United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1780

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Deborah Mae Carlson

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the District of Minnesota - St. Paul

____________

 Submitted: December 12, 2014

 Filed: June 2, 2015

____________

Before LOKEN, BRIGHT, and KELLY, Circuit Judges.

____________

KELLY, Circuit Judge.

Deborah Mae Carlson was convicted after a jury trial of nine counts of mailing

threatening communications and three counts ofmailing extortionate communications

under various provisions of 18 U.S.C. § 876. On appeal, Carlson challenges her

convictions for the three counts ofmailing extortionate communications, arguing that

the evidence wasinsufficient to support these counts and that the jury wasimproperly
instructed. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part and

remand in part. 

I. Background

In March 2010, Carlson began bringing her pets for regular treatment at the

Southfork Animal Hospital in Lakeville, Minnesota. Because she had many animals

and because she refused to give them medication herself, she was at the hospital

often, sometimes on a daily basis. Around this same time, Dr. Katherine Belisle, a

veterinarian at the hospital, began receiving threatening letters detailing how she

would be kidnapped, tortured, and raped. The letters were hand-addressed to

Dr. Belisle at the hospital, and most were sent anonymously, though some were

signed “Jeff.” Eight such letters were addressed to Dr. Belisle over a two-month

period—one accompanied by a knife left in the hospital’s mailbox. Two additional

letters were sent to other employees of the hospital, detailing violence that would be

committed against both the employees and Dr. Belisle. 

During thistime, three businesses near the animal hospitalreceived threatening

letters that were falsely signed in the name of Dr. Belisle. One letter was mailed to

“Target–Store Manager” and demanded that $50,000 be brought to the hospital

address or “I will shoot people in your parking lot.” A second letter was addressed

to “Valley Buick Pontiac GMC Store Manager,” and demanded that $25,000 be

brought to Dr. Belisle’s animal hospital or “I will break windows on your cars.” The

third letter was addressed to “Scott Lake Veterinary Center,” a different animal

hospital than the one where Dr. Belisle worked, and demanded that the clinic deliver

animal medicalsuppliesto Dr. Belisle, or else she would spread rumors that the clinic

overcharged customers.

Carlson was indicted and charged with nine counts of mailing a threatening

communication, in violation of 18 U.S.C. § 876(c); two counts of mailing a

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threatening communication with intent to extort, in violation of 18 U.S.C. § 876(d);

and a single count of mailing a threatening communication with an intent to extort,

in violation of 18 U.S.C. § 876(b). At her trial, testimony was presented that Carlson

had become infatuated with Dr. Belisle and had called the clinic threatening to shoot

children at a nearby daycare if Dr. Belisle did not meet her at a gas station. A

handwriting expert concluded that it was “highly probable” that Carlson had written

the letters. A jury found Carlson guilty on all counts. 

Count 10 of the indictment alleged a violation of 18 U.S.C. § 876(b), which

applies to:

Whoever, with intent to extort from any person any money or other

thing of value, so deposits, or causes to be delivered, as aforesaid, any

communication containing any threat to kidnap any person or any threat

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

(Emphasis added). This count applied to the letter addressed to “Target–Store

Manager,” followed by the address of a Target store. The letter stated:

Bring $50,000 to me at [redacted] Kenrick Ave in Lakeville Mn 4-19 by

10:00 am or on 4-20 I will shoot people in your parking lot. 

Katherine Belisle

Counts 11 and 12 of the indictment each alleged a violation of 18 U.S.C. §

876(d), which applies to:

Whoever, with intent to extort from any person anymoney or other thing

of value, knowingly so deposits or causes to be delivered, as aforesaid,

any communication, with or without a name or designating mark

subscribed thereto, addressed to any other person and containing any

threat to injure the property or reputation of the addressee or of

another . . . .

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(Emphasis added). Count 11 applied to a letter addressed to “Valley Buick Pontiac

GMC Store Manager,” followed by the address for the dealership. The enclosed letter

stated: 

If you do not bring $25,000 to me at [redacted] Kenrick Ave in

Lakeville MN by 10 am on 4-21 that night or the next night I will break

windows on your cars.

Katherine Belisle

Count 12 applied to a letter addressed to “Scott Lake Veterinary Center,” followed

by the Veterinary Center’s address. The enclosed letter stated:

I want my animal hospital to get as much business as possible so that I

get more money. So I am going to get the word out there that your

hospital & others overcharge people and things like that. However, if

you bring us animal medical supplies I will leave your place out of it. 

You could leave it outside our place at night with a note saying where

it’s from & if we can use the stuff I will cross your place off my list.

Katherine Belisle

II. Discussion

Carlson appeals, advancing two arguments. She first says that the evidence

presented at trial was insufficient to prove that she had the requisite intent to extort.

Her second argument isthat 18 U.S.C. § 876 applies only when threatening letters are

mailed to a natural person and that no reasonable jury could find that the letters in

question were addressed to a “person” as the statute requires. We address each

argument in turn.

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A. Intent to extort

“Our standard of review concerning whether the evidence is sufficient to

support a conviction is strict. We review the evidence in the light most favorable to

the government, resolving evidentiary conflicts in favor of the government, and

accepting all reasonable inferences drawn from the evidence that support the jury’s

verdict.” United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007) (internal quotation

marks and citation omitted). We will overturn a conviction only if no reasonable jury

could have found the defendant guilty beyond a reasonable doubt. Id. 

Carlson argues that no reasonable jury could have found that she had the

requisite “intent to extort” under 18 U.S.C. § 876(b) and (d) because she did not

intend to “obtain” anything from the businesses she threatened. In making her

argument, Carlson relies on Scheidler v. National Org. for Women, Inc., 537 U.S.

393, 397 (2003), in which the Supreme Court held that “petitioners did not commit

extortion because they did not ‘obtain’ property from respondents as required by the

Hobbs Act.” The Hobbs Act, 18 U.S.C. § 1951, is a criminal statute that punishes

whoever affects commerce “by robbery or extortion.” Under the Hobbs Act, the term

“extortion” isspecifically defined as “the obtaining of property fromanother, with his

consent, induced by wrongful use of actual or threatened force, violence, or fear . . . .” 

18 U.S.C. § 1951(b)(2).

In Scheidler, petitioners were anti-abortion activists who had used threats of

violence to intimidate women and clinic staff from going to abortion clinics. No

demands were made from these women to actually hand over anything of tangible

value. The Court ruled that, though the threats were coercive and unlawful, they did

not constitute extortion because the activists “neither pursued nor received something

of value from respondents that they could exercise, transfer, or sell.” Scheidler, 537

U.S. at 405 (quotation omitted). 

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The present case differs from Scheidler in two key respects: The statute in

question does not define the term extort; and Carlson did demand items of value, she

just did not seek to obtain them for herself. As for the definition of extort, in another

case evaluating the application of the Hobbs Act, Sekhar v. United States, the

Supreme Court ruled that “absent other indication, ‘Congress intends to incorporate

the well-settled meaning of the common-law terms it uses.’” 133 S. Ct. 2720, 2724,

(2013) (quoting Neder v. United States, 527 U.S. 1, 23 (1999)). “Extortion require[s]

the obtaining of items of value, typically cash, from the victim.” Id. “Obtaining

property requires ‘not only the deprivation but also the acquisition of property.’” Id.

at 2725 (quoting Scheidler, 537 U.S. at 404). Both Scheidler and Sekhar took issue

with the fact that the respective defendants had not actually sought to deprive and/or

obtain transferable property. Here, however, that requirement has been met: Carlson

demanded money and medical supplies—items of value.

The question that remains is, does it matter that the place Carlson wished the

money to be delivered suggests that she herself was not interested in obtaining the

money and supplies? The Second Circuit has reasoned that “far from holding” that

Hobbs Act liability requires the extortion of tangible property rights, the Supreme

Court in Scheidler “simply clarified that for . . . liability to attach, there must be a

showing that the defendant did not merely seek to deprive the victim of the property

right in question, but also sought to obtain that right for himself.” United States v.

Gotti, 459 F.3d 296, 300 (2d Cir. 2006) (emphasis added). However, the Gotti court

went on to suggest that had the protestorsin Scheidler attempted to force the abortion

clinic to turn over its real property to a “third party of the extortionist’s choosing,”

this action would have fit within the Supreme Court’s definition of extortion. Id. at

324 n.9. 

We agree with the Second Circuit’s analysis. In Sekhar and Scheidler, the

Supreme Court was concerned with the type of property sought to be extorted, i.e.

whether it is obtainable, rather than who in the end is doing the actual obtaining. The

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jury in the present case wasinstructed: “To act with intent to extort means to act with

the purpose of obtaining money or something of value from someone through

wrongful means.” The letters sent by Carlson demanded that large sums of money

and animal supplies be brought to a certain address, or else the author would follow

through on her threats. A reasonable jury could have found that Carlson’s letters

manifested the requisite intent to extort under 18 U.S.C. § 876(b) and (d).

B. Meaning of “person”

The three letters at issue on appeal were addressed to: (1) “Target Store

Manager” in Count 10; (2) “ValleyBuick Pontiac GMC Store Manager” in Count 11;

and (3) “Scott Lake Veterinary Center” in Count 12. Carlson asserts that 18 U.S.C.

§ 876 applies only when threatening letters are mailed to a natural person, not when

the addressee is a corporation. The district court removed her proposed jury

instruction reflecting this limitation on the definition of “person.” “We typically

review district courts’ rulings concerning contested jury instructions for an abuse of

discretion, and we reverse only when any error was prejudicial. However, when our

review requires statutory interpretation, it is an issue of law that we consider de

novo.” United States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012) (internal

quotations and citations omitted). If we conclude that the district court’s

interpretation of the statute resulted in the omission of a required element of the

offense, “we then apply harmless error review.” Preston v. United States, 312 F.3d

959, 960 (8th Cir. 2002).

At trial, the district court discussed the interim jury instructions with the parties

in open court without the jury present. The interim instructions contained the

following instruction, number 25, which had been adopted from Carlson’s proposed

instructions: 

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A written communication is “addressed to another person” if it is

addressed to an individual, natural person. “Another person” does not

include any firm, association, or corporation. 

To identify the addressee of a communication, you are not limited

to the directions for delivery on the outside of the envelope or the

packaging, but may also consider the salutation and the contents of the

communication in determining to whom a communication is addressed.

Over defense counsel’s objections, the district court ruled that “person” as used in 18

U.S.C. § 876, referred both to a natural (human) person as well as a corporation. As

a result, the court removed instruction number 25 from the final jury instructions. 

The instructions regarding the required elements of Counts 10, 11, and 12 remained

unchanged from the interim instructions. For Count 10, instruction number 21

provided, in part:

In order to sustain its burden of proof for the crime of threatening

communications in violation of Title 18, United States Code, Section

876(b), as charged in Count 10 of the Indictment, the prosecution must

prove each of the following three elements beyond a reasonable doubt:

One, that the defendant knowingly mailed or caused to be mailed

a written communication, addressed to “Target – Store Manager”;

Two, such written communication contained a threat to injure the

person of the addressee or of another; and

Three, the defendant intended such communication to extort from

any person any money or other thing of value.

Jury instruction number 22 was given for Counts 11 and 12 of the indictment. It

provided, in part:

In order to sustain its burden of proof for the crime of threatening

communications in violation of Title 18, United States Code, Section

876(d), as charged in Counts 11 and 12 of the Indictment, the

prosecution must prove each of the following three elements beyond a

reasonable doubt:

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One, that the defendant knowingly mailed or caused to be mailed

a written communication, addressed to the store manager of Valley

Buick Pontiac GMC in Count 11 and addressed to the Scott Lake

Veterinary Center in Count 12;

Two, such written communication contained a threat to injure the

property or reputation of the addressee or of another; and

Three, the defendant intended such communication to extort from

any person any money or other thing of value.

Carlson maintains that the removal of instruction 25, the requirement that the jury

find that the threatening communication was addressed to a natural person, was an

error. However, the jury was never instructed by the court that a person could be a

corporation; the court said nothing at all about the definition of “person.” What is

potentially problematic isthat in the first element of instruction 21, the “person of the

addressee” in § 876(b) was replaced with “Target – Store Manager.” Similarly, in

instruction 22, “addressed to any other person” was replaced by “addressed to the

store manager of Valley Buick Pontiac GMC” for Count 11, and “addressed to the

Scott Lake Veterinary Center” for Count 12. The jury was not asked to determine

whether each letter had been addressed to a person, a requirement of the statute. 

However, the jury was asked to determine whether the communication was intended

“to extort from any person” something of value. (Emphasis added). In all three

counts the jury found that this element had been satisfied, and that Carlson had

intended to extort from a person. 

This court has never addressed whether 18 U.S.C. § 876 applies strictly to

natural persons, though several other circuit courts have, and those courts have

reached varying conclusions. In United States v. Bly, 510 F.3d 453 (4th Cir. 2007),

the Fourth Circuit ruled that the term “person” in section 876(b) could apply to the

University of Virginia. The court explained that “under ordinary usage, the term

‘person’ is defined as ‘a human being, a body of persons, or a corporation,

partnership, or other legal entity that is recognized by law as the subject of rights and

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duties.’” Bly, 510 F.3d at 461 (quoting Webster’s Dictionary 1686 (3d ed. 2002)). 

Further, “it is entirely reasonable to conclude that an artificial entity, such as UVA,

can be the victim of an extortion demand.” Id.

The Ninth Circuit, sitting en banc, analyzed the term “person” as it appeared

in 18 U.S.C. § 876(c), which prohibits the mailing of a communication “addressed to

any other person and containing any threat to kidnap any person or any threat to

injure the person of the addressee or of another.” The court held that “§ 876(c) refers

exclusively to an individual, or to a natural, person.” United States v. Havelock, 664

F.3d 1284, 1286 (9th Cir. 2012) (en banc). While § 876(c) is not targeted at extortion

like the subsections in the present case, in reaching its decision, the Ninth Circuit

analyzed the whole of 18 U.S.C. § 876:

The term “person” is used no less than twelve times in § 876. See 18

U.S.C. § 876. The term is used in various associations, including:

“release of any kidnapped person,” “any threat to kidnap any person or

any threat to injure the person of the addressee or of another,” “the

reputation of a deceased person, or any threat to accuse the addressee or

any other person of a crime.” See id. These associations clearly require

that “person” mean a natural person. It simply makes no sense to

threaten to kidnap a corporation, or injure “the person” of a corporation,

or talk about a deceased corporation.

Havelock, 664 F.3d at 1291.

Citing the “common-sense and long-recognized presumption of uniformity” in

statutory interpretation, the Ninth Circuit determined that because it had identified

many instances in which person must mean a natural person, it therefore meant this

in all instances throughout the statute. Id. (citing Brown v. Gardner, 513 U.S. 115,

118 (1994)). This includes when it is used in the phrase “addressed to any other

person,” as it is in § 876(a),(c), and (d). This contrasts with the Fourth Circuit’s

conclusion, that the rule of uniform usage does not apply when “a statutory term has

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multiple commonly understood and accepted meanings, among which a speaker may

alternate without confusion.” Bly, 510 F.3d at 461.

In United States v. Williams, the Tenth Circuit considered whether a “person”

under § 876 could include a government official, addressed in a threatening letter by

his title. 376 F.3d 1048 (10th Cir. 2004). The court noted that the Seventh Circuit

had found that “at least one of the purposes of § 876 is ‘the preservation of the

recipient’s sense of personal safety.’” Id. at 1053 (quoting United States v. Aman, 31

F.3d 550, 555 (7th Cir. 1994)). The court thus concluded that this purpose requires

that the “person” to whom the communication was addressed “must be capable of

having a sense of personal safety,” i.e. must be a natural person. Id.

Two years after Congress passed 18 U.S.C. § 876, it passed a very similar

companion statute pertaining to threats transmitted by means of interstate commerce

other than the mail, 18 U.S.C. § 875. Subsections (b) and (d) of § 875 begin,

“Whoever, with intent to extort from any person, firm, association, or corporation,

any money or other thing of value, transmits in interstate or foreign commerce any

communication containing any threat . . . .” (Emphasis added). The government

argues that these additional terms manifest Congress’s “intent to protect non-natural

persons from extortion demands” and that the reason Congress did not include these

terms in § 876 two years earlier was because it would have been “superfluous.” Yet,

why would Congress have initially thought the terms superfluous and then two years

later decide that they were not? One could just as easily compare the two statutes and

conclude that because Congress expressly included corporations in the later statute,

it meant to exclude them in the earlier one. 

We are inclined to agree with the Ninth Circuit that the context in which the

term “person” is used in § 876 requires it to be a natural person, and the inclusion of

the term “corporation” in § 875 serves only to convince us further. We conclude that

18 U.S.C. § 876 requires the intent to extort from a natural person, a fact which must

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be determined by a jury in order to reach a conviction. Therefore, the district court

erred when it gave a jury instruction that removed this question from the jury and

reduced the first element of Counts 10 through 12 to a presumption that would be

satisfied so long as the jury found that Carlson had sent a letter to each of the named

entities. 

We next turn to whether this error was harmless. “A jury instruction that omits

a single element of the offense can be subject to harmless error review.” United

States v. Evans, 272 F.3d 1069, 1081 (8th Cir. 2001) (citing Neder, 527 U.S. at 8–9). 

A constitutional error is harmless when “it appears ‘beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.’” Neder, 527 U.S.

at 15 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). The court asks

“whether the record contains evidence that could rationally lead to a contrary finding

with respect to the omitted element.” Id. at 19.

As an initial matter, we conclude that Carlson’s argument fails in regard to

Counts 10 and 11, and that any error in these jury instructions was harmless. The jury

found that the respective threatening letters had been mailed to “Target–Store

Manager” in Count 10, and “store manager of Valley Buick Pontiac GMC” in Count

11. This use of titles is similar to the circumstances in United States v. Davila, 461

F.3d 298 (2d Cir. 2006). There, the threatening letter in question purported to contain

anthrax and was addressed to the “Connecticut State’s Attorney’s Office.” Davila,

461 F.3d at 308. The court held that this language satisfied the natural person

requirement of § 876 because “the Connecticut State’s Attorney is a person.” Id.

Similarly, here we think that no reasonable jury could conclude that the store

managers of a car dealership or of a Target are not persons as required by § 876(b)

and (d). With respect to these two counts, the verdicts reached were unaffected by

the error.

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The letter at issue in Count 12, addressed to “Scott Lake Veterinary Center” is

more ambiguous. We join the Ninth Circuit in embracing the idea that in determining

to whom a threatening letter was addressed, “a court is not limited to the directions

for delivery on the outside of the envelope or on the packaging, but also may look to

the content of the communication,” as well as any salutation line. Havelock, 664

F.3d at 1286, 1296. The Tenth Circuit has similarly held that “at a minimum, the

envelope and the salutation of a letter can both be considered in determining whether

a communication is ‘addressed to any other person’” and has noted that the “word

‘communication’ includes the contents of a letter.” Williams, 376 F.3d at 1052–53. 

While a Veterinary Center is clearly not a natural person, the question is whether the

threat contained in the letter as a whole was addressed to a person. 

The District of Nebraska considered a case in which the defendant had mailed

an envelope containing white powder to “United of Omaha Life Insurance Processing

Dept. United States v. Naylor, No. 8:12-CR-378, 2013 WL 1867064 (D. Neb. May

3, 2013). The court concluded that it did not need to reach the issue of whether

“§ 876(c) only prohibits threats addressed to natural persons,” because the contents

of the letter made “clear that any threat was addressed to whichever Mutual of Omaha

employee had the misfortune to open the letter.” Id. at *2. The court reasoned that

a person opening the letter would “experience fear or apprehension for their

immediate well-being,” an effect that could only be intended for, and inflicted on, a

natural person. Id.

Even if the Naylor court’s reasoning is persuasive, it is not obviously

applicable to the letter sent to the Veterinary Center. Though an envelope of white

powder is clearly intended to frighten a human being (a corporation cannot be

poisoned), id., the letter addressed to the clinic threatened damage to the reputation

of the hospital itself: “I am going to get the word out there that your hospital & others

overcharge people . . . .”

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It is possible that the jury interpreted the letter as a threat to the owner, or the

manager, of the Veterinary Center because it referred to “your hospital” and

instructed the reader to “bring” supplies—an activity that could be undertaken by

only a flesh-and-blood person. Indeed, the jury found that the letter to the clinic was

intended to “extort from any person any money or other thing of value,” the third

element of Count 12. It is also possible, however, that the jury assumed that the clinic

itself could be considered a person under the statute as the defense attorney had not

argued otherwise during the course of the trial (and could not have because he had

been prohibited from doing so by the district court). As noted by the Fourth Circuit,

Webster’s Dictionary includes the word “corporation” in one of its definitions of

“person.” Bly, 510 F.3d at 461 (citing Webster’s Dictionary 1686 (3d ed. 2002)).1

Indeed, the concept of corporate personhood has been a matter of recent public

discourse. There was no way for the jury to determine, having not been provided

with the entirety of the text of 18 U.S.C. § 876, that the statute’s context implied that

“person” could not be a corporation. We cannot determine based on the record which

line of reasoning the jury took in reaching its verdict.2

The Dictionary Act itself provides that “[i]n determining the meaning of an 1

Act of Congress, unless the context indicates otherwise . . . the words ‘person’ and

‘whoever’ include corporations, companies, [etc.,] as well as individuals.” 1 U.S.C.

§ 1.

Contrary to the dissent’s mischaracterization, we are not concluding that 2

Carlson’s letter was not addressed to a natural person; in fact we acknowledge that

a jury could reasonably conclude that it was. We are instead saying that the record

does not allow us to know one way or the other whether the jury actually found each

required element of the offense to be satisfied. As catalogued above, courts have

consistently held that the context and contents of a letter may be used in determining

whether the letter was intended for a person, even if the salutation itself lists only a

corporation. For this reason we think our ruling applies to a smaller subset of 18

U.S.C. § 876 cases than the dissent threatens. There will be some letters that fall

outside the reach of 18 U.S.C. § 876 because a jury concludes they were addressed

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By ruling that 18 U.S.C. § 876 could be satisfied by letters addressed to

corporations, the district court removed this discussion from the trial. If interim jury

instruction 25 had not been improperly removed, we cannot say beyond a reasonable

doubt that the jury would have reached the same conclusion in element three of Count

12—that the letter wasintended to extort froma person. Thus, we also cannot predict

whether the jury would have found the first requirement of Count 12—that the letter

had been addressed to a person—satisfied either. We think that the “record contains

evidence that could rationally lead to a contrary finding with respect to [this] omitted

element,” Neder, 527 U.S. at 19, i.e., a jury could rationally conclude that Carlson’s

letter to the Veterinary Center was addressed to a corporation rather than a natural

person. Following its examination of the record, if “the court cannot conclude

beyond a reasonable doubt that the jury verdict would have been the same absent the

error—for example, where the defendant contested the omitted element and raised

evidence sufficient to support a contrary finding—it should not find the error

harmless.” Id. We therefore conclude that, with respect to Count 12 only, the juryinstruction error was not harmless. 

III. Conclusion

For the reasons discussed above, we affirm Carlson’s convictions under

Counts 10 and 11. We vacate her conviction on Count 12 and remand to the

district court for further proceedings. 

to a corporation, but we do not think this is an absurd result, nor contrary to the

statute’s purpose. See United States v. Manning, 923 F.2d 83, 86 (8th Cir. 1991) (the

“true gravamen” of an offense under § 876 is the threat which disrupts “the

recipient’s sense of personal safety and well-being”). 

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LOKEN, Circuit Judge, concurring in part and dissenting in part. 

I concur in the court’s decision to affirm Deborah Carlson’s conviction on

Counts 10 and 11. I respectfully dissent from the decision to vacate her conviction

on Count 12. Relying on the Ninth Circuit’s decision in United States v. Havelock,

664 F.3d 1284 (9th Cir. 2012) (en banc), the court concludes that the term “addressed

to any other person” in 18 U.S.C. § 876(d) is limited to natural persons and therefore

did not include the threat Carlson mailed to the Scott Lake Veterinary Center. I

disagree and would therefore affirm the judgment of the district court.

The Count 12 issue turns on the proper application of the Dictionary Act, 1

U.S.C. § 1, which provides that the word “person” in a statute includes corporations,

companies, and other institutional entities, as well as natural persons, “unless the

context indicates otherwise.” In Rowland v. California Men’s Colony, 506 U.S. 194,

199-200 (1993), a divided Supreme Court construed “context” in this proviso as

meaning the text of the statute at issue and other related acts, and “indicates” as a

term “excusing the court from forcing a square peg into a round hole.” In declining

to apply the Dictionary Act in that case, the majority acknowledged that it must be

applied if “the statutes in question manifest[] a purpose that would be substantially

frustrated if we did not construe the statute to reach artificial entities.” Id. at 210-11. 

I conclude that is precisely the situation we face here, as a short foray into history the

Ninth Circuit overlooked or ignored in Havelock makes clear.

The precursor to § 876 was first enacted in 1932, largely in reaction to the

brutal and notorious kidnaping and murder of Charles Lindbergh’s infant son. See

Horace Bomar, The Lindbergh Law, 1 Law & Contemp. Problems 435, 435-38

(1934). The initial statute covered the same ground as § 876(a)-(d), but was more

simply worded:

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[W]hoever, with intent to extort from any person any money or

other thing of value, shall knowingly deposit or cause to be deposited in

any post office . . . any written or printed letter or other communication

. . . addressed to any other person, and containing any threat (1) to injure

the person, property, or reputation of the addressee or of another or the

reputation of a deceased person, or (2) to kidnap any person, or (3) to

accuse the addressee or any other person of a crime, or containing any

demand or request for ransom or reward for the release of any kidnaped

person, shall be fined not more than $5,000 or imprisoned not more than

twenty years, or both. 

Act of Jul. 8, 1932, Pub. L. No. 274, 47 Stat. 649. As explained by its sponsor, an

amendment that added the “containing any demand or request for ransom” provision

“simply makes it an offense to deposit in the mails a demand for ransom for a

kidnapped person.” 75 Cong. Rec. 8852 (1932) (remarks of Sen. Patterson); see 75

Cong. Rec. 13,284 (remarks of Rep. Cochran) (a purpose of the bill “was to amend

the postal laws so as to make it a felony to use the mails to demand ransom where a

person had been kidnaped”). Nothing in these remarks intimates that a ransom

demand would be unlawful only if mailed to a natural person; quite the contrary

seems clearly intended. Yet by construing “person” to mean only natural persons all

twelve times the word now appears in the more elaborate subsections of § 876, the

Ninth Circuit and now this court hold that the statute applied to a demand for ransom

addressed to Charles Lindbergh, but not to the same demand addressed to

Lindbergh’s employer, or to his church, or to any other “non-natural” person. In my

view, nothing could more substantially frustrate the manifest purpose of this statute. 

Moreover, because the Dictionary Act in substantially its present formwas part of the

United States Code in 1932, this restrictive interpretation of “person” in § 876 is

contrary to the plain language of the initial statute. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 688-89 (1978), quoting Act of Feb. 25, 1871, § 2, 16 Stat. 431.

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The Ninth Circuit, and now this court, avoid a reasoned application of the

Dictionary Act to § 876 by sheer judicial legerdemain. The twelve uses of “person”

in § 876 include uses that obviously refer to natural persons -- “the release of any

kidnapped person” in § 876(a), the threat to “kidnap” or “injure” a person in

§§ 876(b)-(d), and “the reputation of a deceased person” in § 876(d). Therefore, the

Ninth Circuit majority reasoned, “the common-sense and long-recognized

presumption of uniformity counsels that ‘person’ means a natural person in

‘addressed to any other person’ as well.” Havelock, 664 F.3d at 1291. For authority,

the court cited only Brown v. Gardner, 513 U.S. 115, 118 (1994). In Brown, the

Court did note “a presumption that a given term is used to mean the same thing

throughout a statute.” But it cited only Atlantic Cleaners & Dyers, Inc. v. United

States, 286 U.S. 427, 433 (1932), a case decided less than two months before the

predecessor to § 876 was enacted. In Atlantic Cleaners, the Court held that the words

“trade or commerce” did not have the same meaning in sections 1 and 3 of the

Sherman Act, explaining:

Most words have different shades of meaning and consequently may be

variously construed, not only when they occur in different statutes, but

when used more than once in the same statute or even in the same

section. Undoubtedly, there is a natural presumption that identical

words used in different parts of the same act are intended to have the

same meaning. But the presumption is not rigid and readily yields

whenever there is such variation in the connection in which the words

are used as reasonably to warrant the conclusion that they were

employed in different parts of the act with different intent.

* * * * *

It is not unusual for the same word to be used with different

meanings in the same act, and there is no rule of statutory construction

which precludes the courts from giving to the word the meaning which

the legislature intended it should have in each instance.

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Id. at 433 (citations omitted). The Court’s decision in Brown was not to the contrary,

and Atlantic Cleaners was construed and applied as written in General Dynamics

Land Systems, Inc. v. Cline, 540 U.S. 581, 595-96 (2004), and cases cited. 

Applying these principles, I would apply the Dictionary Act to § 876 consistent

with the Fourth Circuit’s interpretation of § 876(b) in United States v. Bly, 510 F.3d

453, 460-61 (4th Cir. 2007), and 467 (Motz, J., concurring), and with the concurring

3

opinion in Havelock, 664 F.3d at 1297-1302 (Smith, J., concurring): when any

subsection uses the word “person” in a way that can apply only to natural persons,

such as kidnaped person, injured person, or deceased person, then the context

obviously indicates that the broader Dictionary Act definition does not apply. But

when “person” is used more broadly, such as “intent to extort from any person” or

“addressed to any other person,” then the manifest purpose of the statute is obviously

served by applying the Dictionary Act definition to that specific use, and it must be

assumed that Congress so intended. 

The court’s strained and textually illogical contrary interpretation of § 876

produces results that can only be labeled absurd. For example, a letter mailed to an

employer threatening to kidnap one of its drivers or blow up a facility when

employees are present unless a ransom is paid will not violate the statute because the

threat to kidnap or injure a natural person was not addressed to a natural person. I

conclude this is contrary to the plain meaning and obvious purpose of the statute and

therefore respectfully dissent.

______________________________

An additional issue in Bly was whether the statute applied to a threat to injure 3

persons mailed to the University of Virginia, a governmental entity.

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