Wake Forest Law Review

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.

By: Michael Klotz

Today, in the published opinion of United States v. Burns, the Fourth Circuit affirmed the decision of Judge Catherine Eagles of the District Court for the Middle District of North Carolina. A downward reduction in the sentence of a criminal defendant is disallowed when the defendant disputes the mens rea for the underlying crime, and thus fails to accept responsibility for relevant conduct.

Facts

On February 1, 2013, Mr. Burns was involved in an altercation with Eric Poole at a convenience store. Following the incident, Mr. Burns went to Mr. Poole’s house with a loaded gun, asked to find him, and fired a shot into the ceiling before leaving.

The next day, on February 2, 2013, Mr. Burns told his girlfriend, Brittney Wilson, that he intended to kill Mr. Poole. Later that day, Mr. Burns saw Mr. Poole in the driver’s seat of a parked car. Mr. Burns initially approached the car unarmed, but then returned to his car, told Ms. Wilson “I’m going to shoot him,” and retrieved his gun. Mr. Burns then told Mr. Poole “Motherfucker, I’m going to kill you.” After the occupant of the passenger’s seat exited the car, Mr. Burns fired a shot into the vehicle. The bullet did not hit Mr. Poole, who then exited the vehicle and fled on foot. Mr. Burns initially followed Mr. Poole in his vehicle, and fired a bullet into the air, but later halted his pursuit.

Mr. Burns was later arrested, on February 9, 2013, and charged as a felon in possession of a firearm. Mr. Burns pleaded guilty in a written plea agreement. The plea agreement stated that if the district court found Mr. Burns eligible for a two-level sentence reduction due to acceptance of responsibility for his conduct, and Mr. Burns’ total offense level was 16 or higher prior to that reduction, that the United States would request an additional one-level sentence reduction for timely assisting authorities with the investigation.

At His Sentencing Mr. Burns Denied That He Intended to Kill Mr. Poole, And Was Not Given a Sentence Reduction

At his sentencing, Mr. Burns stated that he had not intended to kill Mr. Poole when he fired a bullet into his car, and he disputed the testimony of Ms. Wilson. Mr. Burns argued that the downward trajectory of his shot demonstrated that he had not intended to shoot Mr. Poole, but rather to “give a warning shot.”

As a result, Mr. Burns contended that the sentencing guidelines for aggravated assault rather than for attempted murder should be cross-referenced in imposing his sentence. Thus, he claimed that the relevant sentencing guideline should be 70 to 87 months imprisonment rather than 92 to 115 months imprisonment.

Based upon these contentions, the government argued that Mr. Burns had refused to accept “relevant conduct,” and thus he was ineligible for the downward variance in his sentence due to acceptance of responsibility.

The District Court agreed. The court observed that there was strong evidence supporting attempted second degree murder, and in denying that he intended to kill Mr. Poole Mr. Burns had falsely denied relevant conduct. As a result, Mr. Burns was found to be ineligible for a sentence reduction. Based upon Mr. Burns’ criminal history, the appropriate sentencing range was 120 to 150 months imprisonment. The court imposed a sentence of 120 months, the statutory maximum under 18 U.S.C. § 924(a)(2). Mr. Poole subsequently filed the present appeal.

Does the Mens Rea of a Defendant Constitute “Relevant Conduct”?

The legal question on appeal was whether, in disputing that he had the mental state necessary for the uncharged crime of attempted murder, Mr. Burns rendered himself ineligible for a downward sentence reduction due to his refusal to accept responsibility for his crime. Pursuant to U.S.S.G. § 3E1.1(a), a defendant is only eligible for a sentence reduction when he “clearly demonstrates acceptance of responsibility for his offense.” An appropriate consideration in determining whether a defendant is entitled to a sentence reduction is whether he has “truthfully admit[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is accountable.” Thus, the question before the court was whether a criminal defendant’s mental state during the commission of a crime constitutes “relevant conduct” at the time of the offense. If so, Mr. Burns’ claim that he did not intend to shoot Mr. Poole when he fired a bullet into his car would amount to his refusal to accept additional relevant conduct.

The Fourth Circuit Affirms the District Court Decision

The Fourth Circuit, in an opinion authored by Judge Allyson K. Duncan, affirmed the lower court decision that the mental state of a defendant at the time of the crime does constitute “relevant conduct.” The court observed that the sentencing guidelines do not provide a definition of “relevant conduct.” The relevant factors in determining “relevant conduct” include the “acts and omissions committed…by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). The mental state of a defendant at the time of a crime would arguably not be considered given that it is not a physical act. However, clear precedent in the Fourth Circuit forestalls this conclusion. Attempted crimes (for example, attempted murder or attempted sexual abuse) have been previously cross-referenced under the “acts and omissions” provision, and these crimes contain a mens rea element based on the mental state of the defendant. As a result, the court concluded that when Mr. Burns denied that his “acts and omissions” included shooting toward Mr. Poole with the intent of killing him, he denied relevant conduct and thus became ineligible for a sentence reduction. Based upon the foregoing reasoning, the judgment of the lower court was affirmed.

 

 

By: David Darr

Today, in Bradford v. Clem, the Fourth Circuit affirmed the District Court for the District of Maryland’s decision to order summary judgment in favor of the defendants on the plaintiff’s Eighth Amendment claims.

Eighth Amendment Violation?

At issue in this case was whether an Eighth Amendment claim for “unnecessary and wanton infliction of pain” can proceed when a prison doctor does not renew the plaintiff’s pain medication prescriptions for two weeks due to changes in the prison medical staff.

Defendant Not Renewing Prescriptions

The plaintiff, Steven Karl Edward Bradford, suffered from severe damage to his left intraorbital nerve and, as a result, developed severe chronic pain on the left side of his face, migraines, and double vision. This greatly impaired Bradford’s abilities to do normal activities.  In 2010, after some unsuccessful attempts to treat these symptoms, Bradford was put on regimen of Tramadol, Depakote, and Lyrica. This regimen proved to be relatively successful and Bradford was able to engage in regular activities for two years on this regimen. Bradford had to be reevaluated every ninety days for prescription renewals. In 2012, the prison that Bradford was incarcerated in a prison that switched health care providers and, as a result, the doctor who regularly treated Bradford no longer worked at the prison. Bradford was treated by a physician’s assistant the next time he went in for an evaluation. One of the defendants, Physician’s Assistant Oltman, only renewed Bradford’s Lyrica prescription because the other two drugs were narcotics and not in Oltman’s power to renew. As a result, Bradford ran out of Depakote and Tramadol. Over a two week period without the drugs, Bradford wrote the other defendant, Dr. Jason Clem, to renew his other two prescriptions because he was in intense pain. Bradford claimed these letters were ignored. After filing a grievance with the warden, Bradford’s prescriptions were renewed. He was without them for about two weeks.

Bradford brought an action a violation of his Eighth Amendment protection against “unnecessary and wanton infliction of pain” in the District of Maryland. The defendants filed for summary judgment and the District of Maryland granted summary judgment in favor of the defendants in this opinion. Bradford then appealed the decision.

Need Subjective Recklessness for an Eighth Amendment Violation

The District Court, whose reasoning the Fourth Circuit adopted, ruled that there must be some intent or subjective recklessness to inflict pain for an Eighth Amendment violation and that Bradford’s claim showed no such recklessness.

No Eighth Amendment Violation Found by the District Court

The Fourth Circuit used the District Court’s reasoning in affirming this case. An Eight Amendment claim for “unnecessary and wanton infliction of pain” for denial of medical care requires an action or inaction by the defendants that amounts to deliberate indifference to a serious medical need. Objectively, the medical condition must be “serious” and, subjectively, there must be recklessness. Subjective recklessness requires knowledge of the risk and that the conduct is inappropriate in relation to the risk.  The District Court found ample evidence that Bradford’s condition was objectively “serious.” Thus, if Bradford provided evidence of subjective recklessness his claim would prevail. However, the District Court found no evidence of an intent to cause harm to Bradford or that Bradford was intentionally deprived his medicine. The speed of the response to Bradford’s letters was demonstrative of this lack of intent. The District Court also found that the fact that this incident occurred as the prison was changing health care providers showed a potential alternative reason for this error. Because of this lack of evidence of intent, there was no subjective recklessness and therefore not enough to establish an Eighth Amendment claim. While the District Court found that the Bradford’s pain could have easily been avoided, it ultimately grated the defendants’ motion for summary judgment.

Fourth Circuit Finds No Reversible Error

In affirming the case, the Fourth Circuit found that the District Court made no reversible error in its decision.