Friday, May 27, 2005

Case o' the Week: A good "Cassel" decision? (Yes, but not out of Utah)

In a rare positive development for scienter in criminal law, the Ninth Circuit reads a mens rea requirement into a federal threats case. United States v. Cassel, __ F.3d. __, 2005 WL 1217387 (9th Cir. May 24, 2005), available here.

Players: "Mr. Mooch Face," who was "extremely ugly" and "had once been run over by a car." Cassel, __ F.3d. __, 2005 WL 1217387, *1.

Facts: Paul Cassel lived with his girlfriend on her property in the Mojave desert. Id. The Bureau of Land Management wanted to sell adjacent lots, but Cassel was unhappy to have new neighbors. He warned the first prospective buyer that the area was filled with child molesters, murders, producers of illegal drugs, devil-worshipers, and witches, and described local mine explosions and cyanide contamination. Id. Cassel allegedly told the second potential buyer that anything built on the adjacent lot would "definitely burn," and would be "stolen, vandalized – he would see to that." Id. The defendant was convicted of making threats to discourage a federal land sale, in violation of 18 USC § 1860. Id. at *2.

Issue(s): "Whether intent to threaten the victim [in Section 1860] is required in order for speech to fall within the First Amendment exception for threats." Id. at *3.

Held: "We are therefore bound to conclude that speech may be deemed unprotected by the First Amendment as a ‘true threat’ only upon proof that the speaker subjectively intended the speech as a threat." Id. at *9. "Having held that intent to threaten is a constitutionally necessary element of a statute punishing threats, we do not hesitate to construe 18 USC § 1860 to require such intent." Id. at *10.

Of Note: This thoughtful opinion concedes the confusion in the Ninth over whether there was a "subjective intent" mens rea in the federal threat statute. Notably, the panel, lead by O’Scannlain, holds that the instructions in Cassel’s case were insufficient because they did not require proof of the defendant’s subjective intent, or that the threat created fear or apprehension that the threat would be carried out by the defendant. Id. at *10-*12.

How to Use: Cassel will be an important decision for any federal threats case; existing sample jury instructions will have to be revised in light of the opinion’s holdings. Note that the Ninth holds that the Supreme Court has required (in Virginia v. Black, 538 U.S. 343 (2003)), that "intent to intimidate is necessary and that the government must prove it in order to secure a conviction." Id. at *9. Thus, Cassel’s view of the First Amendment requirements will have ramifications for threat cases far outside of the confines of Section 1860.

Cassel is also one of the few good cases of late on scienter, with excellent language on the statutory construction requirement to read mens rea into criminal statutes. Id. at *9. As the Court explains, "Thus, except in unusual circumstances, we construe a criminal statute to include a mens rea element even when none appears on the face of the statute." Id. Granted, this liberal reading is to avoid finding the statute unconstitutional, but who are we to question the Court’s motives when it gives us favorable law? (Compare this decision’s mens rea analysis with the horrible scienter discussion in another recent case, United States v. Rosemary Houston, __ F.3d __, 2005 WL 1076091 (9th Cir. May 9, 2005), available here.).

For Further Reading: If the Supreme Court issues intervening authority, can a three-judge panel follow that decision despite contrary Ninth Circuit authority? Yes, says Cassel, citing the intriguing case of Miller v. Gambie, 335 F.3d 889, 899 (9th Cir. 2003). This principle is important in our Apprendi/Booker/Shephard litigation – AFPD Steve Sady has seized on the Miller case in articulating these arguments. See Sady blog here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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