By Jonathan Stempel
Dec 6 (Reuters) - A federal appeals court on Thursday upheld
the conviction of a California man for sparking a nationwide
anthrax hoax in 2008, saying his mailings of sugar packets
labeled as anthrax did not qualify as free speech. It also
ordered that he be resentenced.
The 9th U.S. Circuit Court of Appeals in San Francisco said
a federal jury properly convicted Marc McMain Keyser in
September 2009 over mailings received by a Starbucks store and
McDonald's restaurant in his hometown of Sacramento, California,
and by an office of George Radanovich, then a congressman from
According to court papers, Keyser sent roughly 120 packages
to politicians, media and businesses containing a CD with
excerpts from his book "Anthrax: Shock and Awe Terror" and a
white sugar packet labeled "Anthrax" and "Sample," with an
orange biohazard symbol.
In his appeal, Keyser, 70, said that in showing the
vulnerability of the United States to an anthrax attack, his
mailings qualified as political speech under the First Amendment
to the U.S. Constitution and were not "true threats."
The 9th Circuit disagreed. "A reasonable sender would
foresee that recipients would understand the mailings to be
threats to injure them," Circuit Judge Richard Clifton wrote for
a unanimous three-judge panel.
The court nonetheless said that in sentencing Keyser to
4-1/4 years in prison, the trial court improperly considered the
government's costs to respond to other mailings for which Keyser
was not convicted. It ordered the trial court to resentence him.
"We're really disappointed with the decision" and will
review what action to take next, Keyser's lawyer John Balazs
said in an email. Keyser is housed in a low-security prison in
Lompoc, California, federal prison records show.
The case is U.S. v. Keyser, 9th U.S. Circuit Court of
Appeals, No. 10-10224.
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