The CLR is happy to present the great work of yet another one of our talented staff editors. This blog entry regarding a recent case decided by the 10th Circuit was brought to you by Samit Bhalala.
United States v. Wheeler, No. 14-1031, 2015 WL 191149 (10th Cir. Jan. 15, 2015).
On March 12, 2012, Kenneth Wheeler, while abroad in Italy, posted several status updates to his Facebook page advising his “religious followers” to “kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines” and provided names, and made a serious of other vengeful and threatening remarks. United States v. Wheeler, No. 14-1031, 2015 WL 191149, at *1 (10th Cir. Jan. 15, 2015).
Mr. Wheeler is described as a man with strong anti-government views and has become irate at specific police officers in Grand Junction, Colorado, because of, among other things, a DUI arrest that he believed was a set up. Id.
Even though, as evidenced by Facebook’s records, there was no implication that Mr. Wheeler was a member of any “network” at the time he made his postings, two officers testified that they had viewed Mr. Wheeler’s Facebook page on March 16, 2012, and thought he had Facebook friends listed on it. Id. Subsequently, the US District Court for the District of Colorado convicted Mr. Wheeler of two counts of transmitting a threat in foreign commerce under 18 U.S.C § 875(c) based on his March 12 and March 16 Facebook status updates that called upon his “religious followers” to carry out violent acts. Id. at *1-3. Mr. Wheeler was sentenced, among other penalties, to forty months imprisonment for each count, running concurrently. Id.
Under 18 U.S.C. § 875(c), “whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injury the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Id. at *2 (quoting 18 U.S.C. § 875(c) (2014)).
Pursuant to 28 U.S.C. § 1291 jurisdiction, the Tenth Circuit Court of Appeals heard Mr. Wheeler’s appeal and released a decision on January, 15, 2015. Id. at *1. Mr. Wheeler contends that his convictions must be reversed because: (1) the jury was not properly instructed that it had to find Mr. Wheeler had a subjective intent to threaten in order to convict; and (2) the evidence was insufficient to support a finding that Mr. Wheeler transmitted a “true threat.” Id. The court, in an opinion by Circuit Judge Kelly, reversed for a new trial, holding that: (1) “the jury was not properly instructed,” and (2) the court is “not persuaded that the evidence was insufficient to convict.” Id.
(A) Erroneous Jury Instruction
At trial, Mr. Wheeler proposed two jury instructions on the elements of the offense, both requiring the jury to find that “Mr. Wheeler understood and meant the words as a true threat.” Id. at *2. The government opposed these proposed instructions, arguing that it incorrectly makes § 875(c) “a specific intent crime rather than the general intent crime that it is.” Id. The district court agreed, rejecting Mr. Wheeler’s proposed instructions, and thereby instructed the jury as to the requisite state of mind element of a “threat,” stating: “Whether the defendant intended or had the ability to carry out the threat is not relevant. The inquiry is how a reasonable person would have perceived the threat.” Id. at *2-3 (emphasis added).
In United States v. Heineman, the Tenth Circuit recently held that § 875(c), in accordance with the First Amendment, requires evidence of a defendant’s subjective intent to threaten. Id. (Citing United States v. Heineman, 767 F.3d 970 (10th Cir. 2014)). The government, although arguing that Heineman was incorrectly decided, does concede that under current Tenth Circuit law the trial court’s jury instructions were erroneous. Id. at *3. Still, however, the government contends that the conviction should be affirmed because the erroneous instructions were harmless. Id.
“Where an element is improperly omitted from a jury instruction, “a court” must reverse unless ‘it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’” Id. (citing Neder v. United States, 527 U.S. 1, 18 (1990)); see also United States v. Sierra-Ledesma, 645 F.3d 1213, 1217 (10th Cir. 2011). Here, the court found that a rational juror could conclude, based on the evidence presented, that Mr. Wheeler did not subjectively intend for his remarks to be threatening. Id. at *3-4.
First, Mr. Wheeler states that he believed he had no Facebook friends at the time of both status updates; therefore it would not seem far-fetched for a rational juror to believe that Mr. Wheeler honestly thought nobody would see his posts. Id. Second, Mr. Wheeler states that he had no religious followers, whereby a rational juror can use that fact in evaluating whether Mr. Wheeler had the requisite intent to threaten. Id.
In response, the government suggests several uncontested facts, which convincingly confirms Mr. Wheeler’s intent to instill fear in the individuals he mentioned in his Facebook posts, including 1) Mr. Wheeler’s understanding of the illegality of his actions and 2) Mr. Wheeler intended his posts to be threatening. Id. The court found the second argument to be lacking, because Mr. Wheeler’s intention to break the law does not establish that he intended for the mentioned parties to feel threatened. Id.
Because Mr. Wheeler’s intent was not “supported by uncontroverted evidence,” the court held that a jury, upon retrial, must determine the issue of intent, thereby making this erroneous jury instruction not harmless. Id. at *3-4 (citing Neder, 527 U.S. at 18).
(B) Evidence was Sufficient to Support Mr. Wheeler’s Conviction
On appeal, Mr. Wheeler argues that the evidence presented at trial was insufficient to support his conviction because his Facebook status updates did not express his own intent to do violence. Id.
- Standard of Review Exception
Generally, the Tenth Circuit reviews claims of evidentiary sufficiency under a deferential standard, thereby “view[ing] all the evidence, direct or circumstantial, together with all reasonable inferences therefrom, in the light most favorable to the prosecution.” United States v. Leaverton, 835 F.2d 254, 255 (10th Cir. 1987). Under this deferential standard, the reviewing court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
However, the United States Supreme Court has set forth an exception to this deferential rule, applicable when a defendant argues the First Amendment protects his speech. 2015 WL 191149, at *4. In Bose Corp. v. Consumers Union of United States, Inc., the Supreme Court held that in cases involving “constitutional facts,” the reviewing court must undertake an “independent review” of the record to determine if the speech qualifies as unprotected speech and whether the fact-finder correctly applied First Amendment law. 446 U.S. 485, 500-08 (1984).
(2) Exhortation as a “True Threat”
In Watts v. United States, the Supreme Court previously held that § 875(c), like all threat statutes, “must be interpreted with the commands of the First Amendment clearly in mind.” 394 U.S. 705, 707 (1969). Consequently, § 875(c) applies only to “true threats”, which are threats outside the protective scope of the First Amendment. 2015 WL 191149, at *5 (quoting Viefahus, 168 F.3d at 397). In distinguishing “true threats” from First Amendment protected speech, it is not essential to demonstrate that “the defendant intended to or had the ability to actually carry out the threat.” Id. (quoting Viefahus, 168 F.3d at 395-96). Instead, a court must undergo “a fact-intensive inquiry, in which the language, the context in which the statements are made, as well as the recipients’ responses are all relevant.” Id. (quoting Nielander v. Bd. Of Cnty. Comm’rs, 582 F.3d at 1155, 1167-68 (10th Cir. 2009)).
Mr. Wheeler argues that his Facebook posts were directed to non-existent “religious followers” and therefore cannot amount to true threats. Id. at *6. The court rejected this argument, maintaining that: “if a reasonable person might believe the individuals ordered to take violent action are subject to the will of the threatening party, such exhortations may amount to true threats.” Id. (emphasis added).
(a) “Incite” Versus “Threat”
Mr. Wheeler argued that by defining true threats to include exhortations, like the one in this case, would “abolish the constitutional distinction between threats and incitement to violence,” thereby, would allow “incitement to be charged under the more lenient threat standard.” Id. at *7.
In “cyberspace,” the line between incitement and threat is not always clear. Id. (contrasting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). The court found, that although Mr. Wheeler’s speech may appear to be closer to incitement,” the speech “fits squarely within the rationale for excluding true threats from First Amendment Protection.” Id. The court reasoned that if it did not view Mr. Wheeler’s status updates as a “true threat,” it would leave the state “powerless against the ingenuity of threateners.” Id. (citing United States v. Turner, 720 F.3d 411, 422 (2d Cir. 2013)).
(b) Reasonable Person Standard
In determining whether Mr. Wheeler’s exhortations amount to “true threats,” the court addressed whether a reasonable person would interpret Mr. Wheeler’s Facebook posts to be serious threats, “in light of the full context in which the posts were made, including the reaction of the recipients.” Id. (emphasis added).
In light of the circumstances surrounding the Facebook posts, the court found that a rational juror could consider them to be true threats. Id. at *8. Recently, in the wake of recent massacres at educational and other institutions by active shooters, a Facebook post, which commands “religious followers” to take deadly action against a number of specific individuals and their children, could be viewed by a reasonable person as “serious directives to kill.” Id.
Although Mr. Wheeler places dispositive weight on the fact that these “religious followers” do not exist, he did concede “had he directed anyone under his control to do violence, his posts would have amounted to true threats.” Id. Therefore, a reasonable person could conclude that a command to followers to commit acts of violence. Id.
Furthermore, the evidence presented at trial suggests that the parties referenced in Mr. Wheeler’s posts were frightened, some frightened enough to inform the police. Id. at *9
The court held, that in light of the context and circumstances surrounding the event, a fact-finder could find Mr. Wheeler’s posts and the reactions therefrom, as “eminently reasonable.” Id.
This court, on appeal, was unable to say that no rational fact-finder could find Mr. Wheeler’s statements to be true threats; therefore the district court’s jury instruction was erroneous. Id. at *4. Additionally, this court found the evidence presented at trial was sufficient, thereby permitting a re-trial. Id. at *9.
Should a general threat made on social media amount to a criminal offense? Does this have any implications on the 1st Amendment right to free speech and expression?