United States of America v. Steven A. Voneida

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4032
UNITED STATES OF AMERICA
v.
STEVEN A. VONEIDA,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-07-cr-00312-001)
District Judge: Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
July 10, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: July 15, 2009)
OPINION
AMBRO, Circuit Judge
A jury convicted Steven Vonieda of one count of transmitting a threatening
communication, in violation of 18 U.S.C. § 875(c). The District Court sentenced him to
19 months’ imprisonment. Voneida appeals his conviction, challenging the sufficiency of

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate1
jurisdiction under 28 U.S.C. § 1291.
2
the evidence. He argues that under § 875(c) his statements were not “threats,” were1
never transmitted to anyone, and there was “no imminent prospect of execution.” Instead,
he contends, they were more akin to “a college student’s unfledged attempt at
counterculture humor.” He also argues that he was unduly prejudiced by the
Government’s reference to the Virginia Tech shootings, which “poisoned” the jury’s
mind. Voneida’s arguments are unsuccessful and thus we affirm his jury verdict.
I.
In reviewing a jury verdict for sufficiency of the evidence, we view the evidence in
the light most favorable to the Government, and will affirm a conviction if a rational trier
of fact could have found the defendant guilty beyond a reasonable doubt. See United
States v. Jenkins, 90 F.3d 814, 817 (3d Cir. 1996). Preliminarily, we note that this claim
proceeds under a plain error standard of review because it was not preserved before the
District Court by a motion at trial or post-trial under Federal Rule of Criminal Procedure
29(a) or (c). See United States v. Olano, 507 U.S. 725, 732 (1993) (plain error requires
an “error” that is “plain” and affects “substantial rights”). “A conviction based on
insufficient evidence is plain error only if the verdict ‘constitutes a fundamental
miscarriage of justice.’” United States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999)
(quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir. 1991)). To the extent that

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Because we write solely for the parties, we are not providing a detailed recitation of2
the facts.
The shootings occurred on April 16, 2007, and Voneida posted his MySpace3
statements on April 18 and 19, 2007.
This statement was in response to a survey sent to Voneida. The survey started a4
sentence with a word or phrase, such as “someday,” and left it to the user to complete the
phrase. When Voneida completed the survey, he posted it to his MySpace bulletin board.
3
Voneida’s argument raises an issue of statutory interpretation, we will exercise plenary
review. See id.
18 U.S.C. § 875(c) criminalizes the “transmi[ssion] in interstate or foreign
commerce [of] any communication containing any threat to kidnap any person or any
threat to injure the person of another.” To prove a violation under this statute, the
Government must prove that the defendant “acted knowingly and willfully” in making the
threatening communication and that the communication was “reasonably perceived as
threatening bodily injury.” See United States v. Himelwright, 42 F.3d 777, 782 (3d Cir.
1994).
Here, there is sufficient evidence to support Voneida’s conviction. Two days2
after the tragic shootings at Virginia Tech, Voneida, a student at the Harrisburg campus
of Penn State University, posted several statements and pictures to different parts of his
internet MySpace page that were the subject of his conviction. These statements and3
pictures included: “Someday: I’ll make the Virginia Tech incident look like a trip to an
amusement park” ; “the weary violent types who are sick of self-righteous, lecherous,4

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This statement was in response to the same survey that began with the phrase “I5
wish.”
This was also part of the survey that began with phrase “today I.”6
4
arrogant, and debauched attitudes displayed by [A]merican youth would band together
with me for a day, and allow everyone at schools and universities across the nation to reap
the bitter fruit of the seeds that they have been sowing for so long” ; expressed “shock[]”5
that after the Virginia Tech shootings his classmates “were actually surprised that there
are people out there who would shoot them if given the opportunity” ; “lost my respect6
for[] the sanctity of human life”; captioned a posting “Virginia Tech Massacre – They got
what they deserved,” where he noted his current mood was “extatically [sic] happy,” and
included a poem dedicated to the Virignia Tech shooter that concluded that the shooter’s
“undaunted and unquenched” wrath would “sweep across the land”; and a picture of the
bloodied Virginia Tech shooter holding two guns superimposed on a cross with the words
“martyr,” “massacre,” “enrage,” and “recompense.”
Students at Voneida’s university and elsewhere who were MySpace users or on
his “buddy” list had access to his page. A student at Indiana University of Pennsylvania,
who had been involved in a textbook exchange with Voneida, saw his MySpace page and
received a notification of a new posting to the bulletin board of his page through his
“buddy” list. She and another student read the above-mentioned statements on the
internet and called the police. They both testified that they viewed these statements to be
a threat and that they were “scared for the people, the school he attended.”

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We note that though this evidence is highly relevant, it is not dispositive because the7
test for determining a “threat” is an objective one. See United States v. Malik, 16 F.3d 45,
49 (2d Cir. 1994); see also United States v. Aman, 31 F.3d 550, 553 (7th Cir. 1994)
(“[Guilt] is not dependent upon what the defendant intended, but whether the recipient
could reasonably have regarded the defendant’s statement as a threat.”) (internal
quotations and citation omitted).
5
While some of the statements, taken in isolation, may not rise to the level of a
threat within the meaning of § 875(c), that was not the context of the case here. A
rational jury could reasonably construe the statements that were made only two days after
the Virginia Tech shootings, specifically the comment about making Virginia Tech look
like “a trip to an amusement park,” as a serious intention to inflict bodily harm. See
United States v. Alaboud, 347 F.3d 1293, 1296 (11th Cir. 2003) (“A communication is a
threat when in its context [it] would have a reasonable tendency to create apprehension
that its originator will act according to its tenor.”) (internal quotations and citation
omitted) (alteration in original). Indeed, the two Indiana University of Pennsylvania
students testified that they viewed the statements as threatening.7
Voneida’s argument that the statements were never transmitted because his
postings were more like a hand-written diary also fails. Section 875(c) requires that the
communication be transmitted in interstate commerce. For other MySpace users to view
the statements posted to various parts of Voneida’s MySpace page, the postings had to
pass through the main internet server, located in California. Further, the “amusement
park” statement and others were posted to Voneida’s MySpace “bulletin board,” which

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6
was set to send out update notices to members of his “buddy” list when he added new
information. And, those with access to Voneida’s MySpace page could respond to his
statements by posting their own comments on his page. Given these facts, we conclude
that a rational jury could have determined that the offending statements met this element
of the statute.
Contrary to Voneida’s final argument, there is no requirement in the statute of
proof of imminency to make a threat real. In proving that Voneida’s statements were
threats, the Government “bore no burden of proving that [Voneida] intended his
[statements] to be threatening or that he had an ability at the time to carry out the threats.”
Himelwright, 42 F.3d at 782. Voneida cites to Malik, 16 F.3d 45, 51 (2d Cir. 1994), in
support, but the facts of that case belie his argument. The Court affirmed Malik’s
conviction under § 876 (mailing a threatening communication) for writing two letters,
while incarcerated, that threatened violence against his adversaries in civil lawsuits,
against judges that dismissed his appeals, and robbery of unnamed Jewish persons
following his release from prison. Id. at 47–48, 50 (rejecting the argument that the
statements were only “hyperbolic or rhetorical expressions of anger or discontent
protected under the First Amendment”). The Malik Court concluded that
“existence . . . of a ‘true threat’ is a question generally best left to a jury.” Id. at 51. We
believe that a rational jury could have concluded that Voneida’s statements were threats
and not protected speech.

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7
II.
Voneida’s second argument, that the jury’s mind was unfairly tainted by the
prosecutor’s “rhetoric,” relates to the Government’s opening statement at trial that “the
evidence really begins on April 16, 2007. On that date, a Virginia Tech student . . . shot
and killed and wounded numerous students and faculty members on that campus.” (App.
56.) Voneida also claims that reading his MySpace statements to the jury and informing
them that the postings occurred a few days after the Virginia Tech shootings was unfair.
He provides no legal support for his argument and no indication that he objected to the
Government’s arguments before the District Court. Thus, we proceed under plain error
review.
We take Voneida’s claim to be a request for a new trial, although he did not
explicitly characterize it as such. Insofar as this argument could be viewed as an
evidentiary challenge under Rule 403 of the Federal Rules of Evidence—that the
probative value is outweighed by its prejudicial effect—we disagree. The subject of the
charge against Voneida was his statements concerning Virginia Tech. Thus, although
they are undoubtedly prejudicial, they are not unduly so. Furthermore, including the fact
that the statements were made a few days after the shootings provided the jury with
important context to determine whether the statements constituted a violation of § 875(c).
See, e.g., United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992) (rejecting an evidentiary
challenge because the circumstances surrounding the threatening calls were relevant to a

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§ 875(c) charge); Malik, 16 F.3d at 50 (explaining that the circumstances of the
communication matter). Thus, this contextual information also was not unduly
prejudicial.
Voneida also appears to argue that the Government’s opening statement deprived
him of a fair trial. Any claim of prosecutorial misconduct must be viewed “in context”
“against the entire record.” United States v. Young, 470 U.S. 1, 16–17 (1985)
(determining no plain error where defense attorney did not object to prosecutor’s rebuttal
argument giving his personal opinion as to guilt of defendant). This argument fails
because the Government’s reference to Virginia Tech related to the circumstances
surrounding Voneida’s statements that were presented as part of the evidence at trial.
Moreover, as we concluded above, the evidence was sufficient to support the jury’s guilty
verdict; hence the Government’s statement could not have affected substantial rights.
* * * * *
Accordingly, we affirm Voneida’s conviction under 18 U.S.C. § 875(c).

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