United States v. Heineman
| Decision Date | 15 September 2014 |
| Docket Number | No. 13–4043.,13–4043. |
| Citation | 767 F.3d 970 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Aaron Michael HEINEMAN, a/k/a Aaron Heineman, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, UT, 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, UT, for Plaintiff–Appellee.
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
Defendant Aaron Heineman was convicted after a bench trial on one count of sending an interstate threat. See18 U.S.C. § 875(c). The district court found that he knowingly sent an e-mail that caused the recipient to reasonably fear bodily harm. Defendant argues that his conviction violated the First Amendment because the court did not also find that he intended the recipient to feel threatened. We have jurisdiction under 28 U.S.C. § 1291. Agreeing with Defendant, we reverse and remand.1
In 2010 and 2011 Defendant sent three e-mails espousing white supremacist ideology to a professor at the University of Utah. The first two e-mails did not contain threats, but the third made the professor fear for his safety and the safety of his family. Entitled “Poem,” Aplt.App., Vol. 1 at 89, it began by addressing the professor by his first name, and contained the following language:
Come the time of the new revolution
we will convene to detain you
And slay you, by a bowie knife shoved up into the skull from your pig chin
you choke, with blood flooding in your filthily treasonous throat!
We put the noose ring around your neck
and drag you as you choke and gasp
The noose laid on the tree branch
and the fate hath conferred justice for Treason
You are a filthy traitor along the horde of anti-American and anti-Whitey comrades
whose justice shall come to be delivered
To fuck the traitors, for justice!
fuck Mexico! fuck South America!
Fuck your soul to Hell!
Into the furnace pool of MexiShit as the filthily traitorous asshole and puta!
Id. at 90. Law-enforcement officers traced the e-mail to Defendant through his e-mail address, which had the user name “siegheil_neocon.” Id. at 91. When officers contacted him in writing, he responded immediately, “Is this about the email?” Id. He was charged in the United States District Court for the District of Utah with one count of sending an interstate threat, in violation of 18 U.S.C. § 875(c).
Before trial Defendant requested an instruction that “the government must prove that the defendant intended the communication to be received as a threat.” Id. at 18. He asserted that he has Asperger's Disorder, which impairs his “ability to understand how others will receive the things he says and does.” Aplt. Br. at 2. The district court declined the request. Defendant then moved to dismiss the charge, arguing that § 875(c) was facially unconstitutional if it did not require proof that “the defendant intended to place the hearer in fear of bodily harm or death.” Aplt.App., Vol. 1 at 28. After the court denied the motion, the parties agreed to a bench trial on stipulated facts so that Defendant could preserve his legal arguments. He renewed his objections at trial, and the court again rejected them. It found that the government had established that Defendant “knowingly transmitted a communication containing a threat to injure the person of another,” id. at 91, and that the poem was a true threat because it “would cause a reasonable person to conclude that the sender ... intended to cause bodily injury,” id. at 93. The court did not determine whether Defendant intended the professor to feel threatened.
Defendant was prosecuted under 18 U.S.C. § 875(c), which states in relevant part: “Whoever transmits in interstate or foreign commerce any communication containing ... any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The law in this circuit is settled, and the parties do not dispute, most of what must be proved to establish a violation of the statute. For example, the statement itself must be one that a reasonable person in the circumstances would understand “as a declaration of intention, purpose, design, goal, or determination to inflict [bodily injury] on another.” United States v. Viefhaus, 168 F.3d 392, 395 (10th Cir.1999); see id. at 396; United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir.1983). And “[i]t is not necessary to show that defendant intended to carry out the threat,” although the threat must be a serious one, “as distinguished from words as mere political argument, idle talk or jest.” Viefhaus, 168 F.3d at 395 (internal quotation marks omitted).
The issue on appeal is whether § 875(c) requires proof of an additional element—that the defendant intended the recipient to feel threatened. The statutory language contains no mens rea requirement, but as a statute that criminalizes speech, it Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam). Thus, we will read into § 875(c) any scienter necessary to satisfy the demands of the First Amendment.2 “We review questions of constitutional law de novo.” ClearOne Commc'ns, Inc. v. Bowers, 651 F.3d 1200, 1216 (10th Cir.2011) (internal quotation marks omitted).
Defendant contends that the Supreme Court's opinion in Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), compels us to adopt his position. But before we examine that opinion, we turn to, and reject, the claims of both parties that we are bound by circuit precedent to adopt their positions.
The government points to four of our decisions. Two can be disposed of summarily. Viefhaus predated Black. Whatever it said, a circuit precedent cannot bind us to the extent that it is inconsistent with a later Supreme Court decision. See Currier v. Doran, 242 F.3d 905, 912 (10th Cir.2001). And United States v. Wolff, 370 Fed.Appx. 888 (10th Cir.2010), like all unpublished decisions of this court, is not binding precedent. See10th Cir. R. 32.1(A).
The government's third case, Nielander v. Board of County Commissioners, 582 F.3d 1155 (10th Cir.2009), is a post- Black precedent, but it did not address the issue before us. After successfully defending a state criminal-threat charge, Nielander brought a First Amendment retaliation claim in federal court under 42 U.S.C. § 1983. See id. at 1162–63. The district court granted summary judgment against Nielander on the ground that his statements (the alleged threats) leading to the alleged retaliation were not protected by the Constitution. See id. at 1163. We affirmed. See id. at 1165–66. We held that even if Nielander's statements were protected speech, the defendants were entitled to qualified immunity. See id. at 1166–69. Two of the defendants had “merely provid[ed] the police with their account of events,” and had not brought any charges against Nielander. Id. at 1166. As for the defendant police officer, we said that he was entitled to qualified immunity because the law was not clearly established that Nielander's statements were not true threats. See id. at 1167–69. Although we used a pre- Black definition of true threat that did not include an intent to instill fear, see id. at 1167, we did not consider whether such intent was required, and we fail to see how our ultimate decision would have been affected if we had included that requirement because the evidence would have supported a reasonable belief that Nielander had that intent. See Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ().
The fourth case relied on by the government is United States v. Teague, 443 F.3d 1310 (10th Cir.2006). Teague was convicted of transmitting an interstate threat under 18 U.S.C. § 875(c) after he sent a series of threatening e-mails to his former divorce attorney. See id. at 1311–13. His defense at trial was that he had not intended a threat, but that his e-mails were meant instead to prod the attorney to take various actions, were meant humorously, or merely stated the biological truth that the attorney and his family were going to die. See id. at 1312–13. On appeal he argued that the jury should have been instructed that he must have intended that his former attorney feel threatened and not just that “he sent the e-mail with knowledge that a reasonable person would take the message as a threat.” Id. at 1318. But Teague had not raised that argument in district court, so we reviewed only for plain error. See id. Accordingly, he needed to show that the requirement of his additional element was “clear under current law.” Id. at 1319 (internal quotation marks omitted). Yet he conceded (incorrectly, as we shall see) that the Supreme Court had not spoken on the issue, and he acknowledged that this circuit had no controlling precedent and that the other circuits were split. See id. We readily concluded that there was no plain error. See id. The parties' briefs did not cite Black, nor did our opinion. Teague could hardly stand as this court's interpretation of Black.
Defendant in turn relies on two of our decisions. One is United States v. Pinson, 542 F.3d 822 (10th Cir.2008), which concerned a prosecution under 18 U.S.C. § 871(a) for threatening the life of the President. See id. at 826. Pinson complained that the jury was instructed that an element of the offense was that he “understood and meant the words mailed as a...
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United States v. Stevens
...The mens rea element calls for proof the speaker "intended the recipient of the threat to feel threatened." United States v. Heineman , 767 F.3d 970, 978 (10th Cir. 2014).In his motion to dismiss the indictment, Mr. Stevens challenged only the threat element. The district court therefore li......