Lead Opinion
Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge CONRAD joined. Judge MOTZ wrote a concurring opinion.
OPINION
Charles A. Bly appeals from the district court’s refusal to dismiss the portion of an indictment charging him with a violation of 18 U.S.C. § 876(b) (the “ § 876(b) Offense”). Pursuant to a plea agreement, Bly entered a conditional guilty plea in the Western District of Virginia to the § 876(b) Offense, reserving his right of appeal. The charge underlying Bly’s conviction alleged, inter alia, that he had “knowingly and with intent to extort from the University of Virginia a sum of money or other thing of value” mailed a written communication containing a threat to injure certain individuals. On appeal, Bly contends that the § 876(b) Offense should have been dismissed for two reasons: first, his statements were not “true threats,” but instead were “political hyperbole” protected by the First Amendment; and, second, the charge was fatally defective because the University of Virginia is not a “person” subject to being extorted under § 876(b). As explained below, we reject Bly’s contentions and affirm.
I.
A.
Bly earned bachelor’s and master’s degrees in engineering from the University of Virginia (“UVA,” or the “University”) in 1978 and 1983, respectively. In 1994, Bly returned to UVA to pursue doctorate studies. He thereafter grew concerned that members of his supervising committee were plagiarizing his work. Although Bly voiced complaints in this regard to the University administration, no action was taken in response. By 2002, having failed to make progress on his dissertation, Bly was dropped from his doctorate program. Soon thereafter, he began writing and sending threatening communications by mail and email, asserting that UVA personnel had plagiarized his work and treated him unfairly. As relevant here, Bly sent four communications on the following dates: July 30, 2003 (letter); August 12, 2003 (email message); November 29, 2003 (letter); and January 1, 2004 (letter). Bly’s letter of January 1, 2004 (the “Letter”), comprised of fifteen pages and addressed to approximately forty-six individuals, is the source of the underlying conviction and gives rise to the issues in this appeal.
Importantly, the Letter was replete with what the prosecution deemed threats made by Bly. For example, Bly signaled his intention to seek redress outside legal channels, asserting that “bullets are far cheaper and much more decisive. A person with my meager means and abilities can stand at a distance of two football fields and end elements of long standing dispute with the twitch of my index finger.” J.A. 47. Bly also asserted in the Letter that “it would be a shame to brutalize Rydin and Brenizer [another thesis advisor] in order to guarantee that I receive a hearing of my story and a form of justice.” Id. at 47. With the Letter, Bly enclosed copies of firearms practice targets with bullet holes near their centers to “give [] evidence of a talent I possess for gun control — hitting the target.” Id. A cover sheet attached to these practice targets read, “TESTIMONY TO MY ABILITY WITH SMALL-BORE AND HIGH-POWER RIFLES. YOU WILL NOTE THIS WILL HAVE NO BEARING ON THE OUTCOME OF OUR WORK, AS LONG AS YOU NOW DO YOUR PART EXPEDITIOUSLY AND HONESTLY, WITH NO FURTHER OBFUSCATION WHATSOEVER.” Id. at 53-57 (capitalization in original). Although Bly maintained in the Letter that “[t]hese comments are not to be interpreted as illegal brandishing of a firearm, blackmail, or extortion,” he admonished his recipients that, “if this remains class warfare, I assure you tragic consequences.” Id. at 47.
B.
On February 4, 2004, the federal grand jury in Charlottesville, Virginia, indicted Bly on five counts, including three offenses under 18 U.S.C. § 876(c) (Counts One, Three, and Five), an offense under § 875(c) (Count Two), and the § 876(b) Offense (Count Four). The § 876(b) Offense alleged, in pertinent part, that Bly had sent the Letter “knowingly, and with intent to extort from the University of Virginia a sum of money or other thing of value ... containing a threat to injure” the persons of Drs. Rydin and Brenizer, in violation of § 876(b). J.A. 19-20.
On March 3, 2004, Bly filed a motion to dismiss the five counts of the indictment, contending, inter alia, that his communications were protected by the First Amendment, and that UVA is not a “per-son” subject to being extorted under § 876(b). By Order of May 10, 2004, this motion to dismiss was summarily denied. On October 9, 2005, Bly filed an amended motion to dismiss the indictment, seeking to clarify his earlier contentions. In response, the district court filed its Memorandum Opinion and Order of October 14, 2005, denying Bly’s amended motion. See United States v. Bly, No. 3:04cr00011, 2005 WL
By its Opinion, the district court denied Bly’s amended motion to dismiss for two basic reasons. First, the court concluded that the statements made by Bly in the Letter were not protected by the First Amendment, in that they were “true threats” rather than constitutionally protected “political hyperbole.” Opinion 4.
On October 13, 2005, the day before the district court issued its Opinion, Bly entered into a plea agreement with the United States Attorney, in which he agreed to plead guilty to the § 876(b) Offense. On October 17, 2005, pursuant to that agreement, Bly entered his guilty plea to the § 876(b) Offense, as charged in Count Four of the indictment. He reserved his right, however, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, to appeal the denial of his dismissal motions.
At his May 23, 2006 sentencing hearing in the district court, Bly was sentenced to a term of imprisonment equal to “time served,” plus three years of supervised release. After Bly was sentenced on the § 876(b) Offense, Counts One, Two, Three, and Five of the indictment were dismissed, pursuant to the plea agreement. On May 31, 2006, Bly filed a notice of appeal, and the district court’s judgment was entered on June 2, 2006.
II.
Bly’s appeal presents two separate contentions. First, he maintains that the Letter contained constitutionally protected “political hyperbole,” and not an unprotected “true threat” to injure Drs. Rydin and Brenizer. Second, he contends that UVA is not a “person” subject to being extorted under § 876(b), and that the § 876(b) Offense fails for that independent reason. Whether a written communication contains either constitutionally protected “political hyperbole” or an unprotected “true threat” is a question of law and fact that we review de novo.
III.
The statute underlying the § 876(b) Offense provides, in pertinent part, as follows:
Whoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered [by mail] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be [guilty of an offense against the United States],
18 U.S.C. § 876(b). In order for the prosecution to sustain a conviction under § 876(b), three essential elements must be established. That is:
(1) The defendant must have caused the mailing of a written communication;
(2) Such written communication must have contained a threat to kidnap any person or to injure the person of the addressee or of another (the “Threat Element”); and
(3) The defendant must have intended such communication to extort from any person money or other thing of value (the “Extortion Element”).
In this appeal, Bly makes contentions with respect to both the Threat and Extortion Elements — contentions that he characterizes as challenges to the legal sufficiency of the indictment in alleging those elements. Bly’s contention on the Threat Element, however, is not a legal sufficiency issue; rather, it is an issue of failure of proof on the part of the prosecution. Specifically, Bly maintains that the Threat Element cannot be satisfied because, as a matter of law, the Letter did not contain any “true threats,” but instead contained constitutionally protected “political hyperbole.” By contrast, Bly’s second contention, relating to the Extortion Element, constitutes a legal sufficiency issue. In this regard, Bly asserts the § 876(b) Offense’s allegation of the Extortion Element is fatally defective because UVA is not a “person” subject to being extorted under § 876(b). We assess these contentions in turn.
A.
As explained below, Bly’s first contention of error- — -that the statements contained in the Letter are protected by the First Amendment — fails to pass muster and must be rejected. Put simply, the First Amendment was not intended to protect every oral or written utterance. Beauharnais v. People of State of Ill.,
Although the First Amendment does not protect true threats, it does protect statements that constitute political hyperbole. See Watts v. United States,
Watts, an anti-Vietnam war protestor, asserted at a public rally in Washington, D.C., that “[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [President Lyndon Baines Johnson].” Watts,
Our decision in United States v. Lock-hart is a further illustration of how allegedly threatening statements should be assessed. See
Our assessment of Bly’s Letter reveals that the statements contained therein are more akin to those made in Lockhart, and thus do not enjoy any First Amendment protection. Unlike in Watts, the Letter was not addressed to a public audience and, as in Lockhart, it was delivered privately to specific individuals. Bly’s communications were only grammatically conditional, and he both implicitly and explicitly promised violent retribution if he did not receive the result he sought. As the district court aptly stated, “[t]he reader is left unsure what measure of justice would appease Mr. Bly.” Opinion 4. In these circumstances, the Letter contained true threats and the statements contained therein are not protected by the First Amendment.
We also reject Bly’s second appellate contention, challenging the legal sufficiency of the Extortion Element. Bly maintains that his conviction is defective and must be vacated because UVA is not a “person” subject to being extorted under § 876(b) — an issue of first impression in our circuit. He makes two primary assertions in support of this contention. First, relying on principles of statutory construction, he maintains that the relevant meaning of the term “person” in § 876(b) is limited to a living person only, and does not include an entity such as UVA.
1.
a.
The starting point for any issue of statutory interpretation — such as Bly’s assertion that the term “any person” in § 876(b) refers only to live persons- — -is the language of the statute itself. United States v. Abuagla,
The term “person” appears in § 876(b) three times, in two distinct contexts. As first used in § 876(b), in the Extortion Element, the term “any person” (in the phrase “intent to extort from any person”) describes the permissible victim of an extortion demand.
b.
Bly nevertheless contends that our interpretation of the term “person” is controlled by the rule of “uniform usage,” i.e., that “identical terms used in the same sentence of a statute carry the same meaning.” Yi v. Fed. Bureau of Prisons,
Although Bly contends that the principle of uniform usage should control our analysis of the Extortion Element of § 876(b), the context in which the term “any person” is used therein plainly indicates that it does not refer solely to living persons. On this point, the district court correctly recognized that “[t]his is the kind of ‘variation’ in the connection in which words are used which warrants the conclusion that the meaning of ‘person’ could be used in a narrow and a broader sense within the same paragraph.” Opinion 7. In the context of the term “person” in the Extortion Element, we agree with the district court.
Bly next asserts that even if the term “any person” in the Extortion Element includes some non-natural persons, it still does not cover UVA. He relies for this assertion on the Dictionary Act, 1 U.S.C. § 1, which includes entities like corporations (but not governmental entities) in its definition of “person.” According to Bly¿ UVA, as a public university, is an extension of the Commonwealth of Virginia, and is thus not a corporation or other entity within in the Dictionary Act’s definition of the term “person.” As explained below, although the Dictionary Act does not expressly include governmental bodies in its definition of the term “person,” that omission is neither controlling nor persuasive.
In assessing the meaning of a statutory term, our Court is necessarily guided by the provisions of the Dictionary Act. See 1 U.S.C. § 1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” (emphasis added)). Unless the context of a statute indicates otherwise, the definitions supplied by the Dictionary Act are to be used to determine the meaning of the terms contained in an Act of Congress. Id. And, the Supreme Court has applied the Dictionary Act’s definition of the term “person” to the statutes defining criminal offenses in Title 18 of the United States Code. See United States v. A & P Trucking,
Under Virginia law, UVA is both a corporation and a department of the government of Virginia. Indeed, the Virginia Code provides that UVA’s Board of Visitors, which is charged with “the care and preservation of all property belonging to the University,” is an entity that “shall be and remain a corporation.” Va.Code §§ 23-69, 23-76. And, the Supreme Court of Virginia has determined UVA to be both “a corporation and a department of the government.” Batcheller v. Commonwealth,
the Defendant’s motion is without merit. Va.Code § 23-69 provides that the Board of Visitors of the University of Virginia “shall be and remain a corporation” and Va.Code § 23-76 vests the Board “with the care and preservation of all property belonging to the University.”
The question of whether the statutory use of the term “person” excludes governmental entities arises primarily in civil litigation, such as when a litigant seeks damages from a state entity, or in suits over whether Congress has subjected a state entity to monetary liability. Put simply, the financial considerations readily apparent in such civil disputes are hardly relevant (much less controlling) to our resolution of a criminal law question like that presented here — whether a governmental entity can be the victim of an extortion demand under § 876(b). Cf. Vermont Agency of Natural Res. v. United States ex rel. Stevens,
Thus, Bly’s contention that governmental entities are excluded from the definition of “person” in the Dictionary Act, and that UVA is not subject to being extorted under § 876(b), is unconvincing. See Vermont Agency of Natural Res.,
IV.
Pursuant to the foregoing, we reject Bly’s contentions and affirm the judgment of the district court.
AFFIRMED
Notes
. Bly's three earlier communications (those preceding the Letter) of July 30, August 12, and November 29, 2003, relate to counts of the indictment which were dismissed under
. Our citations to "J.A. -” refer to the contents of the Joint Appendix filed by the parties in this appeal.
. The district court’s Opinion of October 14, 2005 is found at J.A. 66-74.
. The Letter, which is not spelled out in haec verba in the indictment, was apparently submitted to the district court in connection with its consideration of Bly's motions to dismiss.
. Rule 11(a)(2) of the Federal Rules of Criminal Procedure provides, in pertinent part, as follows:
With the consent of the court and the government, a defendant may enter a conditional plea of guilty ... reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.
Pursuant to the plea agreement, Bly agreed with the prosecution on his potential appeal in the following terms:
I understand that I will maintain my right to appeal the trial court's denial of my motion to dismiss the count to which I am pleading guilty. The United States agrees that my guilty plea does not operate as a waiver of my right to appeal the legal issue presented in that motion, and that such an appeal is proper.
J.A. 81.
.Pursuant to Rule 4(b)(2) of the Federal Rules of Appellate Procedure, a notice of appeal filed after the district court announces its decision, but prior to the entry of judgment, is deemed to be “filed on the date of and after the entry.”
. Bly appears to use the term "natural persons" as if it should be limited to human beings only. The Supreme Court has recognized, however, that a corporation is deemed to be a natural person for virtually all purposes of constitutional and statutory analysis. See Monell v. Dep’t of Social Serv. of City of New York,
. In its brief on appeal, the Government alternatively maintains that the § 876(b) Offense is valid because, although UVA was the alleged extortion victim, it would have been the responsibility of the individual addressees of the Letter — including members of the University’s Board of Visitors, its President, and its General Counsel — to respond to Bly's demands. UVA was the entity to which Bly's extortion demand was directed, however, and it was the entity with the resources to possibly satisfy his demands. The § 876 Offense thus properly specified in the Extortion Element that UVA was the victim of the § 876(b) Offense.
.The modification of "person” by use of the word "any” in the Extortion Element of § 876(b) appears to manifest a congressional intention of being broadly inclusive. According to Webster’s, "any” means, inter alia, "one
. Bly relies on certain court decisions to support his position that, under § 876(b), only living persons can be the subject of extortion. Those authorities are inapposite, however, because they do not relate to the term "person” as it is used in the Extortion Element of § 876(b). Indeed, those decisions address the construction of "person” as that term is used in § 876(c), which lacks an extortion element. See, e.g., United States v. Williams,
. Bly also maintains that the use of the term "person” in 18 U.S.C. § 875 (which he characterizes as a parallel statute) supports his interpretation of the Extortion Element of § 876(b). According to Bly, because Congress explicitly included "firm, association, or corporation,” in addition to "person,” in § 875, the omission of those terms from
. The logical extension of Bly’s contention that UVA is not a "person” under the Extortion Element because it is a part of the Commonwealth would lead to an absurd result — if Bly had made his extortion demands to a private college, § 876(b) would, under his contention, be applicable and he could be prosecuted for an § 876(b) Offense. See Aremu v. Dep’t of Homeland Sec.,
. Several federal courts have recognized that a government entity can be the victim of a crime. See, e.g. United States v. Ekanem,
. The other authorities upon which Bly relies in his appellate brief are readily distinguishable, in that they relate to civil proceedings only. See Va. Office for Protection and Advocacy v. Reinhard,
Concurrence Opinion
concurring:
I respect the majority’s position and completely agree with its reasoning with respect to the First Amendment issue. I also concur in the judgment. In my view, however, whether the term “person” in 18 U.S.C. § 876(b) includes the University of Virginia presents a very difficult question. Although ultimately I agree with the majority’s conclusion, I write separately because I reach this conclusion for somewhat different reasons.
I.
The Supreme Court has expressly recognized that the “presumption that ‘person’ does not include the sovereign” in federal statutes is “longstanding.” Vt. Agency of Natural Res. v. U.S. ex rel. Stevens,
The Court then linked the longstanding presumption to the Dictionary Act, explaining that “[t]he absence of any comparable provision extending the term to sovereign governments implies that Congress did not desire the term to extend to them.” United States v. Mine Workers,
The Court has expressly held that, for purposes of this presumption, “sovereign” includes a state or state agency. Vt. Agency,
The Government offers little in the way of an “affirmative showing of statutory intent,” to justify disregard of the presumption.
It does point to the fact that, in addition to being a state agency, the University is a corporation under state law. This is true but irrelevant. The Supreme Court has never suggested that the state law designation of a sovereign entity as a corporation eliminates that entity’s status as a sovereign. Indeed, when a sovereign Indian Tribe and a corporation that was an “ ‘arm’ of the Tribe” sought to be recognized as “person[s]” under a federal statute, the Supreme Court denied this status to both the Tribe and corporation, without distinguishing the two, because both were sovereign entities. Inyo County v. Paiute-Shoshone Indians,
The only other reason the Government offers for disregarding the presumption is that § 876(b) is a criminal statute. Again, the Supreme Court has not suggested that the presumption reflected in the 1947 Dictionary Act does not apply to criminal statutes. Rather, as the majority recognizes, “the Supreme Court has applied the Dictionary Act’s definition of the term ‘person’ to the statutes defining criminal offenses in Title 18 of the United States Code.” Ante at 462 (citing United States v. A & P Trucking Co.,
Accordingly, if we were to apply the presumption as reflected in the 1947 Dictionary Act and then end our inquiry looking only to the Government’s proffered “affirmative showing,” I would be inclined to reverse. But, it is not at all clear that our analysis ends here.
II.
Congress enacted § 876(b) in 1932, over a decade before the 1947 Dictionary Act. See Act of July 8,1932, 72 cong. ch. 464, 47 Stat. 649 (codified as amended at 18 U.S.C. § 876(b) (2000)). Supreme Court precedent from that time established a different
In Nardone v. United States, decided only a few years after Congress enacted § 876(b), the Court recognized the “canon that the general words of a statute do not include the government.”
If we simply applied the principles articulated by the Nardone Court, the term “person” in § 876(b) certainly would include a sovereign entity, like the University of Virginia. For including the University within the term “person” for purposes of § 876(b) neither deprives the University of a “recognized or established prerogative[,] titlef,] or interest,” nor produces an absurd result. Id. at 383-84,
III.
Therefore, as I see it, determining whether the University is a “person” for purposes of § 876(b) hinges upon whether we look to the current Dictionary Act or Nardone. Although the question is not free from doubt, I believe that we should look to the latter. This approach accords with the Supreme Court’s general interpretive assumption that Congress formulates new legislation with awareness of prior interpretations of the terms used in that legislation. See, e.g., Barnhart v. Peabody Coal Co.,
No Supreme Court case, however, directly addresses the question we face, and the closest precedent, Will,
The Supreme Court, however, has long and consistently recognized that determining whether a sovereign is a “person” “depends not ‘upon a bare analysis of the word person’ ... but on the ‘legislative environment’ in which the word appears,’ ” Inyo,
We have few of these tools to guide us in determining whether “person” in § 876(b) includes a sovereign entity, such as the University of Virginia — the statute’s legislative history provides no help and its purpose also does not dictate a result. But it seems to me that the “legislative environment,” Inyo,
Accordingly, because both the contemporary understanding of the relevant principle of statutory construction and “the policy intended to be served by the” statute, Pfizer,
It might seem odd to turn to the judicial understanding of the term "person,” rather than the then-current version of the Dictionary Act, which also defined the term. At the time that § 876 was enacted, the 1871 Dictionary Act was in force, see Act of Feb. 25, 1871, 41 cong. ch. 71, § 2, 16 Stat. 431, but the Supreme Court has instructed that the 1871 Act’s definition of "person” fails to evidence a clear intent as to whether the sovereign is a person, see Will,