United States v. Keyser, No. 10-10224 (9th Cir. 2012)
Annotate this CaseDefendant feigned multiple acts of biological terrorism by mailing hundreds of packets of powder labeled "Anthrax" - which were actually full of sugar - in an effort to drum up publicity for a self-published book on the dangers of Anthrax. Defendant was convicted on two counts of mailing threatening communications ("threat" counts), 18 U.S.C. 876(c), and three counts of communicating false or misleading information regarding the presence of a biological weapon ("hoax" counts), 18 U.S.C. 1038(a). The court concluded that defendant's mailings to Starbucks and McDonald's constituted true threats and fell outside of the First Amendment's protection and his convictions under section 876(c) did not violate the Constitution; defendant's hoax speech was not protected under the First Amendment; defendant's mailings to Starbucks and McDonald's managers were addressed to natural persons, so there was sufficient evidence for a jury to convict him under section 876(c); and the issues defendant raised regarding jury instructions and prosecutorial misconduct were unpersuasive. The court held, however, that the district court procedurally erred when calculating the applicable Sentencing Guidelines.
Court Description: Criminal Law. The panel affirmed convictions for mailing threatening communications under 18 U.S.C. § 876(c) and for communicating hoaxes regarding the presence of a biological weapon under 18 U.S.C. § 1038(a), but vacated the sentence and remanded for resentencing in a case in which the defendant mailed to a congressman, a Starbucks, and a McDonald’s sugar packets labeled “Anthrax.” The panel held that the mailings to Starbucks and McDonald’s constituted true threats unprotected by the First Amendment’s protection, and that the defendant’s hoax speech was not protected under the First Amendment because false and misleading information indicating an act of terrorism tends to incite a tangible negative response by law enforcement, emergency workers, and citizens. The panel rejected the defendant’s argument that because his statements were addressed to a generic “manager,” not to specific natural persons, he cannot be convicted under § 876(c). The panel held that the district court did not err in refusing the defendant’s proposed instruction on his theory of the case (i.e., that he did not intend for people to believe that he was actually sending out anthrax) or in defining “reasonable person.” The panel wrote that the instructions’ use of “under circumstances” was adequate to inform the jury that it was to evaluate the defendant’s statements in context. The panel rejected the defendant’s contention that the prosecutor engaged in impermissible vouching. The panel did not decide whether a statement by the prosecutor misled the jury as to how to interpret “reasonable person” because the defendant did not show it is more probable than not that the verdict would have been materially different if the prosecutor had not made the statement. The panel held that in applying to each of the Starbucks and McDonald’s counts an enhancement under U.S.S.G. § 2A6.1(b)(4) for substantial governmental expenditures, the district court abused it discretion when it considered as relevant conduct mailings for which the defendant was not convicted, which would not be grouped with the Starbucks and McDonald’s mailings under U.S.S.G. § 3D1.2 had they resulted in convictions.
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