Elonis requires intent instruction under 18 USC 875 – Fourth Circuit

US v. White. White was convicted of three counts of violating 18 U.S.C. 875(b) for sending threats in interstate commerce with an intent to extort, and one lesser included offense under 18 U.S.C. 875(c) for sending threats without the intent to extort.

White appealed the conviction, arguing, among other theories, that the trial court erred in its instruction of the jury on the intent requirement. He also argued that, while he threatened his ex-wife for alimony payments while fleeing from law enforcement, he could not have done so with an intent to extort the payments from her because he was legally entitled to receive the payments.

The Fourth Circuit soundly rejected the entitlement argument. White repeatedly threatened his ex-wife. He threatened to have a loan shark beat her up to get the money, indicated that she does not “respond” to anything short of threats of legal or physical force, and suggested if she didn’t pay she “will probably be hospitalized.” Thus, the opinion reasons:

In sum, just as “you cannot beat someone up to collect a debt, even if you believe he owes it to you,” United States v. Castor, 937 F.2d 293, 299 (7th Cir. 1991) (internal quotation marks omitted), it follows that a defendant may not threaten to injure or kidnap a person to collect a debt, even one legitimately due and owing.

The Court also finds that the jury instruction on the § 875 (b) counts essentially captured the intent requirement and therefore there was no error. The Court does agree with White, however, with respect to the jury instruction on the § 875 (c) count. The Fourth Circuit’s recognizes that the Supreme Court’s decision in Elonis v. United States abrogates Fourth Circuit precedent:

Elonis abrogates our prior holding that liability under § 875(c) can turn solely on how a recipient would interpret a statement, without regard to whether the speaker intended it as a threat. Contra White, 670 F.3d at 508 (“[B]ecause the threat element is not part of the mens rea, it becomes an element of the crime that must be established without consideration of the defendant’s intent.”). But Elonis does not affect our constitutional rule that a “true threat” is one that a reasonable recipient familiar with the context would interpret as a serious expression of an intent to do harm. See White, 670 F.3d at 508-10.

What that means, in this circuit after Elonis, is that a conviction pursuant to § 875(c) now entails “what the [statute requires] (a subjectively intended threat) and [also] what constitutional avoidance principles demand (an objectively real threat).” See United States v. Jeffries, 692 F.3d 473, 485 (6th Cir. 2012) (Sutton, J., dubitante). That is: (1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a “true threat” to kidnap or injure. To prove the second element, the Government, consistent with Elonis, must establish that the defendant transmitted the communication “for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat,” or, perhaps, with reckless disregard for the likelihood that the communication will be viewed as a threat. See Elonis, 135 S. Ct. at 2012-13. And to establish the third element, in keeping with our prior cases, the prosecution must show that an ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret it as a serious expression of an intent to do harm. See White, 670 F.3d at 508- 10.

Thus, the district court erred in instructing the jury that they could convict under § 875(c) if there was a true threat without giving regard to White’s intent. Still, while the decision concludes that the trial court erred, it reasons that no reversal is required because the error was harmless.

Appellant did not suggest that he sent any of the e-mails in question as a joke, nor did he testify that he was simply blowing off steam. Instead, he contested the issue of intent, at best and if at all, only implicitly — by denying that he sent the e-mails. The jury, however, resoundingly rejected that theory. Thus, the jury having concluded beyond a reasonable doubt that Appellant sent the e-mails, we are left to consider only whether the contents of the Count II e-mail, in the absence of any alternative explanation from Appellant, would permit a jury to rationally find that Appellant did not intend the message as a threat or know it would be received as a threat. We think no rational jury could reach that conclusion.

Finally, the Court dispenses of White’s procedural, evidentiary and sentencing arguments without much fanfare.