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September 21, 2014
  United States v. Heineman- Tenth Circuit
Case Name: U.S. v. Heineman - 10th Circuit

Headline: Tenth Circuit holds that conviction for sending an interstate threat requires intent for recipient to feel threatened.

Areas of Law: Criminal Law, Constitutional Law

Issue Presented:

Does 18 U.S.C. § 875(c) require a finding that the defendant intended for the recipient to feel threatened?

Brief Summary:

Defendant was convicted of sending an interstate threat after sending an e-mail to a professor at the University of Utah that caused the professor to fear for his safety. The court reversed the decision of the district court that the government did not have to prove that the defendant intended for the communication to be received as a threat. The court held that the First Amendment required the government to prove that the defendant intended for the recipient to feel threatened. It relied primarily on Virginia v. Black, 538 U.S. 343 (2003).

Judge Baldock concurred in the judgment only. He opined that the case should be resolved by looking only to the text of the statute, without reaching the constitutional question. He also stated that this issue is currently before the Supreme Court, and that the decision in this case should have waited until after the Supreme Court's ruling.

Extended Summary:

Defendant was convicted at a bench trial of one count of sending an interstate threat after sending emails containing white supremacist ideas to a professor at the University of Utah. Defendant sent three emails to the professor, the third of which contained a poem that caused the professor to fear for his safety and that of his family.

At trial, the defendant requested an instruction stating that the government is required to prove that the defendant intended the communication to be perceived as a threat. He explained that he has Asperger's Disorder, which makes it difficult for him to appreciate how others will perceive his actions. The district court denied the instruction, and the defendant moved to dismiss the charge, arguing that Section 875(c) was facially unconstitutional without the proof of intent to cause fear. The motion was denied, and the parties agreed to have a bench trial so that the defendant could preserve his legal arguments. In convicting the defendant, the district court did not make a finding that the defendant intended the victim to feel threatened.

The majority noted that the law in the Tenth Circuit is well settled regarding most of the elements of Section 875(c). The government must establish that a reasonable person, under the circumstances, would understand that the communication was a serious declaration of an intention to harm another, but does not need to show that the defendant intended to carry out the threat.

In spite of the fact that the statute does not contain a mens rea requirement, the majority noted that statutes which criminalize speech must comply with the First Amendment. The majority then noted that because the issue is one of constitutional law, the standard of review was de novo.

The majority quickly dismissed two cases set forth by the government - United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999), because the decision predated Black, and United States v. Wolff, 370 F.App'x 888 (10th Cir. 2010), because that was an unpublished decision that was not binding. It next addressed the government's reliance on Nielander v. Board of County Commissioners, 582 F.3d 1155 (10th Cir. 2009), by explaining that it did not address the question at issue, but rather decided that the defendants were entitled to qualified immunity. Finally, the court addressed the government's reliance on United States v. Teague, 443 F.3d 1310 (10th Cir. 2006). In Teague, like the defendant in the present case, the defendant argued on appeal that the jury should have been instructed that he intended for the victim to feel threatened. The court in Teague reviewed for plain error, however, because the issue was not raised at the district court level. The court also noted that Teague contained no interpretation of Black.

The defendant relied on United States v. Pinson, 542 F.3d 822 (10th Cir. 2008). The court stated that although there was some language in Pinson that was helpful to the defendant's position, it did not bind the court because it involved a prosecution under a different statute and did not discuss constitutional law. Next, the court discussed the defendant's reliance on United States v. Magleby, 420 F.3d 1136 (10th Cir. 2005), where the court stated in dicta that convictions for burning and conspiring to burn a cross required an intention of placing the victim in fear. The case was decided on other grounds, however, and the language interpreting Black was not binding.

After distinguishing the cases raised by both parties, the court determined that whether the First Amendment, as interpreted by Black, required proof of intent for the recipient to feel threatened was an issue of first impression in the Tenth Circuit. The court held that it did.

The majority then provided a summary of Black. In Black, three state-law convictions for cross burning with intent to intimidate were being challenged. The Virginia Supreme Court held that the statute was facially unconstitutional because the statute chose cross burning because of its distinct message, which was an impermissible content-based distinction under R.A.V. v. City of St. Paul, 505 U.S. 377 (1977), and because the prima facie provision of the statute made it overbroad. The Supreme Court had affirmed in part and reversed in part.

The majority discussed Justice O'Connor's opinion in Black, which noted that the First Amendment allows "free trade in ideas - even ideas that the overwhelming majority of people may find distasteful or discomforting." Black, 538 U.S. at 358. The Amendment, however, does allow restriction of content which has such slight social value that its benefit is clearly outweighed by social interest. Id. at 358-59. Imminent breach of the peace, fighting words, and "true threats" were counted among those forms of speech that could be restricted. Id. Black defined a "true threat" as a threat to a person with the intent of placing the victim in fear of bodily harm or death. Id. at 359-60. The court noted that cross-burning was a symbolic expression, and that even when speech is banned in an unprotected category, the statute may not target only a subset of that unprotected category.Id. at 360-62. The Supreme Court held that Virginia's ban on cross burning was consistent with R.A.V., because cross-burning is a "particularly virulent form of intimidation." Id. at 363.

The Supreme Court did not reach a majority on the overbreadth issue. Three Justices did not address the issue, and four would have held the statute facially unconstitutional for the language "any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Justice Scalia dissented from the plurality on the question of overbreadth. Scalia argued that the prima facie provision permitted an inference of intent only when the defendant did not put on rebuttal evidence. He stated that the statute was not overbroad, because reading it in this way was unlikely to convict individuals engaging in constitutional protected conduct, and the statute should have been remanded to the Virginia Supreme Court for interpretation, rather than construed by the Supreme Court. Justice Thomas stated that he would have upheld the statute.

The Tenth Circuit stated that it reads Black as requiring an intent for the recipient to feel threatened, highlighting language from Black that applies the "true threats" definition to intimidation, which explicitly requires intent to cause the victim fear. Further, the majority stated that the Black plurality analysis was based on the idea that the First Amendment required intent to cause fear, because the issue with the prima facie provision was that the jury may infer that the defendant intended to cause fear through the act of cross burning. Despite the fact that the overbreadth issue was decided on just a plurality, the Tenth Circuit noted that although Justice Scalia departed from the majority on the overbreadth issue, he did not challenge the assumption that the First Amendment required an intent to cause fear. Even in his dissent from the majority and plurality, the Tenth Circuit noted that Justice Souter seems to have assumed that the intent to cause fear is required by the First Amendment.

The majority stated that the Ninth Circuit has interpreted Black in the same way, and that there was some support for its position in the Seventh Circuit as well. The First, Third, Fourth, Sixth, Eighth and Eleventh Circuits do not interpret Black in the same way, but the majority stated that the reasoning in those opinions was not persuasive to them. The majority then discussed United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012), because it provided reasons for rejecting the majority's interpretation of Black. Jeffries stated that the intent requirement was not necessary because the Virginia statute already required one. The majority pointed out that if this were the case, the Court would not have been concerned that a jury could find subjective intent on inadequate grounds. The majority also noted that Jeffries read the intent element of "true threat" as meaning that the defendant meant to communicate. The majority conceded that the language was ambiguous, but that the natural reading of the language suggested that the speaker required intent to harm. The majority stated that its position is further supported by language in Black in the same paragraph that explains that the defendant need not intend to carry out the threat. Further, Jeffries stated that intimidation does require proof of intent to cause fear to the victim, but stated that intimidation was just one type of true threat. The majority responded to this by questioning why the First Amendment would require an intent to cause fear for some true threats, but not all of them. The majority also questioned Jeffries' assertion that the First Amendment allows an "effect on the listener" exception to the freedom of speech by pointing out that some speech causes fear. For example, speech that may cause fear but is only intended to be political speech, is protected by the First Amendment.

The majority concluded that the government must show an intent for the speaker to cause fear to the recipient of the message in order to be convicted under Section 875(c), and reversed the defendant's conviction, remanding to the district court for a determination of whether the defendant intended his e-mail to be threatening.

Judge Baldock wrote to concur in the judgment only. He opined that the majority did not need to reach the constitutional question of whether the statute violated the First Amendment and could have reached the same conclusion by conduction a statutory analysis alone. Judge Baldock noted that the Supreme Court recently granted certiorari in United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), in which the only question that was raised was the question that the majority answered in the present case. The Supreme Court, however, requested additional briefing on whether Section 875(c) required subjective intent to threaten the victim as a matter of statutory interpretation. Judge Baldock asserts that this indicates that the question may be resolved on statutory interpretation grounds without reaching the constitutional question.

Judge Baldock then pointed to the majority's statement in footnote 2 of the opinion that United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983) and Viefhaus precluded it from engaging in textual analysis of Section 875(c). Judge Baldock stated that this was not true, because the Tenth Circuit has never considered the statute for subjective intent to threaten before. In fact, he suggested that the opinions contained support for reading the statute as requiring subjective intent. Further, even if they did not, there is no opinion that requires the interpretation of one statute to bind the court to make the same decision concerning a different statute. Therefore, statutory analysis is not precluded.

Judge Baldock then discussed Judge Sutton's dubitante opinion in Jeffries at length (a dubitante opinion is one that generally doubts the reasoning of the majority, but is hesitant to declare it wrong). He explained that, of the many opinions that have addressed the meaning of Section 875 (c), Judge Sutton's is the only one that answers the question of whether the statute itself requires subjective intent. Judge Baldock suggested that the majority should at least have explained why Judge Sutton's view should not prevail before engaging in the constitutional analysis, particularly when the Supreme Court has suggested that it may.

To read the full opinion, please visit:

Panel: Hartz, Baldock, Bacharach

Date of Issued Opinion: September 15, 2014

Docket Number: 13-4043

Decided: Conviction under 18 U.S.C. § 875(c) requires a showing that the defendant intended for the recipient to feel threatened by the transmission.


Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah, for Defendant - Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (David B. Barlow, United States Attorney, with her on the brief), District of Utah, Salt Lake City, Utah, for Plaintiff - Appellee.

Author: Hartz

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 09/21/2014 01:33 PM     10th Circuit  

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