Last week, the Tenth Circuit published a decision in a similar case: United States v. Wheeler. In line with its prior decisions, the Tenth Circuit held that the government must prove a subjective intent to threaten, and the Court reversed the conviction because the jury was not instructed properly on this subjective intent element. In a footnote, the Court acknowledged that this precise issue is at the Supreme Court, but refused to suspend briefing pending the disposition of Elonis because the defendant (Mr. Wheeler) was in custody, and, thus, might be prejudiced by any delay.
The decision addresses two other opposite arguments: (1) the government's harmless error argument; and (2) the defendant's insufficiency of the evidence argument. The Court rejected both, ultimately concluding that Wheeler's subjective intent, and whether the threats were "true threats," were questions for the jury.
Briefly, on harmless error, the Court:
- mentioned that, post arrest, Wheeler stated that he thought he had no Facebook friends;
- rejected the government's argument that a jury instruction on "intent to do something the law forbids" was the equivalent to a jury instruction on subjective intent; and
- refused to find harmless error based on Wheeler's post-arrest statement, which included statements on seeking revenge on others.
- relied on prior precedent for the proposition that whether a statement is a "true threat" is a question for the jury;
- held that the "true threat" analysis focuses on those who hear the threat, rather than on whether the defendant had the ability, or intended to carry out, the threat (but remember, he must have had the subjective intent to threaten, even without the additional intent to carry out the threat);
- held that commands to others to carry out a threat could be sufficient to convict (some Circuits hold that the defendant must either state his own intent to carry out the threat or at least have control over the individuals who are directed to carry out the threat); and
- concluded that a reasonable person could conclude that the defendant's statements were true threats and that he had the subjective intent to threaten when he posted the comments on Facebook (the statements were aimed at doing violence to named police officers and their family members, as well as an attack on a daycare center).
Of course, depending on how Elonis is decided, the shelf life of this decision could be short.