Abbott v. State

HOLLANDER, Judge. Following a trial in October 2008, a jury in the Circuit Court for Baltimore County convicted Walter Carl Abbott, Jr., appellant, of threatening to injure Governor Martin O’Malley, a State official, in violation of Mu. Code (2002, 2008 Supp.), § 3- ⁶⁰² 708(b) of the Criminal Law Article (“C.L.”). 1 The alleged threat was contained in an e-mail message that appellant sent to a State website in March 2008. The court sentenced appellant to a suspended term of six months’ incarceration and imposed a fine of $500. 2 This appeal followed.

Appellant poses four questions, which we have rephrased slightly and reordered: 1. Did the circuit court err in failing to grant appellant’s motion for judgment of acquittal, based on the insufficiency of the evidence? 2. Did the trial court err in failing to propound appellant’s requested jury instructions 9 through 13, all of which state relevant federal and state constitutional provisions relating to one’s freedom of speech and to petition the government for a redress of grievances? 3. Did the cumulative effect of the trial judge’s jury instructions create reversible error, i.e., primarily instructing the jury that Governor O’Malley need not be present for the State to prove the case, no intent was required, nor was it necessary for the State to show that the e-mail in question was a real threat, and, for refusing to instruct the jurors that they are to narrowly construe the statute and that a threat must be distinguished from constitutionally protected speech? 4.

Did the trial court err in granting the State’s motion in limine, preventing defense counsel from arguing to the jury at opening and closing that the alleged threat was protected by the free speech clause of First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights? ⁶⁰³ For the reasons set forth below, we shall vacate the conviction and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND 3 Prior to jury selection, the State moved for a protective order with respect to records that appellant subpoenaed from the Maryland State Police regarding the executive protection detail assigned to Governor O’Malley. 4 Appellant’s counsel explained that he sought the information to establish that injuring the Governor “[ijs an impossibility with the way the Governor is protected.” The court granted the protective order. In addition, the State moved “to prevent the Defendant from arguing to the jury that the speech that constitutes the threat in this case, or the alleged threat, is protected by the First Amendment.” The court also granted that motion. Appellant subpoenaed Governor O’Malley “or his designee” for the trial.

A notice attached to the subpoena stated: “In the event you do not wish to appear for trial personally as a witness, the attached Subpoena authorizes you to designate another person to appear on your behalf with information, calendars, and notes which would show your basic itinerary for the dates noted.” The Governor did not appear at appellant’s trial. At trial, the State called one witness, Maryland State Police Sergeant Adam Stachurski, who was assigned to the Homeland Security Intelligence Division. Stachurski testified that, shortly after 7:30 a.m. on March 18, 2008, appellant sent an email from his home computer to a State website maintained by ⁶⁰⁴ the Office of the Governor. The website solicited feedback in the following format: Contact Governor O’Malley We’d like to hear from you.

Whether you’re a citizen of Maryland or just visiting our great state, your comments and suggestions are welcome. Please use the form provided below to tell us what you think. Your feedback is valuable—it gives the Governor and his staff useful information that helps improve our service to all Marylanders. Be sure to include your E-mail address so a response may be provided.

You should receive an electronic acknowledgement [sic] shortly after sharing your comments. Thanks for taking the time to contact the Governor’s Office of Maryland. Come again! -Martin O’Malley, Governor The website included fields for personal information about the individual composing the message. Select fields required that all characters be capitalized.

The content of the message was limited to 4000 characters. As explained on the website, longer communications were to be sent to the Governor’s Office via postal mail. The commentator’s name was requested in four categories (prefix, first, last, and suffix). Appellant typed his name as “FUCK Walter Carl Abbott YOU.” He provided his actual address and phone number in the appropriate fields.

Under the category for “Organization Name,” appellant typed “FUCKING SOLD OUT AMERICAN,” and he identified his relationship to this organization as “president.” He did not fill out the request for “my correspondence topic” or “subject.” The text of his electronic message was as follows: O’Malley, getting ready to lose my wife after 24 years of marri[a]ge. 3rd construction co. & 2nd house I am going to lose because of no good fucking government like you and ⁶⁰⁵ pieces of shit like you. If i[sic] ever get close enough to yoy [sic], I will rap [sic] my hands around your throat and strangle the life from you. This will solve many problems for true AMERICAN’S [sic]. Maybe you can send your MEXICAN army after me, you no good AMERICAN SELL OUT PIECE OF SHIT.

I HOPE YOU DROP DEAD BEFORE I GET TO YOU, I WOULD HATE TO TO [sic] LOSE MY LIFE BECAUSE OF A PIECE OF SHIT LIKE YOU. FUCK YOU TRULY WALTER C. ABBOTT JR. The parties stipulated that the Governor’s office received the e-mail. Upon receipt, the Governor’s Office forwarded the e-mail to the Maryland State Police.

Stachurski immediately began to investigate appellant. Stachurski arrived at appellant’s residence at approximately 11:50 a.m. on March 18, 2008, the same day that appellant sent the e-mail. According to Stachurski, appellant “welcomed us and brought us into his house.” He continued: We sat down at his table, explained if he knew why (inaudible), he put is head down and said yes and at that time I handed him a copy of the e-mail as I read it to him to see if he was familiar with the e-mail.... He was visibly shaken and said yes, he sent it out.

Stachurski added: “[H]e said as soon as he hit the button he knew he wanted to take it back at that point.” On cross-examination, Stachurski indicated that he did not know whether Governor O’Malley actually read or received the e-mail. He agreed that appellant was “cooperative,” and never tried to hide that he sent the e-mail. Moreover, he indicated that Abbott told him that he sent the e-mail because “sending this message would receive a response”; Abbott “regretted sending the e-mail”; and he indicated that “he meant no harm.” According to Stachurski, appellant did not show “anger but he showed some discern [sic] towards illegal immigration issues.” Appellant moved for judgment of acquittal at the close of the State’s case. He argued: ⁶⁰⁶ [W]hen someone threatens a Judge ... there’s no, absolutely no political purpose in making that threat.

But when you send a threat to a website invited by the Governor’s people himself, that invites public comment and you couple that alleged threat with some political statements on immigration, I don’t like what you’re doing and if I could ever, if I could ever get close enough to you, which is a condition, I would choke the life from you. The First Amendment ... The Maryland Declaration of Rights, Article 40, all talks about a person’s right to freedom of speech.... [W]hen the threat is made in the context of a political statement, every place cited by Pendergast, Watts, Ma[i]sonet, Barcl[e]y, every case that did not sustain the conviction [had similar] factors ... One, the victims, when they sustained the conviction, the victim, alleged victim, was there to testify they got the letter, they got the threat and felt threatened and number two, there was absolutely no political purpose made with the alleged threat....

Appellant’s counsel added: [T]here’s no requirement that Governor O’Malley testify but there’s another thing missing from the State. It was sent to a Governor’s website.... There’s no testimony that Governor O’Malley even received the threat. That certainly should be a condition of a conviction ...

In appellant’s supporting memorandum, he argued that his e-mail was “nothing more than ‘political hyperbole’ ” about illegal immigration. Abbott’s attorney pointed to the trooper’s testimony that appellant said he was just trying to gain the Governor’s attention. Appellant also noted that “there has been absolutely no testimony in evidence Governor O’Malley even knows this e-mail was sent,” nor did the State prove that appellant “was even aware that his response to a government web site, inviting comments in the first place, would ever be read by the Governor.” Further, the defense argued: It is abundantly clear ... that if the letter was ambiguous, meaning one person could think the letter a threat and another interpretation could be that Mr. Abbott was making ⁶⁰⁷ a political statement, the Court should grant Defendant’s motion for judgment of acquittal. Moreover, any reasonable person, even considering the evidence in a light most favorable to the State, would conclude that Mr. Abbott’s email was nothing more than “political hyperbole,” protected by one’s inherent right to free and unfettered political expression.

Since there is no real ambiguity and it is clear Mr. Abbott was, in-fact, making a political statement ... this Court should grant his motion for judgment of acquittal. The court denied appellant’s motion. Appellant then testified in his own defense. After discussing his family, employment. history, and the construction company that he founded, appellant addressed the e-mail in issue.

Appellant stated that Stachurski and four other officers arrived at his house on the morning that he posted his e-mail. He recalled: The first thing they told me when they come in, they showed me the picture of me, showed me my criminal record, you have no criminal record so, you know, and they started talking to me and asked me about it.... [TJhey had said, well, you’re not being arrested. We, we don’t take this as a [v’Jiable threat ... I said, I, I never meant it to be as a threat.

Appellant also testified about an earlier e-mail that he received from Delegate Patrick L. McDonough on February 12, 2008, concerning House Bill 885 and House Bill 1232. 5 According to Delegate McDonough’s e-mail, which was introduced into evidence, House Bill 885 “prohibits Maryland towns and cities from passing ‘sanctuary’ laws,” while House Bill 1232 “will allow citizens to file a complaint against an elected or public official based on the premise that the official is violating the Federal Immigration Act. The complaint could eventually result in removal from office.” Further, the e-mail ⁶⁰⁸ explained that this Bill “provides an opportunity for everyone to visit Annapolis and express their concerns about the entire illegal immigration problem.” 6 In regard to Delegate McDonough’s e-mail, appellant stated: It’s about a citizen’s alert important date for Tuesday, March 11th, 2008 at 1:00 pm for a dear fellow citizens, go to Annapolis to help support House Bill 885, House Bill 1232 and several bills that Delegate [Ronald A.] George and Delegate McDono[u]gh were trying to have passed. Appellant explained that he subsequently testified before the House Judiciary Committee in Annapolis, on March 11, 2008. In describing the “general nature” of his testimony, appellant said: [W]e’re getting overrun by everybody losing their jobs and, in construction and everything.

It’s, I mean, it’s out there in plain sight and it’s getting harder and harder to pay bills with, and them not passing these bills that would have made it harder on illegals to come here and just take our jobs from us. Abbott denied that he tried to seek out the Governor when he was in Annapolis on March 11, 2008. Claiming it was “the first time [he’d] ever been to Annapolis,” appellant denied knowledge of the Governor’s places of work and residence. The following testimony is relevant: [APPELLANT’S COUNSEL]: Well, at that time, how did you feel about Governor O’Malley? [APPELLANT]: I thought that he was, he’s in charge of this State that maybe he could step up and be a hero to the ⁶⁰⁹ people and put a stop to all the illegals coming here and taking our jobs.

In addition, appellant described a sign posted on the front fence of his house, protesting the presence of illegal immigrants. A photograph of the sign, admitted into evidence, said: “DEPort ILLEGAL’S, IM*Prison BUSH!, BY Order oF THE AMERICAN PEOPLE!!!” Noting that he never intended to imprison President Bush, appellant explained: “1 don’t have any powers.” With respect to the e-mail in issue, appellant was asked when he “first decide[d] to e-mail the Governor?” He responded: When I went up on that blog, on the Governor’s blog, I was looking for his telephone number.... And when I called they were still closed, it was around 7:30. It said, I believe it said they opened up at 8:00.

So I didn’t have any work that day so I was just sitting there and 1 read that blog and it asked me how I feel and I put down how I felt because I felt maybe that would get his attention and maybe I would get to talk to him about the issues at hand. The following ensued: [APPELLANT’S COUNSEL]: ... [D]id you intend to threaten the Governor? [APPELLANT]: No. [APPELLANT’S COUNSEL]: Did you think you could go down to Annapolis and put your hands around him and choke him? [THE PROSECUTOR]: Objection. [APPELLANT]: No way.... How could you even get close enough to him, if you want to touch the Governor you would, you know, his staff would be all over you. It was just a statement, trying to get an answer from him.

Just like the sign on the fence said, it didn’t say anything about O’Malley. It had nothing to do with him. I was hoping to talk to a ⁶¹⁰ Governor of the State that I live in to hopefully ... hear my story and maybe he could do something about it instead of not doing anything about it and hurting the people of Maryland. Appellant indicated that he signed his name, put his address on the e-mail, as well as his telephone number, “and at the end it said call me.” 7 The following colloquy is pertinent: [APPELLANT’S COUNSEL]: ...

Did you believe that the Governor would actually read his web postings? [APPELLANT]: Well, I was hoping he would. When I called back to his office, when they finally opened up and talked to his secretary, I tried to see if I could get to talk to him and he just told me, you’re just one person. You know, we get three hundred calls a day. He said, he’s not going to talk to you.

I said, well, I’ve spoken to thousands of Marylanders and gotten their opinions and so shouldn’t that count as more than one person? [APPELLANT’S COUNSEL]: Let me ask you, hypothetically, if they were going to give you an appointment with the Governor, what were you planning on doing? [APPELLANT]: I would like to talk to him about the situation and how this is hurting so many businesses in the State of Maryland. I mean, it’s, in 2005 its [sic] facts that three hundred and thirty-eight billion dollars [are] wasted on illegals in this country and that’s not counting jobs ⁶¹¹ they’re taken from the Maryland people from whatever State they’re from. [APPELLANT’S COUNSEL]: ... [I]f the Governor disagreed with you or didn’t see it your way, were you going to get up from your chair and strangle the man? [APPELLANT]: No, then I would have had to decide whether I was just moving out of the State of Maryland or just move out of this country. [APPELLANT’S COUNSEL]: So did you ever intend to seek out the Governor and strangle him? [APPELLANT]: No. [APPELLANT’S COUNSEL]: Or choke him? LAPPELLANT]: No. [APPELLANT’S COUNSEL]: Have you ever choked anyone else? [APPELLANT]: No. On cross-examination, appellant was asked if he knew why the State Trooper came to his house. He answered, “Sure,” acknowledging that “it was because [he] sent an e-mail ...” The following transpired: [THE PROSECUTOR]: And you told them that you shouldn’t have done it, didn’t you? [APPELLANT]: No, I told them I regret sending it but you never get an answer in any way from anybody on the situations at hand. [THE PROSECUTOR]: You regretted sending it because you knew it was wrong to threaten the Governor, didn’t you? [APPELLANT]: No. [THE PROSECUTOR]: You didn’t?

That’s not why you regretted it? [APPELLANT]: No, I did not regret it because of saying Pm threatening the Governor. It’s, I was wishing he would take it for what it was when I put my phone number and everything on there, address, and maybe the man would have called me. ⁶¹² [THE PROSECUTOR]: So you didn’t regret sending this, this e-mail to the Governor? [APPELLANT]: Oh, yes, I do. I do regret sending it now. [THE PROSECUTOR]: Right, because ... [APPELLANT]: Because of all the trouble it[’]s caused. [THE PROSECUTOR]: Right, because it’s against the law, right? [APPELLANT]: I thought it was only against the law to threaten the President of the United States. [THE PROSECUTOR]: Well, if it’s against the law to threaten the Governor, you knew this was a threat against the Governor, didn’t you? ❖ * * [APPELLANT]: I’m just telling you, I’m a construction worker. I have a tenth grade education.

I don’t keep up on all the laws and everything. I’m not going to law school The prosecutor also asked appellant if he had lost a house. Appellant claimed he had. With regard to his current home, appellant said: “I’m making it month to month now....” But, he conceded that, when he wrote the e-mail, his “house was not in default.” The following ensued: [THE PROSECUTOR]: Okay.

Were you getting ready to lose your wife of twenty-four years at the time you sent this e-mail? [APPELLANT]: I would hope not but the pressures and everything that was putting on us, it seems that way. [THE PROSECUTOR]: Okay. You don’t have any problems with immigrants, it’s illegal immigrants that you object to, is that right? [APPELLANT]: Correct. [THE PROSECUTOR]: Because you think that everybody, no matter how noble their purpose, should obey the law, isn’t that right? ⁶¹³ [APPELLANT]: How noble their purpose? If they weren’t here in the first place and our Governor wasn’t giving away jobs to them and giving away two and a half million dollars to support them taking the American jobs from them, then nobody would be feeling this way. [THE PROSECUTOR]: You think everybody should obey the law, right? [APPELLANT]: Yes, yes, 1 do. Appellant’s wife, Linda Abbott, and his mother-in-law, Gloria Harris, testified as character witnesses.

Both testified to appellant’s reputation for honesty and nonviolence. At the close of evidence, appellant renewed his motion for acquittal, arguing that there was no “evidence where the jury could find beyond a reasonable doubt that he intended this threat.” The court stated: A person may not knowingly and willfully make a threat to take the life of or cause physical injury to a State official. We don’t get into intent. We get into did he knowingly and intentionally make the threat and certainly there’s a threat to cause physical injury to a State Official....

So the Motion for judgment of acquittal is denied.... Thereafter, the court instructed the jury and counsel presented closing arguments. As noted, the jury convicted appellant of a violation of C.L. § 8—708(b). Additional facts will be included in our discussion of the issues presented.

DISCUSSION I. Appellant first argues that the evidence was insufficient to sustain his conviction because, “on its face, the alleged threat was nothing more than a political statement and therefore protected by the First Amendment to the United States Constitution and ... similar provisions in the Mai’yland Declaration of Rights.” Noting that his statements “were not ⁶¹⁴ mailed to the Governor’s home,” appellant points out that his e-mail was sent “in response to an invite at a politically-sponsored website.” Moreover, he insists that his remarks “were entirely predicated upon his views on the illegal immigration issue” and his e-mail “was only made for a political purpose.” Claiming the content was “an obvious statement against the government’s position on immigration issues,” appellant posits: “It cannot be realistically argued or even suggested that [appellant’s] letter was anything but political bantering, or, in the language used by the Supreme Court ...' the statement is allowing the citizen’s inherent right to freedom of speech and expression: ‘political hyperbole.’ ” Furthermore, appellant complains that the State did not present evidence that Governor O’Malley was “ever aware” of Mr. Abbott’s email, or that the Governor “experienced any type of fear upon reading the letter.” He also maintains that the content of the communication was “conditional and therefore not a ‘real’ threat.” The State counters that the evidence was legally sufficient to prove that “Abbott knowingly and willingly made a threat to cause physical injury or death to Governor O’Malley,” in violation of C.L. § 3—708(b). Noting that it is undisputed that on March 18, 2008, Abbott composed and sent the e-mail from his home computer to an official website of the State, addressed to Governor O’Malley, the State insists that appellant’s “attempt to characterize the e-mail message as political hyperbole falls short.” In its view, the message does not “contain politically protected speech,” because the e-mail’s “references to ‘true AMERICAN’S’ and ‘your MEXICAN army’ and ‘AMERICAN SELL OUT PIECE OF SHIT’ are ambiguous at best,” and the e-mail “says nothing about immigration or illegal immigration.” Rather, the State claims: [T]he e-mail conveyed a message that a reasonable person receiving the message could interpret as a serious expression of an intent to harm. It communicated an intent to inflict harm by choking Governor O’Malley and strangling the life out of him. It communicated a desire that the Governor die....

The message was unequivocal in its threat ⁶¹⁵ to harm the Governor. It was not ambiguous or capable of being viewed as anything but a threat to cause physical injury or death to the Governor. Further, the fact that the e-mail message expressed a condition, i.e., “if I ever get close enough to you,” does not mean that the message did not convey a “true threat.” Moreover, the State maintains that appellant acted willfully, as required under the statute, because he “intended to send the threatening e-mail to the Governor.” According to the State, “[wjhether Abbott actually intended to harm the Governor is irrelevant,” because C.L. § 3-708 “requires only that Abbott intended to make a threat against a State official, and his own testimony confirms that he did have that intent.” The standard of review for the sufficiency of evidence is well settled. We must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (emphasis in original); see Rivers v. State, 393 Md. 569, 580 , 903 A.2d 908 (2006); Moye v. State, 369 Md. 2, 12 , 796 A.2d 821 (2002).

Notably, appellate review of the sufficiency of evidence does not involve “a review of the record that would amount to a retrial of the case.” Winder v. State, 362 Md. 275, 325 , 765 A.2d 97 (2001); see Brawn v. State, 182 Md.App. 138, 156 , 957 A.2d 654 (2008). As a reviewing court, “[w]e do not re-weigh the evidence, but ‘we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.’ ” State v. Smith, 374 Md. 527, 534 , 823 A.2d 664 (2003) (quoting White v. State, 363 Md. 150,162 , 767 A.2d 855 (2001)). Factual determinations, such as the resolution of conflicting evidence and weighing the credibility of witnesses, are always matters for the fact finder. Longshore v. State, 399 Md. 486, 499 , 924 A.2d 1129 (2007).

As this Court has said: ⁶¹⁶ “In an action tried before a jury, it is the jury’s task, not the court’s, to measure the weight of evidence and to judge the credibility of witnesses. In performing this role, the jury has the power to decide which testimony to accept and which to reject. In this regard, it may believe part of a particular witness’s testimony, but disbelieve other parts of that witness’s testimony. Moreover, it is the exclusive function of the jury to draw reasonable inferences from proven facts.” Smith v. State, 176 Md.App. 64, 69 , 932 A.2d 773 (2007) (quoting Velez v. State, 106 Md.App. 194, 201-02 , 664 A.2d 387 (1995), cert. denied, 341 Md. 173 , 669 A.2d 1361 (1996)).

Put another way, the jury is “free to discount or disregard totally [a defendant’s] account of the incident....” Binnie v. State, 321 Md. 572, 581 , 583 A.2d 1037 (1991). In our review, we draw all rational inferences that arise from the evidence in favor of the prevailing party. Nevertheless, this precept does not license an appellate court to indulge in rank speculation. “ ‘If upon all of the evidence, the defendant’s guilt is left to conjecture or surmise, and has no solid factual foundation, there can be no conviction.’ ” Brown, supra, 182 Md.App. at 173 , 957 A.2d 654 (quoting Taylor v. State, 346 Md. 452, 458 , 697 A.2d 462 (1997)); see Dukes v. State, 178 Md.App. 38, 47-48 , 940 A.2d 211 , cert. denied, 405 Md. 64 , 949 A.2d 652 (2008). With the applicable standard of review in mind, we turn to consider C.L. § 3-708 (Threat against State or local official).

It provides: (a) Definitions.—(1) In this section the following words have the meanings indicated. (2) “Local official” means an individual serving in a publicly elected office of a local government unit, as defined in § 10-101 of the State Government Article. (3) (i) “State official” has the meaning stated in § 15-102 of the State Government Article. (ii) “State official” includes the Governor, Governor-elect, Lieutenant Governor, and Lieutenant Governor-elect. ⁶¹⁷ (4) “Threat” includes: (i) an oral threat; or (ii) a threat in any written form, whether or not the wilting is signed, or if the writing is signed, whether or not it is signed with a fictitious name or any other mark.

(b) Prohibited—Making threat.—A person may not knowingly and willfully make a threat to take the life of, kidnap, or cause physical injury to a State official or local official. (c) Same—Sending or delivering threat.—A person may not knowingly send, deliver, part with, or make for the purpose of sending or delivering a threat prohibited under subsection (b) of this section. (d) Penalty.—A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fíne not exceeding $2,500 or both. The text of C.L. § 3-708 is almost identical to that of its predecessor, Md.Code Ann. (1957, 1992 Repl.Vol., 1993 Supp.), Art. 27 § 561A, which was enacted in 1989.

The only substantive alteration to C.L. § 3-708 was to extend the provision to include “local officials.” See C.L. § 3-708(a)(2) and (b). Article 27, § 561A “was patterned on a substantially similar provision in . 18 U.S.C. § 87.1 (a), which prohibits throats to take the life of or inflict bodily harm upon the President of the United States.” 8 Pendergast v. State, 99 Md.App. 141, 145 , 636 A.2d 18 (1994). ⁶¹⁸ In Pendergast , we noted the absence of Maryland cases construing Article 27, § 561 A, and looked to cases interpreting the federal statute to aid in construing the Maryland statute. Since Pendergast , no reported Maryland cases have addressed the elements of a violation of C.L. § 3-708(b) or its predecessor. 9 Therefore, as in Pendergast , we shall look to analogous federal cases to assist in our analysis of appellant’s sufficiency claim. We begin with Watts v. United States, 394 U.S. 705 , 89 S.Ct. 1399 , 22 L.Ed.2d 664 (1969) (per curiam), in which the Supreme Court upheld the constitutionality of the analogous federal statute.

It said, id. at 707 , 89 S.Ct. 1399 : Certainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H.R. Rep. No. 652, 64th Cong., 1st Sess.

(1916). Similarly, the parties here agree that C.L. § 3-708 is constitutional. Nevertheless, appellant insists that his e-mail was outside the scope of the statute, as the content was protected by his right to free speech, guaranteed by the First Amendment to the Constitution and Article 40 of the Maryland Declaration of Rights. 10 ⁶¹⁹ The word “threat” has been defined as an expression of “a determination or intent to injure presently or in the future.” Martin v. United States, 691 F.2d 1285, 1240 (8th Cir.1982), cert. denied, 459 U.S. 1211 , 103 S.Ct. 1207 , 75 L.Ed.2d 447 (1983); see also Moosavi v. State, 355 Md. 651, 664 , 736 A.2d 285 (1999) (construing Art. 27, § 9, and defining threat as a “ ‘communicated intent to inflict’ harm”) (quoting Black’s Law Dictionary at 1480 (6th ed.1990)); United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir.) (defining threat in 18 U.S.C. § 871 as “ ‘an avowed present determination or intent to injure presently or in the future’ ”) (citation omitted), cert. denied, 464 U.S. 934 , 104 S.Ct. 339 , 78 L.Ed.2d 307 (1983). As indicated, C.L. § 3-708(b) prohibits a knowing and willful threat. “A threat is knowingly made if the maker comprehends the meaning of the words uttered; it is willfully made if the maker voluntarily and intelligently utters the words in an apparent determination to carry out the threat.” United States v. Howell, 719 F.2d 1258, 1260 (5th Cir.1983) (discussing 18 U.S.C. § 871 (a)), cert. denied, 467 U.S. 1228 , 104 S.Ct. 2683 , 81 L.Ed.2d 878 (1984).

See United States v. Pinson, 542 F.3d 822, 832 (10th Cir.2008) (holding that the “ ‘willfulness’ requirement is satisfied when ‘those who hear or read the threat reasonably consider that an actual threat has been made’ ”) (citation omitted), cert. denied, - U.S. -, 129 S.Ct. 1369 , 173 L.Ed.2d 627 (2009). Notably, in order to convict, the State “must prove a ‘true threat,’ ” Dysart, 705 F.2d at 1256 , which is distinct from “ ‘words as mere political argument, talk or jest.’ ” Id. (quoting, with approval, trial court’s jury instructions). A “true threat” is not constitutionally protected speech.

Ordinarily, it is for the trier of fact to determine whether a statement constitutes a true threat. See United States v. ⁶²⁰ Roberts, 915 F.2d 889, 891 (4th Cir.1990), cert. denied, 498 U.S. 1122 , 111 S.Ct. 1079 , 112 L.Ed.2d 1184 (1991); United States v. Carrier, 672 F.2d 300, 306 (2d Cir.) (discussing 18 U.S.C. § 871 (a)), cert. denied, 457 U.S. 1139 , 102 S.Ct. 2972 , 73 L.Ed.2d 1359 (1982). Whether a particular communication constitutes a true threat depends on both its language and its context. Pendergast, 99 Md.App. at 149 , 636 A.2d 18 .

As the United States Court of Appeals for the Fourth Circuit explained in Roberts, 915 F.2d at 890-91 , “the context in which the words were written, the specificity of the threat, and the reaction of a reasonable recipient familiar with the context in which the words were written are factors which must be considered” in determining whether a writing is a “true threat.” See also United States v. Miller, 115 F.3d 361, 363 (6th Cir.) (stating that “if a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression of intent to harm, kidnap, or kill the President or other statutorily protected target, that message conveys a ‘true threat’ ”), cert. denied, 522 U.S. 883 , 118 S.Ct. 213 , 139 L.Ed.2d 147 (1997); United States v. Davis, 876 F.2d 71, 73 (9th Cir.) (per curiam) (noting that the recipient’s state of mind, as well as actions taken in response, are relevant to the determination of whether a true threat was made), cert. denied, 493 U.S. 866 , 110 S.Ct. 188 , 107 L.Ed.2d 143 (1989). Of import here, “[a] threat may be considered a ‘true threat’ even if it is premised on a contingency.” United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir.), cert. denied, 510 U.S. 928 , 114 S.Ct. 337 , 126 L.Ed.2d 282 (1993); see United States v. Kosma, 951 F.2d 549 , 554 n. 8 (3d Cir.1991) (recognizing that conditional threats could still be considered “true threats”); Dysart, 705 F.2d at 1256 (“ ‘A statement may constitute a threat even though it is subject to a possible contingency in the maker’s control’ ”) (quoting trial court’s jury instructions with approval). Cf. Moosavi, 355 Md. at 664 , 736 A.2d 285 (construing former Art. 27, § 9, which ⁶²¹ provided that “a person may not threaten ... to: (1) Set fire to or burn a structure,” and stating that the statute “does not look to the truth or falsity of the statement; rather, it punishes statements which constitute communicated intentions to do harm”).

Nor is the government required to prove the present ability or intent to carry out the threat. Roberts, 915 F.2d at 890 ; Dysart, 705 F.2d at 1256 ; see United States v. Armel, 585 F.3d 182, 185 (4th Cir.2009) (“defendant’s inability to carry out specific threats does not render them unthreatening or harmless”). Moreover, the statement may be a threat even if it was never communicated to the intended recipient. 2 L. Sand, et al, Modern Federal Jury Instructions—Criminal, § 31-4 (2009) (“MFJI”). Nor must the intended recipient testify at a later trial.

See Roberts, 915 F.2d at 891 (“While a relevant consideration is whether ‘an ordinary reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury,’ [United States v.] Maisonet, 484 F.2d [1356, 1358 (4th Cir.1973), cert. denied, 415 U.S. 933 , 94 S.Ct. 1447 , 39 L.Ed.2d 491 (1974) ], there is no requirement that the actual recipient testify.”) Watts, supra, 394 U.S. at 706 , 89 S.Ct. 1399 , is instructive with respect to the sufficiency of the evidence in a prosecution such as the one at bar. There, the Supreme Court reversed Watts’s conviction for threatening the President of the United States. The incident occurred while Watts was at a rally in Washington, D.C., protesting the Vietnam War and the draft. Id. at 706-07 , 89 S.Ct. 1399 .

At the rally, Watts said, id. at 706 , 89 S.Ct. 1399 : “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [i.e., President Lyndon B. Johnson].” The Supreme Court observed, id. at 707 , 89 S.Ct. 1399 : “[A] statute such as this one, [i.e., 18 U.S.C. § 871 ], which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind.

What is ⁶²² a threat must be distinguished from what is constitutionally protected speech.” Quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Court elaborated, Watts, 394 U.S. at 708 , 89 S.Ct. 1399 : [W]e must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Supreme Court concluded that the words in issue were a “kind of very crude offensive method of stating a political opposition to the President.” Id. at 708 , 89 S.Ct. 1399 . However, when viewed “in context,” and considered with “the expressly conditional nature of the statement and the reaction of the listeners,” who reportedly laughed, the Supreme Court determined that the words did not constitute a “threat” to the President within the scope of the statute. Id. It reasoned: “We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term.” Id.

Pendergast, supra, 99 Md.App. 141 , 636 A.2d 18 , is the leading case in Maryland with respect to Article 27, § 561A, the predecessor to C.L. § 3-708(b). The alleged threats at issue there were contained in letters written by a State inmate to two State judges, each of whom had sentenced the defendant to imprisonment with respect to separate convictions. Both judges testified at trial that they regarded the defendant’s letters as threats. Id. at 144, 636 A.2d 18 .

In one letter, the defendant wrote, in part, id. at 143 , 636 A.2d 18 : “If I don’t receive Justice, I won’t come out of this place in my right mind and I will also not be responsible for my actions, I hope & pray this is one chance we don’t take. Thank you Steve Pendergast P.S. Answer fast or” The second letter, sent eight months later, stated, in part: ⁶²³ “If you don’t think I will seek ‘Revenge ’ to the highest degree. All you have to do is keep this Injustice on ME. I will NEVER change my mind unless I get justice, we’ll see who hurts in the END[.] ” Id. at 143-44 , 636 A.2d 18 (emphasis in original).

Following the defendant’s conviction, he appealed to this Court, challenging the sufficiency of the evidence. The Court admonished: [W]e conclude that because section 561 A criminalizes pure speech and thereby implicates the free speech protections of the First Amendment and of Article 40 of the Maryland Declaration of Rights, Maryland courts, in ruling on a motion for judgment of acquittal, must narrowly construe the statute and determine whether the speech is a true threat. Id. at 148 , 636 A.2d 18 . Nevertheless, the Court concluded that “the evidence was sufficient to establish that the language in appellant’s .. . letter was a true threat to inflict bodily harm” within the meaning of § 561A.

Id. at 149, 636 A.2d 18 . In reaching its decision, the Court cited, inter alia, United States v. Maisonet, 484 F.2d 1356 (4th Cir.1973), cert. denied, 415 U.S. 933 , 94 S.Ct. 1447 , 39 L.Ed.2d 491 (1974). See 99 Md.App. at 147 , 636 A.2d 18 . We pause to review Maisonet .

Raul Maisonet sent a letter to the judge who had convicted him of possession of a weapon by a convicted felon. In the letter, sent to the judge’s home, Maisonet wrote that if he ever got out of prison “and nothing happen to me while I am in here, you will never be able to be prejudice and racist against another Puerto Rican like me.” 484 F.2d at 1357 . Maisonet was subsequently charged under 18 U.S.C. § 876 , which criminalizes “mailing a letter ‘containing . .. any threat to injure the person of the addressee.’ ” Id. at 1357. At trial, Maisonet testified that he merely “intended to seek the judge’s removal from office.” Id.

Although Maisonet had “complained to congressmen and civic organizations about the judge,” he “was unable to show in these communications any specific request ⁶²⁴ for an investigation of the judge or for his removal.” Id. His conviction followed. On appeal, Maisonet contended that the court erred by-failing to grant a judgment of acquittal, “because the government failed to introduce extrinsic evidence to show that he intended a threat to injure the judge.” Id. The Fourth Circuit recognized that the issue of whether the letter constituted a threat “must be determined in the light of the context in which it was written.” Id. at 1358.

But, it was not persuaded by Maisonet’s position. Id. The Fourth Circuit determined that “the context in which Maisonet privately wrote the judge does not compel the conclusion that his letter must be interpreted only as a crude, extravagant boast that he would have the judge removed.” Id. at 1359. It reasoned, id. at 1358: If there is substantial evidence that tends to show beyond a reasonable doubt that an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury, the court should submit the case to the jury.

Maisonet’s letter itself and the following facts establish that the government’s proof was sufficient to enable the jury to find beyond a reasonable doubt that the letter constituted a threat and Maisonet intended it as such: Maisonet had been sentenced to prison by the judge to whom he addressed the letter; he considered the sentence to be illegal; he charged that the judge was motivated by prejudice and racism; he addressed the letter to the judge’s home; and he said nothing in the letter about having the judge investigated or about seeking his removal. Nor did Maisonet’s defense that he was exercising first amendment rights require a judgment of acquittal at the conclusion of all the evidence.... Although he proved that he wrote congressmen and civic organizations, he was unable to show that he demanded either an investigation or the removal of the judge. The Pendergast Court also cited United States v. Barcley, 452 F.2d 930 (8th Cir.1971), another case involving a conviction ⁶²⁵ under 18 U.S.C. § 876 .

See 99 Md.App. at 146-47 , 636 A.2d 18 . In Barcley, the conviction was predicated on a letter Barcley wrote to his attorney stating, in part: “[A]s soon as I can get this case situated around in the position I want you are the first S.O.B. that will go, [the prosecutor] will [be] next.” 452 F.2d at 932 . Reversing the conviction, the Eighth Circuit noted that there are “a number of innocuous interpretations which are equally plausible.” Id. at 933 . It stated: “Where a communication contains language which is equally susceptible of two interpretations, one threatening, and the other nonthroatening, the government carries the burden of presenting evidence serving to remove that ambiguity.

Absent such proof, the trial court must direct a verdict of acquittal.” Id. (citations omitted). In the court’s view, the letter was “the kind of letter a court appointed attorney might expect to receive from a dissatisfied client. ... ” Id. at 933-34 . The Eighth Circuit reasoned, id. at 934: Barcley’s letter, much like the communication in Watts , is worded in the rowdy dowdy argot of the streets, but it does not clearly convey a threat of injury.

Considering the context in which it was written, the principles enunciated in Watts strongly suggest that the government must offer something more than the equivocal language present here to establish the communication of a threat. In this case, neither Barcley’s attorney nor [the prosecutor] testified that he experienced fear upon reading the letter.[ 11 ] Roberts, supra, 915 F.2d 889 , is also informative. There, the defendant mailed a letter to Supreme Court Justice San ⁶²⁶ dra Day O’Connor, which said: “To O’Connor: Since the court insists upon violating my kids’ rights to life (survive), you are all now notified that either Brennan/] Stevens [ ] or Kennedyc 3 is to die.” Id. at 890 . When the defendant was interviewed, he indicated that he wrote the letter because of his view on abortion.

Id. The defendant “stated that he had ‘a love in his heart’ for all the Justices of the Supreme Court, [and] he found no conflict between that love and his desire to kill.” Id. Nevertheless, the Fourth Circuit found the evidence sufficient to support the defendant’s conviction under 18 U.S.C. § 115 (a)(1)(B) (“Whoever—threatens to assault, kidnap, or murder ... a United States judge ... with intent to impede, intimidate, or interfere with such official, ... while engaged in the performance of official duties, or with intent to retaliate against such [judge] shall be punished ...”) Id. at 890-91. More recently, in United States v. Fullmer, 584 F.3d 132, 153-58 (3d Cir.2009), the Third Circuit upheld the convictions of an animal cruelty activist under 18 U.S.C. § 43 (a) (Animal Enterprise Protection Act).

In that case, the defendant coordinated protests against targeted companies and individuals. Id. at 148. At one demonstration, held in front of a targeted individual’s home, the defendant threatened to burn down the house, claiming that the police could not protect the homeowner. Id. at 157.

In defense, the defendant claimed that her actions were protected by the First Amendment. Id. at 137, 153-56, 157. The court noted that the targeted individual “lived in fear” that he would be physically assaulted. Id. at 157.

According to the court, “his fear of the protestors acting on their threats was reasonable,” and the defendant “could reasonably foresee that [he] would interpret her words as a serious expression of intent to harm [him] and his family.” Id. Concluding that the defendant’s action constituted a true threat, the court cited Watts and reasoned, id. (emphasis in original): Under the Watts framework, this act, viewed in context with [her] other conduct, constitutes a true threat and is sufficient to remove her protest activity from First Amendment protection/3 We find it hard to see how threatening to ⁶²⁷ burn down someone’s house is “political hyperbole” such that it might be protected by the First Amendment in the first place. However, even assuming that it has some underlying political value, viewed in the totality of the circumstances, this constituted a “true threat.” Kosma, supra, 951 F.2d at 553 , is also noteworthy.

There, the defendant was convicted under 18 U.S.C. § 871 of threatening President Reagan in a series of letters and mailgrams sent over a three-year period. Id. at 550-52. Kosma’s first letter to President Reagan, postmarked March 2, 1988, invited the President to Philadelphia, stating, in part, id. at 550: We are going to give you a 21 Gun-Salute. 21 guns are going to put bullets thru your heart & brains. You are a Disgrace to the Air-Force.

You are a Disgrace to Teddy Roosevelt. You are a disgrace to John F. Kennedy.... You are In Contempt of EVERYTHING that I represent, and standby, and believe. Another letter addressed to President Reagan, but sent to a presidential assistant, stated, id. at 551: “[Y]ou are officially sentenced to death, by potassium-cyanide gas pellets.

The impeachment is too lienient [sic] for you.” Other communications sent to the presidential assistant referred to President Reagan’s “Official Death Sentence,” with dates and locations. Id. On appeal, Kosma argued that “his letters to the President, though crude, offensive and inane, do not constitute ‘true threats,’ because they represent protected political speech under the First Amendment.” Id. at 553. The Third Circuit observed, id.: [The defendant] contends that the letters were merely his unique way of commenting on President Reagan’s fitness for office and his Administration’s policies.11 At the outset, we recognize that the First Amendment was meant to encompass not only learned political discourse but also vituperative verbal and written attacks on the President and other high government officials.

See Osborne v. Ohio, 495 U.S. 103 , [148, 110 S.Ct. 1691 , 109 L.Ed.2d 98 ] (1990) ⁶²⁸ (Brennan, J., dissenting) (“When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed.”); New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964) (“debate on public issues should be uninhibited,