United States of America v. STEVEN CURTIS BACHMEIER

St. Louis, MO - Criminal defense lawyer represented defendant with a sending a communication that threatened the state judge assigned to his civil proceeding charge.

Over a decade ago, Bachmeier was convicted of various

state crimes not relevant here. Judge Anna Moran oversaw

those proceedings. During one telephonic hearing,

Bachmeier grew belligerent and repeatedly called Judge

Moran offensive names. After Judge Moran warned him to

stop, Bachmeier became more inflamed and yelled a graphic

and specific threat to gravely harm Judge Moran's family.

At that point, Judge Moran muted Bachmeier and contacted

judicial services, and later hearings proceeded without

further outbursts. Bachmeier remains in state custody and is

serving the rest of his sentence. This first threat looms as an

important backdrop to Bachmeier's current § 876(c)

conviction.

Seven years later, Bachmeier filed a pro se name change

petition in the Superior Court in Kenai, Alaska ("Kenai

Courthouse”) while still in state custody. Per Alaska court

procedure, the petition was randomly assigned to a Superior

Court judge to rule on and oversee any motions filed with

the petition—in this case, Judge Moran. In prior

proceedings, Bachmeier sought and obtained judicial

reassignments when Judge Moran was assigned to his case.

But this time the reassignment request deadline passed

before Bachmeier learned of Judge Moran's assignment.

Bachmeier mailed the following request to the Kenai

Courthouse, which ultimately led to his § 876(c) conviction:

Am requesting to cancel this proceeding. I

never got a notice of judicial assignment. I

would of struck Moran from this case as I

have told her in the past Im going to kill her

family which I still entend to do. Therefore

she cannot be impartial. I will refile and this

UNITED STATES V. BACHMEIER 5

court will give me notice of judicial

assignment, or els.

Bachmeier's request included a case name and number, and

the clerk's office forwarded it to Judge Moran's chambers

without reviewing its substance. When Judge Moran

received the request, she was horrified at his statement that

he still intended to carry out a death threat made almost a

decade earlier.

The federal government indicted Bachmeier under

18 U.S.C. § 876(c) for mailing a threatening

communication. Bachmeier moved to dismiss, arguing his

request was addressed to the Kenai Courthouse, not a natural

person as § 876(c) requires. The district court denied that

motion and the subsequent motion to reconsider, and the

case went to trial. At trial Bachmeier moved for acquittal

after the government's case-in-chief on the same grounds.

The district court deferred ruling on that motion until after

the jury returned its verdict. Bachmeier requested that the

jury be instructed that, to convict, it was required to find that

"Bachmeier subjectively intended to threaten” Judge Moran.

The district court rejected that proposed instruction, instead

instructing the jury to find either that Bachmeier "intended

to communicate a threat in the document, or acted with

knowledge that the document would be viewed as a threat.”

The jury returned a guilty verdict, the district court denied

Bachmeier's motion to acquit, and Bachmeier appealed his

conviction.

II

Section 876(c) prohibits an individual from

(1) "knowingly” sending a communication through the mail

that (2) is "addressed to any other person” and

(3) "contain[s] any threat to kidnap any person or any threat

6 UNITED STATES V. BACHMEIER

to injure the person of the addressee or of another.”

18 U.S.C. § 876(c). Bachmeier argues that the evidence did

not sufficiently support a finding of the second element

because his request was sent to the Kenai Courthouse, not a

"person.” See id. Bachmeier also contends the jury

instructions were erroneous because they allowed the jury to

convict based on Bachmeier's knowledge of the threat rather

than his subjective intent to threaten. Exercising our

jurisdiction under 28 U.S.C. § 1291, we address both

challenges in turn.

A

We review challenges to the sufficiency of evidence de

novo. United States v. Keyser, 704 F.3d 631, 640 (9th Cir.

2012). "Evidence is sufficient if, viewing it in the light most

favorable to the prosecution, any rational jury could have

found the essential elements of the crime beyond a

reasonable doubt.” Id. (cleaned up). Here, a rational jury

could have found that § 876(c)'s "addressed to” element was

satisfied.

To be convicted under § 876(c), the threatening

communication must be "addressed to any other person.”

18 U.S.C. § 876(c). The term "person” means a "natural

person,” not a non-natural entity. United States v. Havelock,

664 F.3d 1284, 1292–93 (9th Cir. 2012) (en banc). Thus,

addressing a communication to non-natural entities like

newspapers and websites, with no threat aimed at a natural

person, is not enough to convict a defendant under § 876(c).

Id. at 1296. But to determine the addressee, we are not

limited to the address block on a package, parcel, or

envelope. Rather, we look holistically at "the directions on

the outside of the envelope or packaging, the salutation line,

if any, and the contents of the communication.” Id. The

addressee can also be generally, rather than specifically,

UNITED STATES V. BACHMEIER 7

identified. For example, it was enough in Keyser to send

threatening letters to McDonald's and Starbucks managers

without identifying the managers by name. 704 F.3d at 641.

The managerial positions were always held by natural

persons, so the letters adequately satisfied § 876(c)'s broad

requirement that a letter be "addressed to any other person.”

Id.

Here, a rational jury could conclude that Bachmeier's

request was addressed to a natural person. The request's

envelope included only "Kenai Court House, 125 trading

Bay Dr, Kenai AK 99641.” But the Kenai Courthouse's

walls and windows were not the addressee; someone inside

was the intended recipient. Unlike in Havelock, though

Bachmeier's request does not have a salutation line, its

contents identify the addressee. The request spoke to the

person responsible for deciding whether to dismiss his name

change proceeding. And as that request had to be resolved

by a natural person, not a computer or other non-natural

entity, Bachmeier's request is most reasonably read as being

addressed to the natural person who oversaw his petition. In

short, Bachmeier's challenge fails because a rational jury

could have found beyond a reasonable doubt that Judge

Moran was the addressee. She was the person responsible

for reviewing and ruling on Bachmeier's request. Only

Judge Moran had authority to rule on Bachmeier's request

as the assigned judge. Notably, the clerk who processed the

request did not read or even remember the threat because it

was not her job to read or rule on it.1

1 We acknowledge that Bachmeier's request refers to Judge Moran

in the third person, suggesting that she was not the intended recipient or

addressee. But Bachmeier's potential misunderstanding as to who would

review his request does not excuse the fact that he "knowingly”

8 UNITED STATES V. BACHMEIER

B

Moving to Bachmeier's second challenge, we "review de

novo whether the district court's jury instructions misstated

or omitted an element of the charged offense.” United States

v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012) (citation

omitted). Prejudicial error occurs only "when, looking to the

instructions as a whole, the substance of the applicable law

was not fairly and correctly covered.” Swinton v. Potomac

Corp., 270 F.3d 794, 802 (9th Cir. 2001) (cleaned up). Here,

although the jury instruction failed to correctly explain

§ 876(c)'s mens rea element, that error was harmless beyond

a reasonable doubt.

1

To reiterate, § 876(c) criminalizes "knowingly” mailing

a communication that "contain[s] any threat to kidnap any

person or any threat to injure the person of the addressee or

of another.” 18 U.S.C. § 876(c). Other provisions in § 876

criminalize actions "with intent to extort,” but subsection (c)

contains no such language. Compare id. § 876(b) & (d), with

id. § 876(c). Thus, at first glance, § 876(c) may seem to

punish any individual who knowingly sends a threat in the

mail even if he or she had no intent to threaten. But case law

has fleshed out this element and merits clarification of our

court's precedent surrounding § 876(c)'s mens rea

requirement. Initially, we added to § 876(c)'s statutory

elements and "inferred . . . a general intent to threaten [a]s

an essential element of the crime.” United States v.

LeVision, 418 F.2d 624, 626 (9th Cir. 1969). Several years

later, we described § 876(c)'s requirements without

addressed his letter to the natural person who oversaw his name change

petition, namely Judge Moran. See 18 U.S.C. § 876(c).

UNITED STATES V. BACHMEIER 9

reference to an intent to threaten. United States v. Sirhan,

504 F.2d 818, 819 (9th Cir. 1974) (per curiam) ("First, the

defendant must have written and mailed a letter (or other

communication) containing a threat to injure another person.

Secondly, he must have knowingly caused the letter to be

deposited in the mails.”). After that, we reaffirmed an intentto-threaten element in § 876(c) as "a showing of specific

intent” to threaten. United States v. Twine, 853 F.2d 676,

679–80 (9th Cir. 1988). And shortly thereafter, we

explained that "[t]he only proof of specific intent required to

support a conviction under 18 U.S.C. § 876 is that the

defendant knowingly deposits a threatening letter in the

mails, not that he intended or was able to carry out the

threat.” United States v. Davis, 876 F.2d 71, 73 (9th Cir.

1989) (per curiam) (emphasis added) (citation omitted).

The Supreme Court's decision in Virginia v. Black,

538 U.S. 343 (2003), held that a state can punish threatening

speech only if "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.” Id. at 359.

In other words, the First Amendment allows criminalizing

threats only if the speaker intended to make "true threats.”

Id. Applying this principle, we held that "a conviction under

any threat statute that criminalizes pure speech” requires

finding "sufficient evidence that the speech at issue

constitutes a 'true threat.'” United States v. Bagdasarian,

652 F.3d 1113, 1117 (9th Cir. 2011). We concluded, "the

subjective test set forth in Black must be read into all statutes

that criminalize pure speech,” id., and "the speaker must

10 UNITED STATES V. BACHMEIER

subjectively intend to threaten” to be convicted under

§ 876(c), Keyser, 704 F.3d at 638.2

The district court instructed the jury to find that either

Bachmeier "intended to communicate a threat” or "acted

with knowledge that the document would be viewed as a

threat.” Given a § 876(c) conviction requires showing a

subjective intent to threaten, the jury instructions were

erroneous.

The government argues that only a showing of general

intent was required under Elonis v. United States, 575 U.S.

723 (2015). But Elonis does not stand for that proposition.

True, the Supreme Court stated in passing that either intent

or knowledge could satisfy § 875(c)'s mens rea

requirements. See id. at 740; see also Twine, 853 F.2d at

679–80 (noting § 876(c) and § 875(c) are treated almost

identically). Yet, the Court's analysis and holding did not

specify which mental state was required—it simply held that

negligence was insufficient. Id. at 741; see also id. at 742

(Alito, J., concurring) (criticizing the majority for

"refus[ing] to explain what type of intent was necessary” and

leaving attorneys and judges to guess). Elonis also did not

reach the First Amendment issues presented here. See id. at

740.

The district court relied on our model criminal jury

instructions, which in turn draw from Elonis. See Ninth

Circuit Model Criminal Jury Instruction 8.47A, cmt. (2015).

But the "use of a model jury instruction does not preclude a

2 Because Black and our later holdings in Bagdasarian and Keyser

agree with Twine, our precedents requiring anything less than a

subjective intent to threaten have been effectively abrogated. See

generally, e.g., Davis, 876 F.2d 71.

UNITED STATES V. BACHMEIER 11

finding of error.” Dang v. Cross, 422 F.3d 800, 805 (9th Cir.

2005) (cleaned up). And case law makes clear that a

subjective intent to threaten is the required mental state, not,

as Instruction 8.47A allows, mere "knowledge that the

[communication] would be viewed as a threat.” Thus, the

mens rea portion of Instruction 8.47A relying on Elonis is

incorrect, and it was error to give such an instruction.

2

Ordinarily, "an error in criminal jury instruction requires

reversal.” United States v. Pierre, 254 F.3d 872, 877 (9th

Cir. 2001) (alteration and citation omitted). That said, if

"there is no reasonable possibility that the error materially

affected the verdict,” we need not reverse. Id. Instead, we

will affirm if convinced "beyond a reasonable doubt that the

omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would

have been the same absent the error.” Neder v. United Sates,

527 U.S. 1, 17 (1999). We must reverse if the omitted or

erroneous element was contested, or if evidence was raised

"sufficient to support a contrary finding.” See id. at 19.

Since this analysis essentially places us in the jury's shoes,

we "conduct a thorough examination of the record” to ensure

a defendant's right to trial by jury is safeguarded. Id.

Considering the full record here, the district court's error was

harmless beyond a reasonable doubt.

Bachmeier requested a specific-intent-to-threaten

instruction. But he did not contest the evidence supporting

his specific intent to threaten. He only presented evidence

that his request was not addressed to Judge Moran. Thus,

the subjective intent-to-threaten element was uncontested.

The evidence also overwhelmingly supports a finding

that Bachmeier subjectively intended to threaten. At trial,

12 UNITED STATES V. BACHMEIER

the evidence mostly focused on to whom the letter was

addressed; court and prison policies; and the reaction of

Judge Moran, her family, and her clerks. But Bachmeier's

request itself plainly demonstrates his intent to threaten.

Rather than only explaining his past threat, Bachmeier

reiterated his original threat as something he still intended

to do. What is more, Bachmeier gave an ultimatum—"I will

refile and this court will give me notice of judicial

assignment, or els.” This letter leaves no room for doubt that

Bachmeier subjectively intended to make a true threat.

Though his request's primary purpose was to dismiss his

name change petition, he sought to achieve that purpose by

means of threat. We are persuaded beyond a reasonable

doubt that, absent the district court's instructional error, the

jury would have reached the same verdict. See Neder,

527 U.S. at 16

We hold that the evidence presented at trial sufficiently

supported a finding that Bachmeier’s request was addressed

to a natural person. Though the district court erred in

instructing the jury, that error was harmless beyond a

reasonable doubt.



AFFIRMED