United States of America v. Marta Beatriz Mastrangelo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTA BEATRIZ MASTRANGELO,
Defendant - Appellant.
No. 13-50339
D.C. No. 2:13-cr-00072-JFW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted March 3, 2014
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Defendant Marta Mastrangelo (“Mastrangelo”) appeals her conviction for
mailing a threatening communication in violation of 18 U.S.C. § 876(c). We
affirm.
FILED
APR 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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1. Mastrangelo first argues that her conviction should be reversed
because the jury instructions failed to require the jury to find that Mastrangelo: (1)
acted with the specific intent to threaten, and (2) intended to threaten physical as
opposed to general harm. Because Mastrangelo failed to raise these arguments in
the district court, we review for plain error. See Fed. R. Crim. Proc. 30(d); United
States v. Pineda-Doval, 614 F.3d 1019, 1025 (9th Cir. 2010). We conclude that
there was no error in the instructions.
With respect to the specific intent requirement, the instructions stated that
“the defendant [must have] intended to communicate a threat.” We reject
Mastrangelo’s argument that this instruction was rendered ambiguous by a
subsequent instruction which set forth the objective test for determining whether a
communication constituted a threat. We also reject Mastrangelo’s argument that
the district court’s “knowingly” instruction—which provided that “[t]he
government is not required to prove that the defendant knew that her acts or
omissions were unlawful”—was likely to confuse the jury as to the specific intent
requirement.
We further conclude that the instructions required the jury to find that
Mastrangelo intended to communicate a threat of physical harm because they
required the jury to find that Mastrangelo “knowingly mailed or arranged to have
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mailed a communication addressed to Alan Tajer containing a threat to injure any
person.” (emphasis added). Injury to the person means physical injury in its
ordinary use. We are not persuaded by Mastrangelo’s argument that the portion
the instructions providing that a communication can be “implied” or “symbolic”
rendered the instructions ambiguous regarding the physical harm requirement.
2. Mastangelo also argues that her conviction should be reversed because
one of the theories upon which the government relied at trial was that her note
constituted a threat because it caused fear of immediate injury from potential
contact with the substance in the envelope (rat poison). Mastrangelo argues that, in
order to be convicted, her message must have conveyed a threat that she would
take some additional harmful action in the future, i.e., action beyond exposing the
victims to the chemical contained in the initial communication. See United States
v. Zavrel, 384 F.3d 130, 138–39 (3rd Cir. 2004) (Stapleton, J., disenting); cf United
States v. Havelock, 664 F.3d 1284, 1305 (9th Cir. 2012) (Reinhardt, J.,
concurring). However, the statute does not distinguish between threats causing
fear of immediate injury and threats of future harm. Moreover, the mailing of a
package containing some potentially harmful substance does convey a threat of
future harm because it causes the recipient to fear that exposure to the chemical
will cause health problems in the future. In United States v. Keyser, we held that a
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package containing a substance meant to resemble anthrax constituted a threat for
the purposes of § 876(c). 704 F.3d 631, 638-39 (9th Cir. 2012). Like the anthrax
samples in Keyser, the substance included in Mastrangelo’s note conveyed a threat
because it caused the recipient to fear that she had been exposed to a harmful
chemical.
3. Mastrangelo next argues that the evidence was insufficient to support
her conviction. We disagree. The evidence showed that Mastrangelo knowingly
mailed an envelope containing rat poison and a card bearing the inscription “A
Note of Sympathy.” Moreover, Mastrangelo enclosed a portion of the rat poison
label warning of the deleterious health effects that would occur should the poison
be consumed, e.g., “[m]ay be harmful or fatal if swallowed” and “[i]f swallowed
by human . . . call a poison control center doctor.” Furthermore, the employee who
opened the envelope testified to being “scared,” panicked,” and concerned that she
had been exposed to a “chemical thing[].” These facts were sufficient to show that
Mastrangelo knowingly mailed a communication which she intended to convey a
threat to injure the person of the addressee or of another, and that “a reasonable
person would foresee that the [communication] would be interpreted by [the
recipient] . . . as a serious expression of intent to harm or assault.” Keyser, 704
F.3d at 638; 18 U.S.C. § 876(c).
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4. Finally, Mastrangelo argues that we must independently review the
“constitutional facts,” here, “whether the statements were true threats.” Keyser,
704 F.3d at 638 n.1. On independent review, we conclude that the evidence
supports Mastrangelo’s conviction. The note was a true threat. See Virginia v.
Black, 538 U.S. 343, 344 (2003) (defining a true threat as a statement “where 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”).
AFFIRMED.
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