U.S. v. Cassel

Decision Date24 May 2005
Docket NumberNo. 03-10683.,03-10683.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Paul Kent CASSEL, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Joan Jacobs Levie, Fresno, CA, argued the cause for the appellant.

Jonathan B. Conklin, U.S. Attorney's Office, Fresno, CA, argued the cause for the appellee. McGregor W. Scott, U.S. Attorney's Office, Fresno, CA, was on the brief.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, Senior Judge, Presiding. D.C. No. CR-00-05431-REC.

Before O'SCANNLAIN, COWEN,* and BEA, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether the First Amendment permits the government to punish a threat without proving that it was made with the intent to threaten the victim.

I

In early 1998, Paul Kent Cassel and his girlfriend, Anastasia Kafteranis, were living on property owned by Kafteranis and located near Randsburg, California, in the Mojave Desert. The federal government owned several lots near Kafteranis's property and it sought to sell them, acting through the Bureau of Land Management (BLM). Cassel apparently liked his privacy, though, and was not about to let neighbors move in without doing what he could to stop them.

Arthur and Alice Rinard, a married couple, were interested in buying one of the government lots, and in January 1998 they visited the property to look around. As they were walking around, Cassel approached them. He was accompanied by two of his dogs. One of the dogs—a certain "Mr. Mooch Face"—was extremely ugly and at least somewhat aggressive, probably because it had once been run over by a car. Cassel began a conversation with the Rinards that would continue over the following two days. Cassel's participation in the conversation consisted mostly of providing the Rinards with a series of dramatic reasons why the property that the Rinards were considering was quite undesirable. Cassel claimed, among other things, that the government's maps misidentified the boundaries between the various lots; that bidding on one of the lots—lot 107—was pointless because Cassel and Kafteranis were going to purchase it no matter what the cost; that it would cost at least twenty thousand dollars to get the permits needed to build a residence on the property; that the surrounding area was inhabited by child molesters, murderers, producers of illegal drugs, devil-worshipers, and witches; that the ground was a toxic waste dump contaminated with cyanide; that local law enforcement officials were corrupt; that mining explosions had damaged Kafteranis's own house; and that a neighbor had developed a disease known as "silica lung."

Cassel invited the Rinards to join him and Kafteranis for dinner, and despite his generally unneighborly demeanor, they agreed. Cassel kept up his invective during the meal, and his dogs continued to appear aggressive. He ultimately succeeded in dissuading the Rinards from purchasing the lot they had been considering—not, according to Mr. Rinard's testimony, because they believed his stories about nearby witches, but because they did not want Cassel as a neighbor. The Rinards told the BLM about their conversations with Cassel, and Mr. Rinard informed the BLM that while he did not feel personally intimidated by Cassel, he believed that others might.

About a month later, another couple, Mickey and Terry Goodin, came to visit two of the lots. Again Cassel greeted the couple, this time accompanied by only one of his dogs. Cassel's conversation with the Goodins proceeded along the same lines as his earlier conversation with the Rinards. He referred to the BLM as "crooks" and threw in at least one less polite term to boot; he described the toxic waste dump, the child molesters, the drug labs, the devil worshipers, and the cyanide in the ground. Mr. Goodin found Cassel obnoxious and could tell he did not want neighbors. He testified that Cassel told him "that if I [Goodin] tried to build anything on Lot 107, that it would definitely burn. He would see to that. That if I left anything there, it would be stolen, vandalized. He would see to that." Cassel denied making that statement. The Goodins ended up buying a lot about a quarter of a mile from Kafteranis's property, but Mr. Goodin testified that he did not bid on lot 107 because of Cassel's threat to burn any house the Goodins might build. Kafteranis eventually purchased lot 107 at auction.

In November 2000, Cassel was charged in the Eastern District of California with two counts of interfering with a federal land sale under 18 U.S.C. § 1860 and two counts of witness tampering under 18 U.S.C. § 1512(c). In April 2001, the government filed a superseding information dropping one of the witness tampering counts. Cassel was tried before a magistrate judge by his consent, and a jury convicted Cassel on all remaining charges.

In September 2001, before his sentencing hearing, Cassel wrote a letter to the magistrate judge requesting new counsel. The court denied that request after a hearing and sentenced Cassel to five months' imprisonment and 150 days of home confinement. Cassel appealed to the district court, which affirmed his conviction and sentence. This appeal timely followed.

II

Cassel argues that the statute under which he was convicted, 18 U.S.C. § 1860, is facially unconstitutional, both because it punishes constitutionally protected speech1 and because it is unconstitutionally vague. He further contends that the trial court erroneously instructed the jury and improperly denied his request for new counsel. We consider these claims in turn.2

A

18 U.S.C. § 1860 punishes, in relevant part, "[w]hoever, by intimidation ... hinders, prevents, or attempts to hinder or prevent, any person from bidding upon or purchasing any tract of" federal land at public sale. Cassel argues that this language criminalizes a wide range of constitutionally protected speech merely because such speech has the effect—intended or not—of "intimidati[ng]" a potential land buyer and thus making it more difficult for the government to sell its land.

As an initial matter, we must consider what level of scrutiny we are to apply to the statute. Its language is not addressed specifically to speech: rather, it criminalizes the act of interfering with a federal land sale "by intimidation," whether through speech or conduct. The government appears to contend, on that basis, that the statute should not be analyzed as a restriction on speech at all, but rather as a perfectly legitimate restriction on conduct that only incidentally restricts some speech. Cf. United States v. Brice, 926 F.2d 925, 931 (9th Cir. 1991) ("If conduct contains both speech and non-speech elements, and if Congress has the authority to regulate the non-speech conduct, incidental restrictions on freedom of speech are not constitutionally invalid."). But when the definition of a crime or tort embraces any conduct that causes or might cause a certain harm, and the law is applied to speech whose communicative impact causes the relevant harm, we treat the law as content-based. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (holding that "public figures and public officials" must show actual malice to prevail on a state-law tort claim for intentional infliction of emotional distress based on the defendant's speech). 18 U.S.C. § 1860 is just such a law: its prohibition applies to any conduct that causes the harm of interfering by intimidation with a public land sale. Since it was applied in this case to Cassel's speech (as well as his allegedly intimidating conduct, such as approaching the couples while accompanied by aggressive dogs), we treat it as content-based.

In arguing to the contrary, the government directs our attention to the Fifth Circuit's decision in United States v. Hicks, 980 F.2d 963 (5th Cir. 1992). In Hicks, the Fifth Circuit upheld a conviction under 49 U.S.C.App. § 1472(j), which prohibits "intimidat[ing] or threaten[ing]" a member of the crew onboard an airplane. The court held that "the statute reasonably regulates the time, place, and manner of speech, irrespective of its particular content. The content of passengers' speech is thus regulated only in an incidental fashion." Hicks, 980 F.2d at 971. Accordingly, it analyzed the statute under the deferential standard applied to content-neutral restrictions on speech.3 See id.

We cannot agree with this analysis, however. "Time, place, and manner" restrictions regulate matters such as how loud speech can be, see, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), or whether residents may place signs in their lawns, see, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). These are issues that have nothing to do with the content of the speech. Excessively loud speech is objectionable whether it consists of rock music or nursery rhymes, and signs on lawns may be unsightly whether they advertise political candidates or a garage sale. In contrast, 18 U.S.C. § 1860 punishes speech precisely because of the "intimidat[ing]" message it contains. It must, therefore, be analyzed as a content-based restriction on speech.

Not all content-based restrictions on speech are unconstitutional, of course. The Supreme Court has recognized that certain categories of speech are of such low value and inflict such serious harm that they are outside the protection of the First Amendment. One such category is composed of "true threats." See, e.g., United States v. Hanna, 293 F.3d 1080, 1084 (9th Cir. 2002) ("[T]he Court [has] left no doubt that true threats could be criminalized because they are not protected speech."). The government argues that § 1860 comports with the First Amendment because it only punishes speech that falls within this unprotected...

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