NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARTA BEATRIZ MASTRANGELO, Defendant - Appellant. No. 13-50339 D.C. No. 2:13-cr-00072-JFW-1
MEMORANDUM *

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted March 3, 2014 Pasadena, California Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges. Defendant Marta Mastrangelo (“Mastrangelo”) appeals her conviction for mailing a threatening communication in violation of 18 U.S.C. § 876(c). We affirm. 

# FILED
APR 08 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.1. Mastrangelo first argues that he r conviction should be reversed because the jury instructions failed to requi re the jury to find that Mastrangelo: (1) acted with the specific intent to th reaten, and (2) intended to threaten physicalas opposed to general harm. Because Mastrange lo failed to raise these arguments in the district court, we review for plain error. See Fed. R. Crim. Proc. 30(d); United States v. Pineda-Doval , 614 F.3d 1019, 1025 (9th Cir. 2010). We conclude that there was no error in the instructions. With respect to the specific intent re quirement, the instructions stated that “the defendant [must have] intended to communicate a threat.” We reject Mastrangelo’s argument that this in struction was rendered ambiguous by a subsequent instruction which set forth th e objective test for determining whether a communication constituted a threat. We al so reject Mastrangelo’s argument that the district court’s “knowingly” in struction—which provided that “[t]he government is not required to prove th at the defendant knew that her acts or omissions were unlawful”—was likely to c onfuse the jury as to the specific intent requirement. We further conclude that the instructions required the jury to find that Mastrangelo intended to communicate a threat of physical harm because they required the jury to find that Mastrange lo “knowingly mailed or arranged to have
-2-mailed a communication addressed to Alan Tajer containing a threat to injure any person .” (emphasis added). Injury to the person means physical injury in its ordinary use. We are not persuaded by Mastrangelo’s argument that the portion the instructions providing that a communication can be “implied” or “symbolic” rendered the instructions ambiguous regarding the physical harm requirement. 2. Mastangelo also argues that her c onviction should be reversed because one of the theories upon which the government relied at trial was that her note constituted a threat because it caused f ear of immediate injury from potential contact with the substance in the envelope (rat poison). Mastrangelo argues that, in order to be convicted, her message must have conveyed a threat that she would take some additional harmful action in the future, i.e., action beyond exposing the victims to the chemical contained in the initial communication. See United States v. Zavrel , 384 F.3d 130, 138–39 (3rd Cir. 2004) (Stapleton, J., disenting); cf United States v. Havelock , 664 F.3d 1284, 1305 (9th Cir. 2012) (Reinhardt, J., concurring). However, the statute does not distinguish between threats causing fear of immediate injury and threats of future harm. Moreover, the mailing of a package containing some potentially harmful substance does convey a threat of future harm because it causes the recipien t to fear that exposure to the chemical will cause health problems in the future. In United States v. Keyser , we held that a -3-package containing a substance meant to re semble anthrax constituted a threat for the purposes of § 876(c). 704 F.3d 631, 638-39 (9th Cir. 2012). Like the anthrax samples in Keyser , the substance included in Mastrangelo’s note conveyed a threat because it caused the recipient to fear th at she had been exposed to a harmful chemical. 3. Mastrangelo next argues that the evidence was insufficient to support her conviction. We disagree. The ev idence showed that Mastrangelo knowingly mailed an envelope containing rat pois on and a card bearing the inscription “A Note of Sympathy.” Moreover, Mastrange lo enclosed a portion of the rat poison label warning of the deleterious health effects that would occur should the poison be consumed, e.g. , “[m]ay be harmful or fatal if swallowed” and “[i]f swallowed by human . . . call a poison control center doctor.” Furthermore, the employee who opened the envelope testified to being “scar ed,” panicked,” and concerned that she had been exposed to a “chemical thing[].” These facts were sufficient to show that Mastrangelo knowingly mailed a communication which she intended to convey a threat to injure the person of the address ee or of another, and that “a reasonable person would foresee that the [communi cation] would be interpreted by [the recipient] . . . as a serious expression of intent to harm or assault.” Keyser , 704 F.3d at 638; 18 U.S.C. § 876(c).
-4-4. Finally, Mastrangelo argues that wemust independently review the “constitutional facts,” here, “whether th e statements were true threats.” Keyser , 704 F.3d at 638 n.1. On independent re view, we conclude that the evidence supports Mastrangelo’s conviction. The note was a true threat. See Virginia v. Black , 538 U.S. 343, 344 (2003) (defining a true threat as a statement “where the speaker means to communicate a serious e xpression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”). AFFIRMED.

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