United States v. Havelock

• Decision Date: 06 January 2012
• Docket Number: No. 08–10472.,08–10472.
• Citation: 40 Media L. Rep. 1129,2012 Daily Journal D.A.R. 176,664 F.3d 1284,12 Cal. Daily Op. Serv. 277
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kurt William HAVELOCK, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 277

2012 Daily Journal D.A.R. 176

40 Media L. Rep. 1129

664 F.3d 1284

UNITED STATES of America, Plaintiff–Appellee,

v.Kurt William HAVELOCK, Defendant–Appellant.

No. 08–10472.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 21, 2011.Filed Jan. 6, 2012.

Daniel L. Kaplan, Assistant Federal Public Defender, Phoenix, AZ, for the appellant.

Michael Thomas Morrissey, Assistant United States Attorney, Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Chief District Judge, Presiding. D.C. No. 2:08–cr–00116–ROS–1.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, BETTY B. FLETCHER, STEPHEN REINHARDT, KIM McLANE WARDLAW, RAYMOND C. FISHER, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge B. FLETCHER; Concurrence by Judge N.R. SMITH; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge WARDLAW; Dissent by Judge FISHER.

OPINION

FLETCHER, B., delivered the opinion of the court, which is joined in full by Chief Judge KOZINSKI, Judge BERZON, Judge CALLAHAN, and Judge IKUTA. Parts I, II.A. and II.C. are joined by Judge SCHROEDER and Judge REINHARDT. Parts I, II.A. and II.B. are joined by Judge WARDLAW. Parts I and II.B. are joined by Judge FISHER and Judge N.R. SMITH. Chief Judge KOZINSKI and Judges SCHROEDER, B. FLETCHER, REINHARDT, WARDLAW, BERZON, CALLAHAN, IKUTA, and N.R. SMITH join in the result:

“In matters of statutory construction ... it makes a great deal of difference whether you start with an answer or with a problem.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 529 (1947). We start with the problem presented by this case: the meaning of “person” and of “addressed to” in 18 U.S.C. § 876(c) (“§ 876(c)”), which prohibits the mailing of communications “addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another.” The answer, we hold, is that § 876(c) refers exclusively to an individual, or to a natural, person. Therefore, the statute requires that the threatening communications be addressed to a natural person. We also hold that in order to identify the addressee, a court is not limited to the directions for delivery on the outside of the envelope or on the packaging, but also may look to the content of the communication. Because appellant Kurt William Havelock's (“Havelock”) communications were not addressed to natural persons, we reverse his six convictions of mailing threatening communications in violation of § 876(c).

I

A

Five days before Super Bowl XLII,¹ Havelock traveled to the Scottsdale Gun Club and purchased an AR–15 assault rifle, five extra magazines, and ammunition to spare. Evening found Havelock seated at his home computer, studying a map of the parking lots surrounding the University of Phoenix Stadium in Glendale, Arizona, site of the upcoming game.

On “Super Bowl Sunday,” approximately half an hour before the opening kickoff, Havelock loaded his newly-purchased assault rifle and several clips of ammunition into his car and drove to a post office near the stadium. There, he deposited six Priority Mail envelopes, two greeting cards, and three “goodbye” letters into a mailbox. In one of the letters, to his former employer, Havelock foresaw: “By the time this letter reaches you, I will probably be deceased or no longer able to sign any further needed paperwork.”

Four of the Priority Mail envelopes were addressed to media outlets, specifically, the New York Times, the Los Angeles Times, the Phoenix New Times, and the Associated Press. The remaining two envelopes were addressed to two music-related websites, theshizz.org and azpunk.com. Each envelope contained a “media packet,” as Havelock called it, consisting of a six-page “econopolitical” manifesto entitled “Karma Leveller: Bad Thoughts on a Beautiful Day” (the “Manifesto”); a brief account of a recent incident involving faux pipe bombs that Havelock discarded; an apologetic letter addressed to the police, directing them to his car, “which [would be] parked in Glendale somewhere around the stadium,” and asking them to “not take [out their] hatred for [him] on [his] dogs,” and at the end of which Havelock handwrote “DO NOT RESUSCITATE,” and another letter comprised of self-described “random blatherings” that was addressed to theshizz.org and azpunk.com, and which described Havelock's tribulations as the owner of a nightclub in the City of Tempe.

Havelock's Manifesto was, in equal parts, a fractured meditation on the purported evils of American society and a past-tense account of the experiences, beliefs, and convictions that set off his anticipated “econopolitical confrontation.” Punctuating the Manifesto were references to the Founding Fathers (Benjamin Franklin, Thomas Jefferson), cultural icons (John Rambo, Mad Max, Bugs Bunny), musical groups (Pink Floyd, AC/DC, Bad Religion), video games (Donkey Kong, Grand Theft Auto, State of Emergency), literature ( Alice in Wonderland, The Catcher in the Rye), and motion pictures ( Road Warrior, Hostel, The Astronaut Farmer ). Quotations abounded as well, drawn from such diverse sources as the Hebrew Bible, H.P. Lovecraft, and Pastor Martin Niemöller.

Havelock's Manifesto shifted among the past, present, and future tenses at seemingly random junctures. Thus, there were retrospective remarks, such as “Music did not make me kill,” and “I could have used pipe bombs....” The Manifesto also included prospective remarks:

But you have attacked my family. You have destroyed the futures of my children. So now, I will reciprocate in kind. Only mine will not be the slow crush of a life of a wage slave, or of malnutritioned [sic] sicknesses, or of insurmountable debt. It will be swift, and bloody. I will sacrifice your children upon the altar of your excess....

... So I will make the ultimate sacrifice; I will give my life. And I will take as many of the baneful and ruinous ones with me.

...

I will slay your children. I will shed the blood of the innocent.

Although there were several indirect references to Super Bowl XLII, the sole mention of the event by name comes when Havelock muses, “Perhaps tshirthell.com or rottencotton.com will print up some cool tshirts [sic] like ‘I SURVIVED SUPERBOWL XLII.’ ”

After leaving the post office, Havelock drove to a parking lot near the stadium “to wait for an opportunity to shoot people.” He expected, in the process, to “commit suicide by cops.” Minutes after arriving, however, Havelock experienced “a change of heart.” Hysterical, he telephoned his fiancee and confessed to having “had bad thoughts.” When they met soon thereafter, Havelock again explained “that he had [had] bad thoughts and he [had] threatened a lot of people in the letters.” Havelock also told his parents that he had “done something terribly, terribly wrong,” and that “[he] sent threatening letters.”

Havelock needed no persuasion to go to the City of Tempe police station. There, he tendered the rifle and provided the Tempe police with copies of the materials in the media packets. The Tempe police notified the Federal Bureau of Investigation (“FBI”). About an hour later, agents of the FBI and the Bureau of Alcohol, Tobacco, and Firearms conducted a recorded interview with Havelock and took him into custody.

B

A federal grand jury indicted Havelock for six counts of mailing threatening communications in violation of § 876(c), corresponding to the four media outlets and the two websites to which Havelock mailed his Manifesto.² The threat, as alleged in each of the six counts, consisted of “a threat to injure the person of another, specifically children and persons in the vicinity of the Super Bowl XLII event in Arizona.”

Havelock moved to dismiss the indictment. As relevant here, he argued that the phrase “any other person” in § 876(c) refers exclusively to natural persons and, because the media packets were addressed to corporations, the indictment failed to allege facts sufficient to constitute an offense. Havelock also argued that the media packets were devoid of a “threat to injure” 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.”

The district court denied the motion to dismiss. It agreed that “any other person” referred exclusively to natural persons, but held that the jury could scrutinize the envelopes, salutation, and general contents of the media packets to determine whether they were addressed to natural persons. United States v. Havelock, 560 F.Supp.2d 828, 830–31 (D.Ariz.2008). The court further ruled that the question of whether the media packets contained true threats was a question of fact for the jury. Id. at 834.

Havelock was tried before a jury. At the close of the evidence, Havelock moved for a judgment of acquittal, wherein he incorporated his motion to dismiss the indictment. The district court denied the motion.

The jury convicted Havelock on all six counts of mailing threatening communications in violation of § 876(c). The district court sentenced Havelock to a 366–day term of imprisonment followed by a 36–month term of supervised release.

Havelock appealed. He argued that the district court erred in interpreting § 876(c) to allow a trier of fact to consult the content of a mailed communication to determine whether it was addressed to a natural person. He further argued that his Manifesto qualified as political speech and did not constitute a “true threat,” and therefore was entitled to First Amendment protection. Lastly, Havelock argued that there was insufficient evidence that he mailed the Manifesto with the specific intent to threaten any person.

A...