United States of America v. Rosemary Zavrel

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1474
UNITED STATES OF AMERICA
v.
ROSEMARY ZAVREL,
Appellant
___ ______
On Appeal from the United States
District Court
for the Middle District of Pennsylvania
District Court Judge: The Honorable A.
Richard Caputo
(D.C. No. 01-cr-00356)
___________
Argued on January 26, 2004
Before: NYGAARD, FUENTES &
STAPLETON, Circuit Judges
(Opinion Filed: September 21, 2004 )
Patrick A. Casey [Argued]
Office of the Federal Public Defender,
Middle District of Pennsylvania
116 North Washington Avenue
Scranton, PA 18503
Attorney for Appellant
John C. Gurganus [Argued]
Office of the United States Attorney,
Middle District of Pennsylvania
235 North Washington Avenue
Scranton, PA 18501
Attorney for Appellee
_______________________
OPINION OF THE COURT
_______________________
FUENTES, Circuit Judge:
This case arises in the context of the
anthrax scare of 2001. In October of that
year, Rosemary Zavrel mailed seventeen
envelopes containing a white powdery
substance she intended to resemble anthrax
to various local officials, school and
hospital workers, and to the President of
the United States. The envelopes actually
contained cornstarch, and each listed a
name and return address that belonged to
either of two local juveniles. Zavrel and
her roommate, Emily Forman, planned to
frame the two boys whom Zavrel felt had
unfairly accused Zavrel’s son of making
terroristic threats. The scheme went awry
after a local resident discovered loose
white powder when she opened the inside
slot of a public mailbox. Police were
called and the ensuing investigation led
directly to Zavrel and Forman. Against

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this backdrop, we consider the narrow
question of whether the mailing of an
envelope containing cornstarch meant to
resemble anthrax, but containing no
w r i t te n m e s s a g e , c o n s t i t u te s a
“communication . . . containing any threat
. . . to injure the person of the addressee”
under 18 U.S.C. § 876. For the reasons
that follow, we hold that it does, and we
therefore affirm the judgmen t of
conviction.
I. FACTUAL AND PROCEDURAL
BACKGROUND
On the morning of October 23,
2001, Cindy Donlyn went to the
Nanticoke, Pennsylvania Post Office to
drop off some mail. When she opened the
mailbox outside of the post office, she
noticed some white powder on the chute
inside the box and informed a postal
worker. The Postmaster inspected the
mailbox and quickly notified his superiors
in Harrisburg and Washington, D.C., as
well as the local police. The police
unbolted the box from the ground and
moved it to the back loading dock of the
post office so that no customers could
come near it. When the police opened the
box they discovered several letters
containing white powder. At this point,
the Postmaster closed the entire post
office. The Luzerne County Emergency
Management Agency sent a team in
protective suits to investigate further. The
emergency personnel discovered the
remaining letters, all containing a white
powdery substance that was later
determined to be cornstarch. The letters
were seized and never delivered to the
addressees.
During the course of the
investigation, Nanticoke Police Detective
William Schultz spoke with Dr. Mary
Scott, Principal of the Nanticoke Middle
School, who informed him that the
juveniles whose addresses appeared on the
letters had been students in 1999 at the
Lincoln Elementary School where she had
been principal. Schultz then discovered
that in May 1999 he had been the
investigating officer in an incident in
which the two juveniles were the reported
victims. The case was handled in juvenile
court, and Zavrel’s son, also a juvenile,
was charged with making “terroristic”
threats against the boys. Zavrel’s son had
apparently threatened to bring an
automatic handgun to school and shoot the
two juveniles as well as a third student.
After a period of suspension from school,
Zavrel’s son was prosecuted, adjudicated
delinquent and placed in juvenile
detention. Schultz recalled that Zavrel
contacted his department numerous times
during the pendency of the case, urging
that her son was innocent and that the
other boys were lying.
A search of Zavrel’s apartment
turned up envelopes with the juveniles’
names and addresses typed onto them, a
partially used book of “Love USA” stamps
(the same stamps that were affixed to the
letters found in the Nanticoke post office),
a partially empty box of cornstarch, and
latex gloves. A number of clippings about
the anthrax scare facing the nation were
also found in the apartment. After Zavrel
was arrested and taken from her residence

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by the police, her roommate, Forman,
admitted to investigators that she and
Zavrel had mailed the letters in retaliation
against the boys whom they believed had
lied about the actions of Zavrel’s son.
By indictment filed in July 2002,
Zavrel was charged with conspiracy to
mail threatening communications, in
violation of 18 U.S.C. §§ 371 and 876
(Count 1); aiding and abetting the mailing
of threatening communications, in
violation of 18 U.S.C. § 876 (Count 2);
and making a false statement to a federal
officer, in violation of 18 U.S.C. § 1001
(Count 3).
Following a five-day jury trial,
Zavrel was convicted on all counts, and
the District Court imposed a sentence of
30 months’ imprisonment for each count,
to be served concurrently. At the end of
the government’s case and again at the end
of the defense’s case, defense counsel
unsuccessfully moved for a judgment of
acquittal on all counts. Following the jury
verdict, defense counsel again filed a
motion for judgment of acquittal, which
the District Court denied.
This appeal followed.
II. JURISDICTION AND STANDARD OF
REVIEW
The District Court had jurisdiction
over this case pursuant to 18 U.S.C. §
3231. We exercise jurisdiction over the
final judgment in this case under 28 U.S.C.
§ 1291.
Zavrel argues that because the
issues on appeal concern the sufficiency of
the evidence, we should apply a de novo
standard in reviewing this case; the
government argues that a “particularly
deferential” standard should apply. See
United States v. Cartwright, 359 F.3d 281,
286 (3d Cir. 2004) (“The verdict must be
sustained if there is substantial evidence to
support it”) (citations omitted). Although
Zavrel frames her appeal as one about the
sufficiency of the evidence, her arguments
actually concern issues of statutory
interpretation, and we will therefore
exercise plenary review. United States v.
Thayer, 201 F.3d 214, 219 (3d Cir. 1999).
III. DISCUSSION
Zavrel concedes that th e
government proved the following facts at
trial: In October 2001, Zavrel and her
then-roommate Emily Forman addressed
seventeen envelopes containing loose
cornstarch (but no written message) to the
President of the United States, local
public officials, school administrators, and
judges, and deposited them in a mailbox in
the Nanticoke, Pennsylvania Post Office.
The envelopes bore the names and return
addresses of two boys who had reported
the criminal acts committed by Zavrel’s
son, which Zavrel felt unjustly led to her
son’s placement in juvenile detention.
Zavrel informed an investigator that the
letters were mailed “to make those kids
pay for what they did,” (Zavrel Brief at 5),
and she admitted to Agent Bill Salvoski of
the United States Secret Service that the
cornstarch was used to make the envelopes
appear as if they contained anthrax, and
that she hoped it would result in the

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juveniles being placed in detention.
Zavrel argues on appeal that this
evidence was insufficient to convict her
under counts one and two (the charges
brought under 18 U.S.C. § 876), because
she contends that mailing of cornstarch
alone is insufficient to prove that she
mailed a “communication” containing a
“threat to injure” the addressee, under the
statute. The relevant portion of the statute
states:
Whoever knowingly so
deposits or causes to be
delivered [by the United
States Postal Service] . . .
any communication with or
w i t h o u t a n a m e o r
designating mark subscribed
thereto, addressed to any
other person and containing
. . . any threat to injure the
person of the addressee or
of another, shall be fined
u n d e r t h i s t i t l e o r
imprisoned not more than
five years, or both.
18 U.S.C. § 876(c). The primary purpose
of the statute is to prohibit the use of the
mails to send threatening communications.
Under this provision, the government must
establish that Zavrel deposited, in the
mails, a “communication” containing a
“threat to injure” the addressee. It does
not matter whether the communication is
actually delivered. See Seeber v. United
States, 329 F.2d 572, 573 (9th Cir. 1964)
(upholding a conviction under 18 U.S.C. §
875(c) for threats made to a person other
than the person the defendant intended to
threaten).
Zavrel claims that her actions do
not amount to a violation of the statute for
two main reasons. First, she argues that
absent the enclosure of a written message,
the mailing of cornstarch cannot constitute
a “communication” within the meaning of
the statute. Second, Zavrel argues that she
did not threaten the addressees of the
letters, as required under the statute,
because any harm caused by the mailings
would have been immediate, and, she
asserts, the statute only envisions
prospective threats.
A.W HETHER MAILING CORNSTARCH
CONSTITUTES “COMMUNICATION”
Zavrel claims that Congress did not
intend for the mailing of cornstarch to
constitute “communication” under 18
U.S.C. § 876. The first step in discerning
the meaning of a statute is to determine
whether the language used “has a plain and
unambiguous meaning with regard to the
particular dispute in the case.” Ki Se Lee
v. Ashcroft, 368 F.3d 218, 222 (3d Cir.
2004) (citations omitted). See also Liberty
Lincoln-Mercury, Inc. v. Ford Motor Co.,
171 F.3d 818, 822 (3d Cir. 1999) (“In the
absence of a specific statutory definition,
the language of the statute should be given
its ordinary meaning and construed in a
common sense manner to accomplish the
legislative purpose.”) (internal quotations
and citations omitted).
Zavrel argues that because
Congress did not define “communication”

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in 1948 when it amended the statute and
codified the language under which Zavrel
was charged, we must interpret the
language as it would have been commonly
understood in 1948. She argues that
dictionaries in 1948 did not consider the
mailing of cornstarch as falling within the
definition of “communication.” (Zavrel
Brief at 11-12.) To support this point,
Zavrel asserts that the 1948 American
College Dictionary, published by Random
House, defines communication as “the
imparting or interchange of thoughts,
opinions, or information by speech,
writing or signs.”1 (Zavrel Brief at 21.) It
is Zavrel’s position that this definition
could not possibly encompass the mailing
of cornstarch.
We disagree with Zavrel’s assertion
that only the 1948 dictionary definitions of
“communication” are relevant to our
inquiry. Zavrel correctly notes that
dictionary definitions can be helpful in
discerning congressional intent, but we do
not limit ourselves to dictionaries dating
from a statute’s enactment. See, e.g.,
Contents of Account Number 03001288 v.
United States, 344 F.3d 399, 406 (3d Cir.
2003) (citing to a 1993 dictionary to define
term in a statute enacted in 1930). Indeed,
we recently cautioned that “[t]here is a
limit . . . to how much can be proved by
invoking dictionary definitions and usage.
As the Supreme Court has said: We
consider not only the bare meaning of the
word but also its placement and purpose in
the statutory scheme. [T]he meaning of
statutory language, plain or not, depends
on context.” United States v. Loney, 219
F.3d 281, 285 (3d Cir. 2000) (quoting
Bailey v. United States, 516 U.S. 137, 145
(1995) (internal quotations and additional
citations omitted) (alternation in original).
Although it is unlikely that
Congress envisioned this particular activity
when enacting the statute, we are confident
that mailing a white powdery substance
intended to cause fear and distress plainly
constitutes a communication under § 876.
Dictionaries today, as well as those dating
from Zavrel’s preferred timetable, define
communication as not only the transfer of
information through speech and writing,
but also through “signs” or “signals.” See,
e.g., MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY 233 (10th ed. 1996) (defining
“communication” as “a process by which
inform ation is exchanged between
individuals through a common system of
symbols, signs, or behavior”); see also THE
AMERICAN COLLEGE DICTIONARY (1948)
( Z a v re l Brief at 21) ( defin in g
communication as “the imparting or
interchange of thoughts, opinions, or
information by speech, writing, or signs”).
They define communication as the process
by which information is conveyed between
individuals. It can be verbal, written or
symbolic. Symbols and objects that are
used at the time a message is conveyed can
affect the message’s meaning, as can the
environment in which the communication
1Zavrel cites a number of other
dictionaries from roughly the same
period, which defined communication
similarly.

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is made. See United States v. Lewis, 220
F. Supp. 2d 548, 555 (S.D. W. Va. 2002).
Art, photography, dance, facial
expression – all may be used to
communicate ideas from one individual to
another. The message does not have to be
in writing to constitute a communication.
For example, if an individual were to send
another person a letter containing a
photograph of the addressee with the
addressee’s head cut off, few would doubt
that the sender in that case intends to
convey a message of fear, fright, or alarm.
In Pratt v. United States, 129 F.3d 54, 56
(1st Cir. 1997), the defendant was
convicted under § 876 for mailing a
mutilated pig carcass to a local police chief
after the officer had confiscated several of
the defendant’s firearms. The defendant
was found guilty and sentenced to a
lengthy prison term. Id. In a different
context, the Supreme Court has held cross
burning, another non-verbal act, as one of
“those forms of intimidation that are most
likely to inspire fear of bodily harm.”
Virginia v. Black, 538 U.S. 343, 363
(2003).
Regardless of whether we accept
Zavrel’s 1948 definition or look to a more
current source, we are convinced that, in
the context of the 2001 anthrax scare, the
mailing of cornstarch, meant to resemble
a n t h r a x s p o r e s , c o n s t i t u t e d a
“communication” under § 876. We also
note that Congress likely intended the
statute to have a broader reach than Zavrel
suggests, as evidenced in part by the fact
that the 1948 amendment to the statute
seems to have expanded its reach. Prior to
1948, the statute criminalized the mailing
of “any written or printed letter or other
communication . . . containing . . . any
threat to injure the person of the
addressee.” 18 U.S.C. § 338(a), 52 Stat.
742, § 1, par. (b) (1939) (App. 29). In
1948, the statute was amended to
criminalize the m ailing of “any
communication . . . containing . . . any
threat to injure the person of the
addressee.” 18 U.S.C. § 876, par. 3 (1948)
(App. 30). The amended statute omits any
reference to “written or printed” material,
thus making it clear that a communication
need not be in writing.
In this case, we believe that in
sending a substance meant to resemble
anthrax, in envelopes addressed to various
persons, Zavrel intended to convey a
message – a message of fear, fright and
alarm. Ultimately, Zavrel wanted to frame
the boys whose addresses were typed on
the envelopes. United States v. Lewis, a
case decided in the context of the anthrax
scare, presented a similar scenario. In
Lewis, the defendant tried to frame his ex-
girlfriend by sending four letters to public
officials, including the President,
containing an unidentified white powder,
a cigarette butt, and a short note reading,
“I were you [sic], I’d change my attitude.”
(A fifth letter was mailed to a private
citizen and contained a different note
reading, “It is on.”) 220 F. Supp. 2d at
549. The court in Lewis determined that,
viewed together, these items constituted
threatening communications. The court
noted specifically that, “[i]n the context of
the post-September 11 anthrax outbreaks,

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the mailing of any powdery substance
through the postal system is clearly
capable of being interpreted as a
‘threatening’ communication under
sections 876 and 871.” Id. at 557-58. The
court also pointed out, “[t]he white powder
included in the envelopes was mailed to
various individuals at a time when people
were receiving mail containing the
biological agent anthrax.” Id. at 558.
As in Lewis, the sender of the white
powder-filled envelopes in this case
communicated a message of apprehension,
anxiety and fear about exposure to the
powder. We therefore conclude that
Z a v r e l ’ s m a i l i n g s c o n s t i t u t e d
communications within the meaning of §
876. We next consider whether the
communications conveyed a threat to harm
the addressees.
B.W HETHER ZAVREL’S M AILINGS
CONTAINED THREATS
Zavrel argues that the phrase “threat
to injure” in § 876 contemplates a
prospective, not immediate, threat.
Specifically, Zavrel contends that Ҥ 876
does not criminalize the mailing of
injurious materials; it only criminalizes the
mailing of communications containing a
‘threat to injure.’” (Zavrel Brief at 15.)
Although she concedes that her letters
were injurious, she contends that they were
immediately harmful to recipients, and did
not contain prospective threats to injure.
The government responds that a
reasonable recipient of one of Zavrel’s
letters would not only be immediately
injured in the sense that he would fear for
his life, but would also be fearful of future
harmful action on the part of the sender.
Zavrel offers no precedential
support for her notion that the phrase
“threat to injure” in § 876 should be
interpreted as prospective in nature.2 The
government contends that the focus of the
inquiry here should be whether a
reasonable person, familiar with the
context in which a threat is communicated,
would perceive the communication as a
threat of harm. The government’s position
comports with how the District Court
instructed the jury in this case:
2Zavrel does cite to United States v.
Taylor, No. 02 Cr. 73 RPP, 2003 WL
22073040 (S.D.N.Y. Sept. 5, 2003) for
the proposition that § 876 mandates that
threatening communications be
prospective. Taylor concerned a fake
anthrax scare at the ABC Carpet store in
New York City, and the defendant in that
case was charged under 18 U.S.C. §
2332a(a)(2), which makes it unlawful to
“threaten to use a weapon of mass
destruction . . . against persons within the
United States.” Id. at *1. The court in
that case held that the statute
contemplated prospective threats. Taylor
is an unpublished district court decision
from New York, decided under a
different statute than the one at issue
here. And, in any case, we are not
persuaded that the phrase “threaten to
use” as interpreted in Taylor has the
same impact as the phrase “threat to
injure” as does our case.

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A threat is a serious
statement or communication
which expresses an intention
to inflict injury at once or in
the future as distinguished
from idle or careless talk,
exaggeration or something
said in a joking manner. A
statement or communication
is a threat if it was made
under such circumstances
that a reasonable person
hearing or reading the
statement or receiving the
c o m m u n i c a t i o n w o u l d
understand it as a serious
expression of intent to
inflict injury . . . .
(App. at 1001-02).
We believe this to be the correct approach,
although we do not need to decide the
issue definitively here, because we believe
the jury could have reasonably concluded
that Donlyn and others who were exposed
to Zavrel’s mailings experienced both
immediate harm as well as threats of future
injury. A reasonable person opening an
envelope containing a white powdery
substance, during the height of the anthrax
crisis in this country, would doubtless fear
immediate and future injury. That is
precisely what happened in this case. The
same day that she opened the mailbox and
touched the white powder, Cindy Donlyn
went to a hospital emergency room for
diagnosis. She testified that she remained
there for about three hours.
Our interpretation of the phrase
“threat to injure” comports with case law
from other jurisdictions. In United States
v. Malik, 16 F.3d 45 (2d Cir. 1994), a
defendant in several lawsuits sent letters to
judges threatening his adversaries. The
Malik court defined “threat” 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
o r a r g u m e n t s a g a i n st
government officials.
Id. at 51. We believe that Zavrel’s actions
accord with the Malik definition: a
recipient of one of Zavrel’s envelopes
would fear imminent harm and perhaps
death upon seeing the white powder. The
envelopes with white powder were non-
verbal messages of the sender’s intent to
harm the recipients.
Even if we adopted Zavrel’s
assertion that the threats in the mailings
must be prospective, we believe that
Zavrel’s mailings did contain threats of
future harm. No doubt persons who were
first exposed to Zavrel’s mailings at the

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Nanticoke post office were immediately
dismayed when they discovered Zavrel’s
letters. It would be natural for any person
in such a circumstance to be fearful of
future harm. Donlyn’s actions exemplify
this. She testified that after she came in
contact with the white powder at the post
office she went to the hospital out of fear
that exposure to the powder might cause
her health problems.
Mailing cornstarch, or real anthrax
for that matter, may be analogized to
mailing a bomb (real or fake) or, as in the
Pratt case discussed earlier, a dead animal.
129 F.3d at 56. The fact that some of the
contents of these mailings may be
immediately harmful does not alter the fact
that the sender in each case intends to
communicate prospective harm as well.
Additionally, opening an envelope
containing a white powder, in the
circumstances described, could not only
create an apprehension of immediate fear
and future harm, but also communicates to
the intended victim the sender’s hostility
and the idea that the sender has access to a
deadly agent that he or she can use again
in the future.
For these reasons, we determine
that the jury in Zavrel’s case properly
concluded that Zavrel deposited a
communication in the mails containing a
threat to injure.
IV. CONCLUSION
For these reasons, we conclude that,
in the wake of the 2001 anthrax scare,
mailing cornstarch does constitute a
communication under 18 U.S.C. § 876.
We also conclude that Zavrel’s mailings
constituted threats to injure the recipient
within the meaning of the statute, and we
therefore affirm the judgment of the
District Court.

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UNITED STATES v. ZAVREL – NO. 03-
1474
STAPLETON, Circuit Judge, dissenting:
I agree with the Court’s conclusion
that the mailing of an envelope containing
a white powdery substance in October
2001 constituted a “communication”
within the meaning of 18 U.S.C. § 876. I
cann ot, howeve r, agree with its
interpretation of the phrase “containing . .
. any threat to injure.” In my view, the
“threat to injure” contemplated by 18
U.S.C. § 876 requires the relevant
communication to convey that some
prospective action will be taken by the
sender or the sender’s confederates. To
the extent that the Court would apply a
broader reading of the statute than the one
I suggest, I would conclude that the
doctrine of lenity is clearly implicated.
Accordingly, I respectfully dissent.
I.
Rosemary Zavrel’s conviction on
counts one and two of her indictment
cannot be sustained unless her conduct fell
within the proscription of 18 U.S.C. § 876.
That statute prohibits the mailing of “any
communication . . . containing . . . any
threat to injure,” and the dispositive
question, therefore, is whether Zavrel sent
a communication containing a threat to
injure. An analysis of this issue must
proceed in two steps. The first is to
determine the substance of the message
conveyed by Zavrel’s conduct. The
second is to determine whether that
message contained any threat to injure.
A.
I agree with the majority that
Zavrel’s conduct in this case was
communicative. Determining the message
that was conveyed by her communication,
however, is no easy task. Obviously,
Zavrel made no verbal or written
c o m m u n i c a t i o n . R a t h e r , h e r
communicative conduct consisted of
mailing envelopes that contained a white
powdery substance to certain addressees in
October 2001.
Our decisions suggest that the most
appropriate way to determine the message
conveyed by Zavrel’s conduct is to
consider what a person receiving one of
these envelopes would reasonably perceive
the message to be. Cf. United States v.
Himelwright, 42 F.3d 777, 782 (3d Cir.
1994) (“[T]o establish a violation of 18
U.S.C. § 875(c), the government bore only
the burden of proving that [the defendant]
acted knowingly and willfully when he
placed the threatening telephone calls and
that those calls were reasonably perceived
as threatening bodily injury.”). Applying
this test, I have little trouble concluding
that a person receiving and opening
Zavrel’s envelope in October 2001 would
believe that he had just been exposed to
anthrax. I would therefore conclude that
the message conveyed by this conduct
would be reasonably interpreted as: “I
have just exposed you to anthrax.” This
message, I believe, would also reasonably
be perceived to include all additional
inferences that a recipient could make

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under the belief that he was being exposed
to anthrax, such as: “You are now going to
become ill as a result of this exposure,” or
even: “You are now going to die as a result
of this exposure.” In essence, however,
the message conveyed by Zavrel’s conduct
amounts to no more and no less than: “I
have just poisoned you.”3 The question
t h e r e fo r e b e c o m e s w h e t h e r t h e
communication “I have just poisoned you”
constitutes, as a matter of law, a
“communication . . . containing . . . any
threat to injure.”
B.
The term “threat” has not been
defined by Congress. It must therefore be
“interpreted as taking [its] ordinary,
contemporary, common meaning.” Perrin
v. United States, 444 U.S. 37, 42 (1979).
Applying this rule of construction,
numerous courts have attempted to define
the term “threat” in the context of the
federal threat statutes, 18 U.S.C. §§ 871-
880. We have defined it as “‘a serious
expression of an intention to inflict bodily
harm.’” United States v. Kosma, 951 F.2d
549, 557 (3d Cir. 1991) (quoting Roy v.
United States, 416 F.2d 874, 877-78 (9th
Cir. 1969)). The definitions adopted by
other courts are substantially similar. See,
e.g., United States v. Fulmer, 108 F.3d
1486, 1490-91 (1st Cir. 1997); United
States v. Alkhabaz, 104 F.3d 1492, 1495
(6th Cir. 1997); United States v. Malik, 16
F.3d 45, 51 (2d Cir.1994); United States v.
Khorrami, 895 F.2d 1186, 1192 (7th Cir.
1990).
The message “I have just poisoned
you” does not express the sender’s intent
to engage in any future conduct. Rather, it
expresses that the sender’s intent to inflict
bodily harm has been satisfied upon
receipt of the communication. This is
significant because numerous courts
require that, in order to constitute a
“threat” within the context of the federal
threat statutes, the communication must
convey the message that bodily harm will
be inflicted by the speaker (or a
3The Court suggests that a person
receiving one of Zavrel’s envelopes
could also perceive a message that the
sender will send more anthrax in the
future. I simply cannot agree that a
recipient of the message “I have just
poisoned you” would reasonably expect
to receive more poison at a later point in
time. In a case such as this, where the
message perceived is based solely upon
an object put through the mail, the
message reasonably perceived must be
limited to that which is conveyed by the
nature of the object itself. As the
majority suggests, a picture of the
recipient without his head may
reasonably connote future violence. But
anthrax is a bacterial poison, and the
message that one can reasonably perceive
from the receipt of what appears to be
anthrax is that he or she has just been
exposed to a lethal poison. Given the
nature of the object contained in the
letter, there would be no reasonable basis
for inferring the need for a second
exposure and, accordingly, no reasonable
basis for expecting or fearing one.

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confederate) in some future act.
For example, the Courts of Appeals
for the Fifth and Eleventh Circuits have
held that “[a] communication is a threat
when ‘in its context [it] would have a
r e a s o n a b l e t e n d e n c y t o c r e at e
apprehension that its originator will act
according to its tenor.’” United States v.
Alaboud, 347 F.3d 1293, 1296 (11th Cir.
2003) (quoting United States v. Bozeman,
495 F.2d 508, 510 (5th Cir. 1974))
(internal quotations omitted) (emphasis
added). The Second Circuit Court of
Appeals has taken a similar approach,
stating that to qualify as a “threat,” the
communication must “‘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 . . . .’” New York v.
Operation Rescue National, 273 F.3d 184,
196 (2d Cir. 2001) (quoting United States
v. Kelner, 534 F.2d 1020, 1027 (2d Cir.
1 9 7 6 ) ) ( e m p h a si s a d d e d ) . I n
distinguishing a “true threat” from a
warning of danger, the same Court stated
that “[a]lthough proof of the threat’s effect
on its recipient is relevant to this inquiry, .
. . a court must be sure that the recipient is
fearful of the execution of the threat by the
s p e a k e r ( o r t h e s p e a k e r ’ s co -
conspirators).” Id. (citing Malik, 16F.3d at
49) (emphasis in original). Furthermore,
the Ninth Circuit Court of Appeals has
stated that a threat exists when, after
hearing the message, “the listener will
believe he will be subjected to physical
violence upon his person.” United States
v. Orozco-Santillan, 903 F.2d 1262, 1265-
66 (9th Cir. 1990).
The requirement that a “threat”
contemplate some future conduct by the
speaker is also suggested in Black’s Law
Dictionary, which defines the term as
including “[a] declaration of an intention
to injure another or his property by some
unlawful act.” Black’s Law Dictionary
1480-81 (6th ed. 1990) (emphasis added).
Based upon the foregoing, I cannot
conclude that the message “I have just
poisoned you” can constitute a “threat”
within the meaning of § 876. Such a
message bears no indication that any
conduct will be forthcoming by the sender.
In this case, I have no doubt that a
reasonable recipient of Zavrel’s envelopes
would believe that his health, and even his
life, was in danger. That belief, however,
could only have arisen from an event that
had already occurred, i.e., exposure to the
white powdery substance, and not from
any future conduct that was yet to be
undertaken. Accordingly, I would
conclude that Zavrel’s conduct did not fall
within the proscription of 18 U.S.C. § 876.
II.
The majority’s interpretation of §
876 is significantly broader than I believe
jus t if i e d by the language “any
communication . . . containing . . . any
threat to injure.” Even assuming,
however, that the majority’s interpretation
is another rational reading of § 876, such
an assumption would lead only to the
conclusion that the ambit of the statute is

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ambiguous as to whether it requires the
relevant communication to state that the
recipient will be injured by some future
conduct of the sender. Any such
ambiguity must be resolved in favor of
lenity. Jones v. United States, 529 U.S.
848, 858 (2000) (citing Rewis v. United
States, 401 U.S. 808, 812 (1971)).
“‘[W]hen choice has to be made
between two readings of what conduct
Congress has made a crime, it is
appropriate, before we choose the harsher
alternative, to require that Congress should
have spoken in language that is clear and
definite.’” Id. (quoting United States v.
Universal C.I.T. Credit Corp., 344 U.S.
218, 221-22 (1952)). As the Supreme
Court has stated, “[t]here are no
constructive offenses; and before one can
be punished, it must be shown that his case
is plainly within the statute.” McNally v.
United States, 483 U.S. 350, 360 (1987)
(quoting Fasulo v. United States, 272 U.S.
620, 629 (1926)).
Using the mails to induce fear is not
plainly within the ambit of § 876. The
plain language of the statute, as I have
suggested, indicates that the scope of
conduct it proscribes is significantly more
limited. I would therefore apply the rule
of lenity and construe § 876 to cover only
the more limited conduct.
III.
Because I conclude that Zavrel’s
conduct does not fall within the
proscription of § 876, I would reverse the
District Court’s judgment and remand for
sentencing solely on the count of making a
false statement to a federal officer.

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