motion to dismiss was denied on October 18, 2005.

At his May 23, 2006 sentencing hearing in the district court, Bly was sentenced to a term of imprisonment equal to "time served," plus three years of supervised release. After Bly was sentenced on the § 876(b) Offense, Counts One, Two, Three, and Five of the indictment were dismissed, pursuant to the plea agreement. On May 31, 2006, Bly filed a notice of appeal, and the district court's judgment was entered on June 2, 2006.⁶ We possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Bly's appeal presents two separate contentions. First, he maintains that the Letter contained constitutionally protected "political hyperbole," and not an unprotected "true threat" to injure Drs. Rydin and Brenizer. Second, he contends that UVA is not a "person" subject to being extorted under § 876(b), and that the § 876(b) Offense fails for that independent reason. Whether a written communication contains either constitutionally protected "political hyperbole" or an unprotected "true threat" is a question of law and fact that we review de novo. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 506-11, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Whether an indictment properly charges a criminal offense specifically, in this appeal, whether UVA is a person subject to being extorted under § 876(b) — is a question of law which we also review de novo. United States v. Darby, 37 F.3d 1059, 1062 (4th Cir.1994).

III.

The statute underlying the § 876(b) Offense provides, in pertinent part, as follows:

Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered [by mail] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be [guilty of an offense against the United States].

18 U.S.C. § 876(b). In order for the prosecution to sustain a conviction under § 876(b), three essential elements must be established. That is:

(1) The defendant must have caused the mailing of a written communication;

(2) Such written communication must have contained a threat to kidnap any person or to injure the person of the addressee or of another (the "Threat Element"); and

(3) The defendant must have intended such communication to extort from any person money or other thing of value (the "Extortion Element").

In this...