United States v. Cassel

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-10683
Plaintiff-Appellee,
v.  D.C. No.
CR-00-05431-REC
PAUL KENT CASSEL,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, Senior Judge, Presiding

Argued and Submitted
December 7, 2004—San Francisco, California

Filed May 24, 2005

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

5641
5644 UNITED STATES v. CASSEL

COUNSEL

Joan Jacobs Levie, Fresno, California, argued the cause for
the appellant.

Jonathan B. Conklin, U.S. Attorney’s Office, Fresno, Califor-
nia, argued the cause for the appellee. McGregor W. Scott,
U.S. Attorney’s Office, Fresno, California, was on the brief.
 UNITED STATES v. CASSEL 5645
OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the First Amendment permits the
government to punish a threat without proving that it was
made with the intent to threaten the victim.

I

In early 1998, Paul Kent Cassel and his girlfriend, Anasta-
sia Kafteranis, were living on property owned by Kafteranis
and located near Randsburg, California, in the Mojave Desert.
The federal government owned several lots near Kafteranis’s
property and it sought to sell them, acting through the Bureau
of Land Management (BLM). Cassel apparently liked his pri-
vacy, though, and was not about to let neighbors move in
without doing what he could to stop them.

Arthur and Alice Rinard, a married couple, were interested
in buying one of the government lots, and in January 1998
they visited the property to look around. As they were walk-
ing around, Cassel approached them. He was accompanied by
two of his dogs. One of the dogs—a certain “Mr. Mooch
Face”—was extremely ugly and at least somewhat aggressive,
probably because it had once been run over by a car. Cassel
began a conversation with the Rinards that would continue
over the following two days. Cassel’s participation in the con-
versation consisted mostly of providing the Rinards with a
series of dramatic reasons why the property that the Rinards
were considering was quite undesirable. Cassel claimed,
among other things, that the government’s maps misidentified
the boundaries between the various lots; that bidding on one
of the lots—lot 107—was pointless because Cassel and
Kafteranis were going to purchase it no matter what the cost;
that it would cost at least twenty thousand dollars to get the
permits needed to build a residence on the property; that the
surrounding area was inhabited by child molesters, murderers,
5646 UNITED STATES v. CASSEL
producers of illegal drugs, devil-worshipers, and witches; that
the ground was a toxic waste dump contaminated with cya-
nide; that local law enforcement officials were corrupt; that
mining explosions had damaged Kafteranis’s own house; and
that a neighbor had developed a disease known as “silica
lung.”

Cassel invited the Rinards to join him and Kafteranis for
dinner, and despite his generally unneighborly demeanor, they
agreed. Cassel kept up his invective during the meal, and his
dogs continued to appear aggressive. He ultimately succeeded
in dissuading the Rinards from purchasing the lot they had
been considering—not, according to Mr. Rinard’s testimony,
because they believed his stories about nearby witches, but
because they did not want Cassel as a neighbor. The Rinards
told the BLM about their conversations with Cassel, and Mr.
Rinard informed the BLM that while he did not feel person-
ally intimidated by Cassel, he believed that others might.

About a month later, another couple, Mickey and Terry
Goodin, came to visit two of the lots. Again Cassel greeted
the couple, this time accompanied by only one of his dogs.
Cassel’s conversation with the Goodins proceeded along the
same lines as his earlier conversation with the Rinards. He
referred to the BLM as “crooks” and threw in at least one less
polite term to boot; he described the toxic waste dump, the
child molesters, the drug labs, the devil worshipers, and the
cyanide in the ground. Mr. Goodin found Cassel obnoxious
and could tell he did not want neighbors. He testified that
Cassel told him “that if I [Goodin] tried to build anything on
Lot 107, that it would definitely burn. He would see to that.
That if I left anything there, it would be stolen, vandalized. He
would see to that.” Cassel denied making that statement. The
Goodins ended up buying a lot about a quarter of a mile from
Kafteranis’s property, but Mr. Goodin testified that he did not
bid on lot 107 because of Cassel’s threat to burn any house
the Goodins might build. Kafteranis eventually purchased lot
107 at auction.
 UNITED STATES v. CASSEL 5647
In November 2000, Cassel was charged in the Eastern Dis-
trict of California with two counts of interfering with a federal
land sale under 18 U.S.C. § 1860 and two counts of witness
tampering under 18 U.S.C. § 1512(c). In April 2001, the gov-
ernment filed a superseding information dropping one of the
witness tampering counts. Cassel was tried before a magis-
trate judge by his consent, and a jury convicted Cassel on all
remaining charges.

In September 2001, before his sentencing hearing, Cassel
wrote a letter to the magistrate judge requesting new counsel.
The court denied that request after a hearing and sentenced
Cassel to five months’ imprisonment and 150 days of home
confinement. Cassel appealed to the district court, which
affirmed his conviction and sentence. This appeal timely fol-
lowed.

II

Cassel argues that the statute under which he was con-
victed, 18 U.S.C. § 1860, is facially unconstitutional, both
because it punishes constitutionally protected speech1 and
because it is unconstitutionally vague. He further contends
that the trial court erroneously instructed the jury and improp-
1
Cassel divides this argument in two, arguing first that the statute is
“overbroad” and then that it is unconstitutional “as applied.” His dichoto-
mous terminology, however, is merely a gloss on a single substantive
argument—namely, that any prosecution under § 1860 would be unconsti-
tutional because the statute fails to require proof that the defendant acted
with a mens rea sufficient to place his conduct outside the protection of
the First Amendment. Accordingly, we treat his argument as a facial chal-
lenge to § 1860 based not in overbreadth but on the claim that the statute
is unconstitutional in all its applications. See Foti v. City of Menlo Park,
146 F.3d 629, 635 (9th Cir. 1998) (“An ordinance may be facially uncon-
stitutional in one of two ways: either it is unconstitutional in every con-
ceivable application, or it seeks to prohibit such a broad range of protected
conduct that it is unconstitutionally overbroad.” (internal quotation marks
and ellipses omitted)).
5648 UNITED STATES v. CASSEL
erly denied his request for new counsel. We consider these
claims in turn.2

A

[1] 18 U.S.C. § 1860 punishes, in relevant part, “[w]hoever,
by intimidation . . . hinders, prevents, or attempts to hinder or
prevent, any person from bidding upon or purchasing any
tract of” federal land at public sale. Cassel argues that this
language criminalizes a wide range of constitutionally pro-
tected speech merely because such speech has the effect—
intended or not—of “intimidati[ng]” a potential land buyer
and thus making it more difficult for the government to sell
its land.

1

As an initial matter, we must consider what level of scru-
tiny we are to apply to the statute. Its language is not
addressed specifically to speech: rather, it criminalizes the act
of interfering with a federal land sale “by intimidation,”
whether through speech or conduct. The government appears
to contend, on that basis, that the statute should not be ana-
lyzed as a restriction on speech at all, but rather as a perfectly
legitimate restriction on conduct that only incidentally
restricts some speech. Cf. United States v. Brice, 926 F.2d
925, 931 (9th Cir. 1991) (“If conduct contains both speech
and non-speech elements, and if Congress has the authority to
regulate the non-speech conduct, incidental restrictions on
freedom of speech are not constitutionally invalid.”). But
when the definition of a crime or tort embraces any conduct
2
Cassel also argues (1) that the evidence was insufficient to support his
conviction, (2) that the magistrate judge erred by failing to make specific
factual findings as to whether his disability (a heart condition) constituted
an “extraordinary physical impairment” under U.S. Sentencing Guidelines
§ 5H1.4, and (3) that his sentence was based on facts not found by a jury
beyond a reasonable doubt. Because we remand for a new trial, we do not
reach these issues.
 UNITED STATES v. CASSEL 5649
that causes or might cause a certain harm, and the law is
applied to speech whose communicative impact causes the
relevant harm, we treat the law as content-based. See, e.g.,
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (holding
that “public figures and public officials” must show actual
malice to prevail on a state-law tort claim for intentional
infliction of emotional distress based on the defendant’s
speech). 18 U.S.C. § 1860 is just such a law: its prohibition
applies to any conduct that causes the harm of interfering by
intimidation with a public land sale. Since it was applied in
this case to Cassel’s speech (as well as his allegedly intimidat-
ing conduct, such as approaching the couples while accompa-
nied by aggressive dogs), we treat it as content-based.

In arguing to the contrary, the government directs our atten-
tion to the Fifth Circuit’s decision in United States v. Hicks,
980 F.2d 963 (5th Cir. 1992). In Hicks, the Fifth Circuit
upheld a conviction under 49 U.S.C. App. § 1472(j), which
prohibits “intimidat[ing] or threaten[ing]” a member of the
crew onboard an airplane. The court held that “the statute rea-
sonably regulates the time, place, and manner of speech, irre-
spective of its particular content. The content of passengers’
speech is thus regulated only in an incidental fashion.” Hicks,
980 F.2d at 971. Accordingly, it analyzed the statute under the
deferential standard applied to content-neutral restrictions on
speech.3 See id.

[2] We cannot agree with this analysis, however. “Time,
place, and manner” restrictions regulate matters such as how
loud speech can be, see, e.g., Ward v. Rock Against Racism,
491 U.S. 781 (1989), or whether residents may place signs in
their lawns, see, e.g., City of Ladue v. Gilleo, 512 U.S. 43
(1994). These are issues that have nothing to do with the con-
3
The Hicks court also noted that even if it analyzed the statute as a
content-based regulation of speech, it would uphold the statute because of
the compelling government interest in ensuring safety onboard airplane
flights. Hicks, 980 F.2d at 971-72.
5650 UNITED STATES v. CASSEL
tent of the speech. Excessively loud speech is objectionable
whether it consists of rock music or nursery rhymes, and signs
on lawns may be unsightly whether they advertise political
candidates or a garage sale. In contrast, 18 U.S.C. § 1860 pun-
ishes speech precisely because of the “intimidat[ing]” mes-
sage it contains. It must, therefore, be analyzed as a content-
based restriction on speech.

2

[3] Not all content-based restrictions on speech are uncon-
stitutional, of course. The Supreme Court has recognized that
certain categories of speech are of such low value and inflict
such serious harm that they are outside the protection of the
First Amendment. One such category is composed of “true
threats.” See, e.g., United States v. Hanna, 293 F.3d 1080,
1084 (9th Cir. 2002) (“[T]he Court [has] left no doubt that
true threats could be criminalized because they are not pro-
tected speech.”). The government argues that § 1860 com-
ports with the First Amendment because it only punishes
speech that falls within this unprotected category. Cassel rec-
ognizes that true threats are unprotected, but he contends that
only intentional threats are unprotected by the First Amend-
ment and that the crime defined in § 1860 lacks the constitu-
tionally necessary mens rea element of intent. We are thus
faced with the question whether intent to threaten the victim
is required in order for speech to fall within the First Amend-
ment exception for threats.

As a preliminary matter, we should be clear about precisely
what is at issue. On one hand, it is not in dispute that, to be
convicted under § 1860, the defendant must intend the speech
or conduct that has the effect of intimidating the potential land
buyer. In other words—though it is almost too obvious to
mention—a defendant whose involuntary epileptic fit caused
him to appear menacing during a land auction, frightening off
a potential buyer, would doubtless not have violated the stat-
ute. (We intimate no view as to whether this minimal element
 UNITED STATES v. CASSEL 5651
of intent is required by the Constitution; the issue is not
before us.)

On the other hand, no one now contends that the Constitu-
tion requires proof that the defendant intends to carry out the
threat—that is, actually to inflict the harm that he has threat-
ened. One of the chief evils wrought by a threat is its deleteri-
ous and coercive effect on the victim (and, here, in the
consequent effect on the government’s ability to sell its land),
and that effect is not diminished merely because the defendant
is bluffing. See Roy v. United States, 416 F.2d 874, 877 (9th
Cir. 1969); Virginia v. Black, 538 U.S. 343, 359-60 (2003).

Rather, the disputed question is whether the government
must prove that the defendant intended his words or conduct
to be understood by the victim as a threat. Cassel argues that
it must. The government’s position is that mere negligence
with regard to the victim’s understanding is enough: in other
words, speech is punishable if a reasonable person would
understand it as a threat, whether or not the speaker meant for
it to be so understood.

3

The Supreme Court has decided very few cases directly
addressing the threat exception. For many years, its only sig-
nificant pronouncement on the subject was its opinion in
Watts v. United States, 394 U.S. 705 (1969). The defendant
in Watts had announced at a public rally against the Vietnam
War in 1966 that “[i]f they ever make me carry a rifle the first
man I want to get in my sights is L.B.J.” Id. at 706. He was
convicted of violating 18 U.S.C. § 871(a), which prohibits
“knowingly and willfully mak[ing] any threat to take the life
of or to inflict bodily harm upon the President of the United
States.” Id. at 705 & n.*. The Court overturned his conviction,
holding that First Amendment principles required it to con-
strue the term “threat” in the statute to exclude the sort of
political hyperbole the defendant had used. Id. at 707-08. The
5652 UNITED STATES v. CASSEL
Court declined to address the question of what mens rea
requirement the statute imposed,4 see id., and so it did not
explain whether intent to threaten is a necessary part of a con-
stitutionally punishable threat.

Our own cases, it must be said, have not been entirely clear
or consistent on that question. We have often held or implied
that negligence is enough. In Roy v. United States, 416 F.2d
874 (9th Cir. 1969), we were called upon to answer the spe-
cific statutory question left unresolved by the Supreme Court
in Watts: what degree of intent is required by 18 U.S.C.
§ 871(a)’s prohibition of “knowingly and willfully” commu-
nicating a threat against the President. Roy did not raise con-
stitutional issues in his appeal, and we did not address them
except to say, in a footnote, that “there does not appear to be
a free speech issue in this case.” Roy, 416 F.2d at 879 n.17.
Nevertheless, as a matter of statutory construction, we held
that the statute required

only that the defendant intentionally make a state-
ment . . . under such circumstances wherein a rea-
sonable person would foresee that the statement
would be interpreted by those to whom the maker
communicates the statement as a serious expression
of an intention to inflict bodily harm upon . . . the
President, and that the statement not be the result of
mistake, duress, or coercion.
4
The Court noted that the D.C. Circuit’s opinion affirming the convic-
tion apparently rested on the belief that a threat was made “willfully”
within the statute’s meaning if “the speaker voluntarily uttered the charged
words with an apparent determination to carry them into execution.”
Watts, 394 U.S. at 707 (internal quotation marks omitted). The Court
noted that it had “grave doubts” about that construction, citing Judge
Skelly Wright’s dissent in the Court of Appeals, which would have held,
on constitutional grounds, that the statute required both a subjective intent
to carry out the threat and an objective manifestation of that intent. See id.
(citing Watts v. United States, 402 F.2d 676, 686-93 (D.C. Cir. 1968)
(Skelly Wright, J., dissenting)).
 UNITED STATES v. CASSEL 5653
Id. at 877-78. The reference to a “reasonable person” makes
clear that we were describing a negligence standard, with no
requirement of actual intent to threaten. We subsequently
reaffirmed Roy’s holding in United States v. Hanna, 293 F.3d
1080 (9th Cir. 2002), and stated clearly that “Roy’s ‘reason-
able speaker’ standard does not violate the First Amendment.”
Id. at 1084.

In United States v. Orozco-Santillan, 903 F.2d 1262 (9th
Cir. 1990), we upheld the defendant’s conviction for threaten-
ing a federal law enforcement officer under 18 U.S.C.
§ 115(a)(1)(B). We were not primarily concerned with consti-
tutional questions, but we observed that “[a] ‘true’ threat,
where a reasonable person would foresee that the listener will
believe he will be subjected to physical violence upon his per-
son, is unprotected by the first amendment.” Orozco-
Santillan, 903 F.2d at 1266. Again, our reference to a “reason-
able person” seems to suggest that the First Amendment per-
mits punishing a threat made with only negligence as to the
statement’s threatening character.5 See also Wurtz v. Risley,
719 F.2d 1438, 1441 (9th Cir. 1983) (stating that “implicit in
the nature of . . . punishable threats is a reasonable tendency
to produce in the victim a fear that the threat will be carried
out” and holding that a Montana statute was overbroad
because it contained no such requirement); cf. United States
v. Meeker, 527 F.2d 12 (9th Cir. 1975) (holding, without men-
tioning constitutional issues, that 49 U.S.C. App. § 1472(j),
which prohibits “intimidat[ing] or threaten[ing]” a crew mem-
ber onboard an airplane “so as to interfere with the perfor-
mance” of the crew member’s duties, does not require specific
intent to interfere with the crew member’s performance).

Yet at other times the language of our cases has suggested
that intent is required. In United States v. Gilbert, 813 F.2d
5
The statute, however, explicitly included “intent to . . . intimidate” as
an element of the crime, Orozco-Santillan, 903 F.2d at 1265, so our impli-
cation that negligence suffices was perhaps dictum.
5654 UNITED STATES v. CASSEL
1523 (9th Cir. 1987), we upheld, against an overbreadth chal-
lenge, a provision of the Fair Housing Act that criminalizes
“willfully . . . intimidat[ing]” anyone for various reasons
related to racial discrimination in housing. See 42 U.S.C.
§ 3631. A conviction under the statute requires proof that the
defendant specifically intended “to injure, intimidate or inter-
fere with the victim.” See, e.g., United States v. McInnis, 976
F.2d 1226, 1230 (9th Cir. 1992). Addressing Gilbert’s First
Amendment challenge to § 3631, we observed that “the ele-
ment of intent specified in section 3631 [is] the determinative
factor separating protected expression from unprotected crim-
inal behavior.” Gilbert, 813 F.2d at 1529; see also id. (“[T]he
statute’s requirement of intent to intimidate serves to insulate
the statute from unconstitutional application to protected
speech.”). That language seems to imply that a subjective “in-
tent to intimidate” (or intent to threaten) is necessary before
a threat can constitutionally be punished. Cf. United States v.
Twine, 853 F.2d 676 (9th Cir. 1988) (holding, without dis-
cussing constitutional issues, that subjective intent to threaten
is necessary to a conviction under 18 U.S.C. §§ 875(c) and
876, which punish threats to kidnap or injure another person).

On one occasion, we seemed to advocate both positions
within the confines of a single opinion. In Planned Parent-
hood of the Columbia/Willamette, Inc. v. American Coalition
of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), we
rejected a First Amendment challenge to the Freedom of
Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248,
which provides a right of action against whoever by “threat of
force . . . intentionally intimidates any person because that
person is or has been . . . providing reproductive health ser-
vices.” 18 U.S.C. §§ 248(a)(1), (c)(1)(A). In the course of
holding that FACE does not require intent or ability to carry
out the threat, we repeated our statement in Orozco-Santillan
that “[a] true threat, that is one where a reasonable person
would foresee that the listener will believe he will be sub-
jected to physical violence upon his person, is unprotected by
the first amendment.” Planned Parenthood, 290 F.3d at 1075
 UNITED STATES v. CASSEL 5655
(quoting Orozco-Santillan, 903 F.2d at 1265). We also wrote
that “the only intent requirement for a true threat is that the
defendant intentionally or knowingly communicate the threat.”6
Id. Thus far, someone reading our decision in that case would
think our holding was clear: no subjective intent to threaten
is necessary. Indeed, one of the dissents described the majori-
ty’s holding in just that way. Id. at 1108 n.9 (Berzon, J., dis-
senting) (“The majority opinion does not appear to embrace
any such subjective intent standard as a constitutional require-
ment . . . .”).

Yet our opinion in Planned Parenthood also noted that the
statute in question contained an explicit requirement of intent
to threaten (or “intent to intimidate”), and we cited Gilbert for
the proposition that “the requirement of intent to intimidate
serves to insulate the statute from unconstitutional application
to protected speech.” Id. at 1076 (quoting Gilbert, 813 F.2d
at 1529). Moreover, we observed that “the requirement of
intent to intimidate cures whatever risk there might be of
overbreadth.” Id. at 1079. And we wrote that the reasonable-
person definition of a true threat, “coupled with the statute’s
requirement of intent to intimidate, comports with the First
Amendment.” Id. at 1088 (emphasis added). In these passages
we seemed to hold—or at least keep open the possibility—
that subjective intent to threaten is necessary. But see Hanna,
6
On its face, that language might be ambiguous as to whether it is the
communication itself or its threatening nature that the defendant must
intend, but at least one of the cases we cited in support of the statement
clearly held that the First Amendment imposes no requirement of subjec-
tive intent to threaten. Id. (citing United States v. Francis, 164 F.3d 120,
123 (2d Cir. 1999) (holding that “the government need not prove that a
defendant intended his communication to be threatening”)). The other
cases we cited also affirmed an objective standard, but were primarily con-
cerned with rejecting any requirement of intent to carry out the threat. See
id. (citing United States v. Miller, 115 F.3d 361, 363-64 (6th Cir. 1997);
United States v. Aman, 31 F.3d 550, 553-56 (7th Cir. 1994); United States
v. Patrick, 117 F.3d 375, 377 (8th Cir. 1997); United States v. Martin, 163
F.3d 1212, 1215-16 (10th Cir. 1998)).
5656 UNITED STATES v. CASSEL
293 F.3d at 1084 (citing Planned Parenthood for the proposi-
tion that subjective intent is unnecessary).

4

We need not delve deeper into the vagaries of our own case
law. For in an opinion more recent than any of our relevant
cases, the Supreme Court revisited the topic of threats and the
First Amendment. In Virginia v. Black, 538 U.S. 343 (2003),
the Court held that it does not violate the Constitution for a
state to prohibit burning a cross with the intent to intimidate.
The state of Virginia had enacted a statute providing as fol-
lows:

It shall be unlawful for any person or persons, with
the intent of intimidating any person or group of per-
sons, to burn, or cause to be burned, a cross on the
property of another, a highway or other public place.
. . . Any such burning of a cross shall be prima facie
evidence of an intent to intimidate a person or group
of persons.

Va. Code Ann. § 18.2-423 (1996). The Supreme Court of Vir-
ginia consolidated the appeals of three people convicted under
this statute and held the statute unconstitutional on its face on
the grounds that, although it punishes speech within the gen-
erally unprotected category of true threats, it “selectively
chooses only cross burning because of its distinctive mes-
sage.” Black v. Virginia, 553 S.E.2d 738, 744 (2001). The
U.S. Supreme Court disagreed, holding that a state may single
out “cross burnings done with the intent to intimidate” for
punishment because “burning a cross is a particularly virulent
form” of threat. Black, 538 U.S. at 363. “Thus, just as a State
may regulate only that obscenity which is the most obscene
due to its prurient content, so too may a State choose to pro-
hibit only those forms of intimidation that are most likely to
inspire fear of bodily harm.” Id.
 UNITED STATES v. CASSEL 5657
[4] The Court laid great weight on the intent requirement.
It offered this definition of unprotected “true threats” and “in-
timidation”:

“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. . . . 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 (citations omitted). The clear import of this defi-
nition is that only intentional threats are criminally punishable
consistently with the First Amendment. First, the definition
requires that “the speaker means to communicate . . . an intent
to commit an act of unlawful violence.” A natural reading of
this language embraces not only the requirement that the com-
munication itself be intentional, but also the requirement that
the speaker intend for his language to threaten the victim.

The Court’s insistence on intent to threaten as the sine qua
non of a constitutionally punishable threat is especially clear
from its ultimate holding that the Virginia statute was uncon-
stitutional precisely because the element of intent was effec-
tively eliminated by the statute’s provision rendering any
burning of a cross on the property of another “prima facie evi-
dence of an intent to intimidate.” At the trial of one of the
petitioners, the jury had been instructed that “[t]he burning of
a cross, by itself, is sufficient evidence from which you may
infer the required intent.” Id. at 364. This language mirrored
Virginia’s Model Jury Instruction for the statute, see Va.
Model Jury Instructions, Criminal, Instruction No. 10.250
(1998 & Supp. 2001), and the Supreme Court of Virginia had
not disavowed the instruction; accordingly, Justice
5658 UNITED STATES v. CASSEL
O’Connor’s plurality opinion held the Court bound by the
instruction’s interpretation of the provision. Id. at 364-65.

Because the prima facie evidence provision makes it unnec-
essary for the government actually to prove the defendant’s
intent, the plurality held that the statute violated the First
Amendment. See id. at 365 (“[T]he prima facie provision
strips away the very reason why a State may ban cross burn-
ing with the intent to intimidate.”). Its holding thus affirms
our own dictum—not always adhered to in our cases—that
“the element of intent [is] the determinative factor separating
protected expression from unprotected criminal behavior.”
United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987).
The Court emphasized that the very “same act” “may mean
that a person is engaging in constitutionally proscribable
intimidation [or] only that the person is engaged in core politi-
cal speech.” Black, 538 U.S. at 365. “[A] burning cross is not
always intended to intimidate,” the Court noted, and when it
is not so intended it may not be punished as a threat. Id.; see
also id. at 366 (noting that the prima facie provision “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” (emphasis
added)); id. at 367 (“The . . . provision . . . ignores all of the
contextual factors that are necessary to decide whether a par-
ticular cross burning is intended to intimidate. The First
Amendment does not permit such a shortcut.”).

Although Justice O’Connor’s opinion was only for a four-
Justice plurality of the Court, each of the other opinions—
with the possible exception of Justice Thomas’s dissent—
takes the same view of the necessity of an intent element. Jus-
tice Scalia agreed that the Virginia statute was unconstitu-
tional insofar as it failed to require the state to prove the
defendant’s intent. Id. at 368 (Scalia, J., concurring in part,
concurring in the judgment in part, and dissenting in part). He
disagreed only with the Court’s facial invalidation of the stat-
ute; instead, he would have permitted case-by-case challenges
 UNITED STATES v. CASSEL 5659
to convictions in which the prima facie provision operated to
remove the state’s burden to prove intent. Id. at 372-73.

Justice Souter, joined by Justices Kennedy and Ginsburg,
agreed that the prima facie evidence provision rendered the
statute facially unconstitutional because it effectively elimi-
nated the intent requirement. Id. at 385 (Souter, J., concurring
in the judgment in part and dissenting in part) (noting that
“the symbolic act of burning a cross . . . is consistent with
both intent to intimidate and intent to make an ideological
statement”). He disagreed only with the plurality’s holding
that the Virginia Supreme Court could, on remand, apply a
narrowing construction to the prima facie evidence provision
and thus save the statute as a whole from facial unconstitu-
tionality. Id. at 387.

Justice Thomas dissented outright; he would have held that
the statute reaches only conduct, not expression, and thus
raises no First Amendment concerns at all. Id. at 394-95
(Thomas, J., dissenting). Alternatively, even under First
Amendment analysis, he would have held that “the fact that
the statute permits a jury to draw an inference of intent to
intimidate from the cross burning itself presents no constitu-
tional problems.” Id. at 395.

[5] Thus, eight Justices agreed that intent to intimidate is
necessary and that the government must prove it in order to
secure a conviction.7 We cannot but conclude that the same
principle governs in the case before us.8 See Frederick
7
Even the ninth, Justice Thomas, did not disagree that intent to intimi-
date is necessary; he would, however, have permitted intent to be inferred
from the act of cross burning itself.
8
We are not faced with the question of what effect our holding has on
other specific statutes that we have previously held do not require the gov-
ernment to prove subjective intent. See, e.g., Roy v. United States, 416
F.2d 874 (9th Cir. 1969) (so holding as to 18 U.S.C. § 871(a), which pun-
5660 UNITED STATES v. CASSEL
Schauer, Intentions, Conventions, and the First Amendment,
55 Sup. Ct. Rev. 197, 217 (2003) (“[I]t is plain that . . . the
Black majority . . . believed that the First Amendment
imposed upon Virginia a requirement that the threatener have
specifically intended to intimidate.”); Roger C. Hartley, Cross
Burning—Hate Speech as Free Speech, 54 Cath. U. L. Rev.
1, 33 (“Black now confirms that proof of specific intent (aim)
must be proved also in threat cases.”); Lauren Gilbert, Mock-
ing George: Political Satire as “True Threat” in the Age of
Global Terrorism, 58 U. Miami L. Rev. 843, 883-84 (2004);
cf. Jennifer E. Rothman, Freedom of Speech and True
Threats, 25 J.L. & Pub. Pol’y 283, 317-18 (arguing, before
Black, for a subjective intent requirement, and observing that
“First Amendment law often requires proof of a specific state
of mind before finding a speaker liable or allowing a criminal
conviction of the speaker”).

[6] The Court’s definition of a constitutionally proscribable
threat is, of course, binding on us even though it is in tension
with some of the holdings and language in prior cases of this
circuit.9 See Miller v. Gambie, 335 F.3d 889, 899 (9th Cir.
2003) (en banc) (holding that when a three-judge panel is

ishes threats against the President). It may be that the government’s inter-
est in suppressing certain forms of speech is sufficiently compelling to
permit some such statutes to survive strict scrutiny. Cf. United States v.
Hicks, 980 F.2d 963 (5th Cir. 1992) (finding, in the alternative, a compel-
ling interest in prohibiting intimidation of flight crews onboard an air-
plane).
9
In United States v. Lincoln, 403 F.3d 703 (9th Cir. Apr. 8, 2005), we
cited the objective definition of a “true threat” in the course of overturning
a conviction under 18 U.S.C. § 871. See Lincoln, 403 F.3d at 706. Because
Lincoln merely applied longstanding precedent and did not raise or con-
sider the implications of Virginia v. Black, it does not constrain our analy-
sis in this case. See United States v. Johnson, 256 F.3d 895, 916 (9th Cir.
2001) (en banc) (plurality op. of Kozinski, J.) (a prior decision has binding
effect to the extent that “it is clear that a majority of the panel has focused
on the legal issue presented by the case before it and made a deliberate
decision to resolve the issue”); United States v. Morales, 898 F.2d 99,
101-02 (9th Cir. 1990) (holding that a three-judge panel was not fore-
closed from deciding whether it had jurisdiction to review a district court’s
refusal to depart downward from the Sentencing Guidelines where a previ-
ous panel had reached the merits of such a case without raising or consid-
ering the reviewability issue).
 UNITED STATES v. CASSEL 5661
faced with intervening precedent from a higher court that is
“clearly irreconcilable” with a prior holding of this court, the
panel is bound by the intervening authority). We are therefore
bound to conclude that speech may be deemed unprotected by
the First Amendment as a “true threat” only upon proof that
the speaker subjectively intended the speech as a threat.10

5

We turn now to Cassel’s claim that 18 U.S.C. § 1860 is
facially unconstitutional because it fails to require the requi-
site subjective intent. His argument relies on a literal reading
of the statute:11 taken literally, the phrase “[w]hoever, by
10
In a case decided after the Supreme Court’s decision in Virginia v.
Black, the Fifth Circuit restated its view that “[s]peech is a true threat and
therefore unprotected if an objectively reasonable person would interpret
the speech as a serious expression of an intent to cause a present or future
harm.” Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir.
2004) (internal quotation marks omitted); cf. United States v. Fuller, 387
F.3d 643 (7th Cir. 2004) (rejecting a requirement of subjective intent
under 18 U.S.C. § 871(a) (punishing threats against the President)); United
States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003) (“A true threat is one
that a reasonable recipient familiar with the context of the communication
would find threatening.”). The language quoted from Porter is perhaps
dictum, since the court held that the speech in question was not a true
threat because it was not even intentionally communicated. Id. at 617. In
any event, we cannot agree. The Porter court cited Black but did not dis-
cuss it; crucially, it provided no explanation of how the prima facie evi-
dence provision in Black could offend the First Amendment if intent to
intimidate were constitutionally irrelevant. Neither the Seventh Circuit in
Fuller nor the First Circuit in Nishnianidze cited Black at all. In short, it
appears that no other circuit has squarely addressed the question whether
Black requires the government to prove the defendant’s intent.
11
Section 1860 has apparently never been construed by us or by any
other circuit. It is based on a prior statute enacted in 1830, and the
Supreme Court explained in an 1861 decision that the 1830 statute “was
intended to protect the Government and punish all persons who enter into
combinations or conspiracies to prevent others from bidding at the sales,
either by agreement not to do so, or by intimidation, threats or violence.”
Fackler v. Ford, 65 U.S. 322, 332 (1861). The Court has not provided any
further guidance on the scope of the statute’s prohibition.
5662 UNITED STATES v. CASSEL
intimidation . . . hinders [or] prevents [a bid on public land]”
would apply to anyone whose conduct happened to intimidate
a potential bidder, whether or not the intimidation was inten-
tional.

Yet this literal reading ignores a cardinal principle of statu-
tory construction: “The existence of a mens rea is the rule of,
rather than the exception to, the principles of Anglo-American
criminal jurisprudence.” United States v. Pasillas-Gaytan,
192 F.3d 864, 868 (9th Cir. 1999) (quoting Dennis v. United
States, 341 U.S. 494, 500 (1951)). Thus, except in unusual
circumstances, we construe a criminal statute to include a
mens rea element even when none appears on the face of the
statute.12 See, e.g., id. (construing 18 U.S.C. § 1425, which
criminalizes the unlawful procurement of naturalization, to
include a requirement that the defendant either know he is not
eligible for naturalization or knowingly lie in his application).

[7] Cassel’s argument is all the more untenable in light of
the principle that “every reasonable construction must be
resorted to, in order to save a statute from unconstitutionali-
ty.” United States v. Buckland, 289 F.3d 558, 564 (9th Cir.
2002) (quoting Hooper v. California, 155 U.S. 648, 657
(1895)); INS v. St. Cyr, 533 U.S. 289, 299-300 & n.12 (2001);
see also Miller v. French, 530 U.S. 327, 336 (2000) (instruct-
ing courts to avoid “constitutionally doubtful constructions”).
12
Certain statutes defining so-called “public welfare offenses” constitute
an exception to the rule that courts will imply a mens rea element where
none appears on the statute’s face. See Staples v. United States, 511 U.S.
600, 606-07 (1994). Such statutes “[t]ypically . . . regulate potentially
harmful or injurious items.” Id. at 607; see also id. at 612 n.6 (“[T]o deter-
mine . . . whether a particular statute defines a public welfare offense, a
court must have in view some category of dangerous and deleterious
devices that will be assumed to alert an individual that he stands in respon-
sible relation to a public danger.” (internal quotation marks omitted)). The
government does not suggest that 18 U.S.C. § 1860 defines a public wel-
fare offense, and it plainly does not, since it does not deal with a “category
of dangerous . . . devices” at all.
 UNITED STATES v. CASSEL 5663
Having held that intent to threaten is a constitutionally neces-
sary element of a statute punishing threats, we do not hesitate
to construe 18 U.S.C. § 1860 to require such intent. Cassel’s
argument that the statute is facially unconstitutional therefore
fails.

B

[8] Cassel also argues that the statute is unconstitutional
because it is unacceptably vague. This contention is inconsis-
tent with our decision in United States v. Tabacca, 924 F.2d
906 (9th Cir. 1991). In Tabacca we rejected a vagueness chal-
lenge to 49 U.S.C. App. § 1472(j), which criminalizes “in-
timidat[ing], or threaten[ing]” a member of the crew onboard
an airplane. We held that the term “intimidate” was not
unconstitutionally vague because the statute

clearly includes modifying language which provides
parameters of conduct. The proscribed acts must
occur while aboard an aircraft and must “interfere
with the performance by . . . [an] attendant of his
duties . . . .”

Id. at 913. Those limitations on the statute’s scope, we held,
gave the defendant reasonable notice of the sort of “intimida-
tion” that was proscribed. Similar limitations exist in this
case: the “intimidation” punishable under 18 U.S.C. § 1860
must occur in connection with a public sale of land, and it
must hinder or prevent someone from bidding in such a sale.
That suffices to give “fair notice to those who might violate”
the statute, and so Cassel’s vagueness challenge fails. See Gil-
bert, 813 F.2d at 1530.

C

We now consider Cassel’s argument that the jury instruc-
tions given by the trial court were erroneous and require
5664 UNITED STATES v. CASSEL
reversal of his conviction. The trial judge instructed the jury
as follows:

Intimidation is to make a person timid or fearful
through the use of words and conduct that would put
an ordinary, reasonable person in fear or apprehen-
sion for the purpose of compelling or deterring legal
conduct of that person.

Cassel argues that the instruction failed to include a sufficient
mens rea element. He also argues that the trial court should
have instructed the jury that intimidation must involve the
belief of the victim that there is reasonable fear of bodily
harm or violence.

[9] In view of our holding that 18 U.S.C. § 1860 includes
a mens rea element of subjective intent, Cassel’s first conten-
tion is correct, for the instruction included no such require-
ment. It did require that the intimidation be “for the purpose
of compelling or deterring legal conduct,” but that is by no
means the same thing.13 It is not enough that the defendant
intend to influence the potential bidder; rather, he must intend
to do so by means of a threat. Were it otherwise, a defendant
could be convicted under § 1860 who, for example, merely
attempted to dissuade the potential bidder by informing him
of dangerous conditions in the area surrounding the land to be
sold. Such a result comports neither with the First Amend-
ment nor with the statute’s purpose, which is to punish inter-
ference by intimidation, not to prevent potential land buyers
from hearing negative viewpoints on the land for sale.

[10] A jury instruction that omits a necessary element of
the offense is fatally flawed and requires reversal unless the
13
In any case, the instruction is less than ideally phrased because of its
reference to “compelling . . . legal conduct.” The meaning was doubtless
intended to be: “for the purpose of compelling illegal conduct or deterring
legal conduct.”
 UNITED STATES v. CASSEL 5665
error is harmless beyond a reasonable doubt. See United
States v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999);
Neder v. United States, 527 U.S. 1, 8-15 (1999). The record
in this case does not suffice to establish Cassel’s intent with
the degree of certainty necessary to take a contested factual
issue out of the hands of the jury. There was conflicting testi-
mony at trial as to precisely what Cassel said and did to the
Rinards and the Goodins, and the fact that the jury convicted
Cassel based on the instruction quoted above does not demon-
strate beyond a reasonable doubt that it would have convicted
him under an instruction that accords with our decision today.

Cassel also contends that “intimidation” under § 1860
requires a fear of bodily harm on the victim’s part. Several
aspects of this contention require consideration. First, insofar
as Cassel is suggesting that the victim must actually be intim-
idated, we cannot agree. The proper focus is on the defen-
dant’s conduct and its effect on the federal land sale, not the
subjective emotions which the victim experiences. Cf. United
States v. Meeker, 527 F.2d 12 (9th Cir. 1975) (“Nor is proof
that the victim was in fact frightened for his own physical
safety required in order to find that a defendant performed the
criminal act of intimidation.”); United States v. Alsop, 479
F.2d 65, 67 n.4 (9th Cir. 1973) (suggesting a jury instruction
that “[t]o take . . . ‘by intimidation’ ” under 18 U.S.C.
§ 2113(a), which prohibits bank robbery, “means wilfully to
take . . . in such a way that would put an ordinary, reasonable
person in fear of bodily harm”). As we have noted, “[w]ere
it otherwise, a fearless banker could never be robbed by
intimidation. We refuse to reach such an absurd result.” Id. at
67. It would be equally absurd to hold that a fearless bidder
can never be deterred by intimidation.

[11] Second, we do not agree that the scope of the statute
is necessarily limited to threats of bodily harm. “Intimida-
tion,” both in common and legal usage, can refer to the act of
placing someone in fear of injury other than harm to the body.
See, e.g., 720 Ill. Comp. Stat. 5/12-6(a)(1) (“A person com-
5666 UNITED STATES v. CASSEL
mits intimidation when, with intent to cause another to per-
form or to omit the performance of any act, he communicates
. . . a threat to . . . [i]nflict physical harm on the person threat-
ened or any other person or on property” (emphasis added)).
In some cases, arising under other statutes, we have approved
jury instructions defining “intimidation” as involving a threat
of bodily harm. See, e.g., United States v. Alsop, 479 F.2d 65,
67 n.4 (9th Cir. 1973). We are aware of no case, however,
squarely presenting the issue whether threatened injury to
property falls within the ambit of a statute prohibiting intimi-
dation. The purpose of 18 U.S.C. § 1860 is to prevent interfer-
ence with federal land sales, and we see no reason why
Congress would have intended to exclude interference accom-
plished through threats to property from the statute’s scope.
A potential bidder who fears that his house will be burned to
the ground may be just as “intimidat[ed]” as one who fears an
assault on his person. We conclude that “intimidation” under
18 U.S.C. § 1860 requires the threat of harm inflicted by the
defendant upon the victim’s person or property. Cf. United
States v. Viefhaus, 168 F.3d 392, 394 (10th Cir. 1999) (defin-
ing a “true threat” to include “a declaration of intention . . .
to injure another or his property by the commission of some
unlawful act” (emphasis added)).

[12] Nevertheless, Cassel’s objection contains a kernel of
merit. For while the jury instruction correctly stated that “in-
timidation” involves “words and conduct that would put an
ordinary, reasonable person in fear or apprehension,” it failed
to specify that the statute requires “fear or apprehension” of
injury inflicted by the defendant. Whether the threat is of
injury to person or property, there is no doubt that it must be
a threat of injury brought about—rather than merely predicted
—by the defendant.14 Indeed, the First Amendment requires as
much. See Planned Parenthood, 290 F.3d at 1076.
14
The defendant might, of course, threaten to bring about the injury
indirectly—for example, by having a third party harm the victim.
 UNITED STATES v. CASSEL 5667
[13] Again, this error in the jury instruction cannot be said
to be harmless. Most of the statements Cassel made to poten-
tial buyers did not suggest any threat of force on his part. For
example, his claim that the area was inhabited by devil wor-
shipers and producers of illegal drugs could fall within the
court’s instruction that intimidation consists of words and
conduct that “would put an ordinary, reasonable person in fear
or apprehension.” Such claims, however, cannot constitute
intimidation under § 1860, because they do not involve a
threat of harm to person or property inflicted by the defen-
dant. Accordingly, Cassel is entitled to a new trial on this
ground as well.

D

[14] Finally, we address Cassel’s argument that the trial
court improperly denied his request for new counsel. We
review the denial of a motion for substitution of counsel for
abuse of discretion. United States v. Gonzalez, 113 F.3d 1026,
1028 (9th Cir. 1997). The trial court’s discretion “must be
exercised . . . within the limitations of the Sixth Amendment,
which grants criminal defendants a qualified constitutional
right to . . . counsel of their choice.” Id. (quoting United
States v. D’Amore, 56 F.3d 1202, 1204 (9th Cir. 1995)) (sec-
ond omission in original). We consider three factors when
evaluating the trial court’s decision: (1) the adequacy of the
court’s inquiry into the defendant’s complaint, (2) the extent
of conflict between the defendant and counsel, and (3) the
timeliness of the motion and the extent of resulting inconve-
nience or delay. Id.

i

The first factor we consider is whether the trial court has
“conduct[ed] an inquiry adequate to create a sufficient basis
for reaching an informed decision.” Gonzalez, 113 F.3d at
1028. The trial judge in this case had an extended conversa-
tion with Cassel about the distrust Cassel felt for his attorney;
5668 UNITED STATES v. CASSEL
Cassel had several opportunities to present his concerns and
the court gave every indication that it was willing to take Cas-
sel seriously. When Cassel described his disagreement and
frustration with his attorney’s decision to make certain objec-
tions and pursue certain lines of questioning, the judge care-
fully explained to Cassel why his attorney had objected and
why the objection made perfect sense from a legal perspec-
tive. The judge even gave Cassel an example of the sort of
behavior on a lawyer’s part that would justify removing him
from the case and gave Cassel an opportunity to compare his
attorney’s conduct to the judge’s example. Our review of the
record satisfies us that the magistrate judge conducted an ade-
quate inquiry.

ii

The second factor concerns the degree to which the conflict
between the defendant and his attorney prevented the attorney
from providing effective assistance. See Gonzalez, 113 F.3d
at 1029. The record supplies no indication that Cassel’s attor-
ney provided inadequate assistance. As the district court
noted, despite Cassel’s statement that his attorney considered
him paranoid, “Mr. Cassel never suggested that at any time he
and [his attorney] Mr. Rainwater were unable to communicate
about his defense.” The magistrate judge, in fact, compli-
mented the attorney’s performance, noting that he was at all
times “a very strong advocate within the legal bounds, and
within the professional ethical bounds” on Cassel’s behalf and
that he was “a very focused lawyer.” Cassel did report a great
deal of frustration and lack of trust in his attorney, which
weighs in favor of his request. Nevertheless, nothing he said
indicated either that a conflict of interest existed or that the
attorney-client relationship had broken down in a way that
would diminish the attorney’s ability to represent Cassel. Cf.
Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990).

iii

The third factor is the timeliness of the defendant’s request.
Cassel made his request for new counsel on the day of sen-
 UNITED STATES v. CASSEL 5669
tencing. If granted, it would certainly have resulted in some
delay, possibly substantial, as a new attorney became familiar
enough with the case to represent Cassel at sentencing.

iv

[15] Two of the three relevant factors—the adequacy of the
magistrate judge’s inquiry and the timeliness of the defen-
dant’s request—weigh heavily in favor of the magistrate
judge’s decision not to grant Cassel’s request for new counsel.
The third factor—the degree of conflict between client and
attorney—is slightly more equivocal but still supports the
judge’s decision: Cassel’s mistrust of his lawyer was real, but
nothing suggests that it threatened to affect the attorney’s
ability to represent him. We are therefore satisfied that the
magistrate judge did not abuse his discretion in denying Cas-
sel’s request.

III

Although Cassel’s facial challenge to 18 U.S.C. § 1860
fails, his conviction was based on jury instructions that inade-
quately described the elements of the crime. Accordingly, the
district court’s judgment of conviction is VACATED and the
case is REMANDED for a new trial.