United States Ninth Circuit

Defendant's conviction and sentence for mailing threatening communications and communicating false or misleading information regarding the presence of a biological weapon are: 1) affirmed as to the convictions where defendant's mailings to Starbucks and McDonald's constituted true threats unprotected by the First Amendment, and defendant's hoax speech was not protected under the First Amendment because false and misleading information indicating an act of terrorism tends to cite a tangible negative response by law enforcement, emergency workers, and citizens; 2) affirmed as to the district court's denial of defendant's proposed instruction on his theory of the case or in defining "reasonable person"; 3) affirmed as to the court's rejection of defendant's contention that the prosecutor engaged in impermissible vouching; and 4) vacated and remanded as to the sentence, because in applying to each of the Starbucks and McDonald's counts enhancement under section 2A6.1(b)(4) for substantial governmental expenditures, the district court abused its discretion when it considered as relevant conduct mailings for which the defendant was not convicted.

Appellate Information

• Decided 12/06/2012
• Published 12/06/2012

Judges

• Clifton

Court

• United States Ninth Circuit

Counsel