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Date: 09-04-2021
Case Style:
United States of America v. STEVEN CURTIS BACHMEIER
Case Number: 20-30019
Judge: Ryan D. Nelson
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Stephen L. Corso (argued), Assistant United States
Attorney; Bryan Schroder, United States Attorney; United
States Attorney’s Office
Defendant's Attorney:
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with a sending a communication that threatened the state judge assigned to his civil proceeding charge.
Over a decade ago, Bachmeier was convicted of various
state crimes not relevant here. Judge Anna Moran oversaw
those proceedings. During one telephonic hearing,
Bachmeier grew belligerent and repeatedly called Judge
Moran offensive names. After Judge Moran warned him to
stop, Bachmeier became more inflamed and yelled a graphic
and specific threat to gravely harm Judge Moran’s family.
At that point, Judge Moran muted Bachmeier and contacted
judicial services, and later hearings proceeded without
further outbursts. Bachmeier remains in state custody and is
serving the rest of his sentence. This first threat looms as an
important backdrop to Bachmeier’s current § 876(c)
conviction.
Seven years later, Bachmeier filed a pro se name change
petition in the Superior Court in Kenai, Alaska (“Kenai
Courthouse”) while still in state custody. Per Alaska court
procedure, the petition was randomly assigned to a Superior
Court judge to rule on and oversee any motions filed with
the petition—in this case, Judge Moran. In prior
proceedings, Bachmeier sought and obtained judicial
reassignments when Judge Moran was assigned to his case.
But this time the reassignment request deadline passed
before Bachmeier learned of Judge Moran’s assignment.
Bachmeier mailed the following request to the Kenai
Courthouse, which ultimately led to his § 876(c) conviction:
Am requesting to cancel this proceeding. I
never got a notice of judicial assignment. I
would of struck Moran from this case as I
have told her in the past Im going to kill her
family which I still entend to do. Therefore
she cannot be impartial. I will refile and this
UNITED STATES V. BACHMEIER 5
court will give me notice of judicial
assignment, or els.
Bachmeier’s request included a case name and number, and
the clerk’s office forwarded it to Judge Moran’s chambers
without reviewing its substance. When Judge Moran
received the request, she was horrified at his statement that
he still intended to carry out a death threat made almost a
decade earlier.
The federal government indicted Bachmeier under
18 U.S.C. § 876(c) for mailing a threatening
communication. Bachmeier moved to dismiss, arguing his
request was addressed to the Kenai Courthouse, not a natural
person as § 876(c) requires. The district court denied that
motion and the subsequent motion to reconsider, and the
case went to trial. At trial Bachmeier moved for acquittal
after the government’s case-in-chief on the same grounds.
The district court deferred ruling on that motion until after
the jury returned its verdict. Bachmeier requested that the
jury be instructed that, to convict, it was required to find that
“Bachmeier subjectively intended to threaten” Judge Moran.
The district court rejected that proposed instruction, instead
instructing the jury to find either that Bachmeier “intended
to communicate a threat in the document, or acted with
knowledge that the document would be viewed as a threat.”
The jury returned a guilty verdict, the district court denied
Bachmeier’s motion to acquit, and Bachmeier appealed his
conviction.
II
Section 876(c) prohibits an individual from
(1) “knowingly” sending a communication through the mail
that (2) is “addressed to any other person” and
(3) “contain[s] any threat to kidnap any person or any threat
6 UNITED STATES V. BACHMEIER
to injure the person of the addressee or of another.”
18 U.S.C. § 876(c). Bachmeier argues that the evidence did
not sufficiently support a finding of the second element
because his request was sent to the Kenai Courthouse, not a
“person.” See id. Bachmeier also contends the jury
instructions were erroneous because they allowed the jury to
convict based on Bachmeier’s knowledge of the threat rather
than his subjective intent to threaten. Exercising our
jurisdiction under 28 U.S.C. § 1291, we address both
challenges in turn.
A
We review challenges to the sufficiency of evidence de
novo. United States v. Keyser, 704 F.3d 631, 640 (9th Cir.
2012). “Evidence is sufficient if, viewing it in the light most
favorable to the prosecution, any rational jury could have
found the essential elements of the crime beyond a
reasonable doubt.” Id. (cleaned up). Here, a rational jury
could have found that § 876(c)’s “addressed to” element was
satisfied.
To be convicted under § 876(c), the threatening
communication must be “addressed to any other person.”
18 U.S.C. § 876(c). The term “person” means a “natural
person,” not a non-natural entity. United States v. Havelock,
664 F.3d 1284, 1292–93 (9th Cir. 2012) (en banc). Thus,
addressing a communication to non-natural entities like
newspapers and websites, with no threat aimed at a natural
person, is not enough to convict a defendant under § 876(c).
Id. at 1296. But to determine the addressee, we are not
limited to the address block on a package, parcel, or
envelope. Rather, we look holistically at “the directions on
the outside of the envelope or packaging, the salutation line,
if any, and the contents of the communication.” Id. The
addressee can also be generally, rather than specifically,
UNITED STATES V. BACHMEIER 7
identified. For example, it was enough in Keyser to send
threatening letters to McDonald’s and Starbucks managers
without identifying the managers by name. 704 F.3d at 641.
The managerial positions were always held by natural
persons, so the letters adequately satisfied § 876(c)’s broad
requirement that a letter be “addressed to any other person.”
Id.
Here, a rational jury could conclude that Bachmeier’s
request was addressed to a natural person. The request’s
envelope included only “Kenai Court House, 125 trading
Bay Dr, Kenai AK 99641.” But the Kenai Courthouse’s
walls and windows were not the addressee; someone inside
was the intended recipient. Unlike in Havelock, though
Bachmeier’s request does not have a salutation line, its
contents identify the addressee. The request spoke to the
person responsible for deciding whether to dismiss his name
change proceeding. And as that request had to be resolved
by a natural person, not a computer or other non-natural
entity, Bachmeier’s request is most reasonably read as being
addressed to the natural person who oversaw his petition. In
short, Bachmeier’s challenge fails because a rational jury
could have found beyond a reasonable doubt that Judge
Moran was the addressee. She was the person responsible
for reviewing and ruling on Bachmeier’s request. Only
Judge Moran had authority to rule on Bachmeier’s request
as the assigned judge. Notably, the clerk who processed the
request did not read or even remember the threat because it
was not her job to read or rule on it.1
1 We acknowledge that Bachmeier’s request refers to Judge Moran
in the third person, suggesting that she was not the intended recipient or
addressee. But Bachmeier’s potential misunderstanding as to who would
review his request does not excuse the fact that he “knowingly”
8 UNITED STATES V. BACHMEIER
B
Moving to Bachmeier’s second challenge, we “review de
novo whether the district court’s jury instructions misstated
or omitted an element of the charged offense.” United States
v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012) (citation
omitted). Prejudicial error occurs only “when, looking to the
instructions as a whole, the substance of the applicable law
was not fairly and correctly covered.” Swinton v. Potomac
Corp., 270 F.3d 794, 802 (9th Cir. 2001) (cleaned up). Here,
although the jury instruction failed to correctly explain
§ 876(c)’s mens rea element, that error was harmless beyond
a reasonable doubt.
1
To reiterate, § 876(c) criminalizes “knowingly” mailing
a communication that “contain[s] any threat to kidnap any
person or any threat to injure the person of the addressee or
of another.” 18 U.S.C. § 876(c). Other provisions in § 876
criminalize actions “with intent to extort,” but subsection (c)
contains no such language. Compare id. § 876(b) & (d), with
id. § 876(c). Thus, at first glance, § 876(c) may seem to
punish any individual who knowingly sends a threat in the
mail even if he or she had no intent to threaten. But case law
has fleshed out this element and merits clarification of our
court’s precedent surrounding § 876(c)’s mens rea
requirement. Initially, we added to § 876(c)’s statutory
elements and “inferred . . . a general intent to threaten [a]s
an essential element of the crime.” United States v.
LeVision, 418 F.2d 624, 626 (9th Cir. 1969). Several years
later, we described § 876(c)’s requirements without
addressed his letter to the natural person who oversaw his name change
petition, namely Judge Moran. See 18 U.S.C. § 876(c).
UNITED STATES V. BACHMEIER 9
reference to an intent to threaten. United States v. Sirhan,
504 F.2d 818, 819 (9th Cir. 1974) (per curiam) (“First, the
defendant must have written and mailed a letter (or other
communication) containing a threat to injure another person.
Secondly, he must have knowingly caused the letter to be
deposited in the mails.”). After that, we reaffirmed an intentto-threaten element in § 876(c) as “a showing of specific
intent” to threaten. United States v. Twine, 853 F.2d 676,
679–80 (9th Cir. 1988). And shortly thereafter, we
explained that “[t]he only proof of specific intent required to
support a conviction under 18 U.S.C. § 876 is that the
defendant knowingly deposits a threatening letter in the
mails, not that he intended or was able to carry out the
threat.” United States v. Davis, 876 F.2d 71, 73 (9th Cir.
1989) (per curiam) (emphasis added) (citation omitted).
The Supreme Court’s decision in Virginia v. Black,
538 U.S. 343 (2003), held that a state can punish threatening
speech only if “the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence
to a particular individual or group of individuals.” Id. at 359.
In other words, the First Amendment allows criminalizing
threats only if the speaker intended to make “true threats.”
Id. Applying this principle, we held that “a conviction under
any threat statute that criminalizes pure speech” requires
finding “sufficient evidence that the speech at issue
constitutes a ‘true threat.’” United States v. Bagdasarian,
652 F.3d 1113, 1117 (9th Cir. 2011). We concluded, “the
subjective test set forth in Black must be read into all statutes
that criminalize pure speech,” id., and “the speaker must
10 UNITED STATES V. BACHMEIER
subjectively intend to threaten” to be convicted under
§ 876(c), Keyser, 704 F.3d at 638.2
The district court instructed the jury to find that either
Bachmeier “intended to communicate a threat” or “acted
with knowledge that the document would be viewed as a
threat.” Given a § 876(c) conviction requires showing a
subjective intent to threaten, the jury instructions were
erroneous.
The government argues that only a showing of general
intent was required under Elonis v. United States, 575 U.S.
723 (2015). But Elonis does not stand for that proposition.
True, the Supreme Court stated in passing that either intent
or knowledge could satisfy § 875(c)’s mens rea
requirements. See id. at 740; see also Twine, 853 F.2d at
679–80 (noting § 876(c) and § 875(c) are treated almost
identically). Yet, the Court’s analysis and holding did not
specify which mental state was required—it simply held that
negligence was insufficient. Id. at 741; see also id. at 742
(Alito, J., concurring) (criticizing the majority for
“refus[ing] to explain what type of intent was necessary” and
leaving attorneys and judges to guess). Elonis also did not
reach the First Amendment issues presented here. See id. at
740.
The district court relied on our model criminal jury
instructions, which in turn draw from Elonis. See Ninth
Circuit Model Criminal Jury Instruction 8.47A, cmt. (2015).
But the “use of a model jury instruction does not preclude a
2 Because Black and our later holdings in Bagdasarian and Keyser
agree with Twine, our precedents requiring anything less than a
subjective intent to threaten have been effectively abrogated. See
generally, e.g., Davis, 876 F.2d 71.
UNITED STATES V. BACHMEIER 11
finding of error.” Dang v. Cross, 422 F.3d 800, 805 (9th Cir.
2005) (cleaned up). And case law makes clear that a
subjective intent to threaten is the required mental state, not,
as Instruction 8.47A allows, mere “knowledge that the
[communication] would be viewed as a threat.” Thus, the
mens rea portion of Instruction 8.47A relying on Elonis is
incorrect, and it was error to give such an instruction.
2
Ordinarily, “an error in criminal jury instruction requires
reversal.” United States v. Pierre, 254 F.3d 872, 877 (9th
Cir. 2001) (alteration and citation omitted). That said, if
“there is no reasonable possibility that the error materially
affected the verdict,” we need not reverse. Id. Instead, we
will affirm if convinced “beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would
have been the same absent the error.” Neder v. United Sates,
527 U.S. 1, 17 (1999). We must reverse if the omitted or
erroneous element was contested, or if evidence was raised
“sufficient to support a contrary finding.” See id. at 19.
Since this analysis essentially places us in the jury’s shoes,
we “conduct a thorough examination of the record” to ensure
a defendant’s right to trial by jury is safeguarded. Id.
Considering the full record here, the district court’s error was
harmless beyond a reasonable doubt.
Bachmeier requested a specific-intent-to-threaten
instruction. But he did not contest the evidence supporting
his specific intent to threaten. He only presented evidence
that his request was not addressed to Judge Moran. Thus,
the subjective intent-to-threaten element was uncontested.
The evidence also overwhelmingly supports a finding
that Bachmeier subjectively intended to threaten. At trial,
12 UNITED STATES V. BACHMEIER
the evidence mostly focused on to whom the letter was
addressed; court and prison policies; and the reaction of
Judge Moran, her family, and her clerks. But Bachmeier’s
request itself plainly demonstrates his intent to threaten.
Rather than only explaining his past threat, Bachmeier
reiterated his original threat as something he still intended
to do. What is more, Bachmeier gave an ultimatum—“I will
refile and this court will give me notice of judicial
assignment, or els.” This letter leaves no room for doubt that
Bachmeier subjectively intended to make a true threat.
Though his request’s primary purpose was to dismiss his
name change petition, he sought to achieve that purpose by
means of threat. We are persuaded beyond a reasonable
doubt that, absent the district court’s instructional error, the
jury would have reached the same verdict. See Neder,
527 U.S. at 16
Outcome: We hold that the evidence presented at trial sufficiently
supported a finding that Bachmeier’s request was addressed
to a natural person. Though the district court erred in
instructing the jury, that error was harmless beyond a
reasonable doubt.
AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: