Professional Documents
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United States v. White, 670 F.3d 498, 4th Cir. (2012)
United States v. White, 670 F.3d 498, 4th Cir. (2012)
No. 10-4241
No. 10-4452
No. 10-4597
COUNSEL
ARGUED: Linda F. Thome, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United
States. Melissa Warner Scoggins, WARREN & ASSOCIATES, PLC, Norfolk, Virginia, for William A. White. ON
BRIEF: Thomas E. Perez, Assistant Attorney General, Jessica Dunsay Silver, Tovah R. Calderon, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for the
United States. Rebecca K. Glenberg, Gabriel Z. Walters,
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amicus Supporting William A. White.
OPINION
NIEMEYER, Circuit Judge:
A jury convicted William White, the "Commander" of the
American National Socialist Workers Party, on four counts
(of a seven-count indictment), Counts 1, 3, 5, and 6. The convictions on Counts 1, 5, and 6 were for transmitting in interstate commerce by email, U.S. Mail, and telephone
threats to injure or intimidate individuals, in violation of 18
U.S.C. 875(c) (prohibiting interstate communications containing threats to injure a person), and the conviction on
Count 3 was for violating 18 U.S.C. 1512(b)(1) (prohibiting
the intimidation of individuals to "influence, delay, or prevent
the[ir] testimony").
On Whites Rule 29 motion for judgment of acquittal,
based on arguments that his communications were political
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that they should stop pursuing their lawsuit and that, if they
did not, they would be in danger of harm.
About two weeks after mailing these letters, White bragged
on his radio show that he had given the plaintiffs in the HUD
lawsuit "a little bit of spooking with the haints." He explained
that the Klansmen after the Civil War would appear in robes
to make African-Americans believe they were being pursued
by the ghosts of Confederate soldiers so that, as White put it,
"the niggers got so terrified that they wouldnt vote, they
wouldnt do anything." Referencing the mailing to the HUD
plaintiffs, White continued, "thats kind of what weve done
here."
Count 5: University of Delaware administrator Kathleen Kerr
In the fall of 2007, the University of Delaware initiated a
new "diversity training program" that attracted the attention of
the national media and also White. Kathleen Kerr, who was
the Director of Residential Life and played a major role in the
new program, was in a meeting when her assistant, Carol
Bedgar, received a telephone call for Kerr. The caller identified himself as "Commander Bill White of the American
White Workers Party." The caller asked to speak with Kerr,
and, after Bedgar informed him that Kerr was not in the
office, the caller said that he knew that she was there because
he had just spoken to her husband Chris. The caller then
recited Kerrs home telephone number and a residential
address that Bedgar recognized as the address of Kerrs father
in New Jersey. When Bedgar asked if she could take a message, the caller replied, "Yes. Just tell her that people that
think the way she thinks, we hunt down and shoot." According to Bedgar, the caller delivered this message in a "cold"
and "dead sounding" tone of voice. Bedgar later testified that
after receiving the call, she sensed "evil" and began to pray
for safety. When advised of the call, Kerr broke down and
began to cry out of concern for her family and her familys
safety.
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(At trial, White disputed that he had been the caller. The
caller, however, identified himself to Bedgar as "Bill White,"
and telephone records showed that a telephone call had been
placed on that day from Whites home to Kerrs office.)
Bedgar, Kerr, and the staff of the University of Delaware
took the call as a very serious threat and called the police.
Kerr and University officials were also alerted to Whites
website, "Overthrow.com," which has a post entitled "University of Delawares Marxist Thought Reform." The website
listed Kerrs full name, email address, date of birth, home
telephone number listed as "confirmed," and fathers address
in New Jersey mistakenly calling it her husbands address.
The website also listed the University Presidents full name,
email address, date of birth, spouses name, spouses date of
birth, home address, vacation home address, and telephone
numbers. The website instructed readers to "go to their
homes," and beneath Kerrs information were the words, "We
shot Marxists sixty years ago, we can shoot them again!" The
Universitys Chief of Police also located another web entry
entitled "Smash the University of Delaware," which included
the personal information of Kerr and the University President
with the instruction, "You know what to do. Get to work!"
As a result of this telephone call and the website postings,
University of Delaware President Harker convened an emergency meeting of the top administrators and law enforcement
officials at the University to discuss appropriate security measures in response to the threats. The FBI, local law enforcement officers, and University police took the telephone call as
a serious threat, and law enforcement officers guarded Kerr
and her family at work and home for the next several days.
Kerr and her husband would not let their children play outside
for several weeks for fear of their safety, and Kerrs father
was advised by police not to leave his house for several days,
to secure all doors, to cover all windows, and to cancel his
plans to participate in a community event.
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In May, White reiterated this call, posting a blog entry entitled "Kill Richard Warman" that included Warmans home
address and the statement: "I do everything I can to make sure
everyone knows where to find this scum, particularly because
it makes him so mad: Kill Richard Warman! [Warmans
home address]." This May 2008 communication also was not
a basis for Count 6, but was offered only for context.
Warman read these internet postings and, as he testified,
considered them to be "death threats." He took numerous
steps to ensure his safety and his familys safety. He moved
to a new home, which he and his wife put in her maiden name
to hide it from the defendant; he removed all of his contact
information from public databases; he altered his personal
routine and stopped meeting his wife for lunch near her
office; he started receiving his mail at a post office box; he
had his wife register as a single mother when she gave birth
to their daughter; and he and his wife decided not to give his
daughter the Warman surname in order to protect her.
II
The jury convicted White on Counts 1, 5, and 6 for violations of 18 U.S.C. 875(c), which criminalizes the interstate
transmission of "any threat to injure the person of another."
White filed a motion under Rule 29 for a judgment of acquittal on these counts, arguing that his "threats" were political
hyperbole, and even though they were rude, they were protected by the First Amendment. Accordingly, they were not
"true threats" that could be punished under 875(c). See
Watts v. United States, 394 U.S. 705 (1969).
The district court denied Whites Rule 29 motion as to
Counts 1 and 5, concluding that the governments evidence
was more than sufficient for a rational trier of fact to find,
beyond a reasonable doubt, the essential elements of the
crimes charged. In reaching this conclusion, the court construed 875(c) to require a showing that the defendant specif-
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In criminalizing the interstate transmission of any "communication" containing a threat to injure, 18 U.S.C. 875(c)
criminalizes pure speech. Accordingly, such a provision must
be interpreted "with the commands of the First Amendment
clearly in mind." Watts, 394 U.S. at 707.
But even though the First Amendment protects speech
broadly, it does not prohibit the criminalization of a "true
threat" to injure a person. Id. True threats, like "fighting
words," see Chaplinsky v. New Hampshire, 315 U.S. 568
(1942), are words that "by their very utterance inflict injury,"
and the "prevention and punishment" of such threatening
speech "has never been thought to raise any Constitutional
problem." Id. at 571-72. "[P]rotecting individuals from the
fear of violence, from the disruption that fear engenders, and
from the possibility that the threatened violence will occur"
are fundamental concerns about the security and safety of
individual citizens that place "threats of violence . . . outside
the First Amendment." R.A.V. v. City of St. Paul, 505 U.S.
377, 388 (1992). Because true threats have the potential to
cause such harm and imperil the security of individual citizens, the punishment of these threats "has traditionally coexisted comfortably with even a strong First Amendment." See
Fredrick Schauer, Intentions, Conventions, and the First
Amendment: The Case of Cross-Burning, 2003 Sup. Ct. Rev.
197, 211 (2003).
Thus, both White and the government agree that 875(c)
can only be violated if the interstate communication contains
a "true threat" to injure a person. See United States v. Bly, 510
F.3d 453, 458-59 (4th Cir. 2007).
lenged the district courts jury instructions on 875(c) for not requiring
that the jury find specific intent. While we are not sure that White preserved a challenge to the district courts instructions with respect to
875(c), we would reach the same result on that issue as we do in reviewing
the district courts order denying Whites Rule 29 motion.
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United States v. Alaboud, 347 F.3d 1293, 1297-98 & n.3 (11th
Cir. 2003) (concluding that both a "reasonable listener" and a
"reasonable speaker" test amount to the same "reasonable person" test); United States v. Nishniandize, 342 F.3d 6, 15 (1st
Cir. 2003) (applying a "reasonable recipient" test).
Only the Ninth Circuits decision in Cassel, 408 F.3d at
631-32, seems to have adopted a distinct subjective test in
light of Black, holding that after Black a subjective intent to
threaten is a necessary part of the definition of a true threat.
But even Cassel stands in doubt, as a later Ninth Circuit opinion applied the objective test. See United States v. Romo, 413
F.3d 1044 (9th Cir. 2005). Moreover, subsequent Ninth Circuit opinions have recognized the inconsistency between Cassel and Romo. See Fogel v. Collins, 531 F.3d 824, 831 (9th
Cir. 2008); United States v. Stewart, 420 F.3d 1007, 1017-18
(9th Cir. 2005). Most recently, the Ninth Circuit now appears
to be retreating from Romo. See United States v. Bogdasarian,
652 F.3d 1113, 1117 & n.14 (9th Cir. 2011).
The dissent, relying almost wholly on the Ninth Circuits
opinion in Cassel and a student law review note, contends that
Black does indeed impose a specific intent requirement on
875(c). The dissent argues that because "a majority of the Justices [in Black] viewed proof of an intent to intimidate as constitutionally necessary to convict an individual of cross
burning without violating the First Amendment," 875(c)
must have a specific intent requirement. Post at 42. The dissent, however, takes the Black Courts observations out of the
context of the Virginia statute that was before it. When the
Courts discussion is given context, it is clear that the discussion that the dissent is referring to was not addressing any
requirement of a specific intent mens rea for true threats, but
rather a specific intent element that existed in the Virginia
statute, as well as the aspect of the statute that presumed the
element to be satisfied by simply proving that a cross had
been burned.
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larly, the Brandenburg test only requires that the speaker use
specific words advocating unlawful conduct. It does not
require that the speaker have a specific intent to incite unlawful conduct. See Schauer, supra, at 220 ("Brandenburg may
be best interpreted as not incorporating a distinct First
Amendment-rooted intent requirement, although of course it
will usually be the case that a person intends the ordinary
meaning and natural consequences of the words he uses").
Indeed, the Supreme Court has made clear that the Brandenburg test should be evaluated using the objective facts surrounding the speech and should not be focused on a speakers
subjective purpose for speaking. See Brandenburg, 395 U.S.
at 447 (reviewing the objective circumstances of the rally and
the speeches); see also Texas v. Johnson, 491 U.S. 397, 409
(1989) ("[W]e have . . . required careful consideration of the
actual circumstances surrounding such expression, asking
whether the expression is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action"); N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.
886, 927-29 (1982) (evaluating how the words of the speaker
"might have been understood" in looking to the objective circumstances "whether or not proper discipline was specifically
intended").
For these reasons, we find unpersuasive the dissents argument to read Black as changing the mens rea requirements
applying to 875(c). Every court of appeals (except the Ninth
Circuit) has applied and continues to apply 875(c) with an
objective standard for determining whether the object of a
communication was a true threat.
Accordingly, we affirm the district courts interpretation of
875(c) in denying Whites Rule 29 motion.
III
The question of whether Whites communications to Petsche, Kerr, and Warman were true threats, as defined in Darby
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With respect to Count 6, White also contends that the indictment varied
materially from the communication relied on to prove guilt. The indictment referred to a communication sent "on or about February 26, 2008,"
whereas the only communication proved was a communication dated
March 26, 2008. The government admits that the indictment contained an
error stating February instead of March, but it pointed out the error before
trial, and both parties conducted the trial with the understanding that the
March 26 communication was the basis of the charge. We need not, however, resolve this question in view of the fact that we are affirming the district courts judgment of acquittal on Count 6.
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V
The government has appealed the sentence that the district
court imposed on White, contending that the court erred in
calculating Whites offense level because it applied an outdated legal standard in denying the governments request for
a two-level adjustment based on the victims vulnerability, as
provided in U.S.S.G. 3A1.1(b)(1). The government objected
to the presentence reports rejection of the enhancement and
asked the court for the two-level upward adjustment. The government based its request on the facts that White had
addressed the packages sent to Reddicks residence to her two
minor children and that White was apparently aware that the
children were minors because they were so identified in the
HUD complaint and the allegations of the complaint referred
to the children "playing outside."
The probation officer rejected the governments request for
a vulnerable victim adjustment, reasoning:
In order to apply an enhancement for vulnerable victim the court must make two findings. First, the
court must conclude that the victim was unusually
vulnerable, and, second, that the defendant targeted
the victim because of the victims unusual vulnerability. In most cases, a minor someone under the
age of 18 years, may be considered a vulnerable vicOn or about May 25, 2007, the African-American Virginia
Beach, Virginia, tenants each received William A. Whites May
23, 2007 letter in their Virginia Beach, Virginia, home mailboxes. These letters were delivered in envelopes bearing the
name and address of each African-American tenant recipient.
Included in the envelope was an ANSWP Magazine, emblazoned
with a swastika and entitled The Negro Beast and Why Blacks
Who Work Arent Worth the Cost of Welfare. The magazine
contains numerous articles espousing extreme white supremacists viewpoints.
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The government also alleges that the presentence report incorrectly calculated Whites offense level under U.S.S.G. 3D1.4, finding it to be 16,
rather than 17. While our review indicates that the offense level appears
to have been improperly calculated, we have not addressed the point in
view of our remand. But if the government wishes to reargue this point to
the district court on remand, we leave that issue open for that possibility.
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pass 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" and that "[i]ntimidation . . . 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" are properly read, in context, to be addressing
a specific intent statute that requires, as an element of the
offense, a specific intent to intimidate. The statute at issue
here, 18 U.S.C. 875(c), includes no such specific intent
requirement.
As both the majority and the dissent recognize, most of our
sister circuits have continued to analyze true threats as requiring only a showing of a general intent to communicate a message that objectively contains a true threat. The Ninth Circuit
alone has held that "the subjective test set forth in Black must
be read into all threat statutes that criminalize pure speech."
United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th Cir.
2011). The case in which the Ninth Circuit first announced its
interpretation of Black, United States v. Cassel, 408 F.3d 622
(9th Cir. 2005), however, like the dissent here, failed to recognize that the Supreme Courts language explaining the meaning of a true threat and of intimidation was written in the
context of a statute that included a specific intent element.*
*Moreover, regardless of the Ninth Circuits recent attempt to streamline its jurisprudence in Bagdasarian, its case law has not been consistent
post-Black. See United States v. Sufcliffe, 505 F.3d 944, 961-62 (9th Cir.
2007) (declining to hold that jury instructions outlining an objective test
were erroneous "[g]iven our contradictory case law on this issue"); United
States v. Romo, 413 F.3d 1044, 1051 n.6 (9th Cir. 2005) (stating that Cassel did not affect the objective analysis used to determine whether a threat
directed toward the president constituted a true threat); see also United
States v. Stewart, 420 F.3d 1007, 1018 (9th Cir. 2005) ("We are not fully
convinced that Romo properly distinguished Cassel, or that Romos continued use of the objective true threat definition is consistent with
Blacks subjective true threat definition.").
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"True threats" constitute one of the "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any
Constitutional problem." Chaplinsky v. New Hampshire, 315
U.S. 568, 571-72 (1942); see also Black, 538 U.S. at 358-59
(recognizing that true threats constitute one of the proscribable classes of speech described in Chaplinsky). Such speech
is "of such slight social value as a step to truth that any benefit
that may be derived from [it] is clearly outweighed by the
social interest in order and morality." Id. at 572. More specifically, our interest in "protecting individuals from the fear of
violence, from the disruption that fear engenders, and from
the possibility that the threatened violence will occur" outweighs whatever negligible social value that speech constituting true threats may promote. R. A. V. v. City of St. Paul, 505
U.S. 377, 388 (1992). For that reason, true threats fall "outside the First Amendment." Id. Thus, our requirement that to
obtain a conviction under 875(c) the communication must
contain a true threat is of constitutional significance because
the State can proscribe such speech without violating the First
Amendment. See Black, 538 U.S. at 359.
We have traditionally employed an objective test for determining whether a communication constitutes a true threat.
Under this test, if a reasonable recipient familiar with the context of the communication would understand it to be a threat,
it is a true threat. See Darby, 37 F.3d at 1066; United States
v. Roberts, 915 F.2d 889, 890-91 (4th Cir. 1990); United
States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. 1973). This
test is purely objective, as we have disavowed any requirement that the government "prove . . . the defendant subjectively intended for the recipient to understand the
communication as a threat." Darby, 37 F.3d at 1066.
Our courts precedent is, therefore, abundantly clear that
neither 875(c) nor the First Amendment imposes a requirement that the government prove the speaker specifically
intended to threaten the victim. This precedent, of course,
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binds us unless it has been overruled by a superseding contrary Supreme Court decision. See United States v. Rivers,
595 F.3d 558, 564 n.3 (4th Cir. 2010); Etheridge v. Norfolk
& W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993). As I shall
explain, I think the Supreme Court has issued a superseding
contrary decision that requires us to depart from this precedent to the extent it does not require the government to prove
a specific intent to threaten for a communication to constitute
a true threat.
B.
The Supreme Courts 2003 decision in Virginia v. Black is
a superseding contrary decision that makes our purely objective approach to ascertaining true threats no longer tenable.
At issue in Black were three defendants convictions under
a Virginia statute that criminalized cross burning committed
"with the intent of intimidating." 538 U.S. at 348 (internal
quotation marks omitted). The statute included a provision
stating that the act of burning a cross constituted, on its own,
"prima facie evidence of an intent to intimidate." Id. (internal
quotation marks omitted). Accordingly, one of the defendants
had been convicted pursuant to a jury instruction that charged,
"[T]he burning of a cross by itself is sufficient evidence from
which you may infer the required intent." Id. at 349 (internal
quotation marks omitted). With respect to the other two
defendants, one pleaded guilty and the others conviction was
obtained without the jury being instructed as to the prima
facie evidence provision. Id. at 350-51.
After recounting the history and various purposes of cross
burning as associated with the Ku Klux Klan, the Court
explained why true threats do not garner First Amendment
protections and may be proscribed. Id. at 359-60. It defined
true threats as follows: "True threats encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence
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defamatory falsehoods against public officials or public figures, plaintiffs seeking to recover civilly must demonstrate the
speakers made the statements with actual malice. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342-43 (1974); New York
Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). And
speech constitutes constitutionally proscribable incitement
only if (1) the speaker possesses a specific intent to produce
or incite others to imminent lawless action and (2) the speech
is likely to have that effect. Brandenburg v. Ohio, 395 U.S.
444, 447 (1969) (per curiam) ("[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or
produce such action." (footnote omitted)); see also Hess v.
Indiana, 414 U.S. 105, 109 (1973) (per curiam) (holding that
the defendants speech was not constitutionally proscribable
incitement in part because "there was no evidence, or rational
inference from the import of the language, that his words
were intended to produce, and likely to produce, imminent
disorder" (emphasis omitted)); James v. Meow Media, Inc.,
300 F.3d 683, 698 (6th Cir. 2002) (recognizing that the Brandenburg test for incitement requires proof of intent); Eugene
Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095,
1193 (2005) ("[T]here is precedent for using intent . . . as part
of First Amendment tests: Under the incitement test, speech
that is intended to and likely to cause imminent harm is
unprotected. Speech that the speaker merely knows is likely
to cause imminent harm is protected." (footnote omitted)).
The First Amendment, therefore, imposes heightened, subjective mens rea requirements in certain contexts to ensure "that
preeminent values underlying that constitutional provision
[are] not . . . imperiled." Rice, 128 F.3d at 247. For the reasons I have stated, I think the true-threats context warrants
such a subjective-intent requirement to alleviate the chilling
effect that a purely objective standard causes, and I believe
the Supreme Court has recognized such a requirement.
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III.
In instructing the jury as to Counts 1 and 5, which charged
White with violating 875(c), the district court correctly
charged the jury that, to convict, it had to find that the communications in question constituted true threats because the
First Amendment does not protect true threats. The court
instructed the jury on the objective test for determining
whether a communication is a true threat. It then stated that
"[t]he government does not have to prove that the defendant
subjectively intended for the recipient to understand the communication as a threat."
At the conclusion of the jury instructions, White noted his
objection based on his "proposed instruction on free speech
and true threats." His proposed jury instruction added to the
objective test a specific-intent-to-threaten requirement.4
Although acknowledging that the district court had indicated
it would not give his proposed instruction, he nevertheless
indicated his desire to preserve the issue for appeal. The district court noted the proposed instruction was in the record,
4
Whites proposed jury instruction, which included a specific-intent-to-threaten requirement, must be distinguished from his proposed
amendments to the governments proposed jury instruction. The governments proposed jury instruction disavowed a specific-intent-to-threaten
requirement, and Whites proposed amendments to it did not add one.
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