United States v. Heineman

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
September 15, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 13-4043
AARON MICHAEL HEINEMAN, a/k/a
Aaron Heineman,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:11-CR-00432-DN-1)

Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public
Defender, with him on the briefs), District of Utah, Salt Lake City, Utah, for Defendant -
Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (David B. Barlow, United
States Attorney, with her on the brief), District of Utah, Salt Lake City, Utah, for Plaintiff
- Appellee.

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.

HARTZ, Circuit Judge.
 Defendant Aaron Heineman was convicted after a bench trial on one count of

sending an interstate threat. See 18 U.S.C. § 875(c). The district court found that he

knowingly sent an e-mail that caused the recipient to reasonably fear bodily harm.

Defendant argues that his conviction violated the First Amendment because the court did

not also find that he intended the recipient to feel threatened. We have jurisdiction under

28 U.S.C. § 1291. Agreeing with Defendant, we reverse and remand.1

I. BACKGROUND

In 2010 and 2011 Defendant sent three e-mails espousing white supremacist

ideology to a professor at the University of Utah. The first two e-mails did not contain

threats, but the third made the professor fear for his safety and the safety of his family.

Entitled “Poem,” Aplt. App., Vol. 1 at 89, it began by addressing the professor by his first

name, and contained the following language:

Come the time of the new revolution
we will convene to detain you
And slay you, by a bowie knife shoved up into the skull from your pig chin
you choke, with blood flooding in your filthily treasonous throat!
We put the noose ring around your neck
and drag you as you choke and gasp

1
The concurrence suggests that because the issue we decide here is now before the
United States Supreme Court, we should await that decision before resolving this case.
We respectfully disagree. That decision may not be handed down until next June, and
there is always the possibility that an unexpected problem with the case will cause the
Supreme Court not to proceed with its review. True, Defendant is on probation and will
not suffer as much in the interim as one who has been incarcerated. But probation is not
an insignificant sanction, and Defendant may well be subject to various restrictions on his
civil liberties as a result of his felony conviction.

2
 The noose laid on the tree branch
and the fate hath conferred justice for Treason
You are a filthy traitor along the horde of anti-American and anti-Whitey
comrades
whose justice shall come to be delivered
To fuck the traitors, for justice!
fuck Mexico! fuck South America!
Fuck your soul to Hell!
Into the furnace pool of MexiShit as the filthily traitorous asshole and puta!

Id. at 90. Law-enforcement officers traced the e-mail to Defendant through his e-mail

address, which had the user name “siegheil_neocon.” Id. at 91. When officers contacted

him in writing, he responded immediately, “Is this about the email?” Id. He was charged

in the United States District Court for the District of Utah with one count of sending an

interstate threat, in violation of 18 U.S.C. § 875(c).

Before trial Defendant requested an instruction that “the government must prove

that the defendant intended the communication to be received as a threat.” Id. at 18. He

asserted that he has Asperger’s Disorder, which impairs his “ability to understand how

others will receive the things he says and does.” Aplt. Br. at 2. The district court

declined the request. Defendant then moved to dismiss the charge, arguing that § 875(c)

was facially unconstitutional if it did not require proof that “the defendant intended to

place the hearer in fear of bodily harm or death.” Aplt. App., Vol. 1 at 28. After the

court denied the motion, the parties agreed to a bench trial on stipulated facts so that

Defendant could preserve his legal arguments. He renewed his objections at trial, and the

court again rejected them. It found that the government had established that Defendant

“knowingly transmitted a communication containing a threat to injure the person of
3
another,” id. at 91, and that the poem was a true threat because it “would cause a

reasonable person to conclude that the sender . . . intended to cause bodily injury,” id. at

93. The court did not determine whether Defendant intended the professor to feel

threatened.

II. DISCUSSION

Defendant was prosecuted under 18 U.S.C. § 875(c), which states in relevant part:

“Whoever transmits in interstate or foreign commerce any communication containing . . .

any threat to injure the person of another, shall be fined under this title or imprisoned not

more than five years, or both.” The law in this circuit is settled, and the parties do not

dispute, most of what must be proved to establish a violation of the statute. For example,

the statement itself must be one that a reasonable person in the circumstances would

understand “as a declaration of intention, purpose, design, goal, or determination to inflict

[bodily injury] on another.” United States v. Viefhaus, 168 F.3d 392, 395 (10th Cir.

1999); see id. at 396; United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir. 1983).

And “[i]t is not necessary to show that defendant intended to carry out the threat,”

although the threat must be a serious one, “as distinguished from words as mere political

argument, idle talk or jest.” Viefhaus, 168 F.3d at 395 (internal quotation marks omitted).

The issue on appeal is whether § 875(c) requires proof of an additional element—

that the defendant intended the recipient to feel threatened. The statutory language

contains no mens rea requirement, but as a statute that criminalizes speech, it “must be

interpreted with the commands of the First Amendment clearly in mind. What is a threat
4
must be distinguished from what is constitutionally protected speech.” Watts v. United

States, 394 U.S. 705, 707 (1969) (per curiam). Thus, we will read into § 875(c) any

scienter necessary to satisfy the demands of the First Amendment.2 “We review

2
The concurrence suggests that we can avoid the constitutional question by
construing the statute without reference to First Amendment requirements. We
respectfully disagree. If we were writing on a clean slate, we would certainly want to try
that approach first. In our view, however, circuit precedent forecloses that path. First,
we read United States v.Viefhaus, 168 F.3d 392 (10th Cir. 1999), as adopting an objective
standard for the meaning of true threat. The opinion defines the term without including
any requirement that the speaker intend the recipient to feel threatened. See id. at
395‒96. The discussion includes the following sentence in italics: “The question is
whether those who hear or read the threat reasonably consider that an actual threat has
been made.” Id. at 396 (emphasis omitted). The question is not whether the speaker
viewed the statement as an actual threat.

Moreover, we read United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983), as
explicitly rejecting the interpretation of true threat advanced by the concurrence. We
wrote: “Defendant Dysart claims that two errors afflict the jury instructions. First, he
says the trial court erred in failing to charge that for conviction under § 871, it must be
shown that Dysart intended the letter to be taken as a threat, even if he had no intention
of carrying out the threat. Second, he contends the trial judge erred when he refused to
give an instruction on the relevance of evidence of Dysart’s mental condition to the issue
of Dysart’s ability to form the requisite intent. Neither contention is persuasive.” Id. at
1255‒56 (emphasis added).

The concurrence suggests that the instruction in Dysart actually contained the
requirement requested by the defendant in that case. It points to the sentence in the
instruction stating: “The term ‘threat’ means an avowed present determination or intent
to injure presently or in the future.” Id. at 1256 (internal quotation marks omitted). But
that sentence came after the sentence: “The question is whether those who hear or read
the threat reasonably consider that an actual threat has been made.” Id. (internal
quotation marks omitted). The avowed-present-determination language is explaining to
the jury what it is that the listener must consider to have been communicated. That is, it
is saying that the language uttered by the defendant must be reasonably considered as “an
avowed present determination or intent to injure presently or in the future.” First, we
define what it means for a statement to be an actual threat. Then we decide whether it is
Continued . . .
5
questions of constitutional law de novo.” ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d

1200, 1216 (10th Cir. 2011) (internal quotation marks omitted).

Defendant contends that the Supreme Court’s opinion in Virginia v. Black, 538

U.S. 343 (2003), compels us to adopt his position. But before we examine that opinion,

we turn to, and reject, the claims of both parties that we are bound by circuit precedent to

adopt their positions.

The government points to four of our decisions. Two can be disposed of

summarily. Viefhaus predated Black. Whatever it said, a circuit precedent cannot bind

us to the extent that it is inconsistent with a later Supreme Court decision. See Currier v.

Doran, 242 F.3d 905, 912 (10th Cir. 2001). And United States v. Wolff, 370 F. App’x

888 (10th Cir. 2010), like all unpublished decisions of this court, is not binding

precedent. See 10th Cir. R. 32.1(A).

The government’s third case, Nielander v. Board of County Commissioners,

582 F.3d 1155 (10th Cir. 2009), is a post-Black precedent, but it did not address the issue

before us. After successfully defending a state criminal-threat charge, Nielander brought

a First Amendment retaliation claim in federal court under 42 U.S.C. § 1983. See id. at

1162–63. The district court granted summary judgment against Nielander on the ground

that his statements (the alleged threats) leading to the alleged retaliation were not

protected by the Constitution. See id. at 1163. We affirmed. See id. at 1165–66. We

the speaker or a reasonable observer who must view the language of the statement as
having that meaning. Dysart and Viefhaus state Tenth Circuit law that it is the observer.

6
held that even if Nielander’s statements were protected speech, the defendants were

entitled to qualified immunity. See id. at 1166–69. Two of the defendants had “merely

provid[ed] the police with their account of events,” and had not brought any charges

against Nielander. Id. at 1166. As for the defendant police officer, we said that he was

entitled to qualified immunity because the law was not clearly established that

Nielander’s statements were not true threats. See id. at 1167–69. Although we used a

pre-Black definition of true threat that did not include an intent to instill fear, see id. at

1167, we did not consider whether such intent was required, and we fail to see how our

ultimate decision would have been affected if we had included that requirement because

the evidence would have supported a reasonable belief that Nielander had that intent. See

Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (“[S]ince we have never squarely

addressed the issue, and have at most assumed the [standard], we are free to address the

issue on the merits.”).

The fourth case relied on by the government is United States v. Teague, 443 F.3d

1310 (10th Cir. 2006). Teague was convicted of transmitting an interstate threat under

18 U.S.C. § 875(c) after he sent a series of threatening e-mails to his former divorce

attorney. See id. at 1311–13. His defense at trial was that he had not intended a threat,

but that his e-mails were meant instead to prod the attorney to take various actions, were

meant humorously, or merely stated the biological truth that the attorney and his family

were going to die. See id. at 1312–13. On appeal he argued that the jury should have

been instructed that he must have intended that his former attorney feel threatened and
7
not just that “he sent the e-mail with knowledge that a reasonable person would take the

message as a threat.” Id. at 1318. But Teague had not raised that argument in district

court, so we reviewed only for plain error. See id. Accordingly, he needed to show that

the requirement of his additional element was “clear under current law.” Id. at 1319

(internal quotation marks omitted). Yet he conceded (incorrectly, as we shall see) that

the Supreme Court had not spoken on the issue, and he acknowledged that this circuit had

no controlling precedent and that the other circuits were split. See id. We readily

concluded that there was no plain error. See id. The parties’ briefs did not cite Black, nor

did our opinion. Teague could hardly stand as this court’s interpretation of Black.

Defendant in turn relies on two of our decisions. One is United States v. Pinson,

542 F.3d 822 (10th Cir. 2008), which concerned a prosecution under 18 U.S.C. § 871(a)

for threatening the life of the President. See id. at 826. Pinson complained that the jury

was instructed that an element of the offense was that he “understood and meant the

words mailed as a threat.” Id. at 832 (internal quotation marks omitted). By making his

intent an element, argued Pinson, the prosecution was enabled to put on prejudicial

evidence of his state of mind. See id. at 831. We affirmed the conviction. See id. at 827.

Some language in the opinion certainly supports Defendant’s argument. We said:

The burden is on the prosecution to show that the defendant understood
and meant his words as a threat, and not as a joke, warning, or hyperbolic
political argument. But a threat violates the law even if the defendant had
no actual intention, or even ability, to carry it out. . . . The proper question
for the jury is whether the defendant meant his words as a threat and
whether a reasonable person would so regard them. The instruction here
conveyed at least the first element of that meaning. It does not imply that
8
 the defendant must be shown to have intended to carry out the threat, but it
does require that the defendant understood and meant his words to be a
threat.

Id. at 832 (footnote omitted). But the opinion does not bind us in this case. It concerned

a prosecution under 18 U.S.C. § 871(a), which, in contrast to § 875(c), explicitly requires

that the offense be committed “knowingly and willfully”; and it did not purport to be

stating a proposition of constitutional law. Pinson does not cite any authority (much less

First Amendment decisions) for its language supporting Defendant, and it does not

otherwise explain why (other than the statutory requirement) a defendant must mean his

words to be a threat.

The other case relied on by Defendant is United States v. Magleby, 420 F.3d 1136

(10th Cir. 2005). Magleby had filed a motion under 28 U.S.C. § 2255 to challenge his

convictions of burning and conspiring to burn a cross, in violation of the civil rights of an

interracial couple. See id. at 1138–39. The success of one of his arguments turned on

whether his appellate counsel had been ineffective for failing to challenge instructions on

the elements of his offenses. In the course of the opinion we paraphrased Black as saying

that a threat must have been made “with the intent of placing the victim in fear of bodily

harm or death. An intent to threaten is enough.” Id. at 1139 (citation and internal

quotation marks omitted). But our ruling on Magleby’s claim of ineffective assistance of

appellate counsel hinged on the pre-Black law in effect at the time of his earlier appeal.

See id. at 1140. Any statement in the opinion regarding the meaning of Black was

irrelevant to the opinion and therefore dictum. “[A] panel of this court . . . is not bound
9
by a prior panel’s dicta.” Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1129 (10th

Cir. 2009) (brackets and internal quotation marks omitted).

Thus, we are facing a question of first impression in this circuit: Does the First

Amendment, as construed in Black, require the government to prove in any true-threat

prosecution that the defendant intended the recipient to feel threatened? We conclude

that it does.

At issue in Black were three state-law convictions for cross burning (or attempted

cross burning) with intent to intimidate. See Black, 538 U.S. at 348–51. On an open field

on private property, defendant Black had led a Ku Klux Klan rally that ended with the

participants setting flame to a large cross 300 yards or so from a road, where passersby

and neighbors could see it. See id. at 348–49. In a separate incident, defendants Elliott

and O’Mara had driven a truck into the yard of an African-American family that had

recently moved into the neighborhood, planted a cross 20 feet from the house, and set it

on fire. Id. at 350.

The three were convicted of violating a Virginia statute that provided: “It shall be

unlawful for any person or persons, with the intent of intimidating any person or group of

persons, to burn, or cause to be burned, a cross on the property of another, a highway or

other public place,” and, “Any such burning of a cross shall be prima facie evidence of an

intent to intimidate a person or group of persons.” Id. at 348 (internal quotation marks

omitted). The Virginia Supreme Court held the statute facially unconstitutional for two

reasons: (1) the statute “selectively cho[se] only cross burning because of its distinctive
10
message,” and was therefore a content-based distinction within the category of true

threats, which was impermissible under R.A.V. v. City of St. Paul, 505 U.S. 377 (1992);

and (2) the prima facie provision rendered it overbroad “because the enhanced probability

of prosecution under the statute chills the expression of protected speech.” Black, 538

U.S. at 351 (brackets and internal quotation marks omitted). It did not decide whether the

prima facie provision was severable. See id. at 363.

The United States Supreme Court affirmed in part and reversed in part. We

discuss the opinion at some length because, in our view, it has been misconstrued by

some courts that we highly respect. Black devotes little attention to what is required for a

threat to be a “true threat” not protected by the First Amendment, and its sentence

defining true threat (which appears in the Court’s resolution of the R.A.V. issue) is

somewhat ambiguous. Nevertheless, a careful review of the opinions of the Justices

makes clear that a true threat must be made with the intent to instill fear.

To resolve the R.A.V. issue, the Court, in an opinion by Justice O’Connor for

herself and four other Justices, began by reiterating the fundamental protection of speech

embodied in the First Amendment. “The hallmark of the protection of free speech is to

allow free trade in ideas—even ideas that the overwhelming majority of people might

find distasteful or discomforting.” Id. at 358 (internal quotation marks omitted). But it

also noted that the Amendment “permits restrictions upon the content of speech in a few

limited areas, which are of such slight social value as a step to truth that any benefit that

may be derived from them is clearly outweighed by the social interest in order and
11
morality.” Id. at 358–59 (internal quotation marks omitted). As examples of permissible

content-based restrictions, it included incitement to imminent breach of the peace,

fighting words, and “true threats.” Id. Critical to the resolution of our case, the Court

then defined true threats, stating:

True threats encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals. The speaker
need not actually intend to carry out the threat. Rather, a prohibition on
true threats protects individuals from the fear of violence and from the
disruption that fear engenders, in addition to protecting people from the
possibility that the threatened violence will occur. Intimidation in the
constitutionally proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or group of persons with the
intent of placing the victim in fear of bodily harm or death.

Id. at 359–60 (emphasis added) (brackets, citations, and internal quotation marks

omitted).

Turning to the Virginia statute, the Court acknowledged that cross-burning is

symbolic expression, and therefore governed by First Amendment principles. See id. at

360. And it further acknowledged that R.A.V. held that even when a statute bans speech

within an unprotected category (such as true threats), it ordinarily cannot discriminate by

targeting only a subset of speech within the category. See id. at 361–62. Thus, the

ordinance in R.A.V. was invalidated because it banned “certain symbolic conduct,

including cross burning, when done with the knowledge that such conduct would arouse

anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,”

id. at 361 (internal quotation marks omitted), but it did not cover, for example, “those

12
who wish to use fighting words in connection with other ideas—to express hostility, for

example, on the basis of political affiliation, union membership, or homosexuality,” id.

(brackets and internal quotation marks omitted). R.A.V. did not hold, however, that

prohibiting only a subset of “a proscribable area of speech” is always barred by the First

Amendment. Id. In particular, “the First Amendment permits content discrimination

based on the very reasons why the particular class of speech at issue is proscribable.” Id.

at 362 (ellipsis and internal quotation marks omitted). Thus, “[t]he Federal Government

can criminalize only those threats of violence that are directed against the President since

the reasons why threats of violence are outside the First Amendment have special force

when applied to the person of the President.” Id. (ellipses and internal quotation marks

omitted). (But the government cannot ban “only those threats against the President that

mention his policy on aid to inner cities.” Id. (internal quotation marks omitted).)

Accordingly, the Virginia statute’s “ban on cross burning carried out with intent to

intimidate [was] fully consistent” with the dictates of R.A.V. because “burning a cross is a

particularly virulent form of intimidation.” Id. at 363.

On the First Amendment overbreadth issue, there was no Court majority. Three

Justices did not address the issue; they would have invalidated the Virginia statute under

R.A.V. See Black, 538 U.S. at 380–87 (Souter, J.). Of the remaining six, four (in an

opinion by Justice O’Connor for those who formed the R.A.V.-issue majority except for

Justice Scalia) would have held that the statute was rendered facially unconstitutional by

the provision that “any such burning of a cross shall be prima facie evidence of an intent
13
to intimidate a person or group of persons.” Id. at 363 (brackets and internal quotation

marks omitted) (O’Connor, J.). In their view, the flaw was that the provision “strip[ped]

away the very reason why a State may ban cross burning with the intent to intimidate.”

Id. at 365. The plurality explained:

The prima facie evidence provision permits a jury to convict in every cross-
burning case in which defendants exercise their constitutional right not to
put on a defense. And even where a defendant like Black presents a
defense, the prima facie evidence provision makes it more likely that the
jury will find an intent to intimidate regardless of the particular facts of the
case. The provision permits the Commonwealth to arrest, prosecute, and
convict a person based solely on the fact of cross burning itself.

Id. “[T]he act of cross burning may mean that a person is engaging in constititutionally

proscribable intimidation,” it said, “[b]ut that same act may mean only that the person is

engaged in core political speech.” Id. Thus, the prima facie provision “ignore[d] all of

the contextual factors that are necessary to decide whether a particular cross burning is

intended to intimidate.” Id. at 367. “The First Amendment,” concluded the plurality,

“does not permit such a shortcut.” Id.

Justice Scalia, who was a member of the Court majority on the R.A.V. issue,

dissented from the plurality on overbreadth. He disagreed with the plurality’s

interpretation of the prima facie provision, contending that it permitted an inference of

the requisite intent only if the defendant put on no rebuttal evidence. See id. at 368–71

(Scalia, J.). And he argued that (1) so construed, the statute was not unconstitutionally

overbroad because it would be highly unlikely to lead to any convictions for

constitutionally protected conduct; and (2) the plurality should not have assumed its own
14
construction of the prima facie provision but instead should have remanded to the

Virginia Supreme Court for a definitive interpretation. See id. at 371–79. He agreed,

however, with setting aside Black’s conviction because the jury had been instructed that

it could infer his intent from the act of cross-burning itself, so the jury may have ignored

evidence showing no such intent. See id. at 379–80.

Finally, Justice Thomas would have upheld the statute, saying that cross-burning

is not expressive conduct and the prima facie provision established a permissible

inference. See id. at 388–400.

We read Black as establishing that a defendant can be constitutionally convicted of

making a true threat only if the defendant intended the recipient of the threat to feel

threatened. The majority of the Court said that “‘[t]rue threats’ encompass those

statements where the speaker means to communicate a serious expression of an intent to

commit an act of unlawful violence to a particular individual or group of individuals.”

Id. at 359. When the Court says that the speaker must “mean[] to communicate a serious

expression of an intent,” it is requiring more than a purpose to communicate just the

threatening words. Id. It is requiring that the speaker want the recipient to believe that

the speaker intends to act violently. The point is made again later in the same paragraph

when the Court applies the definition to intimidation threats: “Intimidation in the

constitutionally proscribable sense of the word is a type of true threat, where a speaker

directs a threat to a person or group of persons with the intent of placing the victim in fear

of bodily harm or death.” Id. at 360 (emphasis added).
15
 Moreover, the plurality’s overbreadth analysis is predicated on the understanding

that the First Amendment requires the speaker to intend to place the recipient in fear.

According to the plurality, at least one First Amendment flaw in the prima facie provision

was that a jury could infer an “intent to intimidate” from the act of cross-burning itself.

Id. at 363. The prima facie provision, wrote Justice O’Connor, “does not distinguish

between a cross burning done with the purpose of creating anger or resentment and a

cross burning done with the purpose of threatening or intimidating a victim.” Id. at 366.

But how could that be a First Amendment problem if the First Amendment is indifferent

to whether the speaker had an intent to threaten? The First Amendment overbreadth

doctrine does not say simply that laws restricting speech should not prohibit too much

speech. It says that laws restricting speech should not prohibit too much speech that is

protected by the First Amendment.

True, Justice O’Connor’s overbreadth analysis was not adopted by a Court

majority. But that portion of her opinion did not include an analysis of what the First

Amendment requires to convict someone of a true threat. The plurality obviously

assumed that the discussion of the R.A.V. issue had already established that an intent to

threaten was required. The one Justice (Justice Scalia) who had departed from the rest of

the R.A.V.-issue majority to dissent on overbreadth in no way challenged the underlying

assumption by the plurality that the First Amendment required an intent to threaten. On

the contrary, he agreed with the reversal of Black’s conviction on the ground that the

instruction at his trial based on the prima facie provision could have led the jury to
16
convict without considering evidence that he had no intent to intimidate. See id. at 379–

801 (Scalia, J.). Thus, the overbreadth discussion confirms our reading of the definition

of true threat in the discussion of the R.A.V. issue. We also note that Justice Souter’s

opinion for the R.A.V.-issue dissenters also seems to have assumed that intent to instill

fear is an element of a true threat required by the First Amendment. In support of the

view that the Virginia statute could not survive First Amendment scrutiny, the opinion

pointed out that the prima facie provision could encourage juries to convict despite weak

evidence of an intent to intimidate. See id. at 384–87 (Souter, J.).

The Ninth Circuit has read Black as we do. See United States v. Bagdasarian, 652

F.3d 1113, 1116–18 (9th Cir. 2011); United States v. Cassel, 408 F.3d 622, 630–33 (9th

Cir. 2005). It said that a “natural reading” of Black’s definition of true threats “embraces

not only the requirement that the communication itself be intentional, but also the

requirement that the speaker intend for his language to threaten the victim.” Cassel, 408

F.3d at 631. We also find some support from the Seventh Circuit. In United States v.

Parr, 545 F.3d 491, 500 (7th Cir. 2008), it wrote: “It is possible that the Court was not

attempting a comprehensive redefinition of true threats in Black; the plurality’s

discussion of threat doctrine was very brief. It is more likely, however, that an entirely

objective definition is no longer tenable.”

Other circuits have declined to read Black as imposing a subjective-intent

requirement. See United States v. Clemens, 738 F.3d 1, 9–12 (1st Cir. 2013) (on plain-

error review); United States v. Elonis, 730 F.3d 321, 327–32 (3rd Cir. 2013), cert.
17
granted, 134 S. Ct. 2819 (2014); United States v. White, 670 F.3d 498, 506–12 (4th Cir.

2012); United States v. Jeffries, 692 F.3d 473, 477–81 (6th Cir. 2012), cert. denied, 134

S. Ct. 59 (2013); United States v. Nicklas, 713 F.3d 435, 438–40 (8th Cir. 2013); United

States v. Martinez, 736 F.3d 981, 986–88 (11th Cir. 2013). But the reasons for their

conclusions do not persuade us.

We discuss the opinion in Jeffries, 692 F.3d 473, because it expresses the various

reasons for rejecting our reading of Black. To begin with, the Sixth Circuit said that

Black had no need to impose a subjective-intent requirement because the Virginia statute

already required that intent. It wrote:

[Black] merely applies—it does not innovate—the principle that what is a
threat must be distinguished from what is constitutionally protected speech.
It says nothing about imposing a subjective standard on other threat-
prohibiting statutes, and indeed had no occasion to do so: the Virginia law
itself required subjective intent. The problem in Black thus did not turn on
subjective versus objective standards for construing threats. It turned on
overbreadth—that the statute lacked any standard at all. The prima facie
evidence provision failed to distinguish true threats from constitutionally
protected speech because it ignored all of the contextual factors that are
necessary to decide whether a particular cross burning is intended to
intimidate, and allowed convictions based solely on the fact of cross
burning itself.

Jeffries, 692 F.3d at 479–80 (emphasis added) (brackets, citations, and internal quotation

marks omitted); accord Clemens, 738 F.3d at 11; Martinez, 736 F.3d at 986–87;

Nicklas, 713 F.3d at 439–40; see Elonis, 730 F.3d at 330. But we do not read the

plurality’s overbreadth analysis as Jeffries does. As described above, one of the

predicates for the plurality’s overbreadth ruling was the Court’s view that a threat was

18
unprotected by the First Amendment only if the speaker intended to instill fear in the

recipient. If the First Amendment does not require subjective intent, how could it

invalidate the statute for allowing a jury to find subjective intent on improper or

inadequate grounds? See Cassel, 408 F.3d at 631 (Black’s overbreadth analysis made

clear that “intent to threaten [is] the sine qua non of a constitutionally punishable threat”);

White, 670 F.3d at 523 (Floyd, J., dissenting) (“If the First Amendment did not impose a

specific intent requirement, ‘Virginia’s statutory presumption was superfluous to the

requirements of the Constitution, and thus incapable of being unconstitutional in the way

that the majority understood it.’” (quoting Frederick Schauer, Intentions, Conventions,

and the First Amendment: The Case of Cross-Burning, 55 Sup. Ct. Rev. 197, 217

(2003))). Why would the First Amendment care how a jury goes about finding an

element that is a matter of indifference to the Amendment? We cannot read the

plurality’s overbreadth ruling as derived from a lack of standards simpliciter.

Also, Jeffries did not read Black’s definition of true threat to include subjective

intent. It said that Black’s language—“‘“True threats” encompass those statements where

the speaker means to communicate a serious expression of an intent to commit an act of

unlawful violence’”—conveys “only that a defendant ‘means to communicate’ when she

knowingly says the words.” Jeffries, 692 F.3d at 480 (quoting Black, 538 U.S. at 359);

accord Martinez, 736 F.3d at 987; Elonis, 730 F.3d at 329; White, 670 F.3d at 508–09.

Perhaps. There is certainly some ambiguity in the language quoted from Black about

what the speaker must intend. But the natural reading is that the speaker intends to
19
convey everything following the phrase means to communicate, see Cassel, 408 F.3d at

631; White, 670 F.3d at 522 (Floyd, J., dissenting), rather than just to convey words that

someone else would interpret as a “‘serious expression of an intent to commit an act of

unlawful violence,’” Jeffries, 692 F.3d at 480. And later in the same paragraph of Black

two sentences resolve any ambiguity. The sentence immediately after the quote is, “The

speaker need not actually intend to carry out the threat.” Black, 538 U.S. at 359–60. The

proposition that the speaker need not intend to carry out the threat is a helpful

qualification if there is a requirement that the defendant intend the victim to feel

threatened. See White, 670 F.3d at 522 (Floyd J., dissenting). But no such qualification

is called for if the preceding sentence means that the only requisite mens rea is that the

defendant “knowingly says the words.” Jeffries, 692 F.3d at 480. Once it is established

that the sole requisite intent is to say the (threatening) words, no reasonable person (juror)

would then need to be informed that the defendant need not intend to carry out the threat.

If there is no requirement that the defendant intend the victim to feel threatened, it would

be bizarre to argue that the defendant must still intend to carry out the threat.

A later sentence in the paragraph is still more definitive about Black’s meaning.

It says, “Intimidation in the constitutionally proscribable sense of the word is a type of

true threat, where a speaker directs a threat to a person or group of persons with the intent

of placing the victim in fear of bodily harm or death.” Black, 538 U.S. at 360 (emphasis

added). The Court was not referring to intimidation as defined by the Virginia statute or

even as it might be defined by other statutes, but the meaning that is required by the First
20
Amendment. Jeffries did not dispute that this sentence means that intimidation cannot be

proscribed unless the speaker utters the threatening words “with the intent of placing the

victim in fear of bodily harm or death.” 692 F.3d at 480 (internal quotation marks

omitted). Rather, it disposed of the sentence by saying that it only “shows that

intimidation is one ‘type of true threat,’ a reality that does little to inform § 875(c), which

prohibits all types of threats to injure a person.” Id.; accord Elonis, 730 F.3d at 329 n.4

(“[T]his sentence explains when intimidation can be a true threat, and does not define

when threatening language is a true threat.”); Martinez, 736 F.3d at 987 (“[T]he general

class of true threats does not require such an inquiry . . . . After all, intimidation is but

one type of true threat . . . . [E]xplicitly requiring subjective intent for one discrete type

of true threat makes little sense if the Court intended all true threats to require such

intent.”). Yet why should the First Amendment require a subjective intent for

intimidation but not other true threats? See White, 670 F.3d at 522 (Floyd, J., dissenting).

Nothing in Black so much as hints at a reason for such a distinction. What is it about

nonintimidation threats that makes them so much worse than threats of bodily harm or

death that the First Amendment allows them to be prosecuted even when the speaker did

not intend to instill fear? One would have thought the opposite—that there should be less

First Amendment protection for threats of bodily harm or death. The sentence in Black

about “intimidation” is best read as merely applying the propositions stated earlier in the

paragraph to the specific statute before the Court.

21
 Jeffries found further support for an objective standard in the rationale for denying

First Amendment protection to true threats:

While the First Amendment generally permits individuals to say what they
wish, it allows government to “protect[ ] individuals” from the effects of
some words—“from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will occur.”
R.A.V., 505 U.S. at 377, 388; Black, 538 U.S. at 344. What is excluded
from First Amendment protection—threats rooted in their effect on the
listener—works well with a test that focuses not on the intent of the speaker
but on the effect on a reasonable listener of the speech.

692 F.3d at 480 (citations modified); accord Martinez, 736 F.3d at 987–88; Elonis, 730

F.3d at 329–30. Well said. But to say that the effect on the listener supports a “threat”

exception to the freedom of speech does not mean that no other considerations come into

play. For example, it may be worth protecting speech that creates fear when the speaker

intends only to convey a political message. As we understand Black, the Supreme Court

has said as much. When the speaker does not intend to instill fear, concern for the effect

on the listener must yield.

In short, despite arguments to the contrary, we adhere to the view that Black

required the district court in this case to find that Defendant intended to instill fear before

it could convict him of violating 18 U.S.C. § 875(c).3

3
Of course, as stated by the First Circuit, “[I]t is rare that a jury would find that a
reasonable speaker would have intended a threat under the particular facts of a case but
that a competent defendant did not.” Blum v. Holder, 744 F.3d 790, 802 n.17 (1st Cir.
2014) (internal quotation marks omitted).

22
III. CONCLUSION

We REVERSE Defendant’s conviction and REMAND for the district court to

determine whether he intended his e-mail to be threatening.

23
United States v. Heineman, No. 13-4043

BALDOCK, J., concurring in the judgment only.

The interstate transmission of “any communication containing . . . any threat to injure

the person of another” is a federal crime. 18 U.S.C. § 875(c). The question presented in this

case is whether § 875(c) requires the Government to prove a defendant’s subjective intent

to threaten. The court concludes the First Amendment requires such proof. But to my mind

we should resolve this case without resorting to the First Amendment by simply construing

the statute’s text. Indeed, we are duty bound not to reach constitutional questions

unnecessarily even if the parties ask us to do so. See Ulster Cnty. Court v. Allen, 442 U.S.

140, 154 (1979) (recognizing federal courts have a “strong duty to avoid constitutional issues

that need not be resolved”). Accordingly, I respectfully decline to join the court’s opinion.

I.

In Clark v. Martinez, 543 U.S. 371 (2005), the Supreme Court explained that “when

deciding which of two plausible statutory constructions to adopt, a court must consider the

necessary consequences of its choice. If one of them would raise a multitude of

constitutional problems, the other should prevail.” Id. at 380–81. This is the canon

of constitutional avoidance. The canon “is a tool for choosing between competing plausible

interpretations of a statutory text, resting on the reasonable presumption that Congress

did not intend the alternative which raises serious constitutional doubts.” Id. at 381.

Importantly, however, “[t]he canon of constitutional avoidance comes into play only when,

after the application of ordinary textual analysis, the statute is found to be susceptible of

more than one construction.” Id. at 385 (emphasis added). Therein lies the fundamental
problem with this court’s opinion. The court undertakes no “ordinary textual analysis” of

§ 875(c), but simply states “[t]he statutory language contains no mens rea requirement” and

proceeds to engage the Constitution from the outset. Court’s Op. at 4. After telling us

it “will read into § 875(c) any scienter necessary to satisfy the demands of the First

Amendment,” the court identifies the only question before us as whether “the First

Amendment . . . requires the government to prove in any true-threat prosecution that the

defendant intended the recipient to feel threatened.” Id. at 5, 10. The court undoubtedly

applies the canon of constitutional avoidance prematurely, and perhaps unnecessarily.

The Supreme Court’s recent grant of the petition for a writ of certiorari in United

States v. Elonis, 730 F.3d 321 (3d Cir. 2013), cert. granted, 134 S. Ct. 2819 (2014), is telling.

The only question raised in the petition (the same question this court insists on answering)

is “[w]hether, consistent with the First Amendment . . . , conviction of threatening another

person [in violation of 18 U.S.C. § 875(c)] requires proof of the defendant’s subjective

intent to threaten . . . ; or whether it is enough to show that a ‘reasonable person’ would

regard the statement as threatening . . . .” Petition for a Writ of Cert., Elonis, 2014 WL

645438 (No. 13-983) (2014). Importantly, however, in its order granting the petition, the

Court directed the parties to brief and argue an additional question: “Whether, as a matter

of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c)

requires proof of the defendant’s subjective intent to threaten.” Elonis, 134 S. Ct. at 2819.

The Supreme Court’s order granting the petition in Elonis reinforces what Clark teaches us,

namely that in interpreting § 875(c) we must first ask what its text requires rather than what

2
the Constitution demands. One need not be an oracle to understand what the Supreme Court

first wants to know. And what the Supreme Court wants we should endeavor to provide.1

II.

This court says in footnote 2 of its opinion that two circuit precedents, namely our

decisions in United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983), and United States v.

Viefhaus, 168 F.3d 392, 395–96 (10th Cir. 1999), preclude us from deciding by way of

ordinary textual analysis what sort of intent § 875(c) requires. Not so. We have never

considered whether § 875(c) requires proof of a defendant’s subjective intent to threaten. We

have never even once held the term “threat” as used elsewhere in the criminal code excludes

a defendant’s subjective intent.

Dysart involved a prosecution under 18 U.S.C. § 871, which proscribes threats against

the President. To be sure, in Dysart the defendant argued “the trial court erred in failing to

charge that for conviction under § 871, it must be shown that [the defendant] intended the

letter to be taken as a threat.” Dysart, 705 F.2d at 1256. But a careful reading of Dysart

1
My initial response to the grant of certiorari in Elonis, given its nearly identical
stature to this case, was to ponder whether we should decide this case now. Certainly, where
a defendant is in custody, to delay a decision in favor of such defendant might be unfair
notwithstanding a relevant grant of certiorari. But here, Defendant Heineman received a
sentence of three years probation. Just last month, the district court reduced Defendant’s
sentence to two years probation. United States v. Heineman, No. 11-CR-432-DN, Corrected
Order at 1 (D. Utah Aug. 8, 2014). Defendant has approximately six months left to serve.
Today’s judgment is no guarantee that Defendant will be free from state supervision anytime
soon because the Government may choose to apply for certiorari or retry him. I see little
need of rendering an opinion here when the Supreme Court had granted certiorari in another
case that in all likelihood will resolve the matter before us. But because this court forces my
hand, I too shall play my cards—for better or worse.

3
reveals we never held otherwise. Instead, we explained that § 871 “requires that the

Government must prove a ‘true “threat”’, and the instructions given by the trial court met this

requirement.” Id. at 1256 (internal citation omitted). Those instructions, in addition to

stating that the recipient must reasonably perceive the communication as threatening,

elsewhere defined the term “threat” as an “avowed present determination or intent to injure

presently or in the future,” and required the prosecution to establish “a serious threat as

distinguished from words as mere political argument, talk or jest.” Id. The instructions also

required consideration of “the context in which [the words] were spoken,” not the context in

which they were heard. Id. (emphasis added). In short, the instructions which we approved

in Dysart included a subjective intent component: that the speaker intend his threat be taken

seriously, as opposed to in jest.2

In Viefhaus, by contrast, the defendant never argued 18 U.S.C. § 844(e), which

proscribes bomb threats, requires proof of a defendant’s subjective intent to threaten. Rather,

the defendant argued “his comments amounted only to ‘vulgar political speech’” protected

by the First Amendment. Viefhaus, 168 F.3d at 395. We rejected that argument by

distinguishing a “true threat” from political speech based on its effect on the listener, much

like the Supreme Court did in Watts v. United States, 394 U.S. 705 (1969). Importantly,

2
The court relies on Dysart’s rejection of the defendant’s subjective intent argument
without ever acknowledging why we rejected that argument. We rejected that argument
because the instructions as written already required proof of the defendant’s subjective intent
to threaten. Specifically, we rejected the contention “that the instructions did not avoid the
risk of conviction for a crude jest or expression of political hostility,” because that contention
“is clearly untenable in light of the explicit guidance on that point found in the instructions.”
Dysart, 705 F.2d at 1256.

4
Viefhaus never addressed whether § 844(e) lacks a subjective intent component. In fact, our

words suggest otherwise:

A “true threat” means “a serious threat as distinguished from words as mere
political argument, idle talk or jest.” United States v. Leaverton, 835 F.2d 254,
257 (10th Cir. 1987). We have previously defined “threat” by referencing the
language of Black’s Law Dictionary. See id. at 256–57. We again rely on that
definition, but elaborate on the meaning of “intent” as it is used in that
definition. Thus, we define “threat” as a declaration of intention, purpose,
design, goal, or determination to inflict punishment, loss, or pain on another,
or to injure another or his property by the commission of some unlawful act.
See Black’s Law Dictionary 1480 (6th ed. 1990); Webster’s Third New Int’l
Dictionary (unabridged) 1176 (1993). It is not necessary to show that
defendant intended to carry out the threat, nor is it necessary to prove he had
the apparent ability to carry out the threat. The question is whether those who
hear or read the threat reasonably consider that an actual threat has been
made. It is the making of the threat and not the intention to carry out the threat
that violates the law.

Viefhaus, 168 F.3d at 395–96 (emphasis in original).

Similar to the definition we approved in Dysart, our definition of a “threat” in

Viefhaus implicitly contains a subjective intent component. The italicized statement

appearing in the original cannot be read in isolation from the remainder of the text and, in

particular, the sentences immediately preceding and succeeding it. Taken in context, that

statement merely expresses our (correct) view that a defendant need not intend to carry out

the threat or even have the apparent ability to do so. In no sense does the italicized statement

suggest the Government need not prove a defendant’s subjective intent to threaten as part of

a § 844(e) prosecution.

But regardless of how one chooses to read our precedents—lest any doubt remain—

I am aware of no Supreme Court or Tenth Circuit decision that says a court’s interpretation

5
of a term in one statute binds its interpretation of the same term in a different statute. In

Hackwell v. United States, 491 F.3d 1229, 1235 (10th Cir. 2007), we explained that “[w]hile

there is no per se rule of statutory interpretation that identical words used in different statutes

are intended to have the same meaning, we will nevertheless look at a statute’s relationship

to other statutes to determine Congress’s intent.” (internal quotations omitted). See also

Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007). What this means for present

purposes is that any construction we may have given the word “threat” in a statute other than

§ 875(c) is merely one facet of a comprehensive textual analysis of § 875(c), not an excuse

to forego such analysis altogether. Plainly then, Tenth Circuit precedent does not preclude

us from undertaking a textual analysis of § 875(c) in the first instance.

III.

As noted in the court’s opinion, a number of our sister circuits recently have addressed

the meaning of § 875(c). See Court’s Op. at 17–18. Oddly enough, however, Judge Sutton

is the only circuit judge to date to address the question the Supreme Court now wants

answered. In his separate dubitante opinion in Jeffries, Judge Sutton asks why the circuit

courts have routinely construed § 875(c) “through the prism of free-speech principles” and,

in particular, the Supreme Court’s splintered decision in Virginia v. Black, 538 U.S. 343

(2003), without first simply construing its text.3 United States v. Jeffries, 692 F.3d 473, 485

3
Judge Sutton also authored the Sixth Circuit’s opinion in Jeffries. Because the Sixth
Circuit previously had held § 875(c) does not require proof of subjective intent, the court was
required to address Jeffries’ argument that the First Amendment, via Black, invalidated all
communicative-threat laws failing to do so. Jeffries, 692 F.3d at 483 (Sutton, J., dubitante).

6
(6th Cir. 2012) (Sutton, J., dubitante). “The statute should require first what the words say

. . . .” Id. Only if our construction of § 875(c)’s text raises constitutional concerns need we

ask what constitutional avoidance principles require.

Judge Sutton’s dubitante opinion first addresses the wording of § 875(c), then its

history, and finally background norms for construing criminal statutes. That is, he

undertakes an ordinary textual analysis of § 875(c). Applying these “conventional indicators

of meaning,” id., Judge Sutton comes to but one conclusion: In a case such as this, where

everyone agrees the intent element of § 875(c) contains an objective component, see Watts,

394 U.S. at 708, courts need not rely on the First Amendment to interpret § 875(c) because

the statute as written already requires the Government to prove a defendant’s subjective

intent to threaten. Courts relying on Black to construe § 875(c) have placed the cart before

the horse.

As to the meaning of the word “threat” itself, Judge Sutton points out—

Every relevant definition of the noun “threat” or the verb “threaten,” whether
in existence when Congress passed the law (1932) or today, includes an intent
component. “To declare (usually conditionally) one’s intention of inflicting
injury upon” a person, says one dictionary. 11 Oxford English Dictionary 352
(1st ed. 1933). “An expression of an intention to inflict loss or harm on
another by illegal means, esp. when effecting coercion or duress of the person
threatened,” says another. Webster’s New Int’l Dictionary 2633 (2d ed. 1955).
“A communicated intent to inflict harm or loss on another,” says still another.
Black’s Law Dictionary 1489 (7th ed. 1999). And so on: “An expression of
intention to inflict pain, injury, evil, or punishment.” American Heritage
Dictionary of the English Language 1801 (4th ed. 2000). And on: “An
expression of intention to inflict something harmful.” Webster’s New College
Dictionary 1149 (1995). And on: “A declaration of an intention or
determination to inflict punishment, injury, etc., in retaliation for, or
conditionally upon, some action or course.” Random House Unabridged
Dictionary 1975 (2d ed. 1987).

7
 ***
If words matter, I am hardpressed to understand why these definitions do not
resolve today’s case. These definitions, all of them, show that subjective intent
is part and parcel of the meaning of a communicated “threat” to injure
another.

Jeffries, 692 F.3d at 483–84 (Sutton, J., dubitante) (internal brackets omitted) (emphasis

added). In other words, the dictionary definition of the word “threat” connotes subjective

intent. One may cause another to “feel threatened” through an act of mere jest or even

negligence (an objective inquiry), but one cannot “threaten” another without intending to do

so (a subjective inquiry).

Of course, Judge Sutton’s definitional analysis is not immune from challenge. As

Justice Frankfurter once commented: “All our work . . . is a matter of semantics.”4 Notably,

for instance, when defining a “true threat” in Black, the Supreme Court added language to

the aforementioned dictionary definitions, perhaps to emphasize that subjective intent was

part and parcel of that phrase.5 Compare Black’s Law Dictionary 1489 (7th ed. 1999)

4
“All our work, our whole life is a matter of semantics, because words are the tools
with which we work, the materials out of which laws are made . . . . Everything depends on
our understanding of them.” William T. Coleman, Counsel for the Situation: Shaping the
Law to Realize America’s Promise 78 (2010) (quoting Justice Frankfurter).
5
In Black, the Court explained that the reasons why the First Amendment does not
shield “true threats” is to protect individuals “‘from the fear of violence’ and ‘from the
disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the
threatened violence will occur.’” Black, 538 U.S. at 360 (quoting R.A.V. vs. City of St. Paul,
505 U.S. 375, 388 (1992)). The first two reasons lend themselves well to an objective intent
standard that asks how a reasonable person would perceive the “threat.” The third reason,
however, suggests the First Amendment may require the Government to prove subjective
intent as part of any § 875(c) prosecution. If the culprit lacks a subjective intent to threaten,
the possibility the threatened violence will occur seems at best rather remote.

8
(defining threat only as “[a] communicated intent to inflict harm”), with Black, 538 U.S. at

359 (defining threat as “where the speaker means to communicate a serious expression of

an intent to commit an act of unlawful violence . . . .” (emphasis added)). This arguably

suggests dictionary definitions of a “threat” alone do not encompass the necessary subjective

intent, or at least that the Supreme Court may not believe so. But, as Judge Sutton forcefully

points out, any ambiguity in the dictionary definitions of “threat” is surely overcome by

1) the history of § 875, which from the beginning possessed a subjective intent component,

originally, the “intent to extort,” and 2) the background norms for construing criminal

statutes, which “presume that intent [i.e. something more than negligence] is the required

mens rea in criminal laws.” Jeffries, 692 F.3d at 484 (Sutton, J., dubitante).

Judge Sutton’s analysis of the word “threat” as it appears in § 875(c) leads me to

believe we too have placed the cart before the horse. At the very least, this court should tell

us why Judge Sutton’s view does not carry the day when the Supreme Court seems to think

it might.

9