United States v. Keyser

• Decision Date: 06 December 2012
• Docket Number: No. 10–10224.,10–10224.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marc McMain KEYSER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 631

UNITED STATES of America, Plaintiff–Appellee,

v.Marc McMain KEYSER, Defendant–Appellant.

No. 10–10224.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2012.

Filed Dec. 6, 2012.

John Balazs, Sacramento, CA, for Appellant.

Jean M. Hobler, Assistant United States Attorney, Sacramento, CA, for Appellee.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Senior District Judge, Presiding. D.C. No. 2:08–cr–00538–FCD–1.

Before: STEPHEN REINHARDT, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

In an effort to drum up publicity for a self-published book on the dangers of anthrax, Marc Keyser feigned multiple acts of biological terrorism. After mailing hundreds of packets of powder labeled “Anthrax”—which were actually full of sugar—Keyser was convicted on two counts of mailing threatening communications under 18 U.S.C. § 876(c) (“threat” counts) and three counts of communicating false or misleading information regarding the presence of a biological weapon under 18 U.S.C. § 1038(a) (“hoax” counts). He was sentenced to 51 months in prison. He now appeals his conviction and sentence.

Keyser contends that all of his convictions should be overturned because his communications were protected expression under the First Amendment. We disagree, concluding that his statements fall into categories of speech that do not enjoy constitutional protection. He also argues that he cannot be convicted under the threat statute, because his statements were addressed to a generic “manager,” not to specific natural persons. The title of “manager,” however, sufficiently indicates that the mailings were addressed to natural persons, which is all the statute requires. See United States v. Havelock, 664 F.3d 1284, 1293 (9th Cir.2012) (en banc). In addition, Keyser raises multiple challenges to the jury instructions and alleges prosecutorial misconduct during closing arguments, but these claims are unpersuasive. We affirm his convictions.

We do, however, agree with Keyser that the district court improperly calculated his sentencing range under the advisory Sentencing Guidelines when it applied an enhancement for substantial governmental expenditures on the basis of conduct that included mailings for which he was not convicted. The Guidelines describe the appropriate realm of relevant conduct, and the district court's consideration of conduct beyond that scope when it decided to apply the four-level enhancement was procedural error. We therefore vacate the sentence and remand for resentencing.

I. Background

In the aftermath of the September 11th terrorist attacks, Marc Keyser began researching terrorism, including the use of anthrax. He wrote a book on anthrax, ultimately entitled “Anthrax: Shock and Awe Terror,” to spread the message that an anthrax attack could wreak havoc on the country. After unsuccessfully attempting to obtain a publisher, Keyser self-published his book on CDs and tried to market it.

In an attempt to secure publicity for the book, Keyser mailed a package to the Sacramento News & Review in 2007. The package contained a letter, a CD containing Keyser's book, and a small spray can with a label stating “ANTHRAX” and displaying a biohazard symbol. The package prompted employees to call 911 and to evacuate the building, and numerous emergency agencies responded.

FBI agents subsequently visited Keyser at his home, informed him that his mailing had upset people and led to a hazardous materials unit response, and warned him that he could be criminally prosecuted. An agent advised him not to do it again, and Keyser said that he would not.

A. 2008 Mailings

The next year, Keyser sent out approximately 120 packages to various news outlets, elected officials, and businesses. The materials sent to news outlets and elected officials were placed in business envelopes. They contained a CD printed with a picture of Colin Powell, the book title, and Keyser's name. The CD contained over half of the contents of Keyser's book. He attached a white sugar packet to the front of the CD with the sugar markings covered by a label stating “Anthrax” in large letters, “Sample” in smaller letters, and an orange and black biohazard symbol.

The materials sent to businesses were placed in purple greeting card envelopes. They contained a card with the same Colin Powell picture and “Anthrax” sugar packet on the front and a short blurb about the book inside. The card directed recipients to visit a website to learn more about the book.

Recipients of the packages responded in various ways, but only three specific mailings are relevant for this appeal: one to Congressman George Radinovich, one to a Starbucks, and one to a McDonald's.

1. Radinovich Mailing

Keyser sent a business envelope with a CD and an “Anthrax”/“Sample”-labeled sugar packet to Congressman Radinovich's Modesto, California, office. The envelope was opened by staff members who were aware of previous anthrax threats to members of Congress and who had been briefed regarding suspicious packages. Upon seeing the “Anthrax” sugar packet and the words “Anthrax: Shock and Awe” on the CD, they called the police. Per a detective's instructions, they left the envelope in a conference room and vacated the office. Police, fire trucks, ambulances, and a hazardous materials truck all responded to the scene. One staffer testified that when she saw the package, she felt “[i]nstant concern” because “[t]hose types of things scare you,” and that her colleague who had opened the package was “scared to death” and “petrified.”

2. McDonald's Mailing

Keyser sent a purple envelope to a Sacramento McDonald's restaurant, addressed to “McDonald's” on the first line and “Manager” on the second line. The restaurant's general manager opened the envelope to find one of Keyser's cards. He considered the contents to be “a very frightening letter.” He was “scared, but ... at a loss [and] dropped it and stepped back. Emotionally [he] was kind of shocked and appalled ... and called 911.” Following the 911 operator's instructions to quarantine the area, he left his office and barricaded the door. Police and a hazardous materials team responded.

3. Starbucks Mailing

Keyser also sent a purple envelope addressed to “Starbucks” on the top line and “Manager” on the second line to a Sacramento Starbucks. The envelope was postmarked on October 28, 2008, but was not opened until the store manager returned from vacation. The store manager identified the packet as sugar and was not concerned about her safety, but reported the card after discussing it with a customer in the shop who was a security guard for then-Governor Schwarzenegger. A hazardous materials responder and an FBI agent came to the store to pick up the package.

Federal agents returned to Keyser's home. Keyser admitted the mailings and explained that he was trying to sell his book. He recalled his previous meeting with FBI agents and his agreement not to send out such mailings again but distinguished the 2008 mailings from his 2007 mailing by pointing out that the latest mailings included the word “Sample” under “Anthrax.”

B. Procedural Background

Keyser was indicted on ten counts of hoax in violation of 18 U.S.C. § 1038(a) and three counts of mailing threatening communications in violation of 18 U.S.C. § 876(c). After a trial, a jury convicted Keyser on three counts of hoax under § 1038(a) for the mailings to Congressman Radinovich, McDonald's, and Starbucks, and two counts of threatening mailings under § 876(c) for the mailings to McDonald's and Starbucks. The jury acquitted him on all other counts.

Prior to Keyser's sentencing, the district court calculated the advisory Sentencing Guidelines range. The § 1038(a) and § 876(c) counts resulting from the McDonald's mailing were grouped together because they involved the same victim, and, similarly, the Starbucks counts were grouped together. The probation officer assigned a base offense level of 12 for each of the three counts or group of counts.

The district court adopted the findings of the probation officer in the Presentence Report and increased the offense level by four for each of the three mailings in accordance with U.S.S.G. § 2A6.1(b)(4), which provides for a four-level increase when an offense resulted in a substantial expenditure of funds or disruption in service available for a real emergency. The Congressman Radinovich offense was increased by six levels because it involved a government official. The resulting adjusted offense levels were as follows: Congressman Radinovich hoax, 22; McDonald's threat and hoax, 16; Starbucks threat and hoax, 16. Because the McDonald's and Starbucks groups were within 8 levels of the Congressman Radinovich offense, Keyser's Combined Offense Level was calculated by taking his highest offense level (22) and adjusting it upward by two units in accordance with the procedure for multiple counts outlined in U.S.S.G. § 3D1.4. Keyser had a final Combined Adjusted Offense Level of 24 and a Criminal History Category of I, which resulted in a Guidelines range of 51–63 months. The district court sentenced him to 51 months in prison and ordered him to pay $6,677.70 in restitution. Keyser filed a timely notice of appeal.

II. DiscussionA. First Amendment Challenge

Keyser argues that he cannot be convicted for his mailed statements because they are protected by the First Amendment. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (internal quotation marks omitted). The Supreme Court has repeatedly recognized, however, that certain categories of speech do not enjoy the benefit of full First Amendment protection. See United States v. Alvarez, –––...