United States v. Wheeler
776 F.3d 736
10th Cir.2015Background
- Kenneth Wheeler posted violent exhortations on Facebook from Italy in March 2012 urging his "religious followers" to kill police, politicians, judges, district attorneys, public defenders and their children, and to "commit a massacre" at a nearby preschool if his DUI charges were not dropped.
- Wheeler lived a few blocks from the targeted preschool; his posts appeared as public status updates viewable by "friends and networks." He later said he believed he had deleted all Facebook friends and that no "religious followers" existed.
- Recipients (including officers and bar acquaintances) found the posts chilling; one called police, officers increased patrols and alerted schools and churches, and family members took protective measures.
- Wheeler was convicted on two counts under 18 U.S.C. § 875(c) for transmitting threats in foreign commerce and sentenced to 40 months’ imprisonment plus supervised release.
- At trial the court refused Wheeler’s proposed instruction requiring subjective intent to threaten, instead instructing the jury to apply an objective "reasonable person" perception test; Wheeler appealed arguing the mens rea instruction was erroneous and that the evidence was insufficient to show a "true threat."
- The Tenth Circuit reversed for a new trial because the jury was not instructed that the government must prove Wheeler’s subjective intent to threaten (following United States v. Heineman), but held the evidence was sufficient to permit retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 875(c) requires proof of the defendant’s subjective intent to threaten | Wheeler: jury must find he subjectively meant the posts as threats | Government: § 875(c) is a general-intent (objective) crime; no subjective intent element | Court: Under Tenth Circuit precedent (Heineman), subjective intent to threaten is required; failure to instruct was not harmless — reverse and remand for retrial |
| Whether evidence was insufficient because posts exhorted others rather than stating Wheeler’s own intent | Wheeler: exhortations to unspecified others cannot be "true threats" absent control over followers or past compliance | Government: context, specificity, proximity, and recipients’ fear show a reasonable person could view posts as threats | Court: Evidence was sufficient for a reasonable juror to find statements were true threats; retrial permitted |
| Whether exhortations to third parties should be categorically excluded from "true threats" | Wheeler: would collapse distinction between threats and incitement; must be excluded | Government: exhortations may be threats when a reasonable person could believe the speaker meant to communicate a serious intent, especially where followers appear subject to speaker | Court: Rejected bright-line rule; exhortations may be true threats depending on context |
| Standard of appellate review for "true threat" sufficiency when First Amendment implicated | Wheeler: requires independent (de novo) review of constitutional fact | Government: deferential Jackson standard; Bose independent review uncertain | Court: Tenth Circuit generally applies deferential sufficiency review but recognizes limited circumstances; here evidence sufficed under the applicable standard |
Key Cases Cited
- United States v. Heineman, 767 F.3d 970 (10th Cir. 2014) (§ 875(c) requires proof of subjective intent to threaten)
- Virginia v. Black, 538 U.S. 343 (2003) (true threats are serious expressions of intent to commit unlawful violence)
- Watts v. United States, 394 U.S. 705 (1969) (threat statutes must be construed with First Amendment in mind; listener reaction is relevant)
- Neder v. United States, 527 U.S. 1 (1999) (omission of an element from jury instruction requires reversal unless error was harmless beyond a reasonable doubt)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for appellate review of sufficiency of evidence)
- United States v. Turner, 720 F.3d 411 (2d Cir. 2013) (exhortatory speech supplying details about targets can be a threat)
- United States v. White, 670 F.3d 498 (4th Cir. 2012) (exhortations to others insufficient where no control or history of compliance)
- United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) (imperative to unknown third parties not a personal threat)
- Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (contextual threats in wanted-type materials can be true threats)
- United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999) (reasonable-person objective test for whether speech is a true threat)