Opinion
02 Cr. 73 (RPP)
September 5, 2003
Neil S. Cartusciello, New York, NY, for Defendant
James B. Comey, New York, NY, for the Government
OPINION AND ORDER
The Government moves for a pretrial ruling on the sufficiency of the stipulated record, and asks that the Indictment not be dismissed pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Defendant Evelyn Taylor ("Defendant") asks for a Judgment of Acquittal on both counts of the Indictment. For the following reasons, the Government's motion is denied, and a Judgment of Acquittal on both counts of the Indictment is entered in favor of Defendant.
In its original memorandum of law entitled "The Government's Memorandum of Law in Opposition to the Dismissal of the Indictment Based on the Legal Sufficiency of the Allegations of the Threat Element," the Government brought its motion pursuant to Rule 12 of the Federal Rules of Criminal Procedure. In Defendant's response entitled "Memorandum of Law of Evelyn Taylor in Response to the Government's Motion for a Pretrial Ruling on Sufficiency of its Evidence," Defendant argued that Rule 29 contained the applicable standard. In the "Government's Reply Memorandum of Law in Opposition to the Dismissal of the Indictment Based on the Legal Sufficiency of the Threat and Interstate Commerce Allegations," the Government maintained that the applicable pretrial motion practice was based on United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998), "which provides that the Government may consent to a pretrial determination of the sufficiency of the allegations in the Indictment." (Gov. Repl. Mem. at 1-2.) At oral argument on July 7, 2003, the parties agreed that the motion would be heard pursuant to Rule 29, with a right to appeal the decision of the Court. (Argument at 7.)
Background
The Complaint alleges that on October 20, 2001, employees of ABC Carpet and Home ("ABC Carpet"), located at 888 Broadway, New York, New York, found a note (the "Note") at the register area on the third floor of the store, containing letters cut out from newspapers or magazines stating "Anthrax is here [at] ABC." (Complaint ¶ 3a.) The Note also had a picture of a dog and a man's face. (See id.) ABC Carpet surveillance cameras captured the image of the individual who left the Note at the register who was identified as employee Bharat Bhusan Dewansingh, a co-defendant. (See id. ¶ 3b.)
The Note was attached as Exhibit B to Neil S. Cartusciello's Affirmation dated December 6, 2002 (the "Cartusciello Affirmation"), in support of Defendant Taylor's pretrial motions to suppress post-arrest statements and for a separate trial. In addition to the description of the cut-out words in the Complaint, the Note also contained the letter "N." Thus, the Note more accurately read, "Anthrax is here [i]n ABC" rather than "[at] ABC."
The Complaint was attached as Exhibit A to the Cartuscieilo Affirmation.
According to an FBI interview with Defendant, Defendant initially denied involvement in making the Note or placing it by the cash register. (FBI Transcription of Taylor Interview, transcribed on October 21, 2001, at 1.) Defendant later told the FBI that she made the Note because she was angry with the management of ABC Carpet, and was hoping to scare them. (Id.) Defendant indicated that she first showed the Note to her husband who told her it was criminal, but she kept the Note anyway and showed it to fellow employees, co-defendant Dewansingh and Mike Sellars, during her lunch break. (Id. at 2.) Defendant stated that she made six copies of the Note after lunch, and co-defendant Dewansingh asked her for copies of the Note in order to place them around the store. (Id.) Defendant said that she and Mr. Sellars told co-defendant Dewansingh not to do that because they could get in trouble, and that Defendant threw away the original Note in the trash. (Id.) Defendant further indicated that co-defendant Dewansingh told her and Mr. Sellars that he had put a copy of the Note in the linen area, but then removed it after Mr. Sellars told him to. (Id.) Defendant said when she was walking through the lunch area, she saw a copy of the Note on one of the tables and she removed it and threw it away. (Id.) Defendant said that prior to leaving the store on October 19, 2001, co-defendant Dewansingh told her and Mr. Sellars that he was going to leave a copy of the Note by the cash register in the baby area, and she did not say anything to co-defendant Dewansingh in response. (Id.)
The FBI Transcript of the Taylor Interview was attached to a letter from AUSA Jonathan Etra, dated January 8, 2003, in connection with the conference held on January 9, 2003 regarding Defendant Taylor's pretrial motions.
Defendant and co-defendant Dewansingh were indicted on two counts. Count One charged that Defendant and Dewansingh "unlawfully, willfully, and knowingly did . . . conspire . . . to commit an offense . . . to violate Title 18, United States Code, Section 2332a(a)(2)." (Indictment ¶ 1.) The object of the conspiracy was to "threaten to use a weapon of mass destruction . . . against persons within the United States, and the results of such threatened use would have affected interstate and foreign commerce." (Id. ¶ 2.) Count Two charged that Defendant and Dewansingh "unlawfully, willfully, and knowingly threatened to use a weapon of mass destruction. . . . against persons within the United States, and that the results of such threatened use would have affected interstate and foreign commerce," in violation of 18 U.S.C. § 2332a(a)(2) and 2. (Id. ¶ 4.)
Co-defendant Dewansingh's trial commenced on March 24, 2003, and upon the close of the Government's case on March 26, 2003, this Court granted Dewansingh's motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29, and discharged the jury. (Transcript at 382; 392.)
A motion to sever was brought on behalf of Defendant Taylor, and following a suppression hearing on January 22, 2003, this Court granted Defendant Taylor's motion to sever and set separate trial dates for Taylor and Dewansingh.
On March 25, 2003, this Court had requested that the Government provide to the Court the next day, a brief regarding the question of whether the word "use," in the context of "threatens to use a weapon of mass destruction" and Bailey v. United States, 516 U.S. 147 (1995), did not require a threat to perform an affirmative act. (Transcript at 154.) The Government did not brief the issue as requested.
All transcript references refer to the trial of co-defendant Dewansingh, United States v. Dewansingh, 02 Cr. 73 (RPP).
This Court articulated its reasoning as follows:
[T]he statute requires that the defendant make a threat to use a weapon of mass destruction. And under the reading the [N]ote, that says anthrax is here in ABC. There's no evidence that has been presented that indicates in any way that anyone was going to do an act to spread anthrax. So it says it's already here, and that would not constitute a violation of the statute. . . . It requires a person to threaten to do something, requires them to threaten to use a weapon of mass destruction. . . . It is already disseminated, it isn't use under the statute. . . . I don't think a jury, a reasonable jury could find that this document was a threat to do an act that would be harmful at once or in the future. I think a reasonable jury would have to find that it was a statement that an act had already been done and that's why everyone was so scared.
(Id. at 383-85.)
Rather than set a trial date for Defendant, on May 27, 2003, the Government brought the current motion on a stipulated record. Oral argument was held on July 7, 2003.
All references to Argument refer to oral argument on the current motion held on July 7, 2003.
The Stipulated Record
With regard to Count One in the Indictment, the Government would normally be required to prove that: 1) an unlawful conspiracy to violate 18 U.S.C. § 2332a existed, 2) Defendant knowingly and intentionally participated in the conspiracy, and 3) one of the co-conspirators knowingly committed at least one overt act in furtherance of the conspiracy. However, for purposes of the pending Rule 29 motion, the parties agreed that if the Court were to make the same ruling as it did in the Dewansingh trial on the substantive charge (Count Two), the conspiracy charge would also have to be dismissed. At oral argument on the current motion, the Court asked how the parties' arguments applied to the conspiracy count. (Arg. at 40.) Mr. Cartusciello stated that an agreement between the parties was already in the record regarding the conspiracy count, and that he would confirm with the Court exactly what had been decided on the issue. (Id. at 40, 57-58.) By letter dated July 14, 2003, Mr. Cartusciello cited the parties' agreement based on the changes that were made before this Court in an appearance on May 1, 2003 to a Letter from the Government dated April 30, 2003. (Letter from Neil A. Cartusciello, dated July 14, 2003 at 2.) In the Government's April 30 letter, it stated the following:
Mr. Cartusciello asked if the conspiracy charge would also be dismissed in the event that the Court dismissed the substantive charge on the same grounds that the Court dismissed the charges in Taylor [sic; should have said Dewansingh]. The government agrees that, if the Court were to make the same ruling as it did in Dewansingh, that the Note was legally deficient under Section 2332a, the conspiracy charge would also have to be dismissed. That is because the Government's theory and proof is that Taylor and Dewansingh had an agreement to disseminate the Note; accordingly, if the Note cannot be read as a "threat to use" a weapon of mass destruction, as the Court found in Dewansingh, then the agreement would not be an illegal agreement, and the conspiracy charge would then necessarily fail.
(Letter from AUSA Jonathan Etra, dated April 30, 2003 at 3.) In the appearance before this Court that followed on May 1, 2003, the parties and Court agreed to change Mr. Etra's April 30 Letter as follows:
MR. CARTUSCIELLO [for Defendant]: I think your Honor's suggestion is a good one. I think we have an agreement, which is the wording would be as follows: I am going to read the whole sentence just for clarity. It will now read: "The government agrees that if the court were to make the same ruling as it did in Dewansingh on the substantive charge (Count Two), the conspiracy charge would also have to be dismissed."
MR. ETRA [for the Government]: Yes. In the context of the paragraph, we completely agree with that.
(Transcript of May 1, 2003 Appearance at 15.)
Due to the Court's determination in this Opinion that Count Two of the Indictment is dismissed, Count One is automatically dismissed for the same reason, and it is unnecessary for this Opinion to address the additional elements required for conspiracy.
I. EVENTS OF OCTOBER 19 AND 20, 2001
On the morning of Saturday October 20, 2001, during the height of the anthrax scare (Tr. at 41, 111, 121-122, 157-158, 254, 301-302), Store employees who came to work found the Note at the cashier's desk of the baby section on the Third Floor (Tr. at 34-36, 109-111; GX 327, GX 329-330).
The Note contained letters that appeared to have been cut out of a magazine or a newspaper and assembled to state that "Anthrax is here [i]n ABC". (GX 1). The Note also had an image of a dark skinned man, and an image of a dog. (Id.).These images also appeared to have been cut out of a newspaper or magazine. (GX 1).
The first employees to see the Note were saleswomen. (Tr. at 34-36, 109-111; GX 327, 329-330, 333). They reacted with shock, fear, and tears. (Id.) They had been following media coverage of suspected and real anthrax attacks and they knew that anthrax is bacteria that can kill without being seen. (Tr. at 41, 111, 158-165).
Of the saleswomen who found the Note, one was pregnant and she thought that she and her unborn child could die. (Tr. at 50, 54-55, 111-112). She immediately backed away and cried. (Tr. at 110-111;GX 329-331). Another saleswoman recognized the dark skinned man to be someone who, according to media reports at the time, was identified by the FBI as a suspected terrorist. (Tr. at 37-38, 98; GX 4).
The saleswomen informed the Store's security department, and a security officer responded. (Tr. at 114-115, 257-258; GX 333). The security officer informed his supervisors of the incident, and the police were immediately contacted. (Tr. at 260). The security officer cordoned off the area where the Note was found, keeping staff and customers alike away from the cashier's desk where the Note remained. (Tr. at 266).
Two New York City Police Department uniformed patrolmen arrived (Tr. at 118-121; GX 342), and parts of the store were evacuated for an hour (Tr. at 59-61, 115-117, 123, 267-268). During the evacuation, one of the patrolmen put on protective gloves and carefully removed the Note and placed it in layers of wrapping. (Tr. at 268-269; GX 348-350). A "hammer" team comprised of specially trained police and fire department officials also arrived. (Tr. at 121-122, 130-131, 271, 273; GX 351).
Later that day, Taylor, who worked in the Store's Third Floor stock room, was questioned by law enforcement officials. After initially denying any knowledge of, or involvement in, the Note (Supp. Tr. at 66, 70), Taylor admitted that she created the Note and included a picture of a follower of Osama bin Laden to scare people because she was angry with store management (Supp. Tr. at 74-75). On October 19, 2001, Taylor showed the Note to Dewansingh and another employee. (Supp. Tr. at 76). Dewansingh asked for a copy so that he could place it in the Store, and Taylor gave him a copy. (Id.)
The Store's surveillance video showed that on October 19, 2001 (Tr. 190-191, 274-275, 320-321), Taylor provided what appeared to be the Note to Dewansingh who then left it at the cashier's desk (GX 301-315).
In its Memorandum of Law in Response, Defendant states that "[f]or purposes of this motion, very few facts are in dispute"; however, Defendant disputes the Government's characterization that employees of ABC Carpet "reacted with shock, fear and tears," and contends that the Government's characterization is an "overstatement." (Def. Mem. of Law in Resp. at 1.) Defendant sums up his objection as follows:
In short, the Government has offered no evidence at all that either Ms. Grant or Ms. Sooroojnauth — or anyone else for that matter — ever became even slightly concerned by an impending act by someone. Nor has the Government offered any evidence that anyone who saw the document ever understood it to be an expression of someone's intention "to use" something.
(Id at 3.)
Defendant also disputes the "testimony of Detective Charles Villani and Agent Nicholas Panagakos as to the statements that they claim she made at the time of her arrest," but contends that the dispute is "irrelevant at this time, since the Government has conceded that these statements have no bearing on the issues presented in this pretrial motion." (Id. at 3, n. 7 (citing Letter of AUSA Jonathan Etra to the Court, dated April 22, 2003, at 6 stating "While these admissions are highly relevant to prove Taylor's criminal intent, they do nothing to alter the nature of the Note, which remains the Government's evidence of the `threat to use' element of the charges.").)
II. ANTHRAX
Anthrax is a bacteria. (Tr. at 158). The anthrax bacteria can exist in the vegetative form, which is the form in which it is actively living and growing. (Tr. at 158, 159). The anthrax bacteria can also exist as a spore, which is the dry, dormant form it takes when it runs out of food. (Id.). In its dry, dormant, spore form, anthrax is resistant to heat, radiation and chemical treatment. (Id.). The anthrax spore has no color and no smell. (Tr. at 159).
Two of the ways in which a person can get sick from exposure to anthrax are referred to as cutaneous anthrax and inhalation anthrax. (Tr. at 159, 161). Cutaneous anthrax occurs by exposure to anthrax spores through one's skin. (Tr. at 159). The anthrax spores through one's skin. (Tr. at 159). The anthrax spores enter the body through cuts in the skin, and they change to their vegetative state causing disease and death if untreated. (Tr. at 159-160). Inhalation anthrax, which occurs when anthrax spores are inhaled, is the most lethal of all. (Id.) The available data indicates that, if not treated quickly, inhalation anthrax will lead to death over 90% of the time. (Id.).
An individual can get inhalation anthrax by being exposed to no more than between 8,000 and 50,000 anthrax spores. (Tr. at 161-162). If 50,000 spores are forced into one pile, the pile will be visible to the eye, and will look like a tiny dot. (Tr. at 162). On the other hand, if 50,000 are spread out over a surface, the spores will not be visible. (Id.). Indeed, there could be trillions of spores spread out over a department store without being visible. (Id.). If put into a building's ventilation system, invisible spores would spread throughout the building. (Tr. at 163).
As an example, there could be a "million-million" spores spread out over the courtroom that could not be seen, smelt or even tasted. (Tr. at 162-163). The air currents in the courtroom would spread the spores in the air. (Tr. at 163). That amount of spores could kill over 200 million people. (Id.).
According to a listing by the Center for Disease Control, anthrax is a weapon of mass destruction. (Tr. at 163-164). It is both easy and inexpensive to find the anthrax bacteria and to harvest it into deadly anthrax spores. (Tr. at 164-165).
(Government's Memorandum of Law at 5-9.)
The Government had previously submitted a letter dated April 22, 2003, in which it set forth a lengthier proffer of the Government's evidence. (Letter of AUSA Jonathan Etra dated April 22, 2003, at 3-7.) The Court asked that counsel advise the Court by April 25, 2003 as to whether it would rely on the same legal arguments and authorities relied upon in United States v. Dewansingh, 02 Cr. 73 (RPP). After counsel so advised, the Court set up a briefing schedule on the current motion, and the Government provided a new statement of facts in its initial memorandum. For purposes of the current motion, the Court relies on the proffered allegations in the stipulated record as laid out in the Government's initial memorandum.
Discussion
I. Fed.R.Crim.P. 29 StandardRule 29 of the Federal Rules of Criminal Procedure states the following:
After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction.
Fed.R.Crim.P. 29(a). On Rule 29 motions, the Second Circuit has stated that a district court must:
determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. All reasonable inferences are to be resolved in favor of the prosecution and the trial court is required to view the evidence in the light most favorable to the Government with respect to each element of the offense.United States v. Thorn, 317 F.3d 107, 132 (2d Cir. 2003) (internal citations and quotations omitted).
With regard to the charges in the Indictment, the Government is required to prove that: 1) Defendant knowingly and willfully, 2) threatened to use, 3) a weapon of mass destruction, 4) against a person within the United States, and 5) the results of such threatened use would have affected interstate or foreign commerce, in violation of 18 U.S.C. § 2332a. Here, the evidence in the proffered stipulation of facts shows that Defendant acted knowingly and willfully (Supp. Tr. at 74-76; GX 301-315), against a person within the United States (Compl. ¶ 3a), and that the subject of the Note, i.e., anthrax, was a weapon of mass destruction. (Tr. 163-64.) The issues placed before this Court are 1) whether there is sufficient evidence that Defendant threatened to use that weapon of mass destruction; and 2) whether there is sufficient evidence that the results of such use would have affected interstate or foreign commerce. 18 U.S.C. § 2332
Defendant could have been prosecuted under the New York penal law for Aggravated Harassment in the Second Degree which provides:
A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: 1. Either (a) communicates with a person anonymously or otherwise, by telephone, or by telegraph, mail, or any other form of written communication, in a manner likely to `cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm. . . .
N.Y. Penal Law § 240.30.
The statute underlying both counts in the Indictment makes it a crime when a person, "without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction . . . against any person within the United States, and the results of such use affect interstate or foreign commerce, or in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce. . . ." 18 U.S.C. § 2332a(a)(2).
A. "Threatens to Use"
The text of Section 2332a contains no definition of the words "threatens" or "use." When a word is not defined within a statute, it is normally construed in accordance with its "ordinary, contemporary common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). Alternatively, the Second Circuit has looked to the language common in similar statutes as guidance. The Second Circuit defined the noun, "threat" in the context of 18 U.S.C. § 876 as follows:
A threat is a statement expressing an intention to inflict bodily harm to someone of such a nature as could reasonably induce fear as distinguished from idle, careless talk, exaggeration or something said in a joking manner. . . . A serious expression of intent to inflict injury and not merely a vehement or emotional expression of political opinion, hyperbole or arguments against government officials.United States v. Malik, 16 F.3d 45, 51 (2d Cir. 1994) (holding that there was sufficient evidence to convict defendant on two counts of mailing a threatening communication — threatening to injure opposing parties and their family and threatening to injure members of the judicial panel, if the threatened case was not handled differently — in violation of 18 U.S.C. § 876). The Malik court noted that the "absence of explicitly threatening language does not preclude a finding of a threat under section 876," and in determining what constitutes a threat, "proof of the effect of the alleged threat upon the addressee is highly relevant." Id. at 49. The test is objective — "namely, whether an ordinary, reasonable recipient who is familiar with the context of the [writing] would interpret it as a threat of injury." Id. (internal citations and quotations omitted). Similarly, in New York v. Operation Rescue, 273 F.3d 184 (2d Cir. 2001), the Second Circuit stated:
"[W]here a communication contains language which is equally susceptible of two interpretations, one threatening and the other nonthreatening, the government carries the burden of presenting evidence serving to remove the ambiguity." Malik, 16 F.3d at 50 (quoting United States v. Barcley, 452 F.2d 930, 933 (8th Cir. 1971)). Indeed, when there is "additional, substantial evidence" — particularly the state of mind and reaction of a recipient of an allegedly threatening writing — this could "remove the ambiguity by shedding light upon the contexts of the alleged threats." Malik, 16 F.3d at 50.
"[T]he threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution. . . ." United States v. Kelner, 534, F.2d 1020, 1027 (2d Cir.), cert. denied, 429 U.S.1022, 97, S.Ct. 639, 50 L.Ed.2d 623 (1976). Although proof of the threat's effect on its recipient is relevant. . . . [citing Malik], a court must be sure that the recipient is fearful of the execution of the threat by the speaker.
Id. at 196 (holding that the district court's finding was not clearly erroneous that a protestor violated the Freedom of Access to Clinic Entrances Act of 1994 by physically obstructing patient and staff access to a planned parenthood site, despite misgivings about whether the district court properly characterized the protestor's statements as "threats").
The Second Circuit in Malik also clarified that a statute punishing a threat is constitutional, "so long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." Malik, 16 F.3d at 51 (quoting Kelner) (emphasis added). See also United States v. Sovie, 122 F.3d 122, 125 (2d Cir. 1997) (quoting the same language in Kelner).
The Government argues that it does not have to prove that a defendant "had a specific intent or a present ability to carry out his threat" Sovie, 122 F.3d at 125, nor does it have to prove "that a defendant intended his communication to be threatening," United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999). (Gov. Mem. of Law at 12-13.) Defendant contests the Government's legal argument with respect to whether or not a present ability to carry out the the threat is required (Def. Mem. in Resp. at 18), and discussion of this portion of the law will be taken up in connection with the interstate commerce requirement. Nonetheless, the Government has conceded the factual points that Defendant did not have anthrax to back up the alleged threat, nor did she in fact ever intend to carry out the alleged threat. (Tr. at 21)
The Government argues that the Note is "threatening on its face" because it "threatens that the deadly anthrax bacteria is already at the Store" which constitutes a threat that is "unequivocal, unconditional, [and] immediate." (Gov. Mem. at 16.) The Government notes that the "ransom-note style of the lettering and the photograph of a known follower of Osama bin Laden combine to make the Note even more threatening." (Id.) Finally, the Government relies on the "frightened reactions of the saleswomen who saw the Note [to] confirm its threatening nature" as well as the "numerous others [who] also took [the] threat seriously" including the security officer, the police department and ABC Carpet management who played a role in handling the Note with care and evacuating the store. (Id. at 16-17.)
However, the Government's argument overlooks Malik's requirement that a threat convey an "imminent prospect of execution," Malik, 16 F.3d at 51. As Defendant argues, a threat must communicate the idea that the writer of that threat " will . . . engage in some future conduct." (Defendant's Memorandum at 7-9.) Although it is proper to look at the reactions of the recipients of a threat, to determine whether in fact the writing in question constitutes a "true threat," this step should only be taken if the writing constitutes a threat in the first place — i.e., a "statement that communicates a prospect of future harmful conduct by the maker of the statement." (Id. at 11.) Thus, a threat must be distinguished from a warning that might also instill fear or fright in those that hear the warning (i.e. — "There are sharks in the water!" or "There is a bomb in the building that will self-detonate!"); such statements may cause fear, but do not imply future conduct on the part of the author of the statement. As Defendant's memorandum points out in its comments on the Government's statement of facts, no witness testified that he or she, in reading the note, understood it to be an expression of someone's intent to do something. (Id. at 1-3.) Defendant properly distinguishes between the fear that the threat was already executed and being exposed as a result, which is supported by the evidence in this case, as opposed to a fear of the execution of the threat by the maker of the Note, of which there is no evidence in this case, but was required by the Second Circuit in Operation Rescue, 273 F.3d at 196. (Argument at 28-29.)
The Government argues that the case law does not actually explicitly require a future act, citing United States v. Hayes, 135 F.3d 133 (2d Cir. 1998) in which the defendant was convicted under 18 U.S.C. § 876 (mailing three threatening communications). (Government's Reply Memorandum at 6-7; Gov. Mem. at 19, n. 9.) It argues that the final threatening letter claimed that all of the actions necessary to cause the harm conveyed in the threat had already taken place. (Id.) The final letter in Hayes stated, in part, "I'm making that call back to people in New York and let them take care of Trish." Hayes, 135 F.3d at 135. The Government argues that because the defendant in Hayes put the letter in the mail, the threat to call people in New York would have been carried out by the time the recipient read the letter. (Arg. at 51.) There is no evidence to suggest that theHayes court conducted the same analysis as the Government does now before this Court with respect to the length of time it takes for an item to pass through the mail. Rather, the plain language of the letter in Hayes conveys a threat of prospective action on the part of the author, which will cause the people in New York to "take care of Trish." This Court evaluates the language in that letter as a "threat" of future harm, as it suspects the Second Circuit did originally.
The Government also relies on United States v. Slaughter, 116 F. Supp.2d 688, 690 (W.D. Va. 2000) in which the district court upheld the defendant's conviction of two out of three counts of mailing threatening letters, in violation of 18 U.S.C. § 876. The first letter in the Slaughter case expressed that the recipient would be killed if she went to the police. Id. at 689. Another letter stated, "I just wanted you to know that you just opened a letter which contains enough [a]nthrax to kill over 50,000 people." Id. at 690. A third letter stated, "That powder you just dumped out of this letter is enough to kill at least 50,000 people. You'll think you have the flu tomorrow and the next day you'll be dead." Id. The letter went on to state that if he were ever released from prison, the writer would dig up the recipient's grave and violate her corpse. Id. The Slaughter case has the most similar facts to those before this Court in the current case; however, it is not clear from the opinion which letters were the basis for the convictions, and the defendant was acquitted on one of the three counts. Id. at 689, n. 1. Indeed only one of the letters does not suggest prospective action, and if this were the basis of the count for which the defendant in that case was acquitted, then the Government's argument fails. Incidentally, defendant Slaughter was also charged with two counts of violating 18 U.S.C. § 2332a(a)(2). Id at 689. The district court entered a judgment for acquittal on both counts for lack of evidence that the use of anthrax threatened would have affected interstate commerce. Id. at 691-93. Any possible arguments about whether or not the letters actually constituted "threats" were not addressed in the opinion.
Thus, based on the Second Circuit precedent in Malik, Kelner, Sovie andOperation Rescue, all defining a "threat" in terms of conveying "imminent prospect of execution," and the failure of the Government to provide binding precedent to the contrary, a person stating "Anthrax is here [i]n ABC" is not using language that "threatens" as intended by 18 U.S.C. § 2332a(a)(2).
Nor does a person stating "Anthrax is here [i]n ABC," unlawfully, willfully and knowingly threaten to use a weapon of mass destruction,see 18. U.S.C. § 2332a (emphasis added), as charged in paragraph four of the Indictment. With respect to the language "to use," both the Government and Defendant agree that "use" should be defined as done by the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995) in the context of 18 U.S.C. § 924(c), which provides enhanced penalties to a defendant who "uses or carries" a weapon in relation to a crime of violence or drug trafficking offense. (Gov. Mem. at 13; Def Mem. in Resp. at 16-17.) At the onset of its analysis, the Bailey Court noted that "use" has been variously defined to mean "`to convert to one's service,' `to employ,' `to avail oneself of,' and `to carry out a purpose or action by means of,'" and that these definitions "imply action and implementation." Bailey, 516 U.S. at 144-45. The Supreme Court ultimately defined "use" in Section 924(c) to mean " active employment" Id. at 143.
In its memorandum in support, the Government argues that the Bailey decision relied "heavily . . . on the text of Section 924(c)," noting that term "use" must apply to conduct not covered by the term "carry." (Gov. Mem. at 14.) The Government concedes that the Bailey Court excludes from the definition "mere possession" and any definition that is "passive." (Id. at 14-15.) Instead, the Government states that it is "clear that the Note threatens the use, or `active employment' of anthrax." (Id. at 17.) It avoids, however, the language of the statute, that the Note "threatens to use anthrax" (emphasis added), and thus, the true question before this Court. Instead, the Government argues that the Note conveyed "that anthrax has been placed at the Store . . . [and therefore] can be spread far and wide and cause deadly infection" which is the "intended deadly use of anthrax as a weapon of mass destruction." (Id.) The Government analogizes the Note to a "hypothetical note stating that a pre-set time-bomb has already been placed on the premises," and argues that the placement of a time-bomb, previously on a premises, which will blow up at some point in the future is how a time-bomb is actively employed, just as the self-spreading of anthrax, previously placed on a premises, is how anthrax is actively employed. (Id. at 18.) The Government concludes that, since the readers of the Note in this case could have construed that there was an ongoing threat of anthrax exposure, Defendant threatened to "use" anthrax in accordance with the Bailey definition. (Id. at 18-19.)
The word "threatens," taken in conjunction with the words "to use," require active employment of something in the future. Because the Note states, as the Government concedes, that the anthrax has already been placed in ABC Carpet, and because there is no evidence that Defendant was threatening to "actively employ" the anthrax, there is no evidence that Defendant "threatened to use" a weapon of mass destruction. Furthermore, even if the Government's conception of the term "use" were plausible, it must be rejected under the rule of lenity which states that "[w]hen there are two rational readings of a criminal statute, one harsher than the other, [courts must] choose the harsher only when Congress has spoken in clear and definite language." Scheidler v. National Organization for Women, Inc., 123 S.Ct. 1057, 1068 (2003) (internal citation and quotations omitted).
As the sole evidence of Defendant's intent is based on the language of the Note (i.e. — "Anthrax is here [i]n ABC"), the evidence that Defendant "threatened to use" anthrax is insufficient to sustain a conviction. Taking all of "the evidence in the light most favorable to the Government" and drawing "[a]ll reasonable inferences . . . in favor of the prosecution," no "rational trier of fact could have found . . . [Defendant's guilt] beyond a reasonable doubt." Thorn, 317 F.3d at l32.
B. Interstate Commerce
With respect to the interstate commerce requirement, the Government contends that under the plain language of Section 2332a, the Government need only prove that if the threat were real, "the use would have affected interstate commerce," as held by the Fifth Circuit in United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000) (holding that the 18 U.S.C. § 2332a "does not require, in the case of a threat, an actual or substantial effect on commerce; it requires only a showing that the use would have affected commerce"). (Gov. Repl. Mem. at 13-14.) Furthermore, the Government argues that Second Circuit case law permits a showing of "the possibility or potential" effect on interstate commerce, and does not require "an actual effect" in the context of the Hobbs Act,United States v. Fabian, 312 F.3d 550, 554 (2d Cir. 2002), and that the same requirement should apply in this case with regard to Section 2332a, because both statutes contain a jurisdictional element as part of the statute. (Gov. Repl. Mem. at 16-17.)
The Government also argues that the evidence in this case more than meets the test in Wise because the threat itself caused the hour-long shut down of the Store and thus must have affected interstate commerce. (Gov. Repl. Mem. at 13-14.) The evidence before this Court established that ABC Carpet deals with goods from all over the world (tr. at 238-40) and that the store was shut down for approximately forty five minutes to an hour after the Note was found, (Id. at 59-61, 115-21, 123, 267-68; GX 342.) There was no evidence, however that shipments of interstate goods were cancelled or delayed or that interstate customers were turned away from ABC Carpet. Furthermore, the statutory language explicitly requires that "the use . . . would have affected interstate commerce," not proof that the threat affected interstate commerce. 18 U.S.C. § 2332a; Wise, 221 F.3d at 152 (emphasis added).
The defense argues that Section 2332a "appears to require proof of an ability to carry out the alleged threat" in order to establish an effect on interstate commerce. (Def. Mem. at 18.) Defendant contrasts Section 2332a to other "threat" statutes, and notes that, unlike those other statutes, Section 2332a is not "aimed at threats alone" and did not in fact mention threats at all when it was originally enacted. (Id. at 19.) Indeed, Section 2332a was originally aimed only at using or attempting to use or conspiring to use weapons of mass destruction. Pub.L. No. 103-322, § 60023(a), 108 Stat. 1980 (1994). Furthermore, Defendant notes that Congress did not "provide for jurisdiction generally over acts of `threatening' in section 2332a on the basis of any federal aspect of such acts themselves." (Def. Mem. at 19.) Defendant concludes that there is "no case holding that [Commerce Clause jurisdiction] can be based solely on non-existent theoretical effects." (Id. at 21). It argues that in light of United States v. Morrison, 529 U.S. 598, 608 (2000) limiting Commerce Clause jurisdiction, the Government's proposed construction of Section 2332a would "raise serious and extremely complex constitutional questions about the scope of commerce clause jurisdiction, and whether Congress exceeded such jurisdiction in adding the word `threatens' in section 2332a." (Def. Mem. at 21). The Morrison Court asserted that "the scope of the interstate commerce power `must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'" Morrison, 529 U.S. at 608 (quoting United States v. Lopez, 514 U.S. 549, 557 (1995)(quoting NLRB v. Jones Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). Because it is undisputed that Defendant did not have anthrax, nor did she intend to carry out any threat, Defendant argues that the effect of her action on interstate commerce is "not merely `slight,' `minimal' or even `potential' or `possible' — rather, it is simply non-existent, not possible, and lacks any potential of ever occurring." (Def. Repl. Mem. at 3.)
In this case, there is no need to decide the constitutional issue, because the case has already been disposed of on narrower grounds.Greater New Orleans Broadcasting Association, Inc. v. United States, 527 U.S. 173, 184 (1999) ("It is . . . an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be fully resolved on a narrower ground"). Accordingly, the Court declines to decide the Commerce Clause issue raised by Defendant with respect to 18 U.S.C. § 2332a.
Conclusion
For the forgoing reasons, both counts of the Indictment are dismissed against Defendant for lack of sufficient evidence to convict.IT IS SO ORDERED.