Intent to Threaten? An Update

The Sixth Circuit, in an opinion written (perhaps coincidentally) by Judge Sutton, reversed a conviction for transmitting threats in interstate commerce (18 U.S.C. § 875(c)) because the judge instructed the jury that it needed only to find negligence and not that the defendant had some level of intent or awareness of wrongdoing. As discussed in the June 2 post, the Supreme Court (citing issues previously raised by Judge Sutton) found that negligence is insufficient to establish culpability. In United States v. Houston, No. 14-5295 (6th Cir. July 9, 2015), Judge Sutton noted that the defendant’s “recorded diatribe . . . could plausibly [cause the listener to] think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening).” Under such circumstances, a jury instruction permitting a conviction for negligence led to reversible error (even under the plain error standard).

The Sixth Circuit did not determine the appropriate mens rea standard in the Houston decision. Notably, however, the Government proposed a recklessness standard—which the Sixth Circuit avoided addressing in the first instance as part of its harmless error analysis.

In reversing the conviction, the Sixth Circuit rejected Houston’s challenge to the sufficiency of the evidence—that the Government offered insufficient evidence to establish Houston’s mental state. The Court held that it would be unfair to require the Government to introduce evidence of an element not included in the jury instructions. In other words, the Court judged Houston’s sufficiency challenge not on the legal elements of the charge, but on the elements of the charge as instructed to the jury. It remains to be seen whether the charging instrument is sufficient to support a criminal conviction.