United States v. Marc Keyser
2012 U.S. App. LEXIS 25003
| 9th Cir. | 2012Background
- Keyser self-published a book on anthrax; mailed sugar packets labeled Anthrax to seek publicity.
- A 2007 mailing to Sacramento News & Review triggered emergency responses after a 911 call.
- In 2008 Keyser mailed nearly 120 packages to outlets and officials; some to McDonald’s and Starbucks contained an Anthrax label with sugar.
- Convicted on three hoax counts (18 U.S.C. § 1038(a)) and two threat counts (18 U.S.C. § 876(c)); other counts acquitted.
- District court calculated Guidelines range and sentenced Keyser to 51 months; on appeal, convictions affirmed but sentence vacated and remanded for resentencing due to improper relevant-conduct calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 18 U.S.C. § 876(c) threats violate First Amendment. | Keyser argues threats are protected by the First Amendment. | State argues threats are not protected and must be treated as true threats. | True threats; convictions upheld. |
| Whether 18 U.S.C. § 1038(a) hoaxes are protected. | Keyser contends hoax claims are protected speech. | Hoaxes cause cognizable governmental harm and thus are unprotected. | Hoaxes outside First Amendment protection; convictions upheld. |
| Whether mailings to Starbucks and McDonald’s were addressed to natural persons. | Keyser says not addressed to specific individuals. | Manager line suffices to address a natural person. | Addresses to ‘Starbucks/McDonald’s’ and ‘Manager’ satisfy § 876(c). |
| Whether jury instructions and closing arguments were defective. | Proposed theory-of-the-case instruction and context claims. | Court adequately instructed on intent and reasonable-person standard. | No reversible error; instructions were adequate. |
| Whether the sentencing enhancement for substantial government expenditures was proper. | Enhancement based on unconvicted conduct; improper under grouping rules. | Guidelines allow considering related conduct if properly grouped. | Procedural error; vacate and remand for resentencing. |
Key Cases Cited
- United States v. Havelock, 664 F.3d 1284 (9th Cir. 2012) (en banc; addresses who is an addressee under § 876(c))
- Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (context of true threats; independent review standard)
- United States v. Alvarez, 132 S. Ct. 2537 (Supreme Court 2012) (falsity alone may not remove speech from First Amendment protection)
- United States v. Brahm, 520 F. Supp. 2d 619 (D.N.J. 2007) (hoaxes aimed at preventing waste of law-enforcement resources)
- United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) (requires subjective intent for liability; discussion of statutory liability elements)
- United States v. Sullivan, 522 F.3d 967 (9th Cir. 2008) (standard for sufficiency of evidence; de novo review of statutory interpretation)