REDEFINING THE QUESTION: APPLYING A HIERARCHICAL STRUCTURE TO THE MENS REA REQUIREMENT FOR SECTION 875(c)

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1 REDEFINING THE QUESTION: APPLYING A HIERARCHICAL STRUCTURE TO THE MENS REA REQUIREMENT FOR SECTION 875(c) Karen Rosenfield * INTRODUCTION Section 875 of Title 18 of the United States Code criminalizes extortion and threats sent via interstate commerce. 1 In particular, section (c) of this statute criminalizes interstate communications containing a threat to kidnap or injure another person. 2 While section 875(c) does not contain an explicit mens rea 3 requirement, several circuits have considered the mens rea needed to violate the statute. 4 The issue the courts have considered is whether the statute requires general intent 5 or specific intent. 6 The circuits are divided on this *Associate Editor, Cardozo Law Review. J.D. Candidate (2009), Benjamin N. Cardozo School of Law; B.A. (2000), University of Pennsylvania. This Note is dedicated to my parents Tifearet and Isaac Ram, whose gifts and inspiring example continue to guide me. Thank you to Professor Kyron Huigens for being generous with his time and ideas, and for his thoughtful guidance. And, to my husband Seth for his tremendous patience and for always seeing truer things in me U.S.C. 875 (2000). 2 Id. 875(c). 3 See BLACK S LAW DICTIONARY 1006 (8th ed. 2004) (defining mens rea as the state of mind that the prosecution, to secure a conviction must prove that a defendant had when committing a crime ). 4 The notion that some mens rea may be required to violate a statute despite the lack of an explicit mens rea requirement is a general principle of criminal law interpretation. See infra notes 29, See BLACK S LAW DICTIONARY, supra note 3, at (defining general intent as the state of mind required for the commission of certain common-law crimes not requiring a specific intent or not imposing strict liability ). For example, an actor is guilty of trespass by breaking into a building so long as the actor acted intentionally because he knew the nature of his acts, without further proof that the actor desired any particular further consequence. SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 216 (7th ed. 2001). 6 See United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006) ( The issue is generally discussed in terms of whether the statute requires specific intent or merely general intent. ); BLACK S LAW DICTIONARY, supra note 3, at 826 (defining specific intent as [t]he intent to accomplish the precise criminal act that one is later charged with ). For example, burglary requires that an actor break and enter with the further consequence of committing a felony inside. Therefore, conviction for burglary requires proof of intent of a further consequence. See KADISH & SCHULHOFER, supra note 5, at

2 1838 CARDOZO LAW REVIEW [Vol. 29:4 question, with the majority of circuits requiring general intent, and only the Ninth Circuit requiring specific intent. 7 According to the majority of circuits, based on a requirement of general intent, a defendant may be convicted under section 875(c) if a defendant knowingly sends a message through interstate commerce that a reasonable person would consider a threat. 8 Under this requirement, the mens rea is considered objective because it is unnecessary to consider the state of mind of that particular defendant. 9 On the other hand, the requirement of the Ninth Circuit is specific intent. 10 Under this requirement, the prosecution must show that the defendant intended to communicate a threat. 11 This considers a particular defendant s state of mind and as a result is subjective. 12 In its recent decision, United States v. Teague, the Tenth Circuit noted the split among the circuits regarding the mens rea requirement for section 875(c). 13 There, the court upheld the trial court s decision to instruct the jury on a standard of general intent, reasoning that the instruction was not plain error. 14 However, the Tenth Circuit acknowledged that further clarification is needed to understand the 7 Teague, 443 F.3d at 1319 (noting that only the Ninth Circuit requires specific intent, while the other circuits say that general intent is all that is required). 8 Id. at 1318 (describing the general intent standard posed by the majority of circuits). The prosecution must prove that the defendant knowingly transmitted a communication containing a threat to injure the person of another. Here, a threat is a serious statement with an intention to injure any person which would cause apprehension in a reasonable person. Id. 9 Id. at 1318 (noting defendant s argument that a reasonable person standard was insufficient, and that the state of mind of a particular defendant should be considered). 10 See supra note Teague, 443 F.3d at United States v. Twine, 853 F.2d 676, 681 (9th Cir. 1988) (holding that a subjective, specific intent to threaten is required); United States v. DeAndino, 958 F.2d 146, 149 (6th Cir. 1992) (stating that the prosecution does not need to prove a specific intent to threaten based on the defendant s subjective purpose ); see also KADISH & SCHULHOFER, supra note 5, at 216 (noting a usage of specific intent which refers to a crime requiring the defendant to have actual knowledge or subjective awareness of a particular fact or circumstance). The difference between objective and subjective in this context is different from colloquial understandings of the terms. Colloquially, subjective means a matter of opinion, an inarticulable judgment that borders on the arbitrary and that cannot in a literal sense be right or wrong. Objective in a colloquial sense is the opposite of this: a matter of demonstrable fact about which one can be right or wrong. Punishment theorists use subjective to refer instead to the state or condition of an actor, so that to have a purpose or to have some knowledge is said to be a subjective state of mind, and liability premised on such mental states is said to constitute subjective criminal liability. Objective criminal liability rests on considerations external to the criminal actor on his failure to meet a standard of due care or the moral depravity of his conduct. Kyron Huigens, On Commonplace Punishment Theory, 2005 U. CHI. LEGAL F. 437, Teague, 443 F.3d at Id. ( Even [defendant] acknowledges that there is a circuit split on the issue before us; and our review of the circuit opinions suggests that there may not be any that would reject the elements instruction given here. Accordingly, we cannot accept... [the] contention that the district court committed error that was plain. ).

3 2008] REDEFINING THE QUESTION 1839 precise requirements for violation of section 875(c). 15 In doing so, the court noted the ambiguity of the terminology of general and specific intent. 16 Indeed, because the mens rea analysis for section 875(c) turns on ambiguous terminology, the resulting framework is confusing, and the mens rea requirement remains an unresolved question. This Note argues that clarification of the terminology general intent and specific intent is needed in order to synthesize the circuit courts analyses of the mens rea requirement for section 875(c). By reliance on ambiguous terminology, the courts are merging two distinct questions into one. The first question the courts have focused on, asks whether a showing of the defendant s state of mind is necessary for violation of section 875(c) or if an objective inquiry is sufficient. This question correctly considers the mens rea issue in terms of the state of mind required per element of the offense. However, because the courts analyze this question under the confusing framework of general versus specific intent, the majority of courts have reached the conclusion that objective intent is required. The arguments put forth in this Note conclude that subjective intent is required to violate section 875(c), contrary to the majority of circuits. The second question the courts have considered is whether it is sufficient to show that the defendant had intent to threaten or if it must be shown that the defendant had intent to carry out the threat. The courts have also framed this issue as between general and specific intent respectively, concluding that only intent to threaten is required. Although their conclusion is correct, this question incorrectly focuses on the conduct element of the offense, overlooking the correct mens rea concern, which is the state of mind. 17 Indeed, because this question considers conduct and does not consider state of mind, it is irrelevant to the mens rea analysis. Part I of this Note provides a general background of the terminology and requirements for violation of the criminal statute, and discusses the history of the statute. Part II discusses how the circuit courts are currently addressing the mens rea question. Part III argues that the majority has incorrectly concluded that objective intent is 15 Id.( [F]urther elaboration may be necessary to clarify precisely what the accused must know and intend. ). 16 Id. (stating that [w]e recognize that the terms general intent and specific intent can be ambiguous.... ). 17 See Audrey Rogers, New Technology, Old Defenses: Internet Sting Operations and Attempt Liability, 38 U. RICH. L. REV. 477, 484 (2004) (noting that the Model Penal Code s innovation of the elements analysis approach to criminal law requires a culpable mental state for each material element of an offense; the material elements include conduct, attendant circumstances, or result.); Paul H. Robinson, Reforming the Federal Criminal Code: A Top Ten List, 1 BUFF. CRIM. L. REV. 225, (1997) [hereinafter Robinson, Top Ten] (finding that a criminal code structure can be summarized by three questions; these questions separate out the conduct required to commit a crime from the requirement of culpability, i.e., whether an actor is blameworthy for his actions).

4 1840 CARDOZO LAW REVIEW [Vol. 29:4 required, discussing the error in the majority s logical deduction. In addition, this section argues that the Ninth Circuit has reached the right result, albeit using the wrong terminology. Part IV suggests, after a comparative analysis of Supreme Court cases, that subjective intent is the correct requirement. This section applies the Model Penal Code s hierarchical states of culpability, endorsed by the Supreme Court, concluding that either recklessness or knowledge is required to violate section 875(c). I. BACKGROUND A. Elements of Violation of a Criminal Statute The criminal law is informed by several principles that limit the distribution of punishment. 18 One of these principles is the requirement of culpability, 19 which corresponds to the Model Penal Code s general purpose to protect conduct that is without fault from criminal condemnation. 20 The two requirements that make up this notion of culpability 21 are actus reus or culpable conduct, 22 and mens rea or a culpable mental state. 23 Actus reus comprises the physical components of a crime, whereas mens rea comprises the mental components. Mens rea, the mental component, is concerned with the level of intent with which the defendant acted. That is, what the defendant intended, knew, or should have known when he acted. 24 Mens rea is separately considered for each element of a crime, rather than the crime as a whole. 25 The Model Penal Code endorses an elements analysis in 18 KADISH & SCHULHOFER, supra note 5, at Id. 20 MODEL PENAL CODE 1.02(1) (2006) (stating the general purposes of the provisions governing the definition of offenses; the third purpose is to safeguard conduct that is without fault from condemnation as criminal. ). 21 See KADISH & SCHULHOFER, supra note 5, at 173 (noting that culpability is also known as fault ). 22 Id. See also BLACK S LAW DICTIONARY, supra note 3, at 39 (defining actus reus as [t]he wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability ). 23 KADISH & SCHULHOFER, supra note 5, at 203; United States v. Bailey, 444 U.S. 394, 402 (1980) ( Criminal liability is normally based upon the concurrence of two factors, an evilmeaning mind [and] and evil-doing hand ) (quoting Morissette v. United States, 342 U.S. 246, 251 (1952)); see also United States v. Freed, 401 U.S. 601, 607 (1971) ( The presence of a vicious will or mens rea was long a requirement of criminal responsibility. ) (internal citation omitted); BLACK S LAW DICTIONARY, supra note 3, at 1006 (defining mens rea); JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW (2d ed. 1960) ( [T]he classical synonym of mens rea is evil will ). 24 KADISH & SCHULHOFER, supra note 5, at MODEL PENAL CODE 2.02(1) (2006) ( [A] person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to

5 2008] REDEFINING THE QUESTION 1841 which a court considers the appropriate mental component required per each material element of an offense. 26 According to the Model Penal Code, material elements of an offense are of three types; they are descriptive of conduct, attendant circumstances, or results. 27 Where mens rea or intent is not needed to violate a particular element of a statute there is strict liability. 28 However, as the criminal law has a preference for a requirement of mens rea, 29 strict liability is generally disfavored. 30 The mens rea requirement is sometimes defined in terms of the culpabilities of purpose, knowledge, recklessness, and negligence. 31 While purpose, knowledge and recklessness are truly mental states, negligence is a non-intentional requirement of culpability. 32 In addition, the terms general and specific intent are sometimes used to describe mental states. 33 The distinction between specific and general intent each material element of the offense ); see also Bailey, 444 U.S. at (noting that the required mental state may be different for different elements of a crime); 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW 5.1(d), at 338 (2d ed. 2003) ( [T]he mental ingredients of a particular crime may differ with regard to the different elements of the crime. ). 26 See Rogers, supra note 17, at Robinson, Top Ten, supra note 17, at 235 ( The Model Penal Code drafters invented a useful system for the precise definition of offenses. Section 1.13(9), defining elements of an offense, distinguishes between (i) conduct, (ii) attendant circumstances, and (iii) a result of conduct. These are the objective building blocks for offense definitions. ). 28 See People v. Hood, 462 P.2d 370, 377 (Cal. 1969). 29 United States v. Gypsum, 438 U.S. 422, 436 (1978) (noting the familiar proposition that [t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo- American criminal jurisprudence. ) (quoting Dennis v. United States, 341 U.S. 494, 500 (1951)); Staples v. United States, 511 U.S. 600, 606 (1994) ( Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored, and have suggested that some indicate of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. ). 30 Liparota v. United States, 471 U.S. 419, 426 (1985) ( Criminal offenses requiring no mens rea have a generally disfavored status. The failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law. ); see also Bailey, 444 U.S. at 404 n.4 ( [S]trict liability crimes are exceptions to the general rule that criminal liability requires an evil-meaning mind. ) (internal quotations omitted); Morissette v. United States, 342 U.S. 246, (1952) (describing the emergence of strict liability or public welfare offenses and commenting on the misgivings of their place in criminal law). 31 See MODEL PENAL CODE 2.02 (2006); see also Bailey, 444 U.S. at ( This new approach, exemplified in the American Law Institute s Model Penal Code, is based on two principles. First, the ambiguous and elastic term intent is replaced with a hierarchy of culpable states of mind. The different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence. ). 32 Kenneth W. Simons, Does Punishment for Culpable Indifference Simply Punish for Bad Character? Examining the Requisite Connection Between Mens Rea and Actus Reus, 6 BUFF. CRIM. L. REV., 219 n.6 (2002) ( [N]egligence, is more aptly described as a culpability term, not a mental state. ); Huigens, supra note 12, at 453 ( In negligence and the other nonintentional fault doctrines, fault is found not in a discrete mental state, but in a broader set of facts surrounding the offense. ). 33 See KADISH & SCHULHOFER, supra note 5, at 215 (noting that the concepts of specific intent and general intent have been used extensively in non-model Penal Code jurisdictions and

6 1842 CARDOZO LAW REVIEW [Vol. 29:4 arose at common law, in response to the problem of the intoxicated defendant. 34 At common law, evidence of intoxication was permitted to negate a showing of specific intent, but not general intent. 35 General intent in this sense meant intent to do an act whereas specific intent usually required intent to achieve a particular result. 36 For example, intent to commit a battery was considered to require general intent, whereas intent to commit a battery for the purpose of raping or killing was considered to require specific intent. 37 According to the Model Penal Code s requirements of culpability the intoxication defense applied where purpose or knowledge was the requisite mental state, but did not apply to recklessness or negligence. 38 Under this standard, specific intent was equivalent to purpose or knowledge, and general intent was equivalent to recklessness or negligence. 39 Since purpose, knowledge, and recklessness are all in England); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 6.5, at (2000) (presenting a Glossary of Intents ); HALL, supra note 23, at 142 (discussing mens rea terminology including general and specific intent). 34 See FLETCHER, supra note 33, 10.4, at ; People v. Hood, 462 P.2d 370, 377 (Cal. 1969); 1 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 65 (1984) (noting that the distinctions between general and specific intent arose as a device, conceived at common law, to achieve a certain result.... to permit evidence... to reduce the crime to a lower degree, but not to... result in total acquittal and noting that, the common law approach permitt[ed] voluntary intoxication as a defense to specific intent offenses and barr[ed] it as a defense to general intent offenses. ) (internal quotations omitted). 35 KADISH & SCHULHOFER, supra note 5, at 869; see also Greider v. Duckworth, 701 F.2d 1228, 1232 (7th Cir. 1983) ( The general rule at common law... was that voluntary intoxication was not a defense in a criminal proceeding. ) Furthermore, the Greider court noted that [i]n order for intoxication to relieve a defendant from responsibility, the crime charged must have involved specific intent, and the defendant must have been so intoxicated as to be incapable of entertaining the required specific intent. Id.; FLETCHER, supra note 33, 10.4, at 849 (noting that intoxication is admissible to negate ulterior intent, e.g., the intent to commit a felony inside the house, but inadmissible to negate the intent required for the base crime, e.g., the intent to break and enter). 36 See Hood, 462 P.2d at 378; see also 1 ROBINSON, supra note 34, 65 (noting the suggestion that with respect to intoxication general intent accompanies the base offense whereas specific intent refers to further objectives); KADISH & SCHULHOFER, supra note 5, at 216 ( Perhaps the least mysterious and most common usage of specific intent is to identify those actions that must be done with some specified further purpose in mind. ); FLETCHER, supra note 33, 10.4, at 849 (noting that the general intent is the intent accompanying the base offense; the specific intent goes beyond the base offense to reach further unrealized objectives). 37 Hood, 462 P.2d at 379 ( The difference... between... an intent to commit a battery and formulating an intent to commit a battery for the purpose of raping or killing may be slight, but it is sufficient to justify drawing a line between them and considering evidence of intoxication in the one case and disregarding it in the other. ) (emphasis added). 38 See WAYNE LAFAVE, CRIMINAL LAW 4.10(c), at (3d ed. 2000) (noting that in the majority of jurisdictions intoxication is not a defense where the culpability is recklessness or negligence). 39 See, e.g., Valerie M. Ryan, Comment, Intoxicating Encounters: Allocating Responsibility in the Law of Rape, 40 CAL. W. L. REV. 407, 419 (2004) ( [S]pecific-intent offenses correspond to offenses that require purpose or knowledge and general-intent offenses correspond to offenses that require recklessness or criminal negligence. ); Scott A. Anderegg, Note, The Voluntary Intoxication Defense in Iowa, 73 IOWA L. REV. 935, (1988) ( Under the Code,

7 2008] REDEFINING THE QUESTION 1843 subjective mental states, the intoxication approach did not differentiate between subjective and objective standards. By the end of the nineteenth century, most American courts followed the intoxication approach, allowing evidence of intoxication to be considered when determining specific, but not general intent. 40 Despite the prevalent usage of the terms general intent and specific intent at common law, as used today the terms are ambiguous and therefore confusing to apply. 41 The terms have been used in several different ways, 42 which do not always parallel their usage at common law. The Supreme Court has noted the confusion around this terminology, acknowledging at least three distinct usages of the terms. 43 One view which the Supreme Court has endorsed is that general intent corresponds with knowledge and specific intent with purpose. 44 This is distinct from the intoxication approach which defines general intent as recklessness or negligence, and specific intent as purpose or knowledge. It is also distinct from the approach of the majority of Circuits intoxication may provide a defense to crimes requiring purpose and knowledge (specific intent), but not to those crimes requiring only recklessness or negligence (general intent). ); Deborah W. Denno, Crime and Consciousness: Science and Involuntary Acts, 87 MINN. L. REV. 269, n. 437 (2002) ( [The] net effect... of the vague specific/general dichotomy... has operated as follows: Intoxication evidence could be adduced to disprove the elements of purpose or knowledge, where either sufficed to establish the offense, but intoxication evidence would be precluded to disprove recklessness or negligence, where either sufficed to establish the offense. ). 40 KADISH & SCHULHOFER, supra note 5, at 869; see also Montana v. Egelhoff, 518 U.S. 37, 47 (1996) ( [B]y the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged. ). 41 See United States v. Bailey, 444 U.S. 394, 403 (1980) ( This venerable distinction... has been the source of a good deal of confusion. ); Hood, 462 P.2d at 377 ( Specific and general intent have been notoriously difficult terms to define and apply.... ); 1 ROBINSON, supra note 34, 65 (discussing several views of the terms general and specific intent, and noting the confusion over the distinction); HALL, supra note 23, at 142 (noting the problems of terminology regarding mens rea including the terms general and specific intent.) Hall writes: The current confusion resulting from diverse uses of general intent is aggravated by dubious efforts to differentiate that from specific intent. Id.; FLETCHER, supra note 33, 6.5.6, at (noting the ambiguity of the terminology specific intent and general intent, and providing a glossary of three possible definitions for specific intent, and four possible definitions for general intent); KADISH & SCHULHOFER, supra note 5, at 216 ( [G]eneral and specific intent are often used inconsistently or applied loosely to entire crimes.... ); LAFAVE, supra note 25, 5.2(e), at 353 ( General intent is often distinguished from specific intent, although the distinction being drawn by the use of these two terms often varies. ). 42 United States v. Zunie, 444 F.3d 1230, (10th Cir. 2006) ( Federal courts have adopted inconsistent definitions of general intent and specific intent. ); LAFAVE, supra note 25, 5.2(e), at 353; 1 ROBINSON, supra note 34, Bailey, 444 U.S. at 403 (discussing several views of the terms general and specific intent). 44 Id. at 405 ( In a general sense, purpose corresponds loosely with the common-law concept of specific intent, while knowledge corresponds loosely with the concept of general intent. ); Morissette v. United States, 342 U.S. 246, (1952) (noting that Congress has sometimes required a specific intent or purpose which requires a specialized knowledge beyond the common-law intent to do injury).

8 1844 CARDOZO LAW REVIEW [Vol. 29:4 interpreting section 875(c), where general intent means objective, and specific intent means subjective. Each of these definitions of general intent and specific intent is unique and contributes to confusion where the terms are used and applied. B. History of Section 875(c) Section 875(c) of Title 18 of the United State Code was codified in The law was first passed in 1932, criminalizing the use of the mail to transmit a threat to injure or kidnap any person or to accuse a person of a crime or demand ransom for a person. 46 The 1932 Act explicitly required that the communication be sent with the intent to extort money or a thing of value. 47 In 1934, in response to the use of more sophisticated methods of transmitting threats, the act was expanded to include other means of communication. 48 As modified, the Act continued to require extortionate intent, but applied to threats sent by any method of communication. 49 In 1939, the Act was extended and applied to threats to kidnap or injure without extortionate intent. 50 While an extortionate intent was no longer required, the Act was still intended to address threats aimed at accomplishing some coercive purpose. 51 These types of threats are the subject of the typical cases considered today. 52 As codified in 1948, section 875(c) reads Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. 53 In order to find a violation of this statute, three elements must be proved: (1) a transmission in interstate or foreign commerce; (2) the communication contained a threat; and (3) the threat must be a threat to U.S.C. 875 (2000). 46 United States v. Baker, 890 F. Supp. 1375, 1383 (E.D. Mich. 1995). 47 Id. (noting that the kidnapping of Charles Lindbergh s son and the use of the mail to convey the threats and demands was a motivating factor for the passage of the Act). 48 Id. 49 Id. ( As modified, it applied to threats transmitted by any means whatsoever, but still required extortionate intent. ). More recently, the topic of threats transmitted through the internet has gained attention. See, e.g., David C. Potter, The Jake Baker Case: True Threats and New Technology, 79 B.U. L. REV. 779 (1999); Sally Greenberg, Threats, Harassment, and Hate On- Line: Recent Developments, 6 B.U. PUB. INT. L.J. 673 (1997). 50 Baker, 890 F. Supp. at ( The act s expansion was prompted by the recognition that many threats of a very serious and socially harmful nature were not covered by the existing law because the sender of the threat did not intend to extort money or other thing of value for himself. ) 51 Id. 52 Id. at c. 645, 62 Stat. 741 (1948).

9 2008] REDEFINING THE QUESTION 1845 injure the person of another. 54 The statute is silent on the mens rea requirement for each of these elements. 55 This Note focuses on the mens rea requirement for the second element. 56 That is, what level of intent, if any, is needed to prove the second element of the offense: that the defendant communicated a threat. C. Constitutional Threshold As a result of First Amendment protections of speech, a threat must be a true threat in order to pass the constitutional threshold for violation of section 875(c). 57 The test to determine whether a threat is a true threat was set out in Watts v. United States. 58 According to Watts, whether a statement is a true threat is determined by consideration of factors including the context of the statement, whether the statement has a political dimension, whether the statement was conditional, and the reaction of the listeners. 59 The question of what constitutes a true threat is often confused with the question of the requisite mens rea of the threat element of the offense. 60 However, the issue of true threat is a distinct issue from the question considered in this Note. 61 The statute initially requires the government to prove a true threat, separate and apart from the mens rea requirement imposed by the statute United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992). 55 United States v. Teague, 443 F.3d 1310, 1318 (10th Cir. 2006) ( Section 875(c) does not have an explicit mens rea requirement. ). 56 DeAndino, 958 F.2d at See Watts v. United States, 394 U.S. 705, 707 (1969) (stating that despite valid governmental interests, a statute which criminalizes a form of pure speech must be interpreted with the commands of the First Amendment clearly in mind. ). The First Amendment protects against the censorship or punishment of speech. This protection, however, is not absolute. Speech that is shown likely to produce a clear and present danger of a serious substantive evil [rising] far above public inconvenience, annoyance, or unrest does not fall within this protection. Terminiello v. Chicago, 337 U.S. 1, 4 (1949). 58 Watts, 394 U.S. 705 (considering the constitutional threshold for 18 U.S.C. 871(a) which criminalizes threats against the President of the United States). 59 Id. at United States v. Baker, 890 F. Supp. 1375, 1381 (E.D. Mich. 1995) ( Watts also makes clear that the question of whether a statement constitutes a true threat in light of the First Amendment is distinct from the question of the defendant s intent....the distinction between the two questions of whether a statement is a true threat for the purposes of First Amendment limitation, and the intention of the statement s maker, is important but unfortunately often confused. The confusion results from too loose a use of the phrase true threat. ). 61 For a discussion of the constitutional threshold of true threats, see Paul T. Crane, Note, True Threats and the Issue of Intent, 92 VA. L. REV (2006). 62 Watts, 394 U.S. at 707. This distinction between a true threat for constitutional purposes and a threat in violation of the statute s elements has caused confusion. See Justin Meyer Lichterman, Note, True Threats: Evolving Mens Rea Requirements for Violations of 18 U.S.C. 875(c), 22 CARDOZO L. REV. 1961, 1977 (2001).

10 1846 CARDOZO LAW REVIEW [Vol. 29:4 II. HOW THE MENS REA ISSUE IS CURRENTLY BEING ADDRESSED BY THE CIRCUIT COURTS The mens rea requirement for section 875(c) has been discussed by the circuit courts in terms of whether the statute requires general intent or specific intent. 63 While the circuits are in agreement that some mens rea is required for violation of section 875(c) (the statute is not a strict liability offense), 64 the circuit courts are split as to whether general or specific intent is required, with the majority of the circuits requiring general intent 65 and only the Ninth Circuit requiring specific intent. 66 The circuit courts approach to the general and specific intent debate considers the question of intent in terms of whether the requisite showing should be subjective or objective. 67 Specifically, the courts consider the prosecution s burden of proof for the second element of the offense the communication contained a threat. 68 Under a subjective intent standard, the prosecution would have to prove that the defendant was subjectively aware that he communicated a threat. 69 Alternatively, under an objective intent standard, the prosecution would have to prove that a reasonable recipient of the communication would consider the message to be a threat. 70 This standard is objective because it does 63 United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006). 64 There is agreement amongst the circuits that section 875(c) is not a strict liability offense. See United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) ( [M]ere omission... of any mention of intent will not be construed as eliminating that element from the crime denounced. ) (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)); United States v. Francis, 164 F.3d 120, 121 (2d Cir. 1999) ( Although the statute does not mention intent or willfulness, intent is of course an element of the crime. ); United States v. Darby, 37 F.3d 1059, 1063 (4th Cir. 1994) ( Although section 875(c) contains no explicit mens rea element, the statute is not presumed to establish a strict liability offense.... ). 65 The majority of circuits that have found a requirement of general intent include the First Circuit, Second Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Seventh Circuit, and Tenth Circuit. See Teague, 443 F.3d at 1319 (10th Cir. 2006) (affirming the district court s finding that only general intent is required to violate section 875(c)); United States v. Stewart, 411 F.3d 825, (7th Cir. 2005); DeAndino, 958 F.2d at 150; United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997); Darby, 37 F.3d at 1066; Francis, 164 F.3d at 121; United States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997); United States v. Himelwright, 42 F.3d 777, 783 (3d Cir. 1994). 66 Teague, 443 F. 3d at See, e.g., DeAndino, 958 F.2d at 149 ( The difference between a specific intent and general intent crime involves the way in which the intent is proved whether by probing the defendant s subjective state of mind or whether by objectively looking at the defendant s behavior in the totality of the circumstances. ). 68 Id. 69 See Stewart, 411 F.3d at See, e.g., Darby, 37 F.3d at The objective standard applied by the majority of courts takes the vantage point of the reasonable listener. That is, the standard is based on the reasonable recipient of the communication. In its constitutional analysis of true threats in United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997), the First Circuit applied a different general intent standard

11 2008] REDEFINING THE QUESTION 1847 not consider the defendant s state of mind. Accordingly, it is a nonintentional standard of criminal culpability. 71 The distinction between the subjective and objective mens rea requirements is significant. To the extent that a subjective standard is applied, the defense is able to offer evidence to dispute the fact that a particular defendant intended to communicate a threat. Consequently, certain defenses which dispute a particular defendant s state of mind would become available to the defendant. 72 For example, the defense of diminished capacity could be available to a defendant under a subjective standard. 73 Alternatively, if an objective standard were applied, the defendant could not offer his thoughts or explanations pertaining to his actions. Likewise, the above defense would be unavailable, because the defendant s state of mind would not be relevant. A. The Majority s Approach The majority of the circuits have found that the mens rea for the threat element of section 875(c) is objective intent. 74 The premise to define what constitutes a true threat. This standard was based on the reasonable defendant. Under Fulmer, a threat is a true threat if a defendant should have reasonably foreseen that the statement he uttered would be taken as a threat by those to whom it is made. Whiffen, 121 F.3d at 21 (quoting Fulmer, 108 F.3d at 1491). Although the standards are different, because both standards are objective the distinction is not always significant. For example, in Whiffen, the court found that the difference between the two standards was harmless error. There, the court charged the jury based on a reasonable listener standard, and the defendant appealed. The court explained: The facts of this case are such that the instructions required under Fulmer and the instructions actually given in this case are functionally equivalent. In certain situations... there may be information known to the listener, but not to the speaker... that would cause a reasonable listener to perceive a statement as an expression of an intent to injure despite the fact that a reasonable speaker would not view it as such. That is not the case here. It is not possible that the words spoken by Whiffen were reasonably understood... as an expression of an intent to injure, and yet such an outcome would not have been foreseen by a reasonable speaker in Whiffen s position. Whiffen, 121 F.3d at 23. The distinction between the reasonable recipient and reasonable defendant is not considered in this Note. Both standards consider a reasonable person and neither considers the view of the particular defendant. Because the standards are similar in their objectivity, they are indistinguishable for the purpose of the analysis in this Note. 71 See Huigens, supra note 12, at (noting that objective standards such as negligence are non-intentional standards of criminal fault). Indeed the majority s objective standard sounds like the Model Penal Code s standard of negligence as it is based on a reasonable person standard. See MODEL PENAL CODE 2.02 (2006). 72 United States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988) (holding that diminished capacity, like voluntary intoxication, is only a defense where specific intent is at issue because of the increased probing into the defendant s subjective state of mind that accompanies the trial of a specific intent offense). 73 See supra note 72; Crane, supra note See supra, note 65.

12 1848 CARDOZO LAW REVIEW [Vol. 29:4 underlying the majority s conclusion is that where a statute does not explicitly require proof of specific intent, general intent is presumed. 75 And, according to the majority, a requirement of general intent means that the prosecution must prove only an objective intent to threaten. Thus, in order to show that a defendant communicated a threat, it must be shown that a reasonable person would interpret the message as a threat. United States v. Darby is an example of the majority s approach. 76 There, the defendant was convicted of sending threatening communications to employees of the IRS. 77 On appeal the defendant argued that the jury instructions incorrectly stated that section 875(c) did not require a showing of specific intent. 78 In its analysis, the court framed the issue of specific and general intent in terms two authorities, reflecting its view that the relevant inquiry was whether subjective or objective intent was required. 79 The court cited with approval the presumption for general intent where the statute does not specify a heightened mens rea. Then, the court applied this presumption by concluding that an objective mens rea was required. 80 The court held that the threat element of the offense is determined by the interpretation of a reasonable recipient with the context of the communication. The government does not have to prove that the defendant subjectively intended for the recipient to understand the communication as a threat. 81 The line of reasoning followed by most courts making up the majority can be summarized in three points. These are: (a) the mens rea issue is defined in terms of general versus specific intent; 82 (b) in the 75 See, e.g., United States v. DeAndino, 958 F.2d 146, (6th Cir. 1992) ( [B]ecause the language of section 875(c) does not expressly require a heightened mental element in regard to the communication containing a threat, it is presumed that the statute requires general intent. ); United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997) ( As a straightforward matter of textual interpretation, we will not presume that a statutory crime requires specific intent in the absence of language to that effect. Because 875(c) contains nothing suggesting a specific intent requirement, it defines only a general intent offense. ) (citations omitted); Darby, 37 F.3d at 1066 ( In the absence of an explicit statement that a crime requires specific intent, courts often hold that only general intent is needed. ) (quoting United States v. Lewis, 780 F.2d 1140, (4th Cir. 1986)). 76 Darby, 37 F.3d at Id. at Id. at Id. at (noting that one line of authority looks to whether a reasonable recipient would interpret the communication as a threat, and the other line of authority requires proof that a defendant intended his communication to be received as a threat). 80 Id. at 1066 (citing with approval the DeAndino court s reliance upon the presumption of general intent, the court notes that such a presumption exists in this circuit as well. ). 81 Id. (emphasis added). 82 See United States v. Whiffen, 121 F.3d 18, 20 (1st Cir. 1997) ( Under a general intent standard, whether a communication is a true threat is determined objectively from all the surrounding facts and circumstances, rather than from the defendant s subjective purpose. );

13 2008] REDEFINING THE QUESTION 1849 absence of an explicit statutory requirement of specific intent (as absent in this statute), general intent is presumed; 83 and (c) general intent means that an objective showing of intent is required. 84 B. The Ninth Circuit s Approach In United States v. Twine, 85 the Ninth Circuit considered the mens rea requirement for the threat element of section 875(c) and reached the opposite conclusion from the majority. 86 There, the defendant appealed his conviction under section 875(c), arguing that he should be able to use the diminished capacity defense to negate the essential elements of the offense. 87 This defense would only have been available to the defendant if the mens rea requirement was subjective, which, according to the court s use of the term is equivalent to specific intent. 88 The court explained that the limited use of this defense is similar to the intoxication setting. 89 In its analysis, the court acknowledged that the statute did not define a strict liability offense, despite the lack of an explicit mens rea United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997) (contrasting the Ninth Circuit approach requiring specific intent meaning the defendant intended his statement to be perceived as a threat. ). 83 Myers, 104 F.3d at 81 ( [W]e will not presume that a statutory crime requires specific intent in the absence of language to that effect. ); United States v. DeAndino, 958 F.2d 146, (6th Cir. 1992) ( [B]ecause the language of section 875(c) does not expressly require a heightened mental element in regard to the communication containing a threat, it is presumed that the statute requires general intent. ); Darby, 37 F.3d at 1066 (finding that there is a presumption of general intent where the statute does not specify specific intent and that this presumption exists in the Fourth Circuit). 84 DeAndino, 958 F.2d at 149 (stating that general intent is proved by objectively looking at the defendant s behavior); see Darby, 37 F.3d at 1066 (noting that under a general intent approach, one must examine whether a reasonable recipient would interpret the communication as a threat) F.2d 676 (9th Cir. 1988). 86 Id. 87 Id. at 678. The defense of diminished capacity argues that the defendant did not possess the ability to attain the culpable state of mind required to violate an element of the crime. Id. 88 Id. at 679 (noting that the restrictive use of these defenses reflects the increased probing into the defendant s subjective state of mind that accompanies the trial of a specific intent offense ). 89 Id. at 679 ( This inquiry is necessary because diminished capacity, like voluntary intoxication, generally is only a defense when specific intent is at issue. ). The court s comparison of the diminished capacity and voluntary intoxication defenses represents its confusion with the term specific intent. On the one hand, the court aligns specific intent with subjectivity. On the other, the court points to the hierarchical Model Penal Code structure, distinguishing purpose and knowledge from recklessness and negligence. Id. at 680. In fact, while diminished capacity works consistently along the subjective-objective line, the voluntary intoxication defense is defined by the mental states of purpose, knowledge, recklessness, and negligence, rather than the subjective-objective dichotomy. See supra note 38 and accompanying text.

14 1850 CARDOZO LAW REVIEW [Vol. 29:4 requirement. 90 According to the court, intent was a vital issue in the prosecution under section 875(c). 91 Then, the court found that subjective intent was required. 92 The court reasoned that subjective intent, which considered the defendant s state of mind, ensured that a defendant would not be convicted because of mistake, inadvertence, or other innocent conduct. 93 In order to avoid such an erroneous outcome, a level of culpability that exceeds an objective standard was required. 94 The Twine decision reflects the Ninth Circuit s approach to the mens rea requirement of section 875(c). First, the Ninth Circuit determined that intent was a critical component of the offense. Then, the Ninth Circuit reasoned that an objective standard carries the risk that a defendant will be convicted of a crime without having the intent to threaten. In order to avoid that a defendant is convicted because of such a non-intentional reason, 95 the Ninth Circuit concluded that subjective mens rea is required. III. ANALYSIS OF CURRENT APPROACHES A. The Majority s Analysis Relies upon an Erroneous Assumption Regarding the Definitions of General and Specific Intent In the third step of its analysis, the majority of courts concluded that a finding of general intent requires an objective mens rea. 96 To the majority, general intent and objective intent are synonymous, and specific intent and subjective intent are synonymous. Importantly, the majority does not use the terms according to the traditional intoxication definitions 97, nor does the majority define the terms according to the Supreme Court s usage of the terms. 98 Despite the majority of courts 90 Id. at 680 (citing with approval the Ninth Circuit s decision in United States v. Seeber, 329 F.2d 572 (9th Cir. 1964), which concluded that section 875(c) was not a strict liability offense). 91 Id. 92 Id. (finding that the showing of intent to threaten under section 875(c) requires a showing of specific intent). 93 Reflecting on its related decision in Seeber, the court stated, the purpose of adding the word knowingly [to the jury instruction] was to insure that no one would be convicted for an act because of mistake, inadvertence, or other innocent reason. Id. at 680 (quoting Seeber, 329 F.2d 577). 94 Id. Not only is proof of culpability required, but the level of culpability must exceed a mere transgression of an objective standard of acceptable behavior. Id. 95 See supra note See supra note The intoxication approach defines general intent as recklessness or negligence. See supra note See supra note 43. The Supreme Court s definition of specific intent corresponds with the Model Penal Code s approach to culpability. 1 ROBINSON, supra note 34, 65 ( Where the term specific intent is used in a modern code... it may be taken to refer to a culpability scheme like

15 2008] REDEFINING THE QUESTION 1851 conclusion that general intent means objective intent with respect to its conclusion regarding section 875(c), the majority employs inconsistent usages and the definitions of the term. For example, in one opinion, the majority referred to general intent as defendant s intent to threaten and specific intent as the heightened intent to carry out his actions. 99 This definition does not have to do with a defendant s objective or subjective intent, but rather considers the extent of the conduct required to violate the statute. The appropriate question considered by such use of the terms would be: must the defendant intend to threaten or must the defendant intend to threaten and also intend to carry out the threat? 100 Indeed, this inquiry does not have to do with the state of mind or mens rea. Therefore, the definition of specific intent is not only incorrect, but reflects the majority s confusion over the terminology. Similarly, in United States v. Stewart, the Seventh Circuit acknowledged that the traditional use of the terminology general intent and specific intent was something other than objective and subjective intent. 101 In considering the defendant s argument, the court noted that defendant chose to present his argument using the traditional terminology of specific intent and general intent. He might also have used the precisely defined terms of the Model Penal Code, purposefully and knowingly. 102 Here, the majority employs general intent and specific intent to mean purposely and knowingly, reflecting yet another inconsistent use of the terminology. Moreover, because purposely and knowingly are both subjective states of culpability, this use of the terminology completely contradicts the subjective-objective definitions which the majority relies upon in its finding regarding that of the Model Penal Code s; specific intent may be taken to refer to the highest culpability level on the spectrum of negligence, recklessness, knowledge, and intent. ). 99 See United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994) (distinguishing between a general intent to make a threat to injure another, on the one hand, and a subjective intention to carry out the threats, on the other ); LAFAVE, supra note 25, 5.2(e), at 354 ( [T]he most common usage of specific intent is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime. ); KADISH & SCHULHOFER, supra note 5, at 216 ( Perhaps the least mysterious and most common usage of specific intent is to identify those actions that must be done with some specified further purpose in mind); Morissette v. United States, 342 U.S. 246, (1952) ( [Congress] has at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common-law intent to do injury. ). 100 The distinction in this example is between different descriptors of conduct. Although the mental state of purpose may almost always correspond with the conduct element such as intent to carry out the threat, this culpability requirement is not necessary to this element. For example, it is possible that a defendant is reckless with respect to the element intent to carry out the threat, even if this is unlikely. Most importantly, to conduct an accurate mens rea analysis, it is critical that the material elements (conduct, attendant circumstance, result) are separated out from the mens rea analysis. See supra note United States v. Stewart, 411 F.3d 825, 827 n.2 (7th Cir. 2005). 102 Id. at 827, n.2 (citation omitted).