Abraham Jacob ALKHABAZ, also known as Jake Baker, Defendant-Appellee.

                             United States Court of Appeals, Sixth Circuit.

                              Argued Aug. 16, 1996; Decided Jan. 29, 1997.

                     Rehearing and Suggestion for Rehearing En Banc Denied April 14, 1997.

Boyce F. Martin, Jr., Chief Judge.

The district court dismissed the indictment against Baker, reasoning that the e-mail messages sent and received by Baker and
Gonda did not constitute "true threats" under the First Amendment and, as such, were protected speech.  The government
argues that the district court erred in dismissing the indictment because the communications between Gonda and Baker do
constitute "true threats" and, as such, do not implicate First Amendment free speech protections.

... We conclude that the communications between Baker and Gonda do not constitute "communication[s] containing a threat"
under Section 875(c).  Even if a reasonable person would take the communications between Baker and Gonda as serious
expressions of an intention to inflict bodily harm, no reasonable person would perceive such communications as being conveyed
to effect some change or achieve some goal through intimidation.  Quite the opposite, Baker and Gonda apparently sent e-mail
messages to each other in an attempt to foster a friendship based on shared sexual fantasies.

We agree with the district court, that "[w]hatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C. §
875(c)."  Affirmed.
 
 

Krupansky, Circuit Judge, dissenting.

The panel majority has ruled that an interstate or international "communication containing any threat" to kidnap or injure another
person is criminalized by 18 U.S.C. § 875(c) only when the subject communication was conveyed with the general intent "to
effect some change or achieve some goal through intimidation."  The majority concludes that because the instant indictment
alleges only communications purportedly intended to foster a perverse camaraderie between the correspondents, rather than "to
effect some change or realize some goal through intimidation," the indictment must be dismissed because each count fails to
allege an essential element of a section 875(c) charge.  Because the majority has intruded upon Congressional prerogatives by
judicially legislating an exogenous element into section 875(c) that materially alters the plain language and purpose of that
section and ignores the prevailing precedents of the Supreme Court and this circuit, I respectfully dissent from the majority's
decision.

. . .  Jake Baker (also known as Abraham Jacob Alkhabaz), an undergraduate student attending the University of Michigan in
Ann Arbor, for some time prior to November 1994 and continuing until February 1995 was a regular contributor of sadistic
fictional "short stories" intended for public dissemination and comment via a Usenet electronic bulletin board.  The appellate
record contains a substantial anthology of Baker's efforts.  Overall, these misogynistic articles evince an extreme and morbid
fascination with the concept of the physical and psychological abuse and torment of women and young girls, described in lurid
detail, and often culminating in murder.

The "Jane Doe story," which he named after an actual female classmate and which in fact is a relatively mild exemplar of the
bestial genre of Baker's fiction, follows: (last name of a specific female classmate of Baker's omitted). [Excerpts from the story, reprinted in Krupansky's dissent, are available here].

By November 1994, Baker's sadistic stories attracted the attention of an individual who called himself "Arthur Gonda," a
Usenet service subscriber residing in Ontario, Canada, who apparently shared similarly misdirected proclivities.  Baker and
Gonda subsequently exchanged at least 41 private computerized electronic mail ("e-mail") communications between November
29, 1994 and January 25, 1995.  Concurrently, Baker continued to distribute violent sordid tales on the electronic bulletin
board.  On January 9, 1995, Baker brazenly disseminated publicly, via the electronic bulletin board, the depraved
torture-and-snuff story excerpted above in which the victim shared the name of a female classmate of Baker's referred to below
as "Jane Doe" [FN3].  This imprudent act triggered notification of the University of Michigan authorities by an alarmed citizen
on January 18, 1995.  On the following day, Baker admitted to a University of Michigan investigator that he had authored the
story and published it on the Internet.

      FN3. Although the true name of "Jane Doe" was known to the district court and to this appellate forum, her identity has
      been concealed to spare this young woman any additional and unnecessary fear, emotional trauma, or embarrassment.
      The record reflected that during an interview concerning Baker's Jane Doe publication conducted by a University of
      Michigan investigator, Jane Doe "appeared to be controlling herself with great difficulty[,]" resulting in a
      recommendation for psychological counseling by University of Michigan personnel.

 Later that month, pursuant to Baker's written consent, university security personnel searched the defendant's dormitory room,
personal papers, and computer files including his unique e-mail compartment.  This investigation surfaced a second violent and
reprehensible tale featuring Jane Doe's actual name, as well as her accurate residential address.  The search of Baker's
electronic mailbox disclosed a chilling correspondence between the defendant and Gonda chronicling the two men's plans of
abduction, bondage, torture, humiliation, mutilation, rape, sodomy, murder, and necrophilia.  Most ominously, these messages
cumulated in a conspiracy between the two men to realize their aberrant e-mail discussions and exchanges by implementing an
actual abduction, rape, and murder of a female person.

. . . Although the majority of this panel now affirms the judgment of the district court, it has avoided addressing the First
Amendment issue.  Instead it mandates, by judicial license, that the communications charged in the superseding indictment did
not constitute "threats" of any kind because the panel majority interprets section 875(c) to require, as a matter of law, that a
"threatening" communication must be accompanied by an intent to intimidate or coerce someone to attain some "change" or
"goal."  It is obvious, however, from the concise language of 18 U.S.C. § 875(c) that Congress refused to include an "intent to
intimidate or coerce someone to attain some change or goal" as an element of the criminal act addressed therein:

  Whoever transmits in interstate or foreign commerce any communication containing ANY threat to kidnap ANY person or
  ANY threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. 18
  U.S.C. § 875(c) (emphases added).

The words in section 875(c) are simple, clear, concise, and unambiguous.  The plain, expressed statutory language commands
only that the alleged communication must contain any threat to kidnap or physically injure any person, made for any reason or
no reason.  Section 875(c) by its terms does not confine the scope of criminalized communications to those directed to
identified individuals and intended to effect some particular change or goal.

. . . Thus, the plain language of 18 U.S.C. § 875(c), together with its interpretive precedents, compels the conclusion that
"threats" within the scope of the statute in controversy include all reasonably credible communications which express the
speaker's objective intent to kidnap or physically injure another person.  Whether the originator of the message intended to
intimidate or coerce anyone thereby is irrelevant.  Rather, the pertinent inquiry is whether a jury could find that a reasonable
recipient of the communication would objectively tend to believe that the speaker was serious about his stated intention.  There
can be no doubt that a rational jury could find that some or all of the minacious communications charged in the superseding
indictment against Baker constituted threats by the defendant to harm a female human being, which a reasonable objective
recipient of the transmissions could find credible.

. . . Because the communications charged against Baker could be found by a rational jury to constitute "threats" within the ambit
of 18 U.S.C. § 875(c), the district court's resolution that a rational jury could not find that any of these communications
comprised constitutionally unprotected "true threats" is ripe for review. The Supreme Court has recognized that, while the First
Amendment extends varying degrees of protection against government censure to most forms of expression (with political
speech receiving the most stringent safeguards), certain forms of speech are deemed unworthy of any constitutional protection
and consequently may be criminalized.  A "threat" is a recognized category of expression which warrants no First Amendment
protection.  However, only communications which convey "true threats" (as opposed to, for example, inadvertent statements,
mistakes, jests, hyperbole, innocuous talk, or political commentary not objectively intended to express a real threat) are
"threats" outside the embrace of the First Amendment's guarantees.

. . . Consequently, a communication which an objective, rational observer would tend to interpret, in its factual context, as a
credible threat, is a "true threat" which may be punished by the government.  The majority's disposition notwithstanding, logic
dictates that any objectively credible representation of an intent to harm someone should be considered both a "threat" by the
statement's originator, as well as a "true threat" beyond the scope of the First Amendment's free speech guarantees.

The majority's disposition leads to absurd results where, as in the case at bench, minacious communications have been made
which may satisfy the constitutional "true threat" standard because a reasonable jury could find that those communications
contained believable expressions of an intention to injure a person, yet those same communications are nonetheless deemed
beyond the reach of 18 U.S.C. § 875(c) as not constituting "threats" as a matter of law, merely because the subject
communications were not made with the intent to realize a specific purpose through intimidation. Although Congress, via section
875(c), clearly intended to punish every credible interstate or transnational expression of an intent to kidnap or injure another
person, the majority's legally erroneous unduly restrictive interpretation of the word "threat" as used in section 875(c) effectively
divests Congress of its constitutional lawmaking authority by artificially confining the intended scope of section 875(c) to a
degree not compelled by the First Amendment.

. . . the facts of the instant case justify reversal and remand because they even satisfy the judicially legislated edict articulated in
the majority opinion.  Assuming arguendo that a threat under 18 U.S.C. § 875(c) requires a general intent by the speaker to
attain some result or change through intimidation (which it does not), a rational jury could conclude that this element was proved
in this case.  By publishing his sadistic Jane Doe story on the Internet, Baker could reasonably foresee that his threats to harm
Jane Doe would ultimately be communicated to her (as they were), and would cause her fear and intimidation, which in fact
ultimately occurred.  The panel majority may casually conclude within the security of chambers that Baker's threats conveyed to
Jane Doe in his articles published on the Internet were nonintimidating.  However, Jane Doe's reaction to those threats when
brought to her attention evinces a contrary conclusion of a shattering traumatic reaction that resulted in recommended
psychological counselling.

Accordingly, I would reverse the district court's judgment which dismissed the superseding indictment as purportedly not
alleging "true threats," and remand the cause to the lower court.  I DISSENT.