Symposium Success

Thank all of you who joined the Criminal Law Review for our 2016 symposium on the “State of the Death Penalty. Our panel of guest speakers, moderated by DU Law Professor Nancy Leong, argued about the constitutionality, social utility, and future availability of capital punishment in our legal system. Speakers included criminal defense attorney Jim Castle, Senior Deputy DA Rich Orman, DU Law Professor Ian Farrell, former Chief Deputy DA and radio host Craig Silverman, and candidate for Denver DA Michael Carrigan. The expertise and unique viewpoints of the panelists made for an exciting two-hour debate.

For those of your who are interested, you can watch the full symposium here.

State of the Death Penalty Symposium

Criminal Law Review

4:00 – 6:00 PM
Reception to Follow in the Forum
*Guest Parking will be available in Lot L for $6*

Speakers Include:
Stan Garnett, Elected District Attorney, 20th Judicial District
Jim Castle, Colorado Criminal Defense Attorney
Rich Orman, Senior Deputy District Attorney, 18th Judicial District
Professor Ian Farrell, University of Denver Sturm College of Law
Professor Nancy Leong, University of Denver Sturm College of Law

The death penalty, its use and misuse, and its place in our society are undoubtedly among the most controversial topics faced by our political and justice systems. Especially in Colorado, the pressure of victims’ families and communities to seek or support the death penalty has clashed against a relatively recent surge of arguments to the contrary. As a state central to the nation-wide debate regarding the death penalty, Colorado needs a platform conducive to intelligible dialogue on the contemporary state of capital punishment.

The inaugural symposium of the University of Denver, Criminal Law Review, “The State of the Death Penalty,” to be hosted at the University of Denver, Sturm College of Law, on April 2, 2016, will feature speakers with differing backgrounds from a variety of areas of the law intersecting with the death penalty, including Colorado prosecutors and defense attorneys. The symposium will be structured as a moderated debate that highlights the modern controversies surrounding capital punishment, including those issues presently before the Supreme Court. Specifically, the panelists will address the legal, social, and constitutional arguments for and against the continued availability and usefulness of the death penalty, both in Colorado and across the nation.

2015 Fall Candidacy Opens October 2.

The Criminal Law Review Fall 2015 candidacy period will take place October 2-19, 2015. Materials will be available on TWEN beginning October 2.
There are 4 components to the candidacy packet:

1. Source/cite check
2. Case Comment
3. Resume/Cover Letter
4. 30-minute Interview

Please insure that components 1-3 are completed by October 19 at 11:59pm. Late submissions will not be considered for the staff editor positions absent extenuating circumstances. Interviews will be scheduled following the October 19.

Please contact Samit Bhalala with questions at

We look forward to welcoming a group of new staff editors to the CLR!!

Whitfiled v. United States (SCOTUS)

Before we take a short break for the finals season, CLR’s exceptional staff editor, Courtney Mohan has prepared this blog entry discussing a recently decided U.S. Supreme Court case.


Shortly after botching a bank robbery, Larry Whitfield fled police. While on the run, he was able to find an unlocked home nearby and enter the home. That home belonged to 79-year-old Mary Parnell. Mr. Whitfield encountered Ms. Parnell while in the home and forced her to follow him from the hallway to another room within the house. Once inside the room, Ms. Parnell suffered a heart attack and passed away. Whitfield then fled the house and was later apprehended by police. Whitfield v. United States, 135 S. Ct. 785, 787 (2015).

After a grand jury hearing, Mr. Whitfield was indicted for many charges including violating 18 U.S.C. §2113(e) which states “[w]hoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense… forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.” Id. at 787. A jury later found Mr. Whitfield guilty of the offense. Id. at 788.

Mr. Whitfield appealed his conviction, stating that he did not violate §2113(e) because his movement with Ms. Parnell was not “substantial.” The Court of Appeals disagreed with Mr. Whitfield’s argument and stated that the short distance from the hall to the room during the very brief period of time was enough to satisfy a conviction. Id.

Mr. Whitfield then appealed to the Supreme Court of the United States. Id.


In 1934, Congress enacted §2113(e) as a response to the “bank robberies committed by John Dillinger and others.” Carter v. United States, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting). The phrase “forces any person to accompany him without the consent of such person” from the statute has remained unchanged since 1934. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 783 (2000).

The Court looked to the meaning of the word “accompany” in 1934 when interpreting the statute. Whitfield, 135 S. Ct. at 788. The Court determined that the word simply means “to go along with” someone and does not require the “substantial” movement that Mr. Whitfield argued for. Id. The Court stated that there must be some sort of movement “from one place to another” to satisfy the statute. Id. Thus, the movement from the hall to the nearby room was sufficient. Id.

Mr. Whitfield also attempted to argue that because the statute carried harsh penalties, the movement must be “substantial.” Id. at 789. The Court rejected this argument and stated that the distance of the movement does not make the accompaniment more or less dangerous. The Court offered examples to prove this point including having a victim go to a window and be subjected to police fire. Id. Because Congress did not allow for a distance limitation in the statute, the Court refused to adopt one. Id.

Mr. Whitfield then attempted to convince the Court to adopt a narrow reading of the statute to require a forced accompaniment over a substantial distance because anyone involved in the bank robbery who moved could cause Mr. Whitfield to be convicted under §2113(e). Id. at 789. The Court disagreed and stated that the word “accompany” requires that the victim go somewhere with the robber and does not include victims who move without force. Id.


The Court concluded that Mr. Whitfield violated §2113(e) because he forced Ms. Parnell to accompany him from the hall to a room. Therefore, his conviction was affirmed.

Do we think section 2113 was intended to punish defendants in Mr. Whitfield’s position with life imprisonment or death?  Is it appropriate to treat this “forced accompaniment” that results in death similarly to felony-murder that exists in many jurisdictions?

Please let us know your thoughts, we love hearing from our audience.

State v. Christeson

Before everyone enjoys Spring Break, we have another great post for you to read.  This one comes from Tyler McAnelly and discusses another avenue where a defendant is entitled to assistance of counsel.


In 1999, a jury convicted Mark Christeson of three counts of capital murder. It returned verdicts of death on all three counts and the Missouri Supreme Court affirmed Christeson’s conviction and sentence in 2001, see State v. Christeson, 50 S.W.3d 251 (en banc).

Under the strict 1–year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before this critical deadline, the District Court appointed attorneys Phil Horwitz and Eric Butts to represent Christeson in his federal habeas proceedings. See 18 U.S.C. § 3599(a)(2) (providing for appointment of counsel for state death row inmates). Christeson v. Roper, 135 S. Ct. 891, 892 (2015). After having only met with Christeson for the first time after the deadline passed, Horwitz and Butts filed Christeson’s federal habeus petition on August 5, 2005, 117 days late. Id. Horwitz and Butts asserted that they had miscalculated the AEDPA limitations period. Id. The District Court dismissed the petition as untimely, and the Court of Appeals denied Christeson’s application for a certificate of appealability. Id.

Nearly seven years later, Horwitz and Butts contacted attorneys Jennifer Merrigan and Joseph Perkovich to discuss how to proceed in Christeson’s case. Merrigan and Perkovich immediately noticed a glaring problem – Christeson’s only hope for securing review of the merits of his habeas claims was to file a motion under Fed. R. Civ. P. 60(b) seeking to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. However, Horwitz and Butts could not be expected to file such a motion on Christeson’s behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition. While initially receptive to Merrigan and Perkovich’s assistance, Horwitz and Butts soon refused to allow outside counsel access to their files. Id. at 893.

Merrigan and Perkovich, working independent of the original defense counsel, filed another motion for substitution of counsel. The District Court denied the motion. Christeson appealed to the Eighth Circuit. On September 19, 2014, while this appeal was still pending before the Eighth Circuit, the Missouri Supreme Court issued a warrant of execution setting October 29, 2014, as Christeson’s execution date. Id.

Merrigan and Perkovich again filed a motion for substitution of counsel on Christeson’s behalf. The District Court again denied the motion, explaining that substitution of “federally-appointed counsel is warranted only when it would serve the interests of justice,” it offered four reasons for its decision. Id. First, it deemed the motion to be untimely because it “was not filed until 2014, and shortly before [Christeson’s] execution date.” Second, it observed that Horwitz and Butts had not “abandoned” Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri’s lethal injection protocol. Third, it noted that although Horwitz and Butts had represented Christeson before the Eighth Circuit, that court had not appointed substitute counsel. Fourth and finally, the District Court expressed its belief that granting the motion would set “an untenable precedent” by allowing outside attorneys to seek “’abusive’” delays in capital cases. Christeson again appealed and the Eighth Circuit summarily affirmed the District Court’s order. The US Supreme Court reversed the Eighth Circuit’s judgment on the District Court’s order, remanding to the lower courts. Id.


18 U.S.C. § 3599 “entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings.” Congress has not conferred capital habeas petitioners with the right to counsel of their choice. The statute leaves it to the court to select a properly qualified attorney and contemplates that a court may “replace” appointed counsel with “similarly qualified counsel … upon motion” of the petitioner. § 3599(a)-(e). Id. at 894.

The Court found that a motion for substitution should be granted when it is in the “interests of justice.” See Martel v. Clair, 132 S.Ct. 1276, 1286 (2012). The Court further explained that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion “include: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and, 3) the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s responsibility, if any, for that conflict).” Id. The District court’s principal error was its failure to acknowledge Horwitz and Butts’ conflict of interest. Christeson, 135 S.Ct. at 894. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for “serious instances of attorney misconduct.” Holland v. Florida, 560 U.S. 631, 651–652 (2010).

The Court determined that advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Because such argument would threaten their professional reputation and livelihood, counsel cannot reasonably be expected to make such an argument. Christeson, 135 S.Ct. at 894. Indeed, the Court went so far as to say that given a capital defendant’s “statutory right to counsel,” even “in the absence” of § 3599(e) a district court would be compelled “to appoint new counsel if the first lawyer developed a conflict. Id. at 895.

The Court then disposed of the second and third factors relied on by the District Court, that appointed counsel continued to represent Christeson in litigation challenging the means of his execution, and that the Eighth Circuit had not previously substituted counsel. “Whether Horwitz and Butts had currently ‘abandoned’ Christeson is beside the point: Even if they were actively representing him in some matters, their conflict prevented them from representing him in this particular matter. Likewise, it is irrelevant that the Eighth Circuit had not previously sua sponte directed substitution of counsel in the course of denying Christeson’s request for a certificate of appealability and adjudicating his challenge to Missouri’s execution protocol, when the conflict was not evident.” Id.

The Court found that the District Court’s sole reliance on the first and fourth factors was improper because “[t]hese factors alone cannot warrant denial of substitution. Christeson’s first substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately a month after outside counsel became aware of Christeson’s plight and well before the State had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b) motion.” Id.


The Court concluded Christeson should have that opportunity and is entitled to the assistance of substitute counsel while addressing the equitable tolling of the AEDPA’s statute of limitations, and in turn, the Fed. R. Civ. P. Rule 60(b) relief. Christeson, 135 S.Ct. at 896.

US v. Wheeler

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?