By Eric Benedict

On January 7, 2016, the Fourth Circuit released its published decision in the criminal case, United States v. White. In White, the Fourth Circuit was called on to review William White’s (“White”) conviction for transmitting threats and committing extortion in foreign commerce. Due to a development in Supreme Court precedent, the court reexamined the mens rea requirements for both a threat and extortion in the context of 18 U.S.C. § 875. The court ultimately reformulated its standard and found error in the lower court’s jury instruction, but concluded it was harmless error and affirmed the conviction and sentence.

White Sends Threatening Messages to His Ex-Wife

In 2010, White was convicted by a jury of making threatening phone calls and sending threatening letters. He was subsequently sentenced to a thirty-month sentence. During his incarceration, his marriage to his wife (“MW”) began to fall apart, and ultimately failed. MW entered into an agreement to pay alimony to White. White later disappeared during his supervised release, fleeing to Mexico. Shortly thereafter, MW stopped making alimony payments. By late May, White began contacting MW, making three extorting threats and one additional threat by email. White threatened MW with physical violence if she refused to meet her alimony requirements and enlisted the help of his acquaintance, Gnos, to help enforce his threats. Gnos eventually contacted the FBI and provided information about their communication. Authorities apprehended White in Mexico and he was returned to stand trial in the Western District of Virginia.

An Anonymous Jury Returns a Guilty Verdict

At trial the District Court Judge empanelled an anonymous jury which found White guilty of three counts transmitting a threat in interstate commerce with the intent to extort under  18 U.S.C. § 875(b) and one count of transmitting a threat under § 875(c). After sentencing enhancements for prior convictions and obstruction of justice—each of which was upheld on appeal—the judge sentenced White to a 92-month prison sentence.

White appealed his conviction on six separate grounds ranging from evidentiary concerns centered around Gnos’ involvement to the empanelling of the anonymous jury, each of which the Fourth Circuit quickly disposed of. However, the court did spend significant time explaining its decision on two of the issues on appeal, both concerning the mens rea requirements of § 875.

The Fourth Circuit Reexamines § 875(c) Mens Rea in the Wake of the Elonis Decision

Judge Thacker explained that the Fourth Circuit had previously understood conduct to be unlawful under § 875(c) where, “(1) the defendant knowingly communicates a  statement in interstate commerce that (2) contains a ‘true threat’ that is not protected by the First Amendment.” Notably, this previous standard did not contain a requirement that the speaker intended the recipient to be threatened. The Fourth Circuit adopted this position because, “neither the statute nor the Constitution requires the Government to prove that a Defendant subjectively intended the recipient of the communication to understand it as threatening.”

In 2015, the United States Supreme Court announced its decision in Elonis v. United States. In Elonis, the Court explained that the omission of criminal intent from the statute did not mean there was no mens rea requirement. Instead the Supreme Court instructed lower courts to “read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” In the § 875(c) context, the Court indicated that a defendant must have “the purpose of issuing a threat, or [have] knowledge that the communication will be viewed as a threat.”

The Fourth Circuit took the opportunity in White to incorporate the Elonis decision into its understanding of § 875(c) to distill its test for guilt: “(1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a ‘true threat’ to kidnap or injure.”

Although the Court reformulated its standard and thus, found error in the lower court’s jury instruction, Judge Thacker found the error to be harmless, because there was no evidence on the record to persuade a reasonable jury that White meant to do anything other than to threaten MW.

White’s Right to Alimony Does Not Justify Bodily Threats

The Court next looked to White’s three-count conviction under § 875(b). White objected to his conviction on the ground that he lacked the mens rea for the charge and that he had a right to the money for which he allegedly extorted MW. The Fourth Circuit quickly disposed of White’s arguments with respect to mens rea. Although the court acknowledged the “intent to extort,” the court concluded that “one cannot have the intent to scare someone into relinquishing property or something of value by communicating a wrongful threat to kidnap or injure without also intending the communication to be threatening.”

White also alleged that, because he had a claim of right to the alimony payments, he could not have extorted MW. Differentiating White’s threats of bodily injury from “legitimate legal threats” or even threats relating to a party’s reputation stemming from true publications, the court noted that “a defendant may not threaten to injure or kidnap a person to collect a debt, even one legitimately due and owing.” Therefore, the court did not have to decide if White did have a legal claim to the funds.

The Fourth Circuit Unanimously Affirms the Conviction and Sentence

After disposing of the defendant’s two mens rea claims, the Fourth Circuit addressed the Defendant’s sentencing and jury claims. The court applied existing law to conclude that none of the objections formed a reversible ground for appeal on these facts. Therefore, the court concluded that it must affirm the conviction and sentence.