United States v. Teague

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 21, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 04-2071
ANTHONY DAVID TEAGUE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-03-1133-RB)

Submitted on the briefs:

Raymond P. Moore, Federal Public Defender, Vicki Mandell-King, Assistant
Federal Public Defender, Denver, Colorado, for the Defendant - Appellant.

David C. Iglesias, United States Attorney, Norman Cairns, Assistant United States
Attorney, Albuquerque, New Mexico, for the Plaintiff - Appellee.

Before MURPHY, HOLLOWAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

A jury convicted Anthony Teague of transmitting in interstate commerce a

communication to James Locatelli containing a threat. See 18 U.S.C. § 875(c).
On appeal Mr. Teague claims that the district court erred by (1) requiring as a

special condition of supervised release that he have no contact with the court

except through counsel and (2) instructing the jury incorrectly on the elements of

the offense. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

We affirm the judgment of the district court.

I. Background

A. The Divorce

Mr. Teague hired attorney James Locatelli to represent him in divorce

proceedings in the summer of 2000. At that time Mr. Teague lived in Texas and

Mr. Locatelli lived in Las Cruces, New Mexico, where Mr. Teague’s estranged

wife had relocated. Mr. Teague paid Mr. Locatelli a $1,000 retainer. The two

men did not meet in person but communicated by phone, letter, fax, and e-mail.

From the beginning of the divorce proceeding, Mr. Locatelli thought that

Mr. Teague might be a “troublesome” client. R. Vol. IX at 51. They had a

“negative” relationship. Id. at 52. Mr. Teague wanted “contradictory things”

from him, such as requesting that he receive either full custody and control of his

daughter or no parental rights at all (so that he would not have to pay child

support). Id. at 53. At one point Mr. Locatelli confronted Mr. Teague about

alleged lies relating to accusations of domestic abuse.

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 Mr. Teague became verbally abusive to Mr. Locatelli and his staff, and he

refused to pay further fees after the $1,000 retainer had been exhausted. Early in

2001 Mr. Locatelli requested permission from the court to withdraw as

Mr. Teague’s attorney, but the court denied the request. After Mr. Teague learned

that Mr. Locatelli had asked to withdraw, he decided to deal with opposing

counsel on his own and Mr. Locatelli ceased working on the case.

When the divorce proceeding concluded in May 2001, Mr. Locatelli sent a

copy of the final order to Mr. Teague along with a bill for the money still owed.

Mr. Locatelli had no further communication with Mr. Teague until almost two

years later.

B. The E-mails

Mr. Teague resurfaced in February 2003. He called Mr. Locatelli (who had

become a municipal court judge) and began to send him e-mails accusing him of

mishandling the matter. On February 15, 2003, Mr. Teague e-mailed

Mr. Locatelli to ask that his records from the divorce case be sent to him. The e-

mail concluded, “You really fucked me and my daughter over, and you’re not

exactly on my favorite person list right now. Do this immediately. Love, Tony.”

R. Vol. IX at 67. A few minutes later he sent another e-mail demanding the

return of his $1,000 retainer, saying he needed it to pay “a pretty steep overdue

fee for renting ‘Emma’ that has to be paid off.” Id. at 68. Emma was also the

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name of Mr. Locatelli’s daughter. Mr. Locatelli testified that it was this e-mail

that “started giving [him] the creeps” and that he considered it “a veiled threat.”

Id. at 68.

Four days later Mr. Teague sent three more emails to Mr. Locatelli. The

first inquired about the court records and the retainer, and ended with the

statement, “Colleen says ‘hi,’ by the way.” Id. at 69. Mr. Locatelli did not know

anyone by that name. Mr. Teague’s second e-mail said:

Where is it, Jimminy? God, it sucks losing a daughter . . . it’s
fucking traumatizing, man. I really hope you get me those files and
that $1,000 you owe me, “toute de suite,” so I can trust the legal
system again. Without the rule of law, what are we? Dumb beasts?
Repent on what you have done to me and refund my fees and give me
my files immediately. This is not a request. Love, Tony.

Id. Mr. Locatelli replied by e-mail that he would send the records, provided

Mr. Teague paid the copying costs and stopped swearing and using invectives. In

his third e-mail of the day, Mr. Teague responded that he might “swing by your

house sometime and pick up the files” and “discuss the outstanding legal debt.”

Id. at 70. He also said that he might move to New Mexico “so we can be

neighbors” and asked Mr. Locatelli whether his Texas driver, fishing, and

concealed-firearm licenses would be valid there. Id. He ended the e-mail by

suggesting that Mr. Locatelli was being paranoid and that he should “consult a

psychologist whom you can trust.” Id. Mr. Locatelli’s wife was a psychologist,

and he considered this “a direct threat” because it “buil[t] on, I felt, another threat

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in the previous e-mail, knowing his history of violence with his ex-wife, having

personally, you know, heard him when he was abusing both myself and my

secretary.” Id. at 70-71. He notified the FBI about the threats.

One day later Mr. Teague again e-mailed:

J-Lo, you owe me some serious money here, amico mio. Stop
fencing with me and pay up. I shall consider any itemized charges
against my fees that I paid to you. Be sure to include entries for the
following services:

Number 1, breaking attorney-client privilege and discretely
disclosing sensitive information to other parties in New Mexico;

Number 2, furthering the emotional damage done to myself and my
daughter by facilitating our continued separation;

Number 3, lying to me about gaining telephone visitation and
building my hopes up as to being able to even speak with my
daughter; And

4, generally behaving like the all-around cock-sucking piece of
shit/kyke/dago/whatever the fuck you are.

I hope you still have my address, but I can provide it for you again,
Jimminy. I shall expect a cashier’s check very soon in the full
amount of $1,000.

As far as the files are concerned, I have no interest in the official
court records. Dig up the archives of your professional notes. I want
the originals in my office, and I don’t want copies anywhere else.
Do this today, J-Lo. Tony.

Id. at 71-72. Mr. Locatelli responded by informing Mr. Teague that he had

contacted the FBI.

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 On March 18, 2003, an FBI agent called Mr. Teague to tell him to be

careful about his e-mails. The next day Mr. Teague sent his final e-mail. Under

the subject line “Sunshine and rainbows,” the body of the message simply said,

“You and your family are going to die, Jim.” Id. at 73. Mr. Teague was arrested

the next day.

C. Mr. Teague’s Defense

At trial Mr. Teague admitted sending the e-mails. But he gave an

“explanation” for his actions. He stated that he had sent the e-mail mentioning

the name of Mr. Locatelli’s daughter to “ring his bell, so to speak, as hard as I

could, to get him to file a report with the FBI.” Id. at 121. He said that his ex-

wife had instigated an FBI investigation, and he had tried to induce Mr. Locatelli

to contact the FBI because he was “very angry with the FBI for investigating me

for the past three years,” id., and wanted to get their attention. But, he said, he

had not actually intended to threaten Mr. Locatelli or his family.

Referring to his e-mail of February 19, 2003, he explained that “Colleen”

was a confidential informant and by mentioning her name he meant to alert the

FBI that he was willing to “out” her. Id. at 124. Likewise, his e-mail suggesting

that he might “swing by” Mr. Locatelli’s house was intended “to further annoy

Locatelli, to get him to file the FBI—to get him to go back and twist the FBI’s

tail again. I was trying to push his buttons as hard as I possibly could by not

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doing anything overtly illegal, but by staying in gray area, so to speak.” Id. “[I]t

was my intent from the very beginning,” he testified, “to press Mr. Locatelli’s

buttons as hard as possible, so he would go off and press the FBI’s buttons as

hard as possible.” Id. He said that he continued to mention money “because if

you were attempting to collect on a debt, then, legally, what you are doing could

not possibly be construed as harassment.” Id. at 125. Mr. Teague further testified

that he never intended to go to Las Cruces, he had not so much as held a gun in

his life, and he had assumed that the FBI would inform Mr. Locatelli of that fact.

He meant the e-mail suggestion that Mr. Locatelli see a psychologist to refer to

Mr. Locatelli’s wife, a psychologist.

As for his final e-mail, Mr. Teague testified that it was meant in an “almost

humorous” way to get Mr. Locatelli to forward the e-mail to the FBI. Id. at 127.

The FBI had already contacted him the day before about his earlier e-mails and he

“thought [he would] throw another piece of wood onto the fire, so to speak.” Id.

at 129. When asked why he would send another e-mail after having already been

contacted by an FBI agent, who had left him a voice mail warning him that he

“really need[ed] to be careful,” id. at 128, he said that the e-mail was “a very

flippant, kind of on-the-cuff [sic], spur-of-the-moment type of thing,” id. at 130.

He insisted that his statement “You and your family are going to die” was a

literal, biological truth and was not meant to imply that he was going to kill them.

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He had not intended to convey a death threat, but acknowledged that it was “an

incredibly smartass thing to say to somebody, especially after all the other things I

was doing, but, then again, I thought this was very safely well within the gray

area.” Id. When asked on cross-examination whether he felt he had succeeded in

getting the attention of the FBI, he replied, “I would say that I have succeeded far

beyond my wildest hopes, yes.” Id. at 139.

After the defense rested, the district court held an instruction conference.

The prosecutor requested that the proposed elements-of-the-offense instruction be

modified to emphasize that what must be proved is that a reasonable recipient of

the communication would consider it a threat under the circumstances.

Mr. Teague’s counsel argued that the proposed instruction should remain as is.

The district court agreed and rejected the prosecutor’s proposed modification.

The jury returned a guilty verdict.

D. Sentencing

Mr. Teague’s sentencing hearing was held on March 25, 2004. He was

sentenced to 21 months’ imprisonment, to be followed by a three-year term of

supervised release. The government requested that during his supervised release

Mr. Teague not be permitted to write the United States Attorney’s Office or the

FBI, unless through a lawyer. Mr. Teague’s counsel agreed to the condition and

suggested that it be broadened to include “any courts.” R. Vol. VI at 22. The

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district court eventually approved a condition stating: “No contact with the

victims and no contact with agencies or the court unless through counsel.”

R. Vol. I Doc. 61 at 4.

II. Standard of Review/Waiver and Forfeiture

Mr. Teague did not raise in district court the challenges to the jury

instruction and condition of release that he now raises on appeal. Ordinarily,

when an error claimed on appeal was not presented below, we review the claim

under the plain-error doctrine. Under that doctrine we will reverse the judgment

below only if “there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc).

But, despite a common misunderstanding to the contrary, not every

unpreserved claim of error is entitled to plain-error review. Sometimes the

alleged error was intentionally caused by the party claiming prejudice on appeal.

For example, a defendant may seek to present to the jury a confession by an

alleged fellow culprit. There may be components of the confession that could be

damaging to the defendant, but the defendant believes that the overall impact

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would be quite favorable. The trial judge admits the confession into evidence. If

the defendant is convicted, an appellate court will not reverse the conviction

because of the admission of the confession (although, it should be noted, the

defendant may have a claim of ineffective assistance of counsel). The reason is

that the defendant invited the error. Or, to be more precise, the defendant waived

the right that was violated by admission of the confession: the right to confront

the witnesses against him. To use the terminology of the Supreme Court in

United States v. Olano, 507 U.S. 725 (1993), a party that has forfeited a right by

failing to make a proper objection may obtain relief for plain error; but a party

that has waived a right is not entitled to appellate relief.

In Olano the Court discussed the meaning of Federal Rule of Criminal

Procedure 52(b), which now states: “A plain error that affects substantial rights

may be considered even though it was not brought to the court's attention.” 1 Rule

52(b), said the Court, “provides a court of appeals a limited power to correct

errors that were forfeited because not timely raised in district court.” 507 U.S. at

1
When Olano was decided in 1993, Rule 52(b) read: “Plain errors or
defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.” Olano, 507 U.S. at 731. The Court noted that
“[a]lthough it is possible to read the Rule in the disjunctive, as creating two
separate categories—‘plain errors’ and ‘defects affecting substantial rights’—that
reading is surely wrong.” Id. at 732. Rather, “the phrase ‘error or defect’ is more
simply read as ‘error.’” Id. The rule was amended in 2002 to reflect this reading.
See Fed. R. Crim. P. 52 advisory committee’s note.

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731 (emphasis added). But the court distinguished forfeiture from waiver.

“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is

the intentional relinquishment or abandonment of a known right.” Id. at 733

(internal quotation marks omitted). “Mere forfeiture, as opposed to waiver, does

not extinguish an ‘error’ under Rule 52(b).” Id. “If a legal rule was violated

during the district court proceedings, and if the defendant did not waive the rule,

then there has been an ‘error’ within the meaning of Rule 52(b) despite the

absence of a timely objection,” id. at 733-34, and the court of appeals may review

for plain error, see id. at 734-37. In contrast, when a legal rule has been waived,

the deviation from the rule is not error, so Rule 52(b) does not apply. See id. at

732-33.

We applied Olano in United States v. Hardwell, 80 F.3d 1471 (10th Cir.

1996). A defendant in that case argued that he should not have been tried under

two separate indictments at the same trial. See id. at 1487. We noted that the two

cases had been tried together at his request and stated, “A defendant cannot invite

a ruling and then have it set aside on appeal.” Id. Citing Olano, 507 U.S. at 732-

34, we said: “Errors that are waived rather than merely forfeited through failure

to object are not subject to plain error review.” Id.; see United States v. Aptt, 354

F.3d 1269, 1281 (10th Cir. 2004) (“While there is no appeal from a violation of a

waived right, the violation of forfeited rights may be reviewed on appeal under

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the limited conditions set forth in Olano.”). Other circuit courts are in agreement.

See United States v. Wellington, 417 F.3d 284, 290 (2d Cir. 2005); United States

v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc).

With these principles in mind, we proceed to address Mr. Teague’s issues

on appeal. In particular, we consider whether the errors he challenges on appeal

were invited, and therefore waived. We begin with the conditions of his release

and then turn to the jury instructions.

III. Post-Release Condition

Mr. Teague argues that the district court erred in requiring, as a special

condition of supervised release, that he not contact the court except through

counsel. This condition, he urges, violates his constitutional right of access to the

courts. We hold that he waived this right and cannot claim error on appeal.

At the sentencing hearing the prosecutor, Richard Watts, suggested that one

of Mr. Teague’s supervised-release conditions be that he have no contact with the

United States Attorney’s Office or the FBI, unless through a lawyer, and

Mr. Teague’s counsel, Steven Ryan, agreed:

MR. WATTS: Your Honor, Mr. Teague has written letters
to various people. I’d ask that a condition
be that he not write me or the U.S.
Attorney’s Office any correspondence, nor
the FBI, unless it’s through a lawyer.

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 THE COURT: Mr. Ryan?

MR. RYAN: Certainly. And I think that it’s appropriate
to include in the list, also, any courts,
including this Court and the 10th Circuit
Court of Appeals and the United States
Supreme Court.

R. Vol. VI at 21-22. At this point, Mr. Teague chimed in as well:

THE DEFENDANT: And, for the record, I never meant, in that
letter that I wrote to you, any—I didn’t
intend for that to be threatening; that was
not what I was going for at all. I think you
know what letter I’ve been talking about.

THE COURT: Yes. There has been some correspondence
from Mr. Teague to me, as well. While I
didn’t feel terribly threatened by it, I
thought I was being fairly even tempered in
just suggesting that wasn’t a good way to
start a letter to a judge, talking about threats
to his family. You probably ought to limit
your contact with people involved in this
case or the legal system to that which is
through your counsel—

THE DEFENDANT: Okay.

THE COURT: —that would probably be best. And unless
there’s anything else?

R. Vol. VI at 22. The district court’s judgment included the following special

condition of supervision: “No contact with the victims and no contact with

agencies or the court unless through counsel.” R. Vol. I Doc. 61 at 4.

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 Mr. Teague now argues that the restriction on contact with the court

imposes “a greater deprivation of liberty than is reasonably necessary,” and

violates his constitutional right of access to the courts. Aplt. Br. at 22.

Mr. Teague concedes that he did not object in the district court and urges us to

review the condition under a plain-error standard. But not only did his counsel

not object, he proposed the very limitation (indeed, a broader limitation) to which

Mr. Teague now objects. As is clear from the sentencing transcript, Mr. Teague’s

counsel was the one who suggested that the originally proposed condition be

expanded to include “any courts.” R. Vol. IV at 22.

We therefore consider whether under these circumstances Mr. Teague’s

claimed right was waived below. “Whether a particular right is waivable;

whether the defendant must participate personally in the waiver; whether certain

procedures are required for waiver; and whether the defendant’s choice must be

particularly informed or voluntary, all depend on the right at stake.” Olano, 507

U.S. at 733.

To begin the analysis, we must describe the right denied Mr. Teague. He is

not totally deprived of all access to the courts. First, he may communicate

through an attorney, which, even today, is the typical means of accessing the

courts. Second, he is not forbidden from communicating with all courts.

Although his attorney suggested restricting communications to “any courts,

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including [the sentencing] Court and the 10th Circuit Court of Appeals and the

United States Supreme Court,” R. Vol. VI at 22, the conditions imposed stated

only “No contact with . . . the court unless through counsel.” R. Vol. I Doc. 61 at

4. The condition thus restricts communication only with the sentencing court.

We see no reason why this limited right cannot be waived. Nonwaivable

rights are rare. “The most basic rights of criminal defendants are . . . subject to

waiver.” Peretz v. United States, 501 U.S. 923, 936 (1991). Accord United

States v. Mezzanatto, 513 U.S. 196, 201 (1995). Waivable constitutional rights

include protection against double-jeopardy, Ricketts v. Adamson, 483 U.S. 1, 10

(1987); the privilege against compulsory self-incrimination, Boykin v. Alabama,

395 U.S. 238, 243 (1969); the right to jury trial, id.; the right to confront one’s

accusers, id.; and the Sixth Amendment right to counsel, Johnson v. Zerbst, 304

U.S. 458, 465 (1938).

When waiver has not been allowed, it has been because of the need to

protect a public interest beyond that of the defendant or because of concern that

undue, and unprovable, pressure may have been brought to bear on the defendant.

In Wheat v. United States, 486 U.S. 153 (1988), the Supreme Court held that,

despite the Sixth Amendment guarantee of the right to counsel and the

“presumption in favor of counsel of choice,” id. at 160, a district court may reject

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a defendant’s waiver of his counsel’s conflict of interest, see id. at 162. The

Court explained:

Federal courts have an independent interest in ensuring that criminal
trials are conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them. . . . Not
only the interest of a criminal defendant but the institutional interest
in the rendition of just verdicts in criminal cases may be jeopardized
by unregulated multiple representation.

Id. at 160 (internal citations omitted).

Similarly, in explaining the nonwaivability of the right to a unanimous jury,

which we have declared to be “a right so fundamental that it may not be waived,”

United States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979), courts have pointed

to the societal interest in a unanimous verdict. Then-Judge Kennedy wrote:

A rule which insists on unanimity furthers the deliberative process by
requiring the minority view to be examined and, if possible, accepted
or rejected by the entire jury. . . . Both the defendant and society can
place special confidence in a unanimous verdict, and we are
unwilling to surrender the values of that mode of fact-finding.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978). In addition, the

Second Circuit has justified not permitting waiver because of its doubts about the

bona fides of any such waiver:

Waiver of unanimity was prohibited [by Fed. R. Crim. P. 31(a)] in
response to concern that a defendant would inevitably be under
pressure to accede to the suggestion of a trial judge that he accept a
non-unanimous verdict and the difficulty of ascertaining a
defendant’s true motivation under such circumstances.

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United States v. Pachay, 711 F.2d 488, 493 (2d Cir. 1983). Neither consideration

would preclude waiver here. No special societal interest is offended by requiring

a defendant to employ an attorney to communicate with the sentencing court; and

there would be no particular reason to fear that waiver of the right to proceed pro

se was improperly induced by the court. We have recognized waivers of the

rights to appeal and collaterally attack a conviction and sentence (even when

represented by counsel). See United States v. Hahn, 359 F.3d 1315, 1318 (10th

Cir. 2004) (en banc) (appeal); United States v. Cockerham, 237 F.3d 1179, 1183

(10th Cir. 2001) (collateral attack). And we have approved orders restricting

court filings by those who have repeatedly abused the right of access to the

courts. See Werner v. Utah, 32 F.3d 1446, 1448 (10th Cir. 1994) (per curiam). In

light of those precedents limiting the right at issue on this appeal, we are

confident that the right can be waived.

There may be greater doubt regarding whether counsel could waive this

right for Mr. Teague. But that question is not before us because Mr. Teague was

present when his attorney suggested the condition and he immediately pitched in

affirmatively, apologizing for his prior letter to the court and responding “okay”

to the court’s agreement with Mr. Teague’s counsel. This constituted

unambiguous approval of his counsel’s suggestion.

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 Finally, there can be no question that Mr. Teague’s waiver was voluntary

and knowing. Although those elements of waiver would ordinarily be in doubt

when a party is silent or is responding to a request from another party or the

court, when a party “invites” an error by suggesting that the court take particular

action, we can presume that the party has acted voluntarily and with full

knowledge of the material consequences. Nothing before us suggests otherwise in

this case. Perhaps if the court had imposed in full the condition suggested by

Mr. Teague’s counsel and had precluded him from even filing pro se pleadings in

unrelated litigation, we may have doubted that Mr. Teague knew what he was

agreeing to. But that is not what happened here. His statement immediately

following his counsel’s suggestion of the limitation clearly shows that he knew

that he would not be permitted to send a personal communication to the court

concerning this case.

We conclude that Mr. Teague waived the right of access to the courts

denied by his conditions of release, and we will not review his challenge on

appeal.

IV. Jury Instruction

The statute that Mr. Teague was found to have violated, 18 U.S.C. § 875(c),

provides:

Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person or any

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 threat to injure the person of another, shall be fined under this title or
imprisoned not more than five years, or both.

Section 875(c) does not have an explicit mens rea requirement. The district court

proposed the following elements-of-the-offense instruction:

Title 18 U.S.C. § 875(c), makes it a crime for anyone to
transmit a threatening communication in interstate or foreign
commerce. For you to find the defendant guilty of this crime, you
must be convinced that the government has proved each of the
following beyond a reasonable doubt:

First, that the defendant knowingly transmitted a
communication containing a threat to injure the
person of another as charged in the Indictment;

Second, that the communication was sent in interstate
commerce.

A “threat” is a serious statement expressing an intention to
injure any person which, under the circumstances, would cause
apprehension in a reasonable person, as distinguished from mere idle
or careless talk, exaggeration, or something said in a joking manner.
It is not necessary to prove that the defendant actually intended to
carry out the threat.

R. Vol. IX at 155-57.

During the instruction conference the prosecutor requested that the

proposed instruction be modified to emphasize that “the thing that must be proved

is that the defendant intentionally sent the message.” R. Vol. 1X at 143. (The

record does not contain the requested instruction.) But defense counsel objected

to the modification and the court decided to make no change.

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 Mr. Teague now argues that the instruction given was erroneous. Although

he does not suggest alternative language, he complains that the elements

instruction did not properly state what state of mind was necessary to violate

§ 875(c). In light of Mr. Teague’s testimony at trial, we understand his argument

to be that it was not enough for the jurors to find, as the elements instruction

directed them, that he sent the e-mail with knowledge that a reasonable person

would take the message as a threat. After all, he essentially conceded this

knowledge in his trial testimony. Rather, he claims, it was essential for the jury

to find that he intended the message as a threat, which we take to mean that he

wanted the recipient (Locatelli) to feel threatened.

The government contends that Mr. Teague cannot challenge the instruction

because any error was invited. Perhaps Mr. Teague did waive his right to raise

any objection to the court’s instruction. But one could say that the only argument

waived was an argument that Mr. Teague is not making—namely, that the

government’s tendered instruction was superior to the actual instruction. We

need not resolve that matter. Regardless of whether there was waiver, it is clear

that Mr. Teague failed to object to the instruction and any error was forfeited.

Accordingly, he is entitled to relief only if he can establish plain error, and that

he cannot do.

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 As we stated above, “Plain error occurs when there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-

Huerta, 403 F.3d at 732. “Plain” in this context “is synonymous with ‘clear’ or,

equivalently, ‘obvious.’” Olano, 507 U.S. at 734. The error, “[a]t a minimum,”

must be “clear under current law.” Id. If neither the Supreme Court nor the

Tenth Circuit has ruled on the subject, we cannot find plain error if the authority

in other circuits is split. See United States v. Marshall, 307 F.3d 1267, 1270

(10th Cir. 2002).

Mr. Teague concedes that neither the Supreme Court nor this court has

spoken on the mens rea issue he raises on appeal. And in the circuits to address

the matter, there is hardly unanimity in his favor. At best (from his point of

view), there is a split of authority. Indeed, it is not clear to us that any circuit has

adopted the contention advanced by Mr. Teague. Several circuits have considered

the mens rea necessary to violate § 875(c). The issue is generally discussed in

terms of whether the statute requires specific intent or merely general intent, with

only the Ninth Circuit requiring specific intent, see United States v. Twine, 853

F.2d 676, 680 (9th Cir. 1988). The others state that general intent is all that is

required. See United States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997); United

States v. Francis, 164 F.3d 120, 121 (2d Cir. 1999); United States v. Himelwright,

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42 F.3d 777, 783 (3d Cir. 1994) (“[S]ection 875(c) requires proof of a defendant’s

general intent to threaten injury, but does not require proof of a specific intent to

injure another or the present ability to carry out the threat.” (emphasis added,

internal italics omitted)); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir.

1994); United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997); United States v.

DeAndino, 958 F.2d 146, 150 (6th Cir. 1992) (Section 875(c) “does not require

specific intent in regard to the threat element of the offense, but only general

intent”); United States v. Stewart, 411 F.3d 825, 827-28 (7th Cir. 2005). We

recognize that the terms general intent and specific intent can be ambiguous in

many contexts, and further elaboration may be necessary to clarify precisely what

the accused must know and intend. See United States v. Zuni, No. 04-2256, slip.

op at 5-10 (10th Cir. April 19, 2006); 1 Wayne R. LaFave, Substantive Criminal

Law § 5.1(b), at 336-37, 355 (2d ed. 2003) (“[C]ourts have often said that a

‘general intent’ is needed, but this is often not helpful because of the ambiguity

attending that phrase. . . . [G]reater clarity could be accomplished by abandoning

the ‘specific intent’-‘general intent’ terminology . . . .”); 1 Paul H. Robinson,

Criminal Law Defenses § 65(e), at 298 (1984) (“The distinction [between general

and specific intent] is a troublesome one.”). But the thrust of the circuit opinions

is clear. Even Mr. Teague 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

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any that would reject the elements instruction given here. Accordingly, we cannot

accept Mr. Teague’s contention that the district court committed error that was

plain. Hence, there was no plain error.

V. Conclusion

We AFFIRM the judgment of the district court.

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