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REDEFINING THE QUESTION: APPLYING A
HIERARCHICAL STRUCTURE TO THE MENS REA
REQUIREMENT FOR SECTION 875(c)
Karen Rosenfield*
INTRODUCTION
Section 875 of Title 18 of the United States Code criminalizes
extortion and threats sent via interstate commerce.1 In particular,
section (c) of this statute criminalizes interstate communications
containing a threat to kidnap or injure another person.2 While section
875(c) does not contain an explicit mens rea3 requirement, several
circuits have considered the mens rea needed to violate the statute.4
The issue the courts have considered is whether the statute requires
general intent5 or specific intent.6 The circuits are divided on this
* Associate Editor, Cardozo Law Review. J.D. Candidate (2009), Benjamin N. Cardozo
School of Law; B.A. (2000), University of Pennsylvania. This Note is dedicated to my parents
Tifearet and Isaac Ram, whose gifts and inspiring example continue to guide me. Thank you to
Professor Kyron Huigens for being generous with his time and ideas, and for his thoughtful
guidance. And, to my husband Seth for his tremendous patience and for always seeing truer
things in me.
1 18 U.S.C. § 875 (2000).
2 Id. § 875(c).
3 See BLACK’S LAW DICTIONARY 1006 (8th ed. 2004) (defining mens rea as “the state of
mind that the prosecution, to secure a conviction must prove that a defendant had when
committing a crime”).
4 The notion that some mens rea may be required to violate a statute despite the lack of an
explicit mens rea requirement is a general principle of criminal law interpretation. See infra notes
29, 64.
5 See BLACK’S LAW DICTIONARY, supra note 3, at 825-26 (defining “general intent” as “the
state of mind required for the commission of certain common-law crimes not requiring a specific
intent or not imposing strict liability”). For example, an actor is guilty of trespass by breaking
into a building so long as the actor acted intentionally because he knew the nature of his acts,
without further proof that the actor desired any particular further consequence. SANFORD H.
KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 216 (7th ed. 2001).
6 See United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006) (“The issue is generally
discussed in terms of whether the statute requires specific intent or merely general intent.”);
BLACK’S LAW DICTIONARY, supra note 3, at 826 (defining “specific intent” as “[t]he intent to
accomplish the precise criminal act that one is later charged with”). For example, burglary
requires that an actor break and enter with the further consequence of committing a felony inside.
Therefore, conviction for burglary requires proof of intent of a further consequence. See KADISH
& SCHULHOFER, supra note 5, at 216.
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question, with the majority of circuits requiring general intent, and only
the Ninth Circuit requiring specific intent.7 According to the majority
of circuits, based on a requirement of general intent, a defendant may be
convicted under section 875(c) if a defendant knowingly sends a
message through interstate commerce that a reasonable person would
consider a threat.8 Under this requirement, the mens rea is considered
“objective” because it is unnecessary to consider the state of mind of
that particular defendant.9 On the other hand, the requirement of the
Ninth Circuit is specific intent.10
Under this requirement, the
prosecution must show that the defendant intended to communicate a
threat.11 This considers a particular defendant’s state of mind and as a
result is “subjective.”12
In its recent decision, United States v. Teague, the Tenth Circuit
noted the split among the circuits regarding the mens rea requirement
for section 875(c).13 There, the court upheld the trial court’s decision to
instruct the jury on a standard of general intent, reasoning that the
instruction was not “plain error.”14 However, the Tenth Circuit
acknowledged that further clarification is needed to understand the
7 Teague, 443 F.3d at 1319 (noting that only the Ninth Circuit requires specific intent, while
the other circuits say that general intent is all that is required).
8 Id. at 1318 (describing the general intent standard posed by the majority of circuits). The
prosecution must prove that the defendant knowingly transmitted a communication containing a
threat to injure the person of another. Here, a threat is a serious statement with an intention to
injure any person which would cause apprehension in a reasonable person. Id.
9 Id. at 1318 (noting defendant’s argument that a reasonable person standard was
insufficient, and that the state of mind of a particular defendant should be considered).
10 See supra note 7.
11 Teague, 443 F.3d at 1318.
12 United States v. Twine, 853 F.2d 676, 681 (9th Cir. 1988) (holding that “a subjective,
specific intent to threaten” is required); United States v. DeAndino, 958 F.2d 146, 149 (6th Cir.
1992) (stating that the prosecution does not need to “prove a specific intent to threaten based on
the defendant’s subjective purpose”); see also KADISH & SCHULHOFER, supra note 5, at 216
(noting a usage of specific intent which refers to a crime requiring the defendant to have “actual
knowledge” or “subjective awareness” of a particular fact or circumstance). The difference
between “objective” and “subjective” in this context is different from colloquial understandings
of the terms.
Colloquially, subjective means a matter of opinion, an inarticulable judgment that
borders on the arbitrary and that cannot in a literal sense be right or wrong. Objective
in a colloquial sense is the opposite of this: a matter of demonstrable fact about which
one can be right or wrong. Punishment theorists use subjective to refer instead to the
state or condition of an actor, so that to have a purpose or to have some knowledge is
said to be a subjective state of mind, and liability premised on such mental states is
said to constitute subjective criminal liability. Objective criminal liability rests on
considerations external to the criminal actor—on his failure to meet a standard of due
care or the moral depravity of his conduct.
Kyron Huigens, On Commonplace Punishment Theory, 2005 U. CHI. LEGAL F. 437, 449.
13 Teague, 443 F.3d at 1319.
14 Id. (“Even [defendant] acknowledges that there is a circuit split on the issue before us; and
our review of the circuit opinions suggests that there may not be any that would reject the
elements instruction given here. Accordingly, we cannot accept . . . [the] contention that the
district court committed error that was plain.”).
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precise requirements for violation of section 875(c).15 In doing so, the
court noted the ambiguity of the terminology of general and specific
intent.16 Indeed, because the mens rea analysis for section 875(c) turns
on ambiguous terminology, the resulting framework is confusing, and
the mens rea requirement remains an unresolved question.
This Note argues that clarification of the terminology “general
intent” and “specific intent” is needed in order to synthesize the circuit
courts’ analyses of the mens rea requirement for section 875(c). By
reliance on ambiguous terminology, the courts are merging two distinct
questions into one. The first question the courts have focused on, asks
whether a showing of the defendant’s state of mind is necessary for
violation of section 875(c) or if an objective inquiry is sufficient. This
question correctly considers the mens rea issue in terms of the “state of
mind” required per element of the offense. However, because the courts
analyze this question under the confusing framework of general versus
specific intent, the majority of courts have reached the conclusion that
objective intent is required. The arguments put forth in this Note
conclude that “subjective” intent is required to violate section 875(c),
contrary to the majority of circuits.
The second question the courts have considered is whether it is
sufficient to show that the defendant had intent to threaten or if it must
be shown that the defendant had intent to carry out the threat. The
courts have also framed this issue as between general and specific intent
respectively, concluding that only intent to threaten is required.
Although their conclusion is correct, this question incorrectly focuses
on the conduct element of the offense, overlooking the correct mens rea
concern, which is the state of mind.17 Indeed, because this question
considers conduct and does not consider state of mind, it is irrelevant to
the mens rea analysis.
Part I of this Note provides a general background of the
terminology and requirements for violation of the criminal statute, and
discusses the history of the statute. Part II discusses how the circuit
courts are currently addressing the mens rea question. Part III argues
that the majority has incorrectly concluded that objective intent is
15 Id.(“[F]urther elaboration may be necessary to clarify precisely what the accused must
know and intend.”).
16 Id. (stating that “[w]e recognize that the terms general intent and specific intent can be
ambiguous . . . .”).
17 See Audrey Rogers, New Technology, Old Defenses: Internet Sting Operations and Attempt
Liability, 38 U. RICH. L. REV. 477, 484 (2004) (noting that the Model Penal Code’s innovation of
the elements analysis approach to criminal law requires a culpable mental state for each material
element of an offense; the material elements include conduct, attendant circumstances, or result.);
Paul H. Robinson, Reforming the Federal Criminal Code: A Top Ten List, 1 BUFF. CRIM. L. REV.
225, 229-30 (1997) [hereinafter Robinson, Top Ten] (finding that a criminal code structure can be
summarized by three questions; these questions separate out the conduct required to commit a
crime from the requirement of culpability, i.e., whether an actor is blameworthy for his actions).
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required, discussing the error in the majority’s logical deduction. In
addition, this section argues that the Ninth Circuit has reached the right
result, albeit using the wrong terminology. Part IV suggests, after a
comparative analysis of Supreme Court cases, that “subjective” intent is
the correct requirement. This section applies the Model Penal Code’s
hierarchical states of culpability, endorsed by the Supreme Court,
concluding that either recklessness or knowledge is required to violate
section 875(c).
I. BACKGROUND
A.
Elements of Violation of a Criminal Statute
The criminal law is informed by several principles that limit the
distribution of punishment.18 One of these principles is the requirement
of culpability,19 which corresponds to the Model Penal Code’s general
purpose to protect conduct that is without fault from criminal
condemnation.20 The two requirements that make up this notion of
“culpability”21 are actus reus or culpable conduct,22 and mens rea or a
culpable mental state.23 Actus reus comprises the physical components
of a crime, whereas mens rea comprises the mental components.
Mens rea, the mental component, is concerned with the level of
intent with which the defendant acted. That is, what the defendant
intended, knew, or should have known when he acted.24 Mens rea is
separately considered for each element of a crime, rather than the crime
as a whole.25 The Model Penal Code endorses an “elements analysis” in
18
19
20
KADISH & SCHULHOFER, supra note 5, at 173.
Id.
MODEL PENAL CODE § 1.02(1) (2006) (stating the general purposes of the provisions
governing the definition of offenses; the third purpose is “to safeguard conduct that is without
fault from condemnation as criminal.”).
21 See KADISH & SCHULHOFER, supra note 5, at 173 (noting that culpability is also known as
“fault”).
22 Id. See also BLACK’S LAW DICTIONARY, supra note 3, at 39 (defining “actus reus” as
“[t]he wrongful deed that comprises the physical components of a crime and that generally must
be coupled with mens rea to establish criminal liability”).
23 KADISH & SCHULHOFER, supra note 5, at 203; United States v. Bailey, 444 U.S. 394, 402
(1980) (“Criminal liability is normally based upon the concurrence of two factors, ‘an evilmeaning mind [and] and evil-doing hand’”) (quoting Morissette v. United States, 342 U.S. 246,
251 (1952)); see also United States v. Freed, 401 U.S. 601, 607 (1971) (“The presence of a
‘vicious will’ or mens rea was long a requirement of criminal responsibility.”) (internal citation
omitted); BLACK’S LAW DICTIONARY, supra note 3, at 1006 (defining mens rea); JEROME HALL,
GENERAL PRINCIPLES OF CRIMINAL LAW 110-11 (2d ed. 1960) (“[T]he classical synonym of
mens rea is ‘evil will’”).
24 KADISH & SCHULHOFER, supra note 5, at 203.
25 MODEL PENAL CODE § 2.02(1) (2006) (“[A] person is not guilty of an offense unless he
acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to
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which a court considers the appropriate mental component required per
each material element of an offense.26 According to the Model Penal
Code, material elements of an offense are of three types; they are
descriptive of conduct, attendant circumstances, or results.27 Where
mens rea or intent is not needed to violate a particular element of a
statute there is strict liability.28 However, as the criminal law has a
preference for a requirement of mens rea,29 strict liability is generally
disfavored.30
The mens rea requirement is sometimes defined in terms of the
culpabilities of purpose, knowledge, recklessness, and negligence.31
While purpose, knowledge and recklessness are truly “mental states,”
negligence is a non-intentional requirement of culpability.32 In addition,
the terms general and specific intent are sometimes used to describe
mental states.33 The distinction between specific and general intent
each material element of the offense”); see also Bailey, 444 U.S. at 405-06 (noting that the
required mental state may be different for different elements of a crime); 1 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW § 5.1(d), at 338 (2d ed. 2003) (“[T]he mental ingredients of a
particular crime may differ with regard to the different elements of the crime.”).
26 See Rogers, supra note 17, at 484.
27 Robinson, Top Ten, supra note 17, at 235 (“The Model Penal Code drafters invented a
useful system for the precise definition of offenses. Section 1.13(9), defining ‘elements of an
offense,’ distinguishes between (i) conduct, (ii) attendant circumstances, and (iii) a result of
conduct. These are the objective building blocks for offense definitions.”).
28 See People v. Hood, 462 P.2d 370, 377 (Cal. 1969).
29 United States v. Gypsum, 438 U.S. 422, 436 (1978) (noting the “familiar proposition that
‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of AngloAmerican criminal jurisprudence.”) (quoting Dennis v. United States, 341 U.S. 494, 500 (1951));
Staples v. United States, 511 U.S. 600, 606 (1994) (“Relying on the strength of the traditional
rule, we have stated that offenses that require no mens rea generally are disfavored, and have
suggested that some indicate of congressional intent, express or implied, is required to dispense
with mens rea as an element of a crime.”).
30 Liparota v. United States, 471 U.S. 419, 426 (1985) (“Criminal offenses requiring no mens
rea have a generally disfavored status. The failure of Congress explicitly and unambiguously to
indicate whether mens rea is required does not signal a departure from this background
assumption of our criminal law.”); see also Bailey, 444 U.S. at 404 n.4 (“[S]trict liability crimes
are exceptions to the general rule that criminal liability requires an evil-meaning mind.”) (internal
quotations omitted); Morissette v. United States, 342 U.S. 246, 252-56 (1952) (describing the
emergence of strict liability or “public welfare” offenses and commenting on the misgivings of
their place in criminal law).
31 See MODEL PENAL CODE § 2.02 (2006); see also Bailey, 444 U.S. at 403-04 (“This new
approach, exemplified in the American Law Institute’s Model Penal Code, is based on two
principles. First, the ambiguous and elastic term ‘intent’ is replaced with a hierarchy of culpable
states of mind. The different levels in this hierarchy are commonly identified, in descending
order of culpability, as purpose, knowledge, recklessness, and negligence.”).
32 Kenneth W. Simons, Does Punishment for “Culpable Indifference” Simply Punish for
“Bad Character”? Examining the Requisite Connection Between Mens Rea and Actus Reus, 6
BUFF. CRIM. L. REV., 219 n.6 (2002) (“‘[N]egligence,’ is more aptly described as a culpability
term, not a ‘mental state.’”); Huigens, supra note 12, at 453 (“In negligence and the other nonintentional fault doctrines, fault is found not in a discrete mental state, but in a broader set of facts
surrounding the offense.”).
33 See KADISH & SCHULHOFER, supra note 5, at 215 (noting that the concepts of specific
intent and general intent have been used extensively in non-Model Penal Code jurisdictions and
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arose at common law, in response to the problem of the intoxicated
defendant.34 At common law, evidence of intoxication was permitted to
negate a showing of specific intent, but not general intent.35 General
intent in this sense meant intent to do an act whereas specific intent
usually required intent to achieve a particular result.36 For example,
intent to commit a battery was considered to require general intent,
whereas intent to commit a battery for the purpose of raping or killing
was considered to require specific intent.37
According to the Model Penal Code’s requirements of culpability
the intoxication defense applied where purpose or knowledge was the
requisite mental state, but did not apply to recklessness or negligence.38
Under this standard, specific intent was equivalent to purpose or
knowledge, and general intent was equivalent to recklessness or
negligence.39 Since purpose, knowledge, and recklessness are all
in England); GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 6.5, at 452-53 (2000)
(presenting a “Glossary of Intents”); HALL, supra note 23, at 142 (discussing mens rea
terminology including general and specific intent).
34 See FLETCHER, supra note 33, § 10.4, at 848-49; People v. Hood, 462 P.2d 370, 377 (Cal.
1969); 1 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES § 65 (1984) (noting that the distinctions
between general and specific intent arose as “a device, conceived at common law, to achieve a
certain result . . . . to permit evidence . . . to reduce the crime to a lower degree, but not
to . . . result in total acquittal” and noting that, “the common law approach permitt[ed] voluntary
intoxication as a defense to specific intent offenses and barr[ed] it as a defense to general intent
offenses.”) (internal quotations omitted).
35 KADISH & SCHULHOFER, supra note 5, at 869; see also Greider v. Duckworth, 701 F.2d
1228, 1232 (7th Cir. 1983) (“The general rule at common law . . . was that voluntary intoxication
was not a defense in a criminal proceeding.”) Furthermore, the Greider court noted that “[i]n
order for intoxication to relieve a defendant from responsibility, the crime charged must have
involved specific intent, and the defendant must have been so intoxicated as to be incapable of
entertaining the required specific intent.” Id.; FLETCHER, supra note 33, § 10.4, at 849 (noting
that intoxication is admissible to negate ulterior intent, e.g., the intent to commit a felony inside
the house, but inadmissible to negate the intent required for the base crime, e.g., the intent to
break and enter).
36 See Hood, 462 P.2d at 378; see also 1 ROBINSON, supra note 34, § 65 (noting the
suggestion that with respect to intoxication general intent accompanies the base offense whereas
specific intent refers to further objectives); KADISH & SCHULHOFER, supra note 5, at 216
(“Perhaps the least mysterious and most common usage of specific intent is to identify those
actions that must be done with some specified further purpose in mind.”); FLETCHER, supra note
33, § 10.4, at 849 (noting that the general intent is the intent accompanying the base offense; the
specific intent goes beyond the base offense to reach further unrealized objectives).
37 Hood, 462 P.2d at 379 (“The difference . . . between . . . an intent to commit a battery and
formulating an intent to commit a battery for the purpose of raping or killing may be slight, but it
is sufficient to justify drawing a line between them and considering evidence of intoxication in
the one case and disregarding it in the other.”) (emphasis added).
38 See WAYNE LAFAVE, CRIMINAL LAW § 4.10(c), at 416-17 (3d ed. 2000) (noting that in the
majority of jurisdictions intoxication is not a defense where the culpability is recklessness or
negligence).
39 See, e.g., Valerie M. Ryan, Comment, Intoxicating Encounters: Allocating Responsibility
in the Law of Rape, 40 CAL. W. L. REV. 407, 419 (2004) (“[S]pecific-intent offenses correspond
to offenses that require purpose or knowledge and general-intent offenses correspond to offenses
that require recklessness or criminal negligence.”); Scott A. Anderegg, Note, The Voluntary
Intoxication Defense in Iowa, 73 IOWA L. REV. 935, 955-56 (1988) (“Under the Code,
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subjective mental states, the intoxication approach did not differentiate
between subjective and objective standards. By the end of the
nineteenth century, most American courts followed the intoxication
approach, allowing evidence of intoxication to be considered when
determining specific, but not general intent.40
Despite the prevalent usage of the terms general intent and specific
intent at common law, as used today the terms are ambiguous and
therefore confusing to apply.41 The terms have been used in several
different ways,42 which do not always parallel their usage at common
law.
The Supreme Court has noted the confusion around this
terminology, acknowledging at least three distinct usages of the terms.43
One view which the Supreme Court has endorsed is that general intent
corresponds with knowledge and specific intent with purpose.44 This is
distinct from the intoxication approach which defines general intent as
recklessness or negligence, and specific intent as purpose or knowledge.
It is also distinct from the approach of the majority of Circuits
intoxication may provide a defense to crimes requiring ‘purpose’ and ‘knowledge’ (specific
intent), but not to those crimes requiring only ‘recklessness’ or ‘negligence’ (general intent).”);
Deborah W. Denno, Crime and Consciousness: Science and Involuntary Acts, 87 MINN. L. REV.
269, n. 437 (2002) (“[The] ‘net effect’ . . . of the vague specific/general dichotomy . . . has
operated as follows: Intoxication evidence could be adduced to disprove the elements of purpose
or knowledge, where either sufficed to establish the offense, but intoxication evidence would be
precluded to disprove recklessness or negligence, where either sufficed to establish the offense.”).
40 KADISH & SCHULHOFER, supra note 5, at 869; see also Montana v. Egelhoff, 518 U.S. 37,
47 (1996) (“[B]y the end of the 19th century, in most American jurisdictions, intoxication could
be considered in determining whether a defendant was capable of forming the specific intent
necessary to commit the crime charged.”).
41 See United States v. Bailey, 444 U.S. 394, 403 (1980) (“This venerable distinction . . . has
been the source of a good deal of confusion.”); Hood, 462 P.2d at 377 (“Specific and general
intent have been notoriously difficult terms to define and apply . . . .”); 1 ROBINSON, supra note
34, § 65 (discussing several views of the terms general and specific intent, and noting the
confusion over the distinction); HALL, supra note 23, at 142 (noting the problems of terminology
regarding mens rea including the terms general and specific intent.) Hall writes: “The current
confusion resulting from diverse uses of ‘general intent’ is aggravated by dubious efforts to
differentiate that from ‘specific intent.’” Id.; FLETCHER, supra note 33, § 6.5.6, at 452-53 (noting
the ambiguity of the terminology specific intent and general intent, and providing a glossary of
three possible definitions for specific intent, and four possible definitions for general intent);
KADISH & SCHULHOFER, supra note 5, at 216 (“‘[G]eneral’ and ‘specific’ intent are often used
inconsistently or applied loosely to entire crimes . . . .”); LAFAVE, supra note 25, § 5.2(e), at 353
(“‘General intent’ is often distinguished from ‘specific intent,’ although the distinction being
drawn by the use of these two terms often varies.”).
42 United States v. Zunie, 444 F.3d 1230, 1233-34 (10th Cir. 2006) (“Federal courts have
adopted inconsistent definitions of ‘general intent’ and ‘specific intent.’”); LAFAVE, supra note
25, § 5.2(e), at 353; 1 ROBINSON, supra note 34, § 65.
43 Bailey, 444 U.S. at 403 (discussing several views of the terms general and specific intent).
44 Id. at 405 (“In a general sense, ‘purpose’ corresponds loosely with the common-law
concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general
intent.”); Morissette v. United States, 342 U.S. 246, 264-65 (1952) (noting that Congress has
sometimes required a specific intent or purpose which requires a specialized knowledge beyond
the common-law intent to do injury).
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interpreting section 875(c), where general intent means objective, and
specific intent means subjective. Each of these definitions of general
intent and specific intent is unique and contributes to confusion where
the terms are used and applied.
B.
History of Section 875(c)
Section 875(c) of Title 18 of the United State Code was codified in
1948.45 The law was first passed in 1932, criminalizing the use of the
mail to transmit a threat to injure or kidnap any person or to accuse a
person of a crime or demand ransom for a person.46 The 1932 Act
explicitly required that the communication be sent with the intent to
extort money or a thing of value.47 In 1934, in response to the use of
more sophisticated methods of transmitting threats, the act was
expanded to include other means of communication.48 As modified, the
Act continued to require extortionate intent, but applied to threats sent
by any method of communication.49
In 1939, the Act was extended and applied to threats to kidnap or
injure without extortionate intent.50 While an extortionate intent was no
longer required, the Act was still intended to address threats aimed at
accomplishing some coercive purpose.51 These types of threats are the
subject of the typical cases considered today.52
As codified in 1948, section 875(c) reads “Whoever transmits in
interstate or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person of another,
shall be fined under this title or imprisoned not more than five years, or
both.”53 In order to find a violation of this statute, three elements must
be proved: (1) a transmission in interstate or foreign commerce; (2) the
communication contained a threat; and (3) the threat must be a threat to
45
46
47
18 U.S.C. § 875 (2000).
United States v. Baker, 890 F. Supp. 1375, 1383 (E.D. Mich. 1995).
Id. (noting that the kidnapping of Charles Lindbergh’s son and the use of the mail to
convey the threats and demands was a motivating factor for the passage of the Act).
48 Id.
49 Id. (“As modified, it applied to threats transmitted ‘by any means whatsoever,’ but still
required extortionate intent.”). More recently, the topic of threats transmitted through the internet
has gained attention. See, e.g., David C. Potter, The Jake Baker Case: True Threats and New
Technology, 79 B.U. L. REV. 779 (1999); Sally Greenberg, Threats, Harassment, and Hate OnLine: Recent Developments, 6 B.U. PUB. INT. L.J. 673 (1997).
50 Baker, 890 F. Supp. at 1383. (“The act’s expansion was prompted by the recognition that
many threats ‘of a very serious and socially harmful nature’ were not covered by the existing law
because ‘the sender of the threat did not intend to extort money or other thing of value for
himself.’”)
51 Id.
52 Id. at 1384.
53 c. 645, 62 Stat. 741 (1948).
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injure the person of another.54 The statute is silent on the mens rea
requirement for each of these elements.55 This Note focuses on the
mens rea requirement for the second element.56 That is, what level of
intent, if any, is needed to prove the second element of the offense: that
the defendant communicated a threat.
C.
Constitutional Threshold
As a result of First Amendment protections of speech, a threat
must be a “true threat” in order to pass the constitutional threshold for
violation of section 875(c).57 The test to determine whether a threat is a
“true threat” was set out in Watts v. United States.58 According to
Watts, whether a statement is a true threat is determined by
consideration of factors including the context of the statement, whether
the statement has a political dimension, whether the statement was
conditional, and the reaction of the listeners.59 The question of what
constitutes a “true threat” is often confused with the question of the
requisite mens rea of the threat element of the offense. 60 However, the
issue of “true threat” is a distinct issue from the question considered in
this Note.61 The statute initially requires the government to prove a true
threat, separate and apart from the mens rea requirement imposed by the
statute.62
54
55
United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992).
United States v. Teague, 443 F.3d 1310, 1318 (10th Cir. 2006) (“Section 875(c) does not
have an explicit mens rea requirement.”).
56 DeAndino, 958 F.2d at 148.
57 See Watts v. United States, 394 U.S. 705, 707 (1969) (stating that despite valid
governmental interests, a statute which criminalizes a form of pure speech “must be interpreted
with the commands of the First Amendment clearly in mind.”). The First Amendment protects
against the censorship or punishment of speech. This protection, however, is not absolute.
Speech that is “shown likely to produce a clear and present danger of a serious substantive evil
[rising] far above public inconvenience, annoyance, or unrest” does not fall within this protection.
Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
58 Watts, 394 U.S. 705 (considering the constitutional threshold for 18 U.S.C. § 871(a) which
criminalizes threats against the President of the United States).
59 Id. at 708.
60 United States v. Baker, 890 F. Supp. 1375, 1381 (E.D. Mich. 1995) (“Watts also makes
clear that the question of whether a statement constitutes a true threat in light of the First
Amendment is distinct from the question of the defendant’s intent . . . .The distinction between
the two questions of whether a statement is a ‘true threat’ for the purposes of First Amendment
limitation, and the intention of the statement’s maker, is important but unfortunately often
confused. The confusion results from too loose a use of the phrase ‘true threat.’”).
61 For a discussion of the constitutional threshold of “true threats,” see Paul T. Crane, Note,
“True Threats” and the Issue of Intent, 92 VA. L. REV. 1225 (2006).
62 Watts, 394 U.S. at 707. This distinction between a “true threat” for constitutional purposes
and a threat in violation of the statute’s elements has caused confusion. See Justin Meyer
Lichterman, Note, True Threats: Evolving Mens Rea Requirements for Violations of 18 U.S.C. §
875(c), 22 CARDOZO L. REV. 1961, 1977 (2001).
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II. HOW THE MENS REA ISSUE IS CURRENTLY BEING ADDRESSED BY
THE CIRCUIT COURTS
The mens rea requirement for section 875(c) has been discussed by
the circuit courts in terms of whether the statute requires general intent
or specific intent.63 While the circuits are in agreement that some mens
rea is required for violation of section 875(c) (the statute is not a strict
liability offense),64 the circuit courts are split as to whether general or
specific intent is required, with the majority of the circuits requiring
general intent65 and only the Ninth Circuit requiring specific intent.66
The circuit courts’ approach to the general and specific intent
debate considers the question of intent in terms of whether the requisite
showing should be subjective or objective.67 Specifically, the courts
consider the prosecution’s burden of proof for the second element of the
offense—the communication contained a threat.68 Under a subjective
intent standard, the prosecution would have to prove that the defendant
was subjectively aware that he communicated a threat.69 Alternatively,
under an objective intent standard, the prosecution would have to prove
that a reasonable recipient of the communication would consider the
message to be a threat.70 This standard is “objective” because it does
63
64
United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006).
There is agreement amongst the circuits that section 875(c) is not a strict liability offense.
See United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) (“[M]ere omission . . . of any
mention of intent will not be construed as eliminating that element from the crime denounced.”)
(quoting Morissette v. United States, 342 U.S. 246, 263 (1952)); United States v. Francis, 164
F.3d 120, 121 (2d Cir. 1999) (“Although the statute does not mention intent or willfulness, intent
is of course an element of the crime.”); United States v. Darby, 37 F.3d 1059, 1063 (4th Cir.
1994) (“Although section 875(c) contains no explicit mens rea element, the statute is not
presumed to establish a strict liability offense . . . .”).
65 The majority of circuits that have found a requirement of general intent include the First
Circuit, Second Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Seventh
Circuit, and Tenth Circuit. See Teague, 443 F.3d at 1319 (10th Cir. 2006) (affirming the district
court’s finding that only general intent is required to violate section 875(c)); United States v.
Stewart, 411 F.3d 825, 827-28 (7th Cir. 2005); DeAndino, 958 F.2d at 150; United States v.
Myers, 104 F.3d 76, 81 (5th Cir. 1997); Darby, 37 F.3d at 1066; Francis, 164 F.3d at 121; United
States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997); United States v. Himelwright, 42 F.3d 777,
783 (3d Cir. 1994).
66 Teague, 443 F. 3d at 1319.
67 See, e.g., DeAndino, 958 F.2d at 149 (“The difference between a specific intent and general
intent crime involves the way in which the intent is proved—whether by probing the defendant’s
subjective state of mind or whether by objectively looking at the defendant’s behavior in the
totality of the circumstances.”).
68 Id.
69 See Stewart, 411 F.3d at 828.
70 See, e.g., Darby, 37 F.3d at 1066. The objective standard applied by the majority of courts
takes the vantage point of the reasonable listener. That is, the standard is based on the reasonable
recipient of the communication. In its constitutional analysis of “true threats” in United States v.
Fulmer, 108 F.3d 1486 (1st Cir. 1997), the First Circuit applied a different general intent standard
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not consider the defendant’s state of mind. Accordingly, it is a nonintentional standard of criminal culpability.71
The distinction between the subjective and objective mens rea
requirements is significant. To the extent that a subjective standard is
applied, the defense is able to offer evidence to dispute the fact that a
particular defendant intended to communicate a threat. Consequently,
certain defenses which dispute a particular defendant’s state of mind
would become available to the defendant.72 For example, the defense of
diminished capacity could be available to a defendant under a subjective
standard.73 Alternatively, if an objective standard were applied, the
defendant could not offer his thoughts or explanations pertaining to his
actions. Likewise, the above defense would be unavailable, because the
defendant’s state of mind would not be relevant.
A.
The Majority’s Approach
The majority of the circuits have found that the mens rea for the
threat element of section 875(c) is objective intent.74 The premise
to define what constitutes a “true threat.” This standard was based on the reasonable defendant.
Under Fulmer, a threat is a true threat if a defendant “should have reasonably foreseen that the
statement he uttered would be taken as a threat by those to whom it is made.” Whiffen, 121 F.3d
at 21 (quoting Fulmer, 108 F.3d at 1491). Although the standards are different, because both
standards are “objective” the distinction is not always significant. For example, in Whiffen, the
court found that the difference between the two standards was harmless error. There, the court
charged the jury based on a reasonable listener standard, and the defendant appealed. The court
explained:
The facts of this case are such that the instructions required under Fulmer and the
instructions actually given in this case are functionally equivalent. In certain
situations . . . there may be information known to the listener, but not to the speaker . . .
that would cause a reasonable listener to perceive a statement as an expression of an
intent to injure despite the fact that a reasonable speaker would not view it as such.
That is not the case here. It is not possible that the words spoken by Whiffen were
reasonably understood . . . as an expression of an intent to injure, and yet such an
outcome would not have been foreseen by a reasonable speaker in Whiffen’s position.
Whiffen, 121 F.3d at 23.
The distinction between the reasonable recipient and reasonable defendant is not considered
in this Note. Both standards consider a “reasonable” person and neither considers the view of the
particular defendant. Because the standards are similar in their objectivity, they are
indistinguishable for the purpose of the analysis in this Note.
71 See Huigens, supra note 12, at 449-50 (noting that objective standards such as negligence
are non-intentional standards of criminal fault). Indeed the majority’s “objective” standard
sounds like the Model Penal Code’s standard of negligence as it is based on a reasonable person
standard. See MODEL PENAL CODE § 2.02 (2006).
72 United States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988) (holding that diminished
capacity, like voluntary intoxication, is only a defense where specific intent is at issue because of
the “increased probing into the defendant’s subjective state of mind that accompanies the trial of a
specific intent offense).
73 See supra note 72; Crane, supra note 61.
74 See supra, note 65.
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underlying the majority’s conclusion is that where a statute does not
explicitly require proof of specific intent, general intent is presumed.75
And, according to the majority, a requirement of general intent means
that the prosecution must prove only an objective intent to threaten.
Thus, in order to show that a defendant communicated a “threat,” it
must be shown that a reasonable person would interpret the message as
a threat.
United States v. Darby is an example of the majority’s approach.76
There, the defendant was convicted of sending threatening
communications to employees of the IRS.77 On appeal the defendant
argued that the jury instructions incorrectly stated that section 875(c)
did not require a showing of specific intent.78 In its analysis, the court
framed the issue of specific and general intent in terms two authorities,
reflecting its view that the relevant inquiry was whether subjective or
objective intent was required.79 The court cited with approval the
presumption for general intent where the statute does not specify a
heightened mens rea. Then, the court applied this presumption by
concluding that an objective mens rea was required.80 The court held
that the threat element of the offense “is determined by the
interpretation of a reasonable recipient with the context of the
communication. The government does not have to prove that the
defendant subjectively intended for the recipient to understand the
communication as a threat.”81
The line of reasoning followed by most courts making up the
majority can be summarized in three points. These are: (a) the mens rea
issue is defined in terms of general versus specific intent;82 (b) in the
75 See, e.g., United States v. DeAndino, 958 F.2d 146, 148-49 (6th Cir. 1992) (“[B]ecause the
language of section 875(c) does not expressly require a heightened mental element in regard to
the ‘communication containing a threat,’ it is presumed that the statute requires general intent.”);
United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997) (“As a straightforward matter of textual
interpretation, we will not presume that a statutory crime requires specific intent in the absence of
language to that effect. Because § 875(c) contains nothing suggesting a specific intent
requirement, it defines only a general intent offense.”) (citations omitted); Darby, 37 F.3d at 1066
(“In the absence of an explicit statement that a crime requires specific intent, courts often hold
that only general intent is needed.”) (quoting United States v. Lewis, 780 F.2d 1140, 1142-43 (4th
Cir. 1986)).
76 Darby, 37 F.3d at 1066.
77 Id. at 1060.
78 Id. at 1062.
79 Id. at 1063-64 (noting that one line of authority looks to whether a reasonable recipient
would interpret the communication as a threat, and the other line of authority requires proof that a
defendant intended his communication to be received as a threat).
80 Id. at 1066 (citing with approval the DeAndino court’s reliance upon the presumption of
general intent, the court notes that “such a presumption exists in this circuit as well.”).
81 Id. (emphasis added).
82 See United States v. Whiffen, 121 F.3d 18, 20 (1st Cir. 1997) (“Under a general intent
standard, whether a communication is a ‘true threat’ is determined objectively from all the
surrounding facts and circumstances, rather than from the defendant’s subjective purpose.”);
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absence of an explicit statutory requirement of specific intent (as absent
in this statute), general intent is presumed;83 and (c) general intent
means that an objective showing of intent is required.84
B.
The Ninth Circuit’s Approach
In United States v. Twine,85 the Ninth Circuit considered the mens
rea requirement for the threat element of section 875(c) and reached the
opposite conclusion from the majority.86 There, the defendant appealed
his conviction under section 875(c), arguing that he should be able to
use the diminished capacity defense to negate the essential elements of
the offense.87 This defense would only have been available to the
defendant if the mens rea requirement was “subjective”, which,
according to the court’s use of the term is equivalent to “specific”
intent.88 The court explained that the limited use of this defense is
similar to the intoxication setting.89
In its analysis, the court acknowledged that the statute did not
define a strict liability offense, despite the lack of an explicit mens rea
United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997) (contrasting the Ninth Circuit approach
requiring specific intent meaning “the defendant intended his statement to be perceived as a
threat.”).
83 Myers, 104 F.3d at 81 (“[W]e will not presume that a statutory crime requires specific
intent in the absence of language to that effect.”); United States v. DeAndino, 958 F.2d 146, 14849 (6th Cir. 1992) (“[B]ecause the language of section 875(c) does not expressly require a
heightened mental element in regard to the ‘communication containing a threat,’ it is presumed
that the statute requires general intent.”); Darby, 37 F.3d at 1066 (finding that there is a
presumption of general intent where the statute does not specify specific intent and that this
presumption exists in the Fourth Circuit).
84 DeAndino, 958 F.2d at 149 (stating that general intent is proved by objectively looking at
the defendant’s behavior); see Darby, 37 F.3d at 1066 (noting that under a general intent
approach, one must examine whether a reasonable recipient would interpret the communication as
a threat).
85 853 F.2d 676 (9th Cir. 1988).
86 Id.
87 Id. at 678. The defense of diminished capacity argues that the defendant did not possess
the ability to attain the culpable state of mind required to violate an element of the crime. Id.
88 Id. at 679 (noting that the “restrictive use of these defenses reflects the increased probing
into the defendant’s subjective state of mind that accompanies the trial of a specific intent
offense”).
89 Id. at 679 (“This inquiry is necessary because diminished capacity, like voluntary
intoxication, generally is only a defense when specific intent is at issue.”). The court’s
comparison of the diminished capacity and voluntary intoxication defenses represents its
confusion with the term “specific intent.” On the one hand, the court aligns specific intent with
subjectivity. On the other, the court points to the hierarchical Model Penal Code structure,
distinguishing purpose and knowledge from recklessness and negligence. Id. at 680. In fact,
while diminished capacity works consistently along the subjective-objective line, the voluntary
intoxication defense is defined by the mental states of purpose, knowledge, recklessness, and
negligence, rather than the subjective-objective dichotomy. See supra note 38 and accompanying
text.
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requirement. 90 According to the court, intent was a “vital issue” in the
prosecution under section 875(c).91 Then, the court found that
subjective intent was required. 92 The court reasoned that subjective
intent, which considered the defendant’s state of mind, ensured that a
defendant would not be convicted because of mistake, inadvertence, or
other innocent conduct. 93 In order to avoid such an erroneous outcome,
a level of culpability that exceeds an objective standard was required.94
The Twine decision reflects the Ninth Circuit’s approach to the
mens rea requirement of section 875(c). First, the Ninth Circuit
determined that intent was a critical component of the offense. Then,
the Ninth Circuit reasoned that an objective standard carries the risk that
a defendant will be convicted of a crime without having the intent to
threaten. In order to avoid that a defendant is convicted because of such
a non-intentional reason,95 the Ninth Circuit concluded that subjective
mens rea is required.
III. ANALYSIS OF CURRENT APPROACHES
A.
The Majority’s Analysis Relies upon an Erroneous Assumption
Regarding the Definitions of General and Specific Intent
In the third step of its analysis, the majority of courts concluded
that a finding of general intent requires an objective mens rea.96 To the
majority, general intent and objective intent are synonymous, and
specific intent and subjective intent are synonymous. Importantly, the
majority does not use the terms according to the traditional intoxication
definitions97, nor does the majority define the terms according to the
Supreme Court’s usage of the terms.98 Despite the majority of courts’
90 Id. at 680 (citing with approval the Ninth Circuit’s decision in United States v. Seeber, 329
F.2d 572 (9th Cir. 1964), which concluded that section 875(c) was not a strict liability offense).
91 Id.
92 Id. (finding that the showing of intent to threaten under section 875(c) requires a showing
of specific intent).
93 Reflecting on its related decision in Seeber, the court stated, “the purpose of adding the
word ‘knowingly’ [to the jury instruction] was to insure that no one would be convicted for an act
because of mistake, inadvertence, or other innocent reason.” Id. at 680 (quoting Seeber, 329 F.2d
577).
94 Id. Not only is proof of culpability required, but the level of culpability must exceed a
mere transgression of an objective standard of acceptable behavior. Id.
95 See supra note 70.
96 See supra note 83.
97 The intoxication approach defines general intent as recklessness or negligence. See supra
note 37.
98 See supra note 43. The Supreme Court’s definition of specific intent corresponds with the
Model Penal Code’s approach to culpability. 1 ROBINSON, supra note 34, § 65 (“Where the term
‘specific intent’ is used in a modern code . . . it may be taken to refer to a culpability scheme like
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conclusion that general intent means objective intent with respect to its
conclusion regarding section 875(c), the majority employs inconsistent
usages and the definitions of the term. For example, in one opinion, the
majority referred to general intent as defendant’s intent to threaten and
specific intent as the heightened intent to carry out his actions.99 This
definition does not have to do with a defendant’s objective or subjective
intent, but rather considers the extent of the conduct required to violate
the statute. The appropriate question considered by such use of the
terms would be: must the defendant intend to threaten or must the
defendant intend to threaten and also intend to carry out the threat?100
Indeed, this inquiry does not have to do with the state of mind or mens
rea. Therefore, the definition of specific intent is not only incorrect, but
reflects the majority’s confusion over the terminology.
Similarly, in United States v. Stewart, the Seventh Circuit
acknowledged that the traditional use of the terminology general intent
and specific intent was something other than objective and subjective
intent.101 In considering the defendant’s argument, the court noted that
defendant “chose to present his argument using the traditional
terminology of ‘specific intent’ and ‘general intent.’ He might also
have used the precisely defined terms of the Model Penal Code,
‘purposefully’ and ‘knowingly’.”102 Here, the majority employs general
intent and specific intent to mean purposely and knowingly, reflecting
yet another inconsistent use of the terminology. Moreover, because
purposely and knowingly are both subjective states of culpability, this
use of the terminology completely contradicts the subjective-objective
definitions which the majority relies upon in its finding regarding
that of the Model Penal Code’s; ‘specific intent’ may be taken to refer to the highest culpability
level on the spectrum of negligence, recklessness, knowledge, and intent.”).
99 See United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994) (distinguishing between
a “general intent to make a threat to injure another, on the one hand, and a subjective intention to
carry out the threats, on the other”); LAFAVE, supra note 25, § 5.2(e), at 354 (“[T]he most
common usage of specific intent is to designate a special mental element which is required above
and beyond any mental state required with respect to the actus reus of the crime.”); KADISH &
SCHULHOFER, supra note 5, at 216 (“Perhaps the least mysterious and most common usage of
specific intent is to identify those actions that must be done with some specified further purpose
in mind); Morissette v. United States, 342 U.S. 246, 264-65 (1952) (“[Congress] has at times
required a specific intent or purpose which will require some specialized knowledge or design for
some evil beyond the common-law intent to do injury.”).
100 The distinction in this example is between different descriptors of conduct. Although the
mental state of “purpose” may almost always correspond with the conduct element such as intent
to carry out the threat, this culpability requirement is not necessary to this element. For example,
it is possible that a defendant is reckless with respect to the element “intent to carry out the
threat”, even if this is unlikely. Most importantly, to conduct an accurate mens rea analysis, it is
critical that the material elements (conduct, attendant circumstance, result) are separated out from
the mens rea analysis. See supra note 17.
101 United States v. Stewart, 411 F.3d 825, 827 n.2 (7th Cir. 2005).
102 Id. at 827, n.2 (citation omitted).
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section 875(c).103
Although the majority recognizes that there are several ways to
define general intent and specific intent the majority’s conclusion
hinges on only one definition. That is, the majority’s analysis depends
on defining general intent as objective and specific intent as subjective.
If the majority is wrong in defining general intent to mean objective
intent, then a general intent standard could mean a number of things.
Under intoxication, general intent means recklessness or negligence of
which the former is subjective and the latter objective. Under the
Supreme Court’s analysis general intent means knowledge, a subjective
culpability. If either of these views was applied, the resulting
culpability would not necessarily be objective, and the majority’s
assumption would be undermined.
B. By Use of This Ambiguous Terminology, the Majority Incorrectly
Concludes that Section 875(c) Requires an Objective Mens Rea Inquiry
In its analysis of the mens rea requirement for section 875(c), the
majority of circuits relied on the premise that a crime requires general
intent where there is no evidence of support that Congress intended to
require showing of specific intent.104 The idea is that the default for
elements of a crime which lack an explicit mens rea requirement is
general intent. By the majority’s definition of the term general intent,
the default is an objective showing of intent.
There are two problems with the majority’s logical deduction.
First, cases that consider the default rule of general intent do not use the
term general intent in the same way as the majority.105 Secondly, the
default of objective intent conflicts with fundamental principles of
criminal law, and with the Supreme Court’s analyses of similar criminal
violations. In fact, consideration of these principles and Supreme Court
opinions results in the opposite conclusion: violations of section 875(c)
require a showing of subjective intent to threaten.
103 A defendant acts purposely with respect to a material element of an offense if it is his
conscious object to engage in such conduct or cause such a result. A defendant acts knowingly if
he is aware of the nature of his conduct or circumstances, or he is aware that his conduct is
practically certain to cause a result. MODEL PENAL CODE § 2.02 (2006).
104 See United States v. DeAndino, 958 F.2d 146, 149 (6th Cir. 1992) (noting that where
nothing in the language of the statute or legislative history indicates Congressional intent of a
heightened mens rea requirement, there is a presumption of general intent); see also United States
v. Brown, 915 F.2d 219, 225 (6th Cir. 1990) (“[W]here a statute does not specify a heightened
mental element such as specific intent, general intent is presumed to be the required element.”).
105 See infra Part III.A.
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The Majority’s Logical Deduction is Flawed
The cases the majority of circuits cited for the proposition that
general intent is the default in the absence of legislative decision to
require specific intent are not using the objective-subjective definitions
of general and specific intent. Rather, these cases employ the
terminology as defined by the intoxication approach, which defines
specific intent as purpose or knowledge and general intent as
recklessness or negligence, a distinction that does not correspond with
the subjective-objective dichotomy.
For example, in United States v. Darby, the court cited to United
States v. Lewis in relying on the proposition that general intent is
presumed in the absence of an explicit statutory requirement of specific
intent. 106 However, in Lewis, the Fifth Circuit considered only whether
evidence of intoxication should be allowed to negate the crime of
assault.107
Similarly, United States v. Johnston108 is cited in United States v.
Lewis for the proposition that in the absence of a contrary explicit
statement, general intent is presumed.109 In Johnston, the court
explicitly uses the term specific intent in the traditional intoxication
sense.110 There the court found that the defendant’s intoxication
defense was inadmissible because the crime did not require a showing
of specific intent to commit a felony.111 Thus, the court discussed
specific intent in the framework of purpose to cause a particular result, a
definition that corresponds with the intoxication framework of specific
intent.112 Therefore, while the majority relied on authority for the
proposition that general intent is the default intent the majority does not
define general intent in the same manner as the courts to which it cites.
The language that the majority of circuits used when discussing the
general intent presumption also supports the idea that the intoxication
106 United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994) (citing United States v. Lewis,
780 F.2d 1140 (4th Cir. 1986)) (stating that a presumption of general intent exists in the Fourth
Circuit).
107 Lewis, 780 F.2d 1140.
108 See id. at 1143; United States v. Johnston, 543 F.2d 55 (8th Cir. 1976).
109 Lewis, 780 F.2d 1140.
110 Johnston, 543 F.2d at 58 (noting the rule that evidence of voluntary intoxication may not
be used to negate general criminal intent, but may be used to prove lack of intent where specific
intent is an element of an offense).
111 Id. at 58. The defendant was charged with violating 18 U.S.C. § 2113(a), which reads
“[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person
or presence of another any property or money . . . of any bank . . . [s]hall be fined not more than
$5,000 or imprisoned not more than twenty years, or both.” Id.; 18 U.S.C. § 2113(a) (2000)
(penalties subsequently amended).
112 See MODEL PENAL CODE § 2.02 (2006) (defining purpose for a result element, “it is his
conscious object to engage in conduct of that nature or to cause such a result”).
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approach defines the presumption of general intent. The majority stated
that in the absence of congressional intent to require a “heightened”
requirement of mens rea, general intent is presumed.113 This notion of a
“heightened” requirement is more in line with the intoxication approach
which utilizes a hierarchical culpability requirement where purpose and
knowledge are the highest levels of culpability. Under this view, where
Congress fails to indicate a higher state of mind to commit a crime, a
lower culpability is required.
D.
The Preference of the Criminal Law Is a Subjective Requirement
of Mens Rea
The default of objective intent also conflicts with the preference of
the criminal law for mens rea requirement of subjective intent. Indeed,
the term “mens rea” implies subjectivity, because its classic synonym is
“evil will.”114 Whether or not one has an evil will is particular to an
individual’s subjective state of mind. Similarly, mens rea is premised
on the maxim that one is not guilty by an act unless his mind is guilty.115
In other words, for a defendant to be culpable or blameworthy, it is
necessary for that defendant to have the requisite state of mind.
The Supreme Court has endorsed the view that the criminal law
has a preference for mens rea, and that this preference is for a subjective
mens rea requirement. In Morissette v. United States, the Court
considered the mens rea requirement for violation of 18 U.S.C. § 641,
which made it a criminal offense to embezzle, steal, purloin, or
knowingly convert government property.116 The defendant argued that
he lacked intention to steal the property.117 In considering the requisite
intent to violate the statute, the Court discussed the universality of intent
as a facet of criminal law. The Court stated, “[t]he contention that an
injury can amount to a crime only when inflicted by intention is no
provincial or transient notion . . . . A relation between some mental
element and punishment for a harmful act is almost as instinctive as the
child’s familiar exculpatory ‘But I didn’t mean to’ . . . .”118 By this
113
114
115
See supra note 83.
HALL, supra note 23, at 110-11.
LAFAVE, supra note 25, § 5.1(a), at 333 (“The basic premise that for criminal liability
some mens rea is required is expressed by the Latin maxim actus not facit reum nisi mens sit rea
(an act does not make one guilty unless his mind is guilty).”).
116 342 U.S. 246, 247 (1952).
117 Id. at 248-49 (describing defendant’s argument that he did not intend to steal the property
in question; he took it without criminal intent).
118 Id. at 250-51. The quotation reads in full:
The contention that an injury can amount to a crime only when inflicted by intention is
no provincial or transient notion. It is as universal and persistent in mature systems of
law as belief in freedom of the human will and a consequent ability and duty of the
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explicit statement, the Court endorsed the requirement of intention or
mens rea.
In addition to the Court’s general endorsement of the mens rea
requirement, the Court dispelled the notion that objective intent, a nonintentional state, could satisfy the mens rea requirement. This is seen
through the language the Court used throughout its opinion in
Morissette, which consistently referred to the state of mind of a
particular defendant. For example, the Court discussed the notion of a
“vicious will.”119 Further, the Court stated that “punishment should fit
the offender and not merely the crime.”120 In addition, in its discussion
of strict liability offenses, the Court indicated that a penal system which
negates the mental element could not find acceptance.121 The court
explained, “The watchfulness of the jurist justifies itself at present in its
insistence upon the examination of the mind of each individual
offender.”122 In each of these examples, the Court’s language supports
the conclusion that the state of mind of each particular defendant should
be considered. Consequently, the Court implicitly rejected an objective
determination of a defendant’s intent.
Similarly, in Liparota v. United States,123 the Supreme Court
endorsed the view that Morissette requires a subjective inquiry by
emphasizing a particular defendant’s state of mind. In Liparota, the
Court found that violation of 7 U.S.C. § 2024(b)(1), governing food and
drug stamp fraud, had a mens rea requirement despite the lack of an
explicit mens rea requirement.124 The Court emphasized Morissette’s
preference for intent. Then, the Court found that the prosecution had to
prove that the defendant was aware of his conduct, stating that “as in
any other criminal prosecution requiring mens rea,” the prosecution
must prove the defendant’s awareness of his conduct.125 Consequently,
the Court concluded that a criminal statute which requires mens rea,
generally requires proof of the defendant’s state of mind, a subjective
inquiry.
normal individual to choose between good and evil. A relation between some mental
element and punishment for a harmful act is almost as instinctive as the child’s familiar
exculpatory ‘But I didn’t mean to’ . . . . Unqualified acceptance of this doctrine by
English common law in the Eighteenth Century was indicated by Blackstone’s
sweeping statement that to constitute any crime there must first be a ‘vicious will.’
119 Id.
120 Id. at 251 n.5 (emphasis added).
121 Id. at 256 n.14.
122 Id. at 256 (citation omitted).
123 471 U.S. 419 (1985).
124 Id. at 424-26 (the failure of Congress to explicitly and unambiguously indicate whether
mens rea is required does not signal a departure from the background assumption of mens rea in
our criminal law); see 7 U.S.C. § 2024 (2000).
125 Liparota, 471 U.S. at 432-34 (“[A]s in any other criminal prosecuting requiring mens rea,
the [prosecution] may prove by reference to facts and circumstances surrounding the case that
[defendant] knew that his conduct was unauthorized or illegal.”).
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In addition, the Supreme Court acknowledged the conclusion that
criminal intent is subjective in United States v. Gypsum.126 There, the
Court stated “[t]he element of intent in the criminal law has traditionally
been viewed as a bifurcated concept embracing either the specific
requirement of purpose or the more general one of knowledge or
awareness.”127 Each of these requirements—purpose, knowledge, or
awareness—requires a subjective inquiry.128 By limiting criminal intent
to these three subjective states, the Court endorsed subjective criminal
intent.
Lastly, additional support for the conclusion that subjective intent
is preferred in the criminal law comes from the idea that a fundamental
goal of the criminal law is to punish certain behaviors based on the
defendant’s intent.129 Generally, punishment without knowledge is not
the function of the criminal law. As the Supreme Court noted in
Farmer v. Brennan, “An act or omission unaccompanied by knowledge
of a significant risk of harm might well be something society wishes to
discourage, and if harm does result society might well wish to assure
compensation. The common law reflects such concerns when it
imposes tort liability on a purely objective basis.”130 As reflected in this
opinion, while subjectivity is a general requirement of the criminal law,
where society seeks to deter a defendant from behavior done without the
requisite knowledge, a defendant may be held liable in a civil setting.131
E.
The Ninth Circuit Reaches the Right Result, Wrong Terminology
The Ninth Circuit found that the prosecution must prove that a
126
127
128
438 U.S. 422 (1978).
Id. at 445.
LAFAVE, supra note 25, at 336-37 (noting that according to the Model Penal Code §
2.02(3), any of the subjective states of purpose, knowledge, and recklessness will suffice to
establish the mental state of a crime where a statute is silent as to the mental state but strict
liability is inappropriate).
129 See KADISH & SCHULHOFER, supra note 5, at 203 (“[A]n unwarrantable act without a
vicious will is no crime at all.”) (quoting Blackstone); Morissette v. United States, 342 U.S. 246,
251 (1952) (stating that the modern philosophy of penology is that a punishment should fit the
offender and not the crime, and that these goals would seem illusory if there were no mental
element in the crime); see also HALL, supra note 23, at 133-34 (“The relevant ethical principle
expressed in terms of mens rea, that penal liability should be limited to the voluntary (intentional
or reckless) commission of harms forbidden by penal law, represents not only the perennial view
of moral culpability, but also the plain man’s morality.”).
130 511 U.S. 825, 837-38 (1970). The definition suggested by the Court is a culpability
requirement of recklessness or greater. The language “knowledge of a significant risk” sounds
like the Model Penal Code’s definition of recklessness, which states “a person acts recklessly
with respect to a material element of an offense when he consciously disregards a substantial and
unjustifiable risk . . . .” MODEL PENAL CODE § 2.02(c) (2006).
131 See Morissette, 342 U.S. at 270 (“In the civil tort, . . . the defendant’s knowledge, intent,
motive, mistake and good faith are generally irrelevant.”).
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defendant subjectively intended to communicate a threat to show a
violation of section 875(c).132 At the same time, the Ninth Circuit found
that section 875(c) is a “specific intent crime.”133 The Ninth Circuit
reached the correct result in finding that the requisite showing of intent
is subjective. However, like the majority, this analysis employed
confusing terminology and as a result, found that section 875(c) requires
specific intent.
The Ninth Circuit correctly concluded that subjective intent is
required. Like the majority, the court concluded that some mens rea
was required to violate section 875(c).134 In other words, the statute is
not a strict liability offense. Then, the court found that an objective
standard would be insufficient to find a violation.135 A principle
concern of the Ninth Circuit was that a conviction under section 875(c)
would not include defendants whose conduct was innocent or was the
result of a mistake.136 The Ninth Circuit was correctly concerned with
criminalizing innocent behavior. Indeed, considering merely objective
intent runs the risk of criminalizing conduct that is innocent in the mind
of the defendant. For example, it is possible (even if not probable) that
a defendant send a message through interstate commerce without any
knowledge that his language was threatening to the recipient of that
communication. Moreover, the Ninth Circuit’s analysis in is accord
with Supreme Court’s concern that criminal law is intended to punish
the individual who has a “vicious will,” the individual who chooses
between good and evil.
The Ninth Circuit also correctly concludes that a heightened intent
to carry out the threat is not required to violate section 875(c).137 In
doing so, the Ninth Circuit recognizes the ambiguity of the terminology
of general and specific intent. The court stated, “[I]n context, the term
general did not invoke the general/specific distinction, but rather refers
to an intent generally to threaten as opposed to an intent to threaten
coupled with an intent to extort money.”138 Here, the Ninth Circuit is
132
133
United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988).
Id. (“[W]e hold that the showing of an intent to threaten . . . is a showing of specific
intent.”).
134 Id. (“In our Seeber decision we made it clear that § 875(c) . . . did not define a strict
liability offense. Rather, we held that intent is a ‘vital issue’ in a prosecution under that section.”)
(citation omitted).
135 Id. (finding that “the level of culpability must exceed a mere transgression of an objective
standard of acceptable behavior”).
136 Id. (“[T]he purpose of adding the word ‘knowingly’ [to the jury instruction] was to insure
that no one would be convicted for an act because of mistake, inadvertence, or other innocent
reason.”) (citation omitted).
137 Id. at 681 n.4 (“Our holding that specific intent to threaten and to transmit the threat are
essential elements of the crime[] defined by § 875(c) . . . does not conflict or disagree with the
clear pronouncement of other circuits that specific intent (or ability) to carry out the threat is not
an essential element . . . .”).
138 Id. at 680.
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recognizing an incorrect usage of the terms general and specific intent,
where the terms are simply elaborating on the conduct element of the
statute.139 Whether the defendant possessed intent to threaten or intent
to threaten and extort money is an analysis of the conduct the statute
criminalizes, rather than the appropriate state of mind.
Finally, the Ninth Circuit concluded that specific intent is required
to violate the threat element of section 875(c), and the court refers to the
statute as a “specific intent crime.” Like the majority, the Ninth Circuit
aligned general intent with objective intent, a conclusion that
contradicts the Supreme Court’s use of the terms. Since the Supreme
Court considers general intent to align with knowledge, a subjective
culpability, the Ninth Circuit’s language is unclear. Moreover, in the
same opinion the Ninth Circuit refers to objective intent in the
intoxication sense of recklessness or negligence, where recklessness is
also subjective.140 By use of conflicting definitions of general intent,
the court contradicts itself in the opinion. Consequently, although the
Ninth Circuit reached the correct result of subjective intent, it too
employed the confusing terminology of general and specific intent.
IV. APPLYING SUPREME COURT PRECEDENT AND THE HIERARCHICAL
STRUCTURE OF CULPABILITY TO SECTION 875(C)
A.
Is Mens Rea Required? Section 875(c) Criminalizes Otherwise
Innocent Conduct
The first question asked by the circuit courts regarding the issue of
the requisite mens rea to violate section 875(c) was whether or not mens
rea was required at all, or if section 875(c) created a strict liability
offense.141 The circuits were in agreement that section 875(c) is not a
139 In its discussion of the issue of intent to threaten versus intent to carry out the threat, the
court stated that it did not disagree that the latter was not “an essential element.” The court’s
language indicates that the Ninth Circuit accurately assessed this issue as an issue of a material
element, in this case a conduct element. See supra note 16.
140 Twine, 853 F.2d at 680 (noting that an objective standard of acceptable behavior is, e.g.,
negligence or recklessness).
141 Id. (finding that section 875(c) is not a strict liability offense and that intent is a ‘vital
issue’ for prosecution under the section); United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.
1992) (noting that the omission of intent from the statute does not require a finding that section
875(c) is a strict liability offense) (quoting Morissette v. United States, 342 U.S. 246, 263
(1952)); United States v. Francis, 164 F.3d 120, 121 (2d Cir. 1999) (“Although the statute does
not mention intent or willfulness, intent is of course an element of the crime.”); United States v.
Darby, 37 F.3d 1059, 1063 (4th Cir. 1994) (noting that despite the lack of an explicit mens rea
element, the statute is not presumed to establish a strict liability offense because mere omission of
intent will not be construed as eliminating intent from the crime) (quoting Morissette).
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strict liability offense.142 This conclusion is consistent with the
principles outlined in Morissette, which found that the Supreme Court
has a preference for mens rea. Moreover, the conclusion is in line with
the manner in which the Supreme Court has applied these principles.
Indeed, the Court has applied the principles of Morissette to
numerous other cases in which statutes were silent as to mens rea, and
with few exceptions,143 has upheld the preference for mens rea. The
Supreme Court’s decision in United States v. X-Citement Video, Inc.
exemplifies an application of these principles.144 There, the Court
considered the requirement of mens rea for the age element required to
violate 18 U.S.C. § 2252,145 banning interstate transportation of child
pornography.146 The Court found that mens rea was required, despite a
plain reading of the statute.147
In determining that a proper reading of the statute required a
showing of knowledge of the child’s age, the Court attributed its
finding, in part, to the presumption of a mens rea.148 In particular, the
Court found that mens rea was required for statutory elements that
criminalized “otherwise innocent conduct.”149 The Court stated,
“Morissette, reinforced by Staples, instructs that the presumption in
favor of a scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct.”150 Applying this
142
143
See supra note 64.
The Supreme Court has carved out a public welfare exception to the criminal requirement
of mens rea based on the need to regulate activities affecting public health, safety and welfare.
Morissette, 342 U.S. at 251. The Supreme Court has found, in certain cases where the general
public welfare is the statute’s purpose, that a statute imposes strict liability upon the offender. Id.
at 253. This is seen in United States v. Balint, 258 U.S. 250 (1922), where the Court determined
that the Narcotic Act of 1914 could be violated without the defendant’s specific knowledge that
the drugs were prohibited. In addition, this is seen in United States v. Dotterweich, 320 U.S. 277,
281 (1943), where the Court held that no mens rea was required to violate the Federal Food, Drug
and Cosmetic Act, which criminalizes the shipping of misbranded or adulterated products in
interstate commerce. These cases are both exceptions to the common law rule requiring mens
rea, and are justified only in the rare exceptions of public welfare. See Morissette, 342 U.S. at
255 (“These cases do not fit neatly into any of such accepted classifications of common-law
offenses . . . .”).
144 513 U.S. 64 (1994).
145 18 U.S.C. § 2252 (2000).
146 Id. “The Protection of Children Against Exploitation Act of 1977 . . . prohibits the
interstate transportation, shipping, receipt, distribution, or reproduction of visual depictions of
minors engaged in sexually explicit conduct.” Id. at 65.
147 Id. at 70 (“Our reluctance to simply follow the most grammatical reading of the statute is
heightened by our cases interpreting criminal statutes to include broadly applicable scienter
requirements, even where the statute by its terms does not contain them.”).
148 Id. at 68. The most natural reading of the statute suggests that the word “knowingly” does
not modify the age element of minority but this is not the end of the matter because of the
resulting anomalies and because of the “respective presumptions that some form of scienter is to
be implied in a criminal statute even if not expressed . . . .” Id. at 68-69.
149 Id. at 72.
150 Id. at 72; United States v. Gypsum, 438 U.S. 422, 436 (1978) (noting the familiar
proposition that “[the] existence of mens rea is the rule of, rather than the exception to, the
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presumption, the Court went on to find that for that statute, the age of
the performers was a crucial in separating innocent from wrongful
conduct.151 This, according to the Court, was because the age of
minority was not merely “a ‘jurisdictional fact’ that enhance[d] an
offense otherwise committed with evil intent.”152 Thus, the Court
concluded that a showing of the defendant’s knowledge of age was
required.153
Applying this same line of reasoning to section 875(c) results in
the finding that mens rea is required to violate the statute, consistent
with the circuit courts’ conclusion. Indeed, just as age separates
innocent from wrongful conduct in the statute criminalizing the
transportation of child pornography, so too does a threat separate
innocent from wrongful conduct in the transmission of a communication
in interstate commerce. The first element of the offense, that the
communication was sent through interstate commerce, is arguably a
jurisdictional element in that it is the fact that gives the federal courts
jurisdiction over the offense.154 This element does not separate innocent
from wrongful conduct because it merely represents the location of
communication, not its content. Indeed, a defendant could transmit a
message through interstate commerce without evil intent. In contrast,
the second element, that the communication contained a threat separates
innocent from wrongful conduct. In fact, threat is the crucial element
separating innocence from evil. It then follows that to violate the
second element is not a strict liability element, but contains a requisite
mens rea element.
B.
A Modified Mens Rea Question—Is there a Heightened Mens Rea
Requirement of Purpose or is Knowledge Sufficient?
Once it is determined that mens rea is required, the subsequent
question is the level of intent required to violate the threat element of
principles of Anglo-American criminal jurisprudence.”) (quoting Dennis v. United States, 341
U.S. 494, 500 (1951)). Similarly, strict-liability offenses are generally disfavored. Id. at 438.
151 X-Citement Video, 513 U.S. at 73.
152 Id. at 73 n.3. Furthermore, “[c]riminal intent serves to separate those who understand the
wrongful nature of their act from those who do not, but does not require knowledge of the precise
consequences that may flow from that act once that the act is wrongful.” Id. (citation omitted).
153 Id. at 78.
154 This element is arguably jurisdictional, because the requirements that the message is sent
through “interstate commerce” implicates the jurisdiction of the federal courts. See United States
v. Feola, 420 U.S. 671, 677 n.9 (1975) (“Labeling a requirement ‘jurisdictional’ does not
necessarily mean, of course, that the requirement is not an element of the offense Congress
intended to describe and to punish. Indeed, a requirement is sufficient to confer jurisdiction on the
federal courts for what otherwise are state crimes precisely because it implicates factors that are
an appropriate subject for federal concern.”).
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the statute. As discussed, the circuit courts have considered the
question in terms of whether the mens rea requirement is general intent
or specific intent.155 Importantly, in similar cases, the Supreme Court
has asked a different question. Indeed, the Supreme Court explicitly
noted the movement away from the terminology of general and specific
intent to the alternative analysis of mens rea based on a hierarchy of a
defendant’s culpable state of mind.156 In noting this movement, the
Court acknowledged the ambiguity of the terminology, endorsing the
conclusion by scholars such as Wayne R. LaFave and Austin W. Scott
that the ambiguous distinction has led to great confusion.157
The hierarchy endorsed by the Supreme Court considers
culpability in terms of the four levels within the Model Penal Code—
purpose, knowledge, recklessness, and negligence.158 Specifically,
where the Supreme Court has found that mens rea is required, the Court
has only focused on the culpability requirements of purpose and
knowledge. Thus, the Court considered whether a heightened intent of
purpose is required, or if the defendant’s knowledge was sufficient.159
Importantly, both purpose and knowledge require a subjective
inquiry.160 Consequently, the Supreme Court endorsed a “subjective”
155
156
See supra notes 5-6 and accompanying text.
United States v. Bailey, 444 U.S. 394 (1980). The court noted:
At common law, crimes generally were classified as requiring either ‘general intent’
or ‘specific intent.’ This venerable distinction, however, has been the source of a good
deal of confusion. . . .
This ambiguity has led to a movement away from the traditional dichotomy of
intent and toward an alternative analysis of mens rea. This new approach, exemplified
in the American Law Institute’s Model Penal Code, is based on two principles. First,
the ambiguous and elastic term ‘intent’ is replaced with a hierarchy of culpable states
of mind.
Id. at 403-04.
157 Id. at 403 (quoting LaFave and Scott regarding the confusion that has resulted from the
usage of the terminology of general and specific intent). Other scholars have similarly criticized
the usage of terminology of general and specific intent. See FLETCHER, supra note 33, § 10.4, at
849, 850 (noting the limited usage of the concepts of general and specific intent); HALL, supra
note 23, at 142 (“The current confusion resulting from diverse uses of ‘general intent’ is
aggravated by dubious efforts to differentiate that from ‘specific intent. . . . Insofar as these terms
are used to refer to actual intentions, both of them are unfortunate, and the adjectives should be
discontinued.”).
158 Bailey, 444 U.S. at 404 (noting that the Model Penal Code exemplifies the new approach,
and explaining “[t]he different levels in this hierarchy are commonly identified, in descending
order of culpability, as purpose, knowledge, recklessness, and negligence.”).
159 See Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 523 (1994) (framing the nature
of the mens rea requirement as a question of knowledge or purpose); Bailey, 444 U.S. at 408
(finding a lack of support for majority’s position that a heightened standard of “purpose” is
required, and noting that “the cases have generally held that, except in narrow classes of offenses,
proof that the defendant acted knowingly is sufficient . . . .”).
160 Bailey, 444 U.S. at 404 (“[A] person who causes a particular result is said to act
purposefully if ‘he consciously desires that result, whatever the likelihood of that result
happening from his conduct,’ while he is said to act knowingly if he is aware ‘that that result is
practically certain to follow from his conduct, whatever his desire may be as to that result.’”).
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mens rea requirement.
For example, in United States v. Bailey, the Supreme Court
considered the mens rea requirement needed to violate 18 U.S.C. §
751(a), which criminalizes escape from federal custody.161 The Court
found that mens rea was required despite its omission in the statute or
legislative history.162 The Court went on to discuss whether knowledge
was sufficient or if the heightened requirement of purpose was
needed.163 Rejecting a heightened standard of “intent to avoid
confinement,” the Court explained that nothing in the language or
legislation indicated that Congress intended to require a heightened state
of culpability.164 Thus, as between knowledge and purpose, the Court
found that knowledge was the requisite culpability.
The Supreme Court conducted a similar analysis in Posters ‘N’
Things, Ltd. v. United States.165 There, the Court considered the mens
rea requirement of the Mail Order Drug Paraphernalia Control Act,
which criminalizes the sale or transfer of drug paraphernalia sent via
interstate commerce.166 This statute did not contain an express mens rea
requirement.167 While the Court concluded that the statute did not
require that the defendant intend that the items be used for drugs, the
Court did require that the defendant act knowingly to be liable under the
statute.168 The Court found that the defendant must be aware that
customers in general are likely to use the merchandise sold with
drugs.169 In other words, the prosecution had to prove that the
defendant acted with knowledge, but not purpose.
Finally, in United States v. Gypsum, the Supreme Court considered
Id.
161
162
163
Bailey, 444 U.S. 394; see 18 U.S.C. § 751(a) (2000).
Bailey, 444 U.S. at 406.
Id. at 408 (noting that the dispute for consideration was whether the minimum requirement
of “knowledge” was sufficient or whether it was necessary to impose an additional burden of
“intent to avoid confinement” upon the prosecution).
164 Id. (“Nothing in the language or legislative history of § 751(a) indicates that Congress
intended to require either such a heightened standard of culpability . . . . [W]e hold that the
prosecution fulfills its burden . . . if it demonstrates that an escapee knew his actions would result
in his leaving physical confinement without permission.”).
165 511 U.S. 513 (1994).
166 Id. at 514.
167 Id. at 517. The Court quoted the statute:
[T]he statute, 21 U.S.C. §857(a), provides: ‘It is unlawful for any person—(1) to make
use of the services of the Postal Service or other interstate conveyance as part of a
scheme to sell drug paraphernalia (2) to offer for sale and transportation in interstate or
foreign commerce drug paraphernalia; or (3) to import or export drug paraphernalia..
Id. at 516 (statute since repealed).
168 Id. at 521, 523-25 (stating that a conviction requires the prosecution prove that defendant
knowingly used interstate commerce as part of a scheme to sell items he knew were likely to be
used will illegal drugs, and that while the prosecution must establish that defendant knew the
items were likely to be used will illegal drugs, it need not provide specific knowledge that they
were drug paraphernalia within the statute’s meaning).
169 Id.
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the mens rea required to violate the 15 U.S.C. 1 of the Sherman Act.170
After determining that the statute did not create a strict liability
offense,171 the Court considered whether purpose or knowledge was
required for violation of the statute.172 In either case, the Court
explained, the defendant behaved consciously and conscious conduct is
fitting of criminal punishment.173 The Court went on to conclude that
knowledge is sufficient for this statute.174
In each of these cases, once the Supreme Court found that mens rea
was required, the Court considered the requirements of knowledge and
purpose, both of which are subjective requirements of intent. If one
applies the Supreme Court’s approach to section 875(c), the question
would be whether the prosecution would have to prove that the
defendant was aware that he communicated a threat, or on the other
hand, whether the prosecution would have to prove that defendant
intended to cause the result of communicated a threat. The issue would
be framed in terms of which subjective requirement—knowledge or
purpose—was required.
C. The Correct Mens Rea Requirement for Violation of Section
875(c) is a “Subjective” Requirement—Recklessness or Knowledge
Applying the Model Penal Code’s hierarchical approach to section
875(c), there are four possibilities for the mens rea requirement:
purpose, knowledge, recklessness, or negligence. As noted, each of the
three requirements of purpose, knowledge and recklessness contains a
subjective inquiry. Beginning with the lowest level of culpability, the
requirement of negligence is not persuasive. Negligence, an objective
inquiry, would allow for a conviction without the presence of the “evil
mind.” This conclusion would be in conflict with the principles of
criminal law discussed by the Supreme Court in Morissette, and
Gypsum.175 In addition a requirement of negligence would conflict with
170
171
438 U.S. 422 (1978); see 15 U.S.C. § 1 (2000).
Gypsum, 438 U.S. at 437 (“[I]ntent generally remains an indispensable element of a
criminal offense. This is as true in a sophisticated criminal antitrust case as in one involving any
other criminal offense. . . . Indeed, the holding in Morissette can be fairly read as establishing . . .
an interpretive presumption that mens rea is required.”).
172 Id. at 444 (noting that the question is whether violation of the antitrust laws requires proof
of a “conscious object” to produce anticompetitive effects or whether “knowledge” of those
effects is sufficient).
173 Id. at 445.
174 Id. at 446 (“A requirement of proof not only of this knowledge of likely effects, but also of
a conscious desire to bring them to fruition or to violate the law would seem, particularly in such
a context, both unnecessarily cumulative and unduly burdensome. . . . [K]nowledge of the
anticipated consequences is a sufficient predicate for a finding of criminal intent.”).
175 See supra Part IV.B.
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the traditional notion of mens rea which is defined by, and presumes an
“evil will.”176
Recklessness could be found to be the requisite requirement for
violation of section 875(c). Since recklessness is a subjective
culpability, it does not pose the same conflict with the principles of
criminal law as negligence does. In addition, there is some theoretical
support for a standard of recklessness. The Supreme Court’s opinion in
Farmer v. Brennan states that the criminal law punishes behavior where
there is “knowledge of a significant risk.”177 This language sounds like
the Model Penal Code’s definition of recklessness (the actor
“consciously disregards a substantial and unjustifiable risk”).178
Furthermore, the Model Penal Code explicitly states that where
culpability is not otherwise provided for a material element of an
offense, the element is established if the person asks purposely,
knowingly or recklessly with respect to that element.179 Consequently,
there is support both from the Supreme Court and the Model Penal
Code that recklessness is an option of culpability for a criminal statute
such as section 875(c).
The difficulty with recklessness, however, is that Supreme Court
does not provide adequate precedent. In Bailey and Gypsum, the Court
explicitly rejects a finding of recklessness.180 In Morissette and XCitement Video, recklessness is not even considered.181
One author has argued that recklessness is the most appropriate
standard, in part, because other specific intent standards are “extremely
difficult” to prove.182 This argument is unconvincing. First, proof of
recklessness also requires the prosecution to prove a subjective state of
mind of the defendant. Thus, the risk that a defendant could lie about
his intent is also true under a standard of recklessness. In fact, this
concern is true of any subjective standard, and for this reason, this
argument is often put forth to advocate for an objective standard of
culpability.183 Secondly, a defendant’s subjective intent, a question of
fact for the jury, can be proved by inferences of intent drawn from
176
177
178
179
See supra note 114.
511 U.S. 825, 837 (1970); see supra note 130 and accompanying text.
MODEL PENAL CODE § 2.02(2)(c) (2006).
Id. § 2.02(3) (“When the culpability sufficient to establish a material element of an offense
is not prescribed by law, such element is established if a person acts purposely, knowingly or
recklessly with respect thereto.”).
180 United States v. Bailey, 444 U.S. 394, 407 (1980) (“As for the element of ‘escape,’ we
need not decide whether a person could be convicted on evidence of recklessness or
negligence . . . .”); Gypsum, 438 U.S. at 444 (noting that neither recklessness nor negligence have
a place in antitrust law).
181 See generally Morissette v. United States, 342 U.S. 246, 246 (1952); United States v. XCitement Video, Inc., 513 U.S. 64 (1994).
182 See Lichterman, supra note 62 (arguing that a specific intent standard poses an
insurmountable hurdle because of its extreme difficulty to prove).
183 See Crane, supra note 61, at 1273.
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evidence.184 Sufficient factual evidence would certainly allow a jury to
draw an inference of intent, even if the prosecution held the higher
burden of proving subjective intent.185
Between purpose and knowledge, there is a strong argument that
the requirement of knowledge should be applied to section 875(c).
Under a requirement of knowledge, the prosecution would need to
prove that the defendant knew the message contained a threat, but
would not have to show that the defendant had the conscious object to
cause the result of communicating a threat. Knowledge is a common
denominator in the Supreme Court cases which considered a statute
silent on the mens rea requirement. For example, in Morissette, XCitement Video, Gypsum, and Posters, the statutes were each silent on
the mens rea requirement, and the Supreme Court found knowledge to
be the appropriate requirement.
In addition to being a common conclusion in Supreme Court
decisions, the requirement of knowledge can be reconciled with the
presumption relied upon by the circuits that general intent is required in
the absence of an express requirement to the contrary. Applying the
hierarchy of culpability, this would mean that in the absence of
Congressional intent requiring a showing that a defendant acted with
purpose, it is sufficient to show that the defendant acted knowingly.
Accordingly, since section 875(c) does not contain an explicit
requirement of a purpose to cause the result of communicating a threat,
general intent of knowledge of the threat is presumed. This explanation
would apply the Supreme Court’s definition of specific and general
intent whereby specific intent is purpose and general intent is
knowledge.
Importantly, both recklessness and knowledge are “subjective”
requirements of mens rea. Consequently, the application of either of
these culpable states, dictate the finding that a subjective mens rea
requirement is needed for violation of section 875(c).
184 See, e.g., United States v. Winchell, 129 F.3d 1093 (10th Cir. 1997) (“A jury is permitted
to draw inferences of subjective intent from a defendant’s objective acts.”) (quoting Wingfield v.
Massie, 122 F.3d 1329, 1333 (10th Cir. 1997)); Gypsum, 438 U.S. at 435 (holding that a
defendant’s state of mind or intent is established by evidence and inferences drawn from the
evidence.); Morissette, 342 U.S. at 274 (holding that the question of intent is a question of fact for
the jury).
185 See Crane, supra note 61, at 1273-74 (refuting the arguments that a subjective intent
standard should be rejected because of the burden place on the prosecution or because of the
concern that speakers could carefully craft messages to avoid punishment); see also Liparota v.
United States, 471 U.S. 419, 433-34 (1985) (“This holding does not put an unduly heavy burden
on the Government . . . . [A]s in any other criminal prosecution requiring mens rea, the
Government may prove by reference to facts and circumstances surrounding the case that
petitioner knew that his conduct was unauthorized or illegal.”); Morissette, 342 U.S. at 274
(“Where intent of the accused is an ingredient of the crime charged, its existence is a question of
fact which must be submitted to the jury.”).
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CONCLUSION
It is undisputed that section 875(c) contains some mens rea
requirement. However, the circuit courts have disagreed on the
definition of this requirement. The majority of circuits have concluded
that the appropriate mens rea is objective intent. The Ninth Circuit
stands alone in its finding that subjective intent is the correct mens rea.
Despite their disagreement, all of the circuit courts have relied on the
terminology of general and specific intent in their analyses.
Both the majority of circuits and the Ninth Circuit have erred in
their analyses as a result of their reliance on this terminology. The
ambiguity of the terminology sheds some light on how and why the
courts committed such errors. Indeed, scholars have criticized the terms
general and specific intent, and the Supreme Court has endorsed this
criticism. This criticism has led to the use of a superior method of mens
rea analysis, which is not dependent on such confusing language. The
Model Penal Code’s hierarchical structure of culpability, which uses the
terms purpose, knowledge, recklessness, and negligence, is this superior
method. In fact, the Supreme Court has endorsed and utilized this
framework in its opinions and mens rea analyses. The application of the
hierarchical structure of the Model Penal Code results in the finding that
subjective intent—either recklessness or knowledge—is required for the
threat element of section 875(c).