United States v. Fabian Vaksman

MEMORANDUM

Defendant Fabian Vaksman appeals a jury verdict in which he was found guilty of violating 18 U.S.C. § 875 (c), a statute prohibiting interstate communications of a threat to injure. We have jurisdiction under 18 U.S.C. § 3742 (a)(1), and we affirm.

Vaksman challenges the constitutionality of his conviction, claiming that the e-mail for which he was convicted is not a “true threat,” and therefore is speech protected by the First Amendment. Virginia v. Black, 538 U.S. 343, 359 , 123 S.Ct. 1536 , 155 L.Ed.2d 535 (2003). We conclude that sufficient evidence supports the jury’s verdict under both the objective and subjective test of a true threat. See United States v. Bagdasarian, 652 F.3d 1113, 1116-17 (9th Cir.2011).

First, sufficient evidence supports the jury’s finding that the March 20 email was objectively a true threat because “a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intent to harm or assault.” Id. at 1125 (citations omitted). In saying, “[i]f I were to murder him, I’d have a legitimate claim that I was merely acting in self-defense,” Vaksman threatened to kill Commissioner Adam Eisenberg. Vaksman…