Saturday, May 15, 2010

Case o' The Week: Left, Right, and Scienter -- Castagana and Mens Rea in Threats Statute

What do Jon Stewart and the Honorable Speaker of the House Nancy Pelosi have in common? One thing they'd rather not have shared: they both were the recipients of "threat" letters containing white powder from a mentally-ill defendant, Chad Conrad Castagana. Unfortunately, his prosecution results in an opinion that is another blow to meaningful mens rea standards in federal criminal statutes. United States v. Castagana, __ F.3d __, 2010 WL 1930231 (9th Cir. May 14, 2010), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Elizabeth Newman.

Facts: Castagana sent fourteen letters containing threatening notes and a white powder (a soap mixture). Id. at *1. These letters were sent to comedians like Jon Stewart and Letterman, politicians like Nancy Pelosi, and others. Id. “The letters threatened their recipients and expressed hostility to their assumed left-wing political views.” Id. at *1.

He was charged with a violation of the federal threats, or “hoax” statute: 18 USC § 1038(a)(1). Id. At trial, “Castagana defended on the ground that his mental disorders prevented him from forming the intent required for a violation of § 1038(a)(1). He introduced evidence of a long history of a severe mental condition.” Id. at *2. Castagana sought an instruction “that required the government, in order to convict, to prove that Castagana intended his targets, as reasonable persons, to believe that the envelopes contained anthrax.” Id.

The instruction was denied; Castagana, convicted. Id.

Issue(s): “On appeal, Castagana challenges the district court’s rejection of his requested jury instruction, which would have required the jury, in order to convict, to find that he specifically intended the recipients of his letters reasonably to believe that they contained anthrax.” Id. at *1.

Held: “We conclude that § 1038(a)(1) contains no such specific intent element, and we accordingly affirm Castagana’s conviction.” Id.

Of Note: Castagana is a heavy statutory interpretation case, and as such, is arguably limited to the uniquely broad language of this threats statute. Unfortunately, the real sting of Castagana is Judge Canby’s refusal to “read the scienter requirement to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at *3 (discussing X-Citement Video). Future mens rea fights will have to distinguish Castagana, arguing that this hoax statute only escaped X-Citement Video’s higher scienter requirements because its language was unambiguous.

How to Use: Judge Canby dodges a First Amendment attack by finding that the issue was waived for failure to bring it in the district or appellate court. Id. at *5. Hence, that very interesting constitutional challenge survives. An issue for a future threats case is whether a “proscription of expressive conduct or speech was a violation of the First Amendment in the absence of a requirement of intent to intimidate, which intent would render their conduct or speech an unprotected threat.” Id. at *5.

(It is a wonderful irony that some federal Public Defender will almost certainly be the lead champion of the sacred First Amendment right to harshly criticize liberals, in a future case that involves a mentally-ill client threatening “left-wing” politicians).

For Further Reading: What do the (conservative) Heritage Foundation and the (liberal) National Association of Criminal Defense Lawyers have in common? Well, among other things, they share a healthy distrust of government and an unshakable belief in individual rights.

The latest illustration of their common views is a thought-provoking study by Brian Walsh and Tiffany Joslyn: “Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law,” available here . This report is an exhaustive analysis of the devolution of the mens rea requirement in federal criminal statutes.

Read this May 5th report alongside Castagana’s recital of the legislative history of the threats statute (and Congress’s rejection of a real mens rea requirement in 1038(a)(1)), for very recent proof of a legislative trend that both conservatives and liberals agree is disturbing.

Image of Jon Stewart from . Image of the Honorable Representative Nancy Pelosi from

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


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