Sunday, January 08, 2012

Case o' The Week: Corporations are people too -- sometimes. Havelock and federal mail-threats statute

Is a corporation a "person?" That question has sparked a potent political debate, between the Occupy Folks and presidential candidate Mitt Romney. See article here.

Sitting en banc, the Ninth has also recently wrestled with that question -- and answered (in a different context), "no." As used in a federal threats statute, a "person" means a "natural person" -- a human being. See United States v. Havelock, 2012 WL 29347 (9th Cir. Jan. 6, 2012) (en banc), opinion
available here).

Players: Decision by Judge B. Fletcher. Big win by D. Az. AFPD Dan Kaplan.

Facts: Kurt Havelock (above left) bought an assault rifle. He then sent a batch of mail less than an hour before the ‘08 Superbowl. Id. at *1. This mail bore addresses of media outlets and music-related websites. Id. Inside each item was a “media packet” with a rambling “manifesto.” Id. The manifesto had allusions to violence; some in the past tense, and some prospective – like, “I will sacrifice your children upon the alter of your excess . . . . I will slay your children.” Id. at *2.

After visiting the Post Office, Havelock drove to a parking lot near the stadium where the Superbowl was to be played, to “wait for an opportunity to shoot people.” Id. He then had a change of heart, self-surrendered, confessed, and was ultimately charged with six counts of mailing threatening communications, in violation of 18 USC § 876(c). Id. Havelock’s motions to dismiss the indictment and for a judgment of acquittal were denied by the district court. Id. at *3.

Issue(s): 1. Issue One: “Person?” Havelock argues “that the phrase ‘any other person’ in § 876(c) refers exclusively to natural persons and, because the media packets were addressed to corporations, the indictment failed to allege facts sufficient to constitute an offense.” Id. at *3.

2. Issue Two: “Contents?” Havelock argues “that the district court erred in interpreting § 876(c) to allow a trier of fact to consult the content of a mailed communication to determine whether it was addressed to a natural person.” Id. at *3 (emphasis added).

Held:The term ‘person’ as used in § 876(c) refers exclusively to natural persons. To determine whether a threatening communication is ‘addressed to any other person,’ § 876(c), a court may consult the directions on the outside of the envelope, the salutation line, and the contents of the communication. Havelock’s writings were not addressed to natural persons. Accordingly, we reverse Havelock’s convictions and remand to the district court for the entry of a judgment of acquittal.” Id. at *10 (emphases added).

Of Note: Five judges join Judge B. Fletcher in full. We need six to win. So what is the “holding” of Havelock?

The individual holdings – that “persons” means a natural person, and that you can look inside an envelope to determine to whom it is “addressed” – are found within subsections of the opinion. See, e.g., Section II A at *5 (“person” means a “natural” person). Each of those sub-holdings garnered at least six votes, but, different judges cast the sixth vote for different subsections and holdings. (For example, Section II.A won Judges Schroeder and Reinhardt over, II.B convinced Judges Wardlaw, Fisher, and N.R. Smith). Because every subsection in the opinion earned a six-judge majority (albeit shifting majorities), all the holdings are controlling law. See generally United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138 (9th Cir. 2005) (Berzon, J., dissenting) (providing good primer on plurality decisions); cf. Bradley v. Henry, 518 F.3d 657 (2008) (ord.) (adding note describing limits of five-judge plurality).

How to Use: In a pointed concurrence and dissent, Judge Reinhardt takes issue with the holding that permits a court to rummage within a mailing to locate to whom it is “addressed.” Id. at *18. Judge Reinhardt explains this holding is unnecessary, because Havelock’s “manifesto” didn’t contain a true “threat.” Id.

It is a thoughtful discussion of “threats” and free speech, building on last year’s great Bagdasarian decision. Id. at *19. (Notably, several judges join this “threats” analysis). The encroachment of “threat” laws on the First Amendment is a hot new issue: last month, Maryland District Judge Roger Titus issued a terrific decision finding 18 USC § 2261A(2)(A) – the interstate stalking statute – unconstitutional in a case involving Twitter posts. United States v. Cassidy, 2011 WL 6260872 (D. Md. Dec. 15, 2011). Judge Reinhardt’s opinion in Havelock deserves a close read as we begin new “threat” battles.

For Further Reading: In 1997 Mel Gibson portrayed an angry, paranoid, crazy loner in Conspiracy Theory. (A prescient role for the actor). The movie posits that secret assassins are conditioned by the CIA to obsess on Catcher in the Rye, to permit the agency to track them. See article here.
LinkIt turns out that several notorious real-life shooters liked the book. See article here.
So did Kurt Havelock. Havelock, 2012 WL 29347, *2.

Image of Mr. Kurt Havelock from
Image of "The Catcher in the Rye" from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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