Thursday, August 31st, 2006

How a Severed Horse’s Head Is Like Fake Anthrax

United States v. Noel Davila, Docket No. 05-2545-cr (2d Cir. Aug. 30, 2006) (Leval, Parker, Sessions): Any opinion that references the severed-horse’s-head-in-bed scene from “The Godfather” is a worthy read. Here, the Circuit principally rejects Davila’s argument that the two statutes under which he was convicted, 18 U.S.C. § 2232a and § 876(c), criminalize only threats of future action and thus that his act of mailing an envelope containing phony anthrax (baby powder) and including a note containing the words “ANTRAX” (sic) and “AKA Bin Laden,” did not fall within their reach. Relying on United States v. Taylor, 2003 WL 22073040 (S.D.N.Y. Sep. 5, 2003), Davila argued that the plain language of these statutes — targeting anyone who “threatens . . . to use a weapon of mass destruction” or mails a communication containing any “threat to injure,” respectively — required this result. He claimed that “the use of the worlds ‘threat’ and ‘threaten,’ combined with the infinitives ‘to use’ and ‘to injure,’ limits the scope of both statutes to threats of future conduct on the part of the threatener.” Op.6.

After canvassing several dictionaries, the Circuit rejected Davila’s future-limited reading of “threat” or “threaten.” A threat is an “indication or impression of impending danger or harm,” the Court explained, and such an impression “is created not only by a communication promising to commit a dangerous act in the future, but also by the delivery of a substance that appears to be injurious.” Op.7. Because Davila’s “mailing was designed to create the impression that it contained a deadly substance, a reasonable jury could have found that it expressed an intention on his part to inflict bodily harm.” Op. 8. And the fact that Congress subsequently enacted a statute (18 U.S.C. § 1038(a)(1)) that specifically targeted hoaxes of the type perpetrated by Davila did not require a different reading of the earlier statutes — even though § 1038’s legislative history indicates that its proponents sought its enactment because “a gap exists . . . in the current law[, which] does not address a hoax related to biological, chemical or nuclear dangers where there is no specific threat.” Op. 10.

Finally, the Court concludes that even if the statutes were construed as limited to threats of future conduct, the evidence was sufficient to convict Davila. Here is the money paragraph:

“To illustrate by example, in the famous movie The Godfather (Paramount Pictures 1972), when the movie producer found in his bed the severed head of his horse, there could be no doubt that the delivery of the horse’s head was not merely an announcement of a past act of violence but a threat of a future act of violence. The sending of a white powder with a reference to anthrax can reasonably be construed as a threat to send real anthrax the next time.”


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