                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50227

              Plaintiff - Appellee,              D.C. No. 3:10-cr-05155-LAB-1

  v.
                                                 MEMORANDUM*
ERIC ANTHONY LOPEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                        Argued and Submitted April 8, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Eric Anthony Lopez (“Lopez”) appeals from his jury conviction for

knowingly causing to be delivered a communication containing a threat to injure,

in violation of 18 U.S.C. § 876(c). We have jurisdiction pursuant to 28 U.S.C. §




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1291, and we affirm. Because the parties are familiar with the history of the case,

we will not recount it here.

                                           I

      Lopez contends that the district court erroneously denied his pretrial motion

to dismiss in which he argued that the indictment was fatally deficient because the

indictment failed to allege specific intent. We review the sufficiency of an

indictment de novo. United States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009).

      “An indictment is sufficient if it contains the elements of the charged crime

in adequate detail to inform the defendant of the charge and to enable him to plead

double jeopardy.” Awad, 551 F.3d at 935 (internal quotation marks omitted).

“[A]n indictment’s complete failure to recite an essential element of the charged

offense is . . . a fatal flaw requiring dismissal of the indictment.” United States v.

Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). Whereas, “challenges to minor or

technical deficiencies, even where the errors are related to an element of the

offense charged and even where the challenges are timely, are amenable to

harmless error review.” Id. at 1180. “The test for sufficiency of the indictment is

not whether it could have been framed in a more satisfactory manner, but whether

it conforms to minimal constitutional standards.” Awad, 551 F.3d at 935.




                                           2
      Under the statutory text of § 876(c), “[t]he two elements of the crime of

mailing a threat to injure are that (1) the defendant’s letter contained a threat to

injure and (2) that the defendant knowingly caused the threatening letter to be

deposited in the mail.” United States v. De La Fuente, 353 F.3d 766, 770 (9th Cir.

2003). The indictment tracked this statutory language.

      In United States v. Twine, 853 F.2d 676, 679–81 (9th Cir. 1988), we

determined that § 876 requires that the government also prove the specific intent to

threaten. See also United States v. King, 122 F.3d 808, 809 (9th Cir. 1997). Thus,

“[u]nder § 876, the government must prove both that the letter contained a threat

and that defendant had a specific intent to threaten.” Id. at 811 n.2. Given Twine,

we must determine whether the indictment was adequately pled and, if not,

whether the language used in the indictment was a “technical flaw subject to

harmless error analysis.” Du Bo, 186 F.3d at 1179. In conducting our review, we

must be mindful that “an indictment should be read in its entirety, construed

according to common sense, and interpreted to include facts which are necessarily

implied.” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007) (internal

quotation marks omitted). Thus, in addition to examining the plain words of the

indictment, we must determine whether it alleged facts from which a subjective

intent to threaten could be necessarily implied.


                                           3
      The indictment tracked the statutory language and provided that Lopez’s

communication contained a threat to injure Judge Gonzalez “by dispersing

Anthrax, a biological weapon.” This language necessarily implies that Lopez

intended to threaten Judge Gonzalez. It necessarily implies that Lopez’s act was

not “because of mistake, inadvertence, or other innocent reason.” Twine, 853 F.2d

at 680; accord King, 122 F.3d at 811 (Farris, J., concurring) (“the specific intent

requirement of section 876 includes those levels of culpability greater than

negligence and recklessness, i.e. knowledge and purpose”). Because specific intent

could be implied by the language, we then determine whether or not the deficiency

in failing to plead specific intent directly was harmless. The district court properly

instructed the jury on both specific intent and “true threat” in addition to the two

statutory elements, and the record as a whole, particularly the letter itself, reveals

Lopez’s specific intent to threaten. As the district court correctly pointed out at

trial, there was no possibility that the defense was misled by the wording of the

indictment as to what criminal acts were charged. Therefore, we conclude that any

error in the wording of the indictment was harmless.




                                           4
                                           II

      The district court did not constructively amend the indictment or allow a

fatal variance, as Lopez claims. A constructive amendment of an indictment

occurs “where (1) there is a complex of facts presented at trial distinctly different

from those set forth in the charging instrument, or (2) the crime charged in the

indictment was substantially altered at trial, so that it was impossible to know

whether the grand jury would have indicted for the crime actually proved.” United

States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002) (internal alterations and

quotation marks omitted).

      Here, in denying defense counsel’s objections, the district court

contemplated that anthrax was not the government’s only threat theory. However,

aside from the government’s request that the jury read the entire letter, the

evidence presented at trial overwhelmingly focused on anthrax. Thus, there was

not a complex of facts presented at trial that was distinctly different from those set

forth in the indictment; the evidence at trial proved the same crime alleged in the

indictment. Additionally, because the jury primarily heard testimony and

arguments about anthrax, and because anthrax is the only specific threat in the

letter, the crime charged in the indictment was not substantially altered at trial; the

grand jury indicted for the crime actually proved. Moreover, the only evidence


                                           5
presented of the threat to injure was the letter, and although the letter could be

interpreted to contain additional threats, the government did not present evidence

of any threats outside the letter.

      Likewise, there was no fatal variance. “A variance occurs where the facts

presented at trial materially differ from those alleged in the indictment.” United

States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011). The evidence presented at

trial proved the same facts alleged in the indictment. Therefore, it did not affect

Lopez’s substantial rights. Lopez argues that the divergence between the

indictment and jury instructions misled him and obstructed his defense at trial

because he focused on whether anthrax could be considered a true threat.

However, his defense directly related to the government’s case where the

government only presented evidence as to anthrax.

      For these reasons, we conclude that the indictment was not constructively

amended, nor did the court fatally vary from it in fashioning the instructions.

                                          III

      The district court properly concluded that there was sufficient evidence to

prove that the letter was delivered within the statute of limitations. The district

court reasoned that the statute commenced running when the letter was delivered to

the intended address, not when it was placed in the mail. The the text of § 876(c)


                                           6
allows for either “knowingly so deposits” or “knowingly causes to be delivered.”

The indictment here charged Lopez with the latter, and therefore the crime here

was not complete until delivery. The jury made a special finding that the letter was

delivered on or after December 28, 2005, placing the crime within the applicable

statute of limitations. The finding is supported by the record.



      AFFIRMED.




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