U.S. v. Havelock

• Decision Date: 12 June 2008
• Docket Number: No. CR 08-116-PHX-ROS.,CR 08-116-PHX-ROS.
• Citation: 560 F.Supp.2d 828
• Parties: UNITED STATES of America, Plaintiff, v. Kurt William HAVELOCK, Defendant.
• Court: U.S. District Court — District of Arizona

Page 828

560 F.Supp.2d 828

UNITED STATES of America, Plaintiff, v. Kurt William HAVELOCK, Defendant.

No. CR 08-116-PHX-ROS.

United States District Court, D. Arizona.

June 12, 2008.

Jeffrey Allen Williams, Federal Public Defenders Office, Phoenix, AZ, for Defendant.

Michael Thomas Morrissey, U.S. Attorney's Office, Phoenix, AZ, for Plaintiff.

ORDER

Before the Court is Defendant Kurt William Havelock's Motion to Dismiss the Superceding Indictment. For the reasons stated herein, this motion will be granted in part and denied in part.

BACKGROUND

On or about January 30, 2008, Havelock purchased an AR-15 semi-automatic rifle and ammunition at the Scottsdale Gun Club located at 14860 North Insight Boulevard, Scottsdale, Arizona. The rifle was manufactured in Maine, and the ammunition was manufactured in Brazil. He allegedly purchased the rifle with the intent to injure or kill persons attending Super Bowl XLII on Sunday, February 3, 2008, in Glendale, Arizona.

On February 3, 2008, Havelock wrote a letter allegedly threatening to injure the children and persons in the vicinity of the Super Bowl, and mailed eight copies to various media companies from the United States Post Office located at 59th Avenue and Peoria Avenue in Glendale, Arizona. He then, with the AR-15 in the trunk of his vehicle, drove to the University of Phoenix Stadium, the location of the Super Bowl.

Havelock had a change of heart, informed the Tempe Police Department of his actions, and surrendered his weapon. He was arrested by federal authorities on February 4, 2008, and charged with a single count of violating 18 U.S.C. § 876(c).

On February 19, 2008, an indictment was filed charging Havelock with six counts of violating 18 U.S.C. § 876(c). On April 1, 2008, a superceding indictment was filed, which added two counts to the indictment of violating 18 U.S.C. § 924(b).

ANALYSIS

Havelock has moved to dismiss the superceding indictment pursuant to Federal Rule of Criminal Procedure 7(c) and the Speedy Trial Act.

I. Federal Rule of Criminal Procedure 7(c)

Havelock challenges the sufficiency of the superceding indictment under Federal Rule of Criminal Procedure Rule 7(c) on the grounds that: (1) the envelopes sent were not addressed to a "person" within the meaning of 18 U.S.C. § 876(c); (2) he did not receive a gun in interstate commerce as required by 18 U.S.C. § 924(b); and (3) his letters did not contain true threats.

A. Under 18 U.S.C. § 876(c), the Jury Can Examine the Envelope and the Letter's Contents In Order to Determine If the Communication Is "Addressed To" a Natural Person.

Havelock argues that the indictment is legally insufficient because the envelopes directed delivery to various media corporations rather than a natural person. Whether Section 876(c) constrains the trier of fact to examine only the envelope or allows consideration of the contents of the communication in order to determine who a communication is "addressed to" is an issue of first impression for this Court.¹

In support of his argument, Havelock relies upon United States v. Brownfield, 130 F.Supp.2d 1177 (C.D.Cal.2001). In Brownfield, the defendant mailed a communication via the post office that stated "Federal Bureau of Investigation, 901 Civic Center Drive, Santa Ana, CA 92701" on the envelope, and contained a threat to murder the person Moon Unit Zappa. Id. at 1178-79. The court held that, because the envelope directed delivery to the Federal Bureau of Investigation, which was not a natural person, the communication was not "addressed to" a "person" as required by Section 876(c).

As an initial matter, the Court agrees with the Brownfield court that the communication must be addressed to a natural person, not a corporation. Brownfield, 130 F.Supp.2d at 1181. While generally the word "person" includes corporations, see Dictionary Act, 1 U.S.C. § 1; Monell v. Dep't of Social Serv. of City of New York, 436 U.S. 658, 687, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978), Section 876(c) prohibits threats to kidnap or injure the "person of the addressee." This language "denotes the physical body of a person," and "corporations cannot be understood to have physical bodies." Brownfield, 130 F.Supp.2d at 1180-81. Thus, the context of Section 876(c) demonstrates that "person" means a natural person.

That said, the Court must still determine the meaning of "addressed to," and this is where it parts company with the Brownfield court. In United States v. Williams, the Tenth Circuit considered threatening communications whose envelopes directed delivery to a governmental agency but whose content, and in particular, the salutations were arguably addressed to natural persons. 376 F.3d 1048, 1051 n. 2 (10th Cir.2004). The court held that Section 876 allows consideration of, at a minimum, the envelope and the salutation of a letter to determine who the communication was "addressed to." Id. at 1052; see also United States v. Chapman, 440 F.Supp. 1269, 1270 (E.D.Wis.1977) (holding that "a threatening letter is `addressed' to a person within the meaning of [Section] 876 if the letter itself is directed to the attention of specific person, even though the delivery instructions direct that the mail carrier deliver the letter to an institution"). In support of this holding, the court examined the definition of "address," and found that it did not exclude the salutation of the letter. Id. The court also noted "Section 876 proscribes the mailing of a threatening communication which is `addressed to any other person,'" and "[t]he word `communication' includes the contents of a letter." Id. (collecting sources) (emphasis in original).

The Court finds the reasoning of the Williams court persuasive, and, while Williams specifically focused on the salutation of a letter, there is no reason to limit the decision to the salutation, as opposed to the letter's general contents. First, the definition of "address" includes "to direct the words of (oneself)" and "to speak, write, or otherwise communicate directly to." Webster's Third New International Dictionary 24 (2002). This definition of "address" indicates that one may consider the contents of a letter generally. And, as the Tenth Circuit noted, the word "communication" includes the contents of a letter, not just its salutation.

Further, the purpose of Section 876 would be frustrated if someone could avoid prosecution by merely addressing a threatening communication to a media corporation even though the content of a communication was meant to threaten persons. In light of recent events, a reasonable jury could conclude that persons engaged in or planning to engage in random shootings or mass murders hope to gain the attention of the public through the media by communicating threats to do so. In addition, a reasonable jury could conclude that a defendant intended to use the media as the agent for communicating the threat to intended victims. It is commonly understood that the media is in the business of communicating and has an obligation to communicate to the public. No reasonable person would think that when the media received such a communication it would ignore it. Of course the jury on these facts might conclude otherwise. Significantly, it is here, and generally always is, the exclusive province of the jury to parse through the facts and make these exquisite evaluations.

Thus, when the jury determines who a communication is "addressed to" for purposes of Section 876(c), it may consider the both the envelope and the letter's contents.

B. Movement of a Firearm Across State Lines at a Time Removed from Havelock's Receipt Does Not Satisfy 18 U.S.C. § 921(b)'s Interstate-Commerce Requirement.

Because Havelock's receipt of the firearm was entirely intrastate in nature, he asserts that the government cannot satisfy Section 924(b)'s interstate-commerce requirement.² The government's position is receipt of a firearm that previously traveled in interstate commerce, no matter how far removed from a defendant's receipt, is sufficient. The scope of Section 924(b)'s interstate-commerce requirement is an issue of first impression.

"A familiar principle of statutory construction [] is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute." Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 2765, 165 L.Ed.2d 723 (2006); see also Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (quotation marks omitted).

Sections 922(f) and 924(b) were enacted as part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351 (1968). In Section 922(f), Congress forbade anyone who was under indictment or a convicted felon "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce" (emphasis added). In Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976),³ the Supreme Court held that this phrase "means exactly what it says," that there is "no limitation to a receipt which itself is part of the interstate movement." Id at 216, 96 S.Ct. 498. The Court also noted that "while the proscribed act, `to receive any firearm,' is in the present tense, the interstate commerce reference is in the present perfect tense, denoting an act that has been completed." Id.

In contrast, in Section 924(b), Congress did not include the phrase "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce," but rather used "in interstate or foreign commerce" (emphasis added).⁴ Unlike Section 922(f), the proscribed act and the interstate-commerce reference are in the present...