The Government must plead and establish the appropriate state of mind for each element of the offense, and the same mens rea standard need not apply to each element. There is no dispute that the government must prove specific intent regarding the first element, that is, that Francis intended to transmit the statements that were received by the complainant. A defendant can not be prosecuted for mistakenly or inadvertently transmitting a communication containing a threat to injure. See DeAndino, 958 F.2d at 148; see also Darby, 37 F.3d at 1065.
The dispute here arises regarding what degree of culpability is applicable to the second element of the offense: that the communication contain a threat. In theory, this element could be interpreted to require proof that: (1) the communication was objectively threatening (i.e., that the communication was a "real" or "true" threat); or (2) the defendant intended the communication to be threatening or knew that it would be taken as threatening; or (3) both. Although the statute does not specifically articulate a mens rea requirement, the "mere omission of any mention of intent will not be construed as eliminating that element from the crime." Morissette v. United States, 342 U.S. 246, 263, 96 L. Ed. 288, 72 S. Ct. 240 (1952). Thus, some degree of mens rea must be charged in the indictment.
The Hon. Charles Haight of this court, in interpreting the parallel mail threat statute, 18 U.S.C. § 876 (prohibiting transmitting threats through mail), has held that the Government must prove both that a communication was objectively threatening and that the defendant intended to threaten. United States v. Calvert, 1990 U.S. Dist. LEXIS 3187, 1990 WL 33592, *4 (S.D.N.Y. 1990).
In discussing the objective component of the threat element, the Kelner court stated, "so long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied." Kelner, 534 F.2d at 1027. In considering § 876, the Second Circuit has also held that whether a given writing constitutes a threat is an objective test, that is, whether an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury. United States v. Malik, 16 F.3d 45, 49 (2d Cir.) (rejecting defendant's argument that letters did not contain "threats" within meaning of statute, because objective recipient would view words as threatening), cert. denied, 513 U.S. 968, 130 L. Ed. 2d 347, 115 S. Ct. 435 (1994).
This objective component of the threat element is necessary to ensure that speech protected by the First Amendment is not punished or chilled. A statute such as § 875(c), "which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind." Kelner, 534 F.2d at 1026 (quoting Watts v. United States, 394 U.S. 705, 707, 22 L. Ed. 2d 664, 89 S. Ct. 1399 (1969) (per curiam)).
Although the Supreme Court has not defined the permissible scope of § 875(c), it has considered the constitutionality of the application of a similar statute punishing threats against the President. Watts, 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399. In Watts, the Supreme Court held that a statement must constitute a "true threat" in order for its prohibition to be constitutional. Id. at 708. The Supreme Court construed the word "threat" to exclude statements which are not, when taken in context, "true threats," because they are conditional or made in jest. Id; Kelner, 534 F.2d at 1026; see also United States v. Baker, 890 F. Supp. 1375, 1381-82 (E.D. Mich. 1995), aff'd sub nom, United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997). The Supreme Court also distinguished true threats from careless statements or political hyperbole. See Watts, 394 U.S. at 708.
In Kelner, the Second Circuit drew on Watts in evaluating the constitutional limits of a prosecution under § 875(c). "The purpose and effect of the Watts constitutionally-limited definition of the term 'threat' is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished--only such threats, in short, as are of the same nature as those threats which are . . . 'properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues.'" Kelner, 534 F.2d at 1027 (quoting Watts v. United States, 131 U.S. App. D.C. 125, 402 F.2d 676, 690 (U.S. App. D.C 1968), rev'd, 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399 (1969).
In this case, the indictment sufficiently alleges that Francis's statements constituted a true threat and thus satisfies the objective component of the "threat" element. Francis's statements on their face and under the circumstances appears so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution. See Kelner, 534 F.2d at 1027.
However, whether Francis intended for his communication to be threatening is also an essential component of the second element of the offense charged. See Calvert, 1990 U.S. Dist. LEXIS 3187, 1990 WL 33592 at *4. The distinction between the two questions of whether a statement is objectively a "true threat" and whether the speaker subjectively knew it would or intended that it be taken as a threat is important but often confused. Baker, 890 F. Supp. at 1381. The Watts decision also indicated that whether a statement constitutes a true threat in light of the First Amendment is distinct from the question of the defendant's intent: "whatever the 'willfulness' requirement implies, the statute initially requires the government to prove a 'true threaten.'" Watts, 394 U.S. at 708; Baker, 890 F. Supp. at 1381. Although the content of the speech may be used to prove both the objective and subjective components of the "threat" element, it is not sufficient to sustain a conviction for the government to do no more than prove that the defendant "knowingly" transmitted a message that the recipient would reasonably regard as threatening. See Calvert, 1990 U.S. Dist. LEXIS 3187, 1990 WL 33592, at *4. The government must also prove that the "critical element" of the defendant's subjective mental state. Id. (citing Carrier, 672 F.2d at 305). A defendant may intend to threaten the recipient of a communication, but if the language is ambiguous or could not reasonably be regarded as threatening by the recipient, no crime has been committed. Conversely, the language may be threatening, but the government must still prove that the defendant intended a threat. Id.
The parties have cited to no Second Circuit cases that squarely address whether subjective intent to threaten must be pleaded and proved in a § 875(c) prosecution. The Ninth Circuit, however, has held that § 875(c) creates a specific intent crime. In Twine, the Ninth Circuit held that the transmission of threats via telephone and mail required the government to prove that a defendant had a specific intent to threaten.
Twine, 853 F.2d at 680. The court reasoned that such a requirement was necessary to ensure that a person would not be convicted for an act because of mistake, inadvertence or another innocent reason. Id.; cf. United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997) ("We believe that the appropriate standard under which a defendant may be convicted for making a threat is whether he should have reasonably foreseen that the statement he uttered would be taken as a threat.")
A number of other circuits, however, have held that § 875(c) is a general intent crime. See United States v. Alkhabaz, 104 F.3d 1492, 1494 (6th Cir. 1997) (§ 875(c) is a general intent statute); United States v. Myers, 104 F.3d 76, 80-81 (5th Cir.) (same), cert. denied, 137 L. Ed. 2d 834, 117 S. Ct. 1709 (1997); United States v. Himelwright, 42 F.3d 777, 782-83 (3d Cir. 1994) (same); Darby, 37 F.3d at 1063-64 (same); DeAndino, 958 F.2d 146.
In DeAndino, the Sixth Circuit reversed a district court's ruling that an indictment charging a violation of § 875(c) was insufficient for failing to allege a specific intent to threaten and expressly criticized Twine. Id. at 149. The court took issue with Twine's concern about convicting a person for inadvertence or mistake. The DeAndino court reasoned that proof of intent to threaten was not necessary to protect inadvertently threatening utterances, because the prosecution must prove that the threat was a "real threat" as opposed to a mistaken or an inadvertent statement. Id. However, if the court said, in effect, that proof that a statement is a real threat entails proof that the statement was not inadvertently threatening, then proof of a real threat requires proof of intent to threaten, precisely as the Ninth Circuit held. If, on the other hand, the court meant to say that proof of a real threat requires showing only that the making of the statement was not inadvertent, but not that the statement was intended to threaten, then a defendant is not protected from conviction for making a statement that is inadvertently, but objectively, threatening.
The DeAndino court also noted that Twine's holding was in tension with the principle of statutory construction whereby a statute that does not articulate a mens rea requirement is presumed to create a general intent crime. Id. at 149. However, the heightened First Amendment concerns raised by a statute that proscribes pure speech warrant a departure from that presumption in this instance.
Moreover, the meanings of the terms "general intent" and "specific intent" often vary with the circumstances. In a general intent crime, the government needs to prove only that the defendant intended to "do what the law forbids. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result which eventuated." Black's Law Dictionary 560 (Abridged 6th Ed. 1991). In a specific intent crime, the government must prove that the defendant intended to accomplish the precise act which the law prohibits. Id. However, the terms are sometimes used to distinguish between "general intent" crimes that require knowing or reckless behavior and "specific intent" crimes that require knowledge that one's actions violate the law and an intent to so violate the law. See Ratzlaf v. United States, 510 U.S. 135, 138-141, 126 L. Ed. 2d 615, 114 S. Ct. 655 (1994); see also, Liparota v. United States, 471 U.S. 419, 433 n.16, 85 L. Ed. 2d 434, 105 S. Ct. 2084 (potential for confusion in use of term specific intent). Thus, even if the presumption of general intent applies here, the government still must plead and prove that Francis knew or was reckless in not knowing that his words would be taken as a threat, although it need not prove that he intended or desired for them to be taken that way. Cf. Fulmer, 108 F.3d at 1491 (criminal liability for threat may be imposed only if reasonable defendant would have foreseen that statement would be threatening to recipient).
Accordingly, § 875(c) requires that the government plead and prove that Francis subjectively knew or intended that his statements would be taken as threatening. The remaining question is whether the indictment satisfies this requirement.
Rule 7(c)(1), Fed. R. Crim. P., states in pertinent part that "the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." This rule is designed to eliminate prolix indictments and to simplify procedures. Carrier, 672 F.2d at 303. An indictment is sufficient if it: (1) contains the elements of the offense charged; (2) fairly informs the defendant of the nature of the criminal activity with which he is charged; and (3) enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Payden, 613 F. Supp. 800, 807 (S.D.N.Y. 1985) (citing Carrier, 672 F.2d at 303); see also United States v. Blohm, 585 F. Supp. 1112, 1113-1114 (S.D.N.Y. 1984).
The Second Circuit has "sustained indictments which track the language of a statute and, in addition, do little more than state time and place in general terms." United States v. Trotta, 525 F.2d 1096, 1099 (2d Cir. 1975), cert. denied, 425 U.S. 971, 48 L. Ed. 2d 794, 96 S. Ct. 2167 (1976). The indictment may set forth the offense in the words of the statute itself, as long as the words themselves fully, directly, expressly and unambiguously set forth the essential elements of the charged offense. Payden, 613 F. Supp. at 807-808. The language of the statute must also be accompanied by a statement of the facts and circumstances that will inform the defendant of the specific offense, coming under the general description, with which he is charged. Id.
The Second Circuit has held that indictments based substantially on the utterance of words should rarely be dismissed for failure to allege sufficient facts, since the defendant's intention in uttering the allegedly threatening words, and the circumstances surrounding their utterance, are generally questions best left to the jury. United States v. Carrier, 672 F.2d 300, 304, 306 (2d Cir.), cert. denied, 457 U.S. 1139, 73 L. Ed. 2d 1359, 102 S. Ct. 2972 (1982); See also Calvert, 1990 U.S. Dist. LEXIS 3187, 1990 WL 33592 at *2; United States v. Ferrugia, 604 F. Supp. 668, 674 (E.D.N.Y.), aff'd, 779 F.2d 36 (2d Cir. 1985). However, where factual proof of a "true threat" is insufficient as a matter of law and where the language set forth is so facially insufficient that it cannot possibly amount to a true threat, the indictment may be properly dismissed. 672 F.2d at 306.
In the present case, the indictment contains a plain and concise statement of the essential facts constituting the offense charged. The facts clearly support an inference that Francis intended his words to be threatening, or at least knew they were likely to be taken as threatening. Objectively threatening words will generally support a permissible, though by no means necessary, inference of intent to threaten.
However, although the indictment tracks the statutory language, stating that Francis "did transmit in interstate commerce communications containing threats to injure the person of another," the government failed to charge that Francis subjectively knew or intended his communication to be threatening. Thus, the indictment failed to "fully, directly, expressly and unambiguously set forth the essential elements of the charged offense." Payden, 613 F. Supp. at 807-808. The indictment states that Francis "unlawfully, wilfully, and knowingly did transmit in interstate commerce" threatening statements. However, according to the Government's own reading of its indictment, this language only reflects that "the defendant knowingly transmitted interstate communications which a reasonable recipient would interpret as a threat." Gov't. Mem. at 11. At best, then, the indictment is ambiguous regarding Francis's mens rea with respect to the threat element. Because the Government has not adequately alleged mens rea, the indictment will be dismissed.
For the reasons set forth above, the indictment is hereby dismissed.
It is so ordered.
New York, N. Y.
August 15, 1997
ROBERT W. SWEET