Sunday, December 16, 2012

Case o' The Week: Ninth Not Sweet on "Anthrax" Sugar - Keyser, Hoaxes and Threats

It is imprudent to threaten the members of three powerful institutions: Congress, McDonald's, and Starbucks.

Marc McMain Keyser is three for three. 

See United States v. Keyser, 2012 WL 6052248 (9th Cir. Dec. 6, 2012), decision available here.

Players: Decision by Judge Clifton, joined by Judges Reinhardt and N.R. Smith. Hard-fought appeal by former ED Cal AFPD John Balazs.

Facts: Keyser, an aspiring author, wanted to publicize his self-published book on the dangers of anthrax. Id. at *2. To do so, he sent a CD of his book with a spray can labeled “anthrax” to a media company in 2007. Id. 911 was called, the building was evacuated, emergency agencies responded. Id. FBI agents visited Keyser and chewed him out: Keyser promised not to do it again. Id. 

In 2008, Keyser mailed out the CD again, this time with a white sugar packet with the label, “Anthrax,” “Sample” in smaller letters, and a biohazard symbol. Id. He sent 120 of these packages out, including one to a Congressman, one to the “Manager” of Starbucks, and another to the “Manager” of McDonalds. Id. at *2-*3. Evacuations and law enforcement response followed at each. Id. Keyser testified at trial, and was convicted of five of the thirteen threat and hoax counts charged. Id. at *3.

Issue(s): “Keyser contends that his convictions under 18 U.S.C. § 876(c) cannot stand because his mailing to Starbucks and McDonald’s were not addressed to specific persons, as he argues is required by the statute. The relevant statutory language criminalizes the mailing of a threat ‘addressed to any other person.’ 18 U.SC. § 876(c).” Id. at *7.

Held:Earlier this year, an en banc panel of this court interpreted the ‘addressed to any other person’ clause of the statute to require that the relevant mailing be addressed to a natural person or persons rather than non-natural entities, such as corporations. United States v. Havelock, 664 F.3d 1284, 1293 (9th Cir. 2012) (en banc). The addresses in question satisfy this statutory requirement. The envelopes had the business name (Starbucks or McDonald’s) on the first line of the address, the word ‘Manager’ on the second line, and no further indication of an address within the contents of the mailing. The use of ‘Manager’ in the address sufficiently transforms the addressee from the corporation to a natural person – a Starbucks or McDonald’s manager is a natural person.” Id. at *7.

Marc McMain Keyser
Of Note: Exactly eleven months before the Keyser opinion, a divided en banc Court gave us the great Havelock decision on the meaning of “person” in the threat statute. See blog here Interestingly, both Judges N.R. Smith and Reinhardt were on the Havelock en banc court, both jurists wrote separate opinions parting ways with the reasoning of the en banc plurality, and both were also on this Keyser panel. See Havelock, 664 F.3d 1284, 1297 (9th Cir. 2012) (en banc) (Judge N.R. Smith concurring); id. at 1303 (J. Reinhardt concurring and dissenting).  Unfortunately, their various concerns in Havelock didn’t trouble them here: both join in the holding that a “manager” is enough of a “natural person” to create criminal liability under the threat statute.
How to Use: Keyser is not a great case for those who defend the troubled folks who face federal threat and hoax charges. In addition to the threat holding discussed above, Judge Clifton finds no First Amendment bar to the hoax convictions, 2012 WL 6052248, *6, rejects a “theory of the defense” instruction challenge, id. at *8, and tolerates a sketchy “reasonable person” instruction with some prosecutorial vouching thrown in. Id. at *9-*10. For better or worse, Keyser joins Bagdasarian, 652 F.3d 1113 (9th Cir. 2011), and Havelock as required reading for the evolving law of threat and hoax prosecutions.  
For Further Reading: Quoting Protestant reform leader Martin Luther, Keyser refused to recant: “I neither can nor will make any retraction, since it is neither safe nor honorable to act against conscience.” For an interesting article reporting interviews with Mr. Keyser, see article here.

Image of Starbucks and McDonalds from Image of Mr. Keyser by Michael A. Jones / Sacramento Bee, via AP, from  Image of relabeled sugar packet from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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