Pаul PIERRE, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
No. 06-2496.
United States Court of Appeals, Third Circuit.
Filed: June 9, 2008.
528 F.3d 180
Argued En Banc: Feb. 26, 2008.
In contrast, any damage to Bennington‘s reputation will result only indirectly from SCRG‘s actions. SCRG is not doing anything (or refraining from doing anything) that will directly harm Bennington‘s reputation with its suppliers in India. Rather, the claim is a two-step one: (1) because SCRG is not delivering (allegedly breaching the contract), Bennington is unable to deliver, and (2) lack of delivery harms Bennington‘s reputation with third parties with whom Bennington has contracted to resell the scrap. There is nothing in this case to distinguish it from a myriad of other breach of contract cases. Thus, there is no reason to make the extended causal inferences necessary to find irreparable harm to reputation. Any damage Bennington may suffer as a result of SCRG‘s alleged breach of contract—to the extent it is not speculative—can be proven as an element of the breach of contract claim against SCRG.
Bennington, however, cites to Blackwelder Furniture co. of Statesville, Inc. v. Seilig Manufacturing Co., Inc., 550 F.2d 189, 197 (4th Cir.1977), a case in which the trial court denied a preliminary injunction. The Fourth Circuit Court of Appeals reversed, holding that the district court‘s finding of no irreparable harm was clearly erroneous. Id. at 196. In so concluding, the court stated that
The harm posed to Blackwelder‘s general goodwill by its inability to fill outstanding and accumulating orders in excess of $15,000 for furniture listed in its catalogues is incalculable—not incalculably great or small, just incalculable.
We are not bound by the holding in Blackwelder and we question whether irreparable harm was sufficiently demonstrated there. In addition, we note that Blackwelder has been distinguished from other preliminary injunction cases on the basis that Blackwelder “involved a manufacturer‘s refusal to supply its entire product line to a particular retailer, treatment which discriminated against that particular dealer.” Advisory Information and Management Systems, Inc. v. Prime Computer, Inc., 598 F.Supp. 76, 78 (M.D.Tenn. 1984). See also Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755, 762 (2d Cir.1979). As we mention above, there is nothing in the record before us to demonstrate that Bennington was unable to fulfill any contracts, was unable to find other sources of scrap metal when the Virgin Islands scrap metal could not be shipped, or lost reputation with any specific customers.
III. CONCLUSION
For the foregoing reasons, we will vacate the preliminary injunction and remand this case to the District Court for further proceedings consistent with this opinion.
Rebecca Sharpless (Argued), Florida International University, Miami, FL, Attorney for Petitioner.
Steven A. Morley (Argued), Thomas M. Griffin, Morley, Surin & Griffin, Philadelphia, PA, Amicus Curiae for the Court.
Thomas H. Dupree, Jr. (Argued), United States Department of Justice, Washington, DC, David E. Dauenheimer, Richard M. Evans, Susan K. Houser, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Attorneys for Respondent.
Before: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, and GARTH, Circuit Judges.
FUENTES, Circuit Judge, joined by SCIRICA, SLOVITER, BARRY, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, and GARTH, Circuit Judges.
We ordered rehearing en banc in this case to determine the level of intent required, under the Convention Against Torture (the “CAT“),1 for an applicant to show that he is more likely than not to be tortured if sent to the proposed country of removal. Paul Piеrre, who is restricted to a liquid-only diet because of a self-imposed injury to his esophagus, appeals the decision of the Board of Immigration Appeals (“BIA“) denying him CAT relief, claiming that as an ex-convict he will be imprisoned upon his deportation to Haiti, will not be provided with the necessary medical care and diet he requires, and will likely die as a result. He contends that the prison officials’ knowledge that it is practically
I.
Pierre, a Haitian citizen, first entered the United States in 1986 and was granted permanent legal resident status on December 1, 1990. On October 14, 1992, Pierre broke into the home of his ex-girlfriend and stabbed her repeatedly with a meat cleaver. When a neighbor interrupted the attack after hearing the victim‘s cries, Pierre drank a container full of battery acid, in an attempt to commit suicide. His suicide attempt was unsuccessful, however, and due to his ingestion of the battery acid, Pierre suffers from a condition called esophageal dysphagia, limiting him to a liquid diet administered through a feeding tube. According to Pierre, the feeding tube must be replaced on a monthly basis and he requires daily medical care.
Following a trial by jury, Pierre was convicted of various crimes for his attack on his ex-girlfriend, including attempted murder, and was subsequently sentenced to 20 years imprisonment with a mandatory minimum of 10 years without parole. After he had served his 10-year minimum, the former Immigration and Naturalization Service filed a Notice to Appear charging Pierre with being deportable under
According to the 2006 State Department Country Report for Haiti (the “Country Report“), Haiti detains its citizens deported by reason of prior convictions in a foreign country. These detentions sometimes last several months and the Haitian government justifies its detention policy on the grounds of public safety. The Country Report indicates that the prisons are overcrowded, poorly maintained, unsanitary, and rodent infested. Prisoners suffer from malnutrition, inadequate health care, and a lack of basic hygiene.
At a hearing before the Immigration Judge (“IJ“), Pierre conceded that he was subject to removal for his conviction,2 but applied for relief under the CAT, asserting that he would not survive in the Haitian prison for more than two or three weeks. In his written CAT application, he explained that he feared that if he was returned to Haiti he would “die for lack of medical care” while in prisоn because of the Haitian detention policy. (App. 122.) Pierre described the “expected failure of Haitian authorities to provide [him with] adequate medical attention” as “t[a]ntamount to torture.” (App. 123.)3 He did not attribute this expected failure to any ill will on behalf of the Haitian authorities. Rather, Pierre claimed that “Haiti does not have the means to care for [his] medical condition.” (App. 123.) He appealed to the IJ to make a legal “exception” in his case, “not-
The IJ found that Pierre was seeking relief for humanitarian reasons based on his medical needs. The IJ concluded that under the interpretation of the CAT in Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), he did not have discretion to grant humanitarian relief. Accordingly, the IJ denied Pierre‘s application for deferral of removal. A single member of the BIA affirmed the IJ‘s decision without opinion. Pierre appealed the BIA‘s decision to this cоurt.
Subsequent to the initial briefing in this case, we decided Lavira v. Attorney General, 478 F.3d 158 (3d Cir.2007). In Lavira, a panel of our court granted a CAT claim based on evidence that severe pain was the “only plausible consequence” of a petitioner‘s imprisonment in a Haitian prison. Id. at 170. In that case, the panel stated that a jailer‘s “willful blindness” or “deliberate indifference” might be enough to satisfy the specific intent requirement of the CAT. Id. at 171. The original panel in this case asked for supplemental letter briefs on the impact of Lavira on Pierre‘s case. After receiving the letter briefs and hearing oral argument, we voted to hear the case en banc to resolve any conflict between Auguste and Lavira.
II.
In this matter, Pierre petitions for review of the final order of removal by the BIA. We have jurisdiction pursuant to
Where, as here, the BIA affirms an IJ‘s decision without opinion, we review the IJ‘s decision as thе final agency determination. Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004). We will review the IJ‘s legal determinations de novo, subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984). See Briseno-Flores v. Att‘y Gen., 492 F.3d 226, 228 (3d Cir.2007); Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004). Under the REAL ID Act, factual or discretionary determinations are outside of our scope of review. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006).
III.
The CAT was designed to acknowledge the obligation of nations under the United Nations Charter to “promote universal respect for, and observance of, human rights and fundamental freedoms.” See Preamble to Convention, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. It was adopted by the United Nations General Assembly on December 10, 1984, and entered into force on June 26, 1987, to “make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.” Id. Since opening for signature in December 1984, 145 countries have signed and/or become parties to the CAT. See Office of the High Commissioner for Human Rights Page on the Status of the CAT (visited May 21, 2008) (http://www2.ohchr.org/english/bodies/ratification/9.htm).
Article 1 of the CAT defines torture as:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a
third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (emphasis added). The CAT then commands that: “No State Party shall expel, return (‘refouler‘) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Art. 3(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
President Reagan signed the CAT on April 18, 1988, in accordance with the power granted to the President in Article II, Section 2 of the United States Constitution, and reserved thе United States’ right “to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary.” See Auguste, 395 F.3d at 130 (citation omitted). President Reagan then transmitted the CAT to the Senate for advice and consent on May 20, 1988, proposing a list of reservations, understandings, and declarations, which were revised and resubmitted by President George H.W. Bush in January 1990. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 2, 7-8 (1990). Included in this list, was an understanding that “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” Id. at 9, 36. In addition, President Bush included an understanding that the CAT prohibition on returning a person to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture,” Art. 3(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, would be interpreted to mean “if it is more likely than not that he would be tortured.” See S. Exec. Rep. 101-30, at 10, 16, 36. President Bush аlso included a declaration that the CAT is not self-executing, to clarify that implementation of the CAT would be through separate legislation. See id. at 12, 37.
In October 1990, the Senate adopted a resolution of advice and consent that incorporated the understandings and declaration discussed above. See 136 Cong. Rec. S 17486-01, S 17491-92 (Oct. 27, 1990) (“Senate Resolution“). Next, as required by Article 26 of the CAT, President Clinton deposited the instrument of ratification with the United Nations on October 21, 1994, and the CAT became enforceable in the United States 30 days later.4 See Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478, 8478 (Feb. 19, 1999). President Clinton included the reservations, understandings, and declarations from the Senate Resolution in the instrument of ratification. See 1830 U.N.T.S. 320, 320–22 (1994).
Because the CAT did not self-execute, it needed to be “implemented by legislation before [giving] rise to a private cause of action.” Ogbudimkpa v. Ashcroft, 342 F.3d 207, 218 (3d Cir.2003) (quoting Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.1979)); see also Auguste, 395 F.3d at 133 n. 7. Accordingly, in 1998, Congress passed legislation
The first section of FARRA, § 2242(a), announces that “[i]t shall be the policy of the United States not to expel, return, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture,” thereby adopting the obligation in Article 3 of the CAT. See id. Next, § 2242(b) directed “the appropriate agencies” to “prescribe regulations to implement the obligations of the United States under Article 3 of [the CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of [the CAT].” Id.
In accordance with § 2242(b) of FARRA, the Department of Justice (“DOJ“) promulgated regulations setting forth the procedures by which individuals could seek relief under the CAT. See 64 Fed.Reg. 8478 (Feb. 19, 1999), codified at
IV.
This Circuit has previously addressed whether Haiti‘s policy of indefinitely imprisoning deportees who have been convicted in other countries violates the CAT. We review that history now.
Before we ever addressed this issue, in 2002, the BIA considered whether indefinite detention, inhuman prison сonditions, and police mistreatment constitute torture under
Subsequently, in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir.2003), our Court considered the CAT claim of an immigrant ordered removed to the Democratic Republic of the Congo (“DNC“). In the context of Zubeda‘s claim, we stated that the “intentionally inflicted” language in the regulations did not impose a “specific intent” requirement, but simply “exclude[d] severe pain or suffering that is the unintended consequence of an intentional act.” Id. at 473. However, the decision in Zubeda did not turn on whether there is a specific intent requirement in the CAT; instead, the court remanded the case primarily for a clarification of the IJ‘s basis for determining that Zubeda would be detained upon her return to the DNC.
The following year, in Auguste, we considered the CAT claim of a Haitian citizen who had been imprisoned in the United States. In Auguste, the petitioner “claim[ed] that he w[ould] be indefinitely detained upon his arrival in Haiti in prisons that are notorious for their brutal and deplorable conditions.” 395 F.3d at 128. We found the language from Zubeda discussed above to be dicta, and followed Matter of J-E-, holding that Auguste was unable to show the specific intent to torture required for relief under the CAT. We determined that the definition of torture under the CAT included a specific intent requirement as the court was obligated to “apрly the standard clearly stated in the ratification record.” Id. at 140. We rejected Auguste‘s argument that the specific intent requirement could not be incorporated into United States law because it was inconsistent with the accepted international interpretation of the CAT. We clarified that “[a] treaty that is ratified ... with a statement of understanding becomes effective in the domestic law subject to that understanding.” Id. at 142 (quoting Restatement (Third) of the Foreign Relations Law of the United States § 314, cmt. d (2004)). Both the President and the Senate indicated their understanding that Article 1 of the CAT contains a specific intent requirement and that understanding has domestic legal effect.
Next, in Auguste we reviewed, with Chevron deference, the BIA‘s decision that specific intent should be interpreted with reference to its ordinary meaning in American criminal law and we determined that the BIA did not err in this determination. Citing to Carter v. United States, 530 U.S. 255, 269 (2000), we held that, in order to act with specific intent, an individual “must expressly intend to achieve the forbidden act.” Id. at 145. More specifically, we found that “for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act, namely the infliction of the severe pain and suffering.” Id. at 145-46. Where the “severe pain and suffering” is merely a “foreseeable consequence” of the act, “the specific intent standard would not be satisfied.” Id. at 146.
Thus, where Auguste complained of the conditions in the Haitian prison but not his particular vulnerability to them, we determined that the BIA did not err by concluding that the Haitian authorities would lack
In our most recent case to address whether the deportation of a Haitian ex-convict constitutes torture under the CAT, Lavira, we granted the petition of an HIV positive, “above-the-knee amputee with a lifelong political affiliation with exiled former President Jean-Bertrand Aristide.” 478 F.3d at 159. Lavira interpreted Auguste as prohibiting relief “where the petitioner relied only on the general conditions of the Haitian detention facility.” Id. at 167. In contrast, Lavira‘s condition “set him apart from the petitioner in Matter of J-E- [and] the general population incarcerated at the facility.” Id. at 168. We held that Lavira had a valid claim because he presented evidence that showed that he would be targeted, such as being singled out by the guards because of his HIV-positive status. Noting that “demonstrating proof of intent is necessarily an inferential endeavor,” we concluded that ”Auguste demands no more.” Id. at 171.
We also stated in Lavira, in dicta, that we could not “rule out” that specific intent could be proven through “evidence of willful blindness.” Id. As discussed below, we now rule out that possibility.
After Lavira was decided, the Second Circuit decided Pierre v. Gonzales, 502 F.3d 109 (2d Cir.2007). There, the government sought to remove Franck Pierre, a Haitian citizen, because of his aggravated felony and firearms convictions. Pierre sought relief under the CAT, presenting evidence regarding Haiti‘s prison conditions and detention policies, and his diabetes, which could lead to his death if he went without medication and a proper diet. The IJ denied him relief, concluding that there was no evidence that the Haitian authorities would detain him with the specific intent to inflict severe pain and that his relatives would be able to provide him with his medications while he was in detention. The BIA affirmed and Pierre sought review from the Second Circuit. The Second Circuit denied his petition, concluding that the CAT has a specific intent requirement and that Pierre failed to meet that standard. Calling Lavira a “wrinkle[],” the Second Circuit took issue with our language in Lavira that suggests that a government official‘s “willful blindness” or “deliberate indifference,” which bear on the official‘s knowledge, could suffice to fulfill the specific intent requirement, which requires an official to “intend the actual consequences of his conduct.” Id. at 118. In the specific case before it, the Second Circuit found that the petitioner‘s diabetic condition did not “remove his case from the ambit of In re J-E-” and, accordingly, denied his petition. Id. at 111. In order to obtain relief based on individual circumstances, the petitioner would need to be able to show that “petitioners with certain histories, characteristics, or medical conditions are more likely to be targeted.” Id. at 122.
V.
The specific issue on appeal concerns what degree of intent Pierre must establish in order to obtain relief under the CAT. To inform our analysis, we consider first the definition of torture in
intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Given the ratification history of the CAT, we conclude that the CAT requires a showing of specific intent before the court can make a finding that a petitioner will be tortured. In this vein, we note that Pierre does not dispute that the CAT includes a specific intent requirement. Rather, Pierre argues that the specific intent requirement can be satisfied by a showing that the Haitian officials have knowledge that severe pain or suffering is the practically certain outcome of his imprisonment. We disagree that proof of knowledge on the part of government officials that severe pain оr suffering will be the practically certain result of Pierre‘s detention satisfies the specific intent requirement in the CAT. Rather, we are persuaded by the discussion in Auguste that the specific intent requirement, included in the ratification history of the CAT, requires a petitioner to show that his prospective torturer will have the motive or purpose to cause him pain or suffering. As in Auguste, we hold that “for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act.” Auguste, 395 F.3d at 145-46. Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one‘s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.
As we discussed in Auguste, the BIA‘s decision in Matter of J-E- that specific intent means “the intent to accomplish the precise criminal act that one is later charged with” is entitled to Chevron deference. Id. at 144. Applying that deference, we concluded in Auguste that the BIA had not erred. Id. at 145. Fleshing out the definition of specific intent as it is used within American criminal law, Auguste relied on Carter v. United States, 530 U.S. at 269, in which the Supreme Court discussed the differ-
In addition, the Supreme Court discussed the concept of specific intent in United States v. Bailey, 444 U.S. 394, 405 (1980), finding that “‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.” This formulation of specific intent is found repeatedly in United States law. See, e.g.,
In our view, a petitioner cannot obtain relief under the CAT unless he can show that his prospective torturer will have the goal or purpose of inflicting severe pain or suffering.7 Under this standard, Pierre has failed to qualify for relief under the CAT because he has failed to show that Haitian officials will have the purpose of inflicting severe pain or suffering by placing him in detention upon his removal from the United States.
Finally, we reject Lavira‘s discussion of willful blindness. Willful blindness can be used to establish knowledge but it does not satisfy the specific intent requirement in the CAT. See United States v. Wasserson, 418 F.3d 225, 237 (3d Cir.2005) (stating that evidence of willful blindness satisfies the mental state of knowledge). Moreover, to the extent that Lavira suggests that mere knowledge is sufficient for a showing of specific intent, we overrule that suggestion. In sum, because we have rejected the knowledge standard discussed in Lavira, and because Lavira contained no discussion of the illicit purpose requirement in the CAT, Lavira‘s CAT analysis is overruled.
VI.
In conclusion, we will deny Pierre‘s petition. As the courts in Matter of J-E- and
RENDELL, Circuit Judge, concurring, joined by McKEE and AMBRO, Circuit Judges.
The majority is correct that a finding of torture requires an examination of purpose. The examination occurs, however, not in connection with “specific intent,” but, rather, in connection with the element of “illicit purpose.” The majority conflates the two by deciding that specific intent to inflict severe pain and suffering only exists if the actor‘s purpose is to inflict pain. In doing so, it has obscured the meaning of specific intent and its proper contours as developed in the criminal law jurisprudence.
The definition of torture in CAT and its implementing regulations contains an intent element and a purpose element. See
(1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions.
23 I. & N. Dec. 291, 297 (B.I.A.2002). The BIA‘s decision in Matter of J-E- also introduced the concept of using the criminal law to interpret the term “specifically intend” in implementing regulations. Id. at 301 (citing the definition of specific intent in Black‘s Law Dictionary).
Our Court subsequently looked to the criminal law for guidance in both Auguste v. Ridge, 395 F.3d 123 (3d Cir.2005), and Lavira v. Attorney General, 478 F.3d 158 (3d Cir.2007). In Auguste, we concluded that the BIA had correctly defined the specific intent requirement by reference to domestic criminal law as “the intent to accomplish the precise criminal act that one is later charged with while general intent commonly takes the form of recklessness.” 395 F.3d at 145. We did not require that a would-be torturer have the purpose tо inflict severe pain and suffering, but, rather, simply concluded that mere recklessness was insufficient to satisfy CAT‘s “specific intent” requirement. Id. at 146. In Lavira, we similarly resorted to criminal law for guidance, and concluded that the specific intent requirement was satisfied by evidence that, given the petitioner‘s “obvious vulnerability and its nearly inevitable consequences” and the expert report submitted regarding the treatment of HIV/AIDS patients, he would be singled out and targeted by prison guards. 478 F.3d at 169-71. By contrast to Auguste, the petitioner in Lavira alleged that “[s]evere pain is not ‘a’ possible consequence that ‘may’ result from placing Lavira in the facility, it is the only possible
The majority equates “intentionally inflicted” under CAT, which requires specific intent, to “pain for pain‘s sake.” This goes beyond the meaning of intentional infliction under J-E-. The specific intent aspect does not speak to, or require a finding as to, the purpose; the illicit purpose element does. As discussed below, “pain for pain‘s sake” would be an illicit purpose.
Specific intent, as it has been developed through the criminal caselaw and treatises, is no more than intent to do the prohibited act with knowledge or desire that it will cause a certain result. Tison v. Arizona, 481 U.S. 137, 150 (1987); United States v. U.S. Gypsum Co., 438 U.S. 422, 445 (1978); 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 354 (2d ed.2003); see also Carter v. United States, 530 U.S. 255, 268 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime“).
The sourсe of the majority‘s requirement of “purposeful pain” is, therefore, somewhat curious. It is regrettable that an errant sentence in a different context in United States v. Bailey, suggesting that “[i]n a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent,” veered from the historical meaning. 444 U.S. 394, 403 (1980). The sentence is at best incomplete and misleading and certainly cannot be relied upon to establish that “specific intent” must mean “purpose.” If, as the government urges, Bailey does establish that specific intent can only be proven where an individual acted with the purpose of causing a particular consequence, it would also mean that, since 1980, all prosecutions for specific intent crimes either proved the defendant‘s purpose as to consequences (and did not rely on knowledge of the certainty of consequences) or resulted in acquittals based on Bailey. We know this is not the case. Our own jury instructions continue to define “intentionally“—the term used in the CAT regulations—and “with intent” to mean: “Either that (1) it was [defendant‘s] conscious desire or purpose ... to cause a certain result, or that (2) [defendant] knew that (he)(she) ... would be practically certain to cause that result.” Third Circuit Jury Instructions § 5.03 (Sept.2006). This is the proper definition of specific intent. Furthermore, Bailey purported only to summarize the state of the law, not to overrule precedent interpreting the common law term. Indeed, the term “loosely” used by the Bailey Court indicates that specific intent, in fact, has meanings other
The issue before us has been the subject of recent commentary that is timely and persuasive. In an August 1, 2002 memo to the White House Counsel, Jay Bybee, Assistant Attorney General, set forth an interpretation of “specific intent” that is similar to that espoused by the majority. There, he stated that “knowledge аlone that a particular result is certain to occur does not constitute specific intent.” Id. at 182-83. It concluded that “even if a defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” Id. at 183. This is the interpretation that was relied upon in defense of the abuse at Abu Ghraib and the torture of prisoners during interrogations at facilities in Iraq and Afghanistan.
However, this interpretation of “specific intent” has since been soundly repudiated by the very office that promulgated it. See Justice Department Dec. 30, 2004 Memo on U.S. Torture Policy for Deputy Attorney General James B. Comey (“2004 Memo“). The 2004 Memo explained that:
In the August 2002 Memorandum, this Office concluded that the specific intent element of the statute required that infliction of severe pain or suffering be the defendant‘s “precise objective” and that it was not enough that the dеfendant act with knowledge that such pain “was reasonably likely to result from his actions” (or even that that result “is certain to occur“). Id. at 182-83. We do not reiterate that test here.
Id. at n. 27.
The Memo then went on to state:
It is well recognized that the term “specific intent” is ambiguous and that the courts do not use it consistently. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 355 & n. 79 (2d ed.2003). “Specific intent” is most commonly understood, however, “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.” Id. at 354; see also Carter v. United States, 530 U.S. 255, 268 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime“). As one respected treatise explains:
With crimes which require that the defendant intentionally cause a specific result, what is meant by an “intention” to cause that result? Although the theorists have not always been in agreement ..., the traditional view is that a person who acts ... intends a result of his act ... under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.
1 LaFave, Substantive Criminal Law, § 5.2(a), at 341 (footnote omitted).
As noted, the cases are inconsistent. Some suggest that only a conscious desire to produce the proscribed result constitutes specific intent; others suggest that even reasonable foreseeability suffices. In United States v. Bailey, 444 U.S. 394
In contrast, cases such as United States v. Neiswender, 590 F.2d 1269 (4th Cir.1979), suggest that to prove specific intent it is enough that the defendant simply have “knowledge or notice” that his act “would have likely resulted in” the proscribed outcome. Id. at 1273. “Notice,” the court held, “is provided by the reasonable foreseeability of the natural and probable consequences of one‘s acts.” Id.
We do not believe it is useful to try to define the precise meaning of “specific intent” in section 2340. In light of the President‘s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture. Some observations, however, are appropriate. It is clear that the specific intent element of section 2340 would be met if a defendant performed an act and “consciously desire[d]” that act to inflict severe physical or mental pain or suffering. 1 LaFave, Substantive Criminal Law § 5.2(a), at 341. Conversely, if an individual acted in good faith, and only after reasonable investigation establishing that his conduct would not inflict severe physical or mental pain or suffering, it appears unlikely that he would have the specific intent necessary to violate sections 2340-2340A. Such an individual could be said neither consciously to desire the proscribed result, see, e.g., Bailey, 444 U.S. at 405, nor to have “knowledge or notice” that his act “would likely have resulted in” the proscribed outcome, Neiswender, 590 F.2d
Two final points on the issue of specific intent: First, specific intent must be distinguished from motive. There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant‘s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute. See Cheek v. United States, 498 U.S. 192, 200-01 (1991). Second, specific intent to take a given action can be found even if the defendant will take the action only conditionally. Cf., e.g., Holloway v. United States, 526 U.S. 1, 11 (1999)
Id. at 16-17 (emphases added). Thus, the 2004 memorandum both affirmatively stated that the specific intent element is not tied to a purpose or “precise objective” to inflict severe pain and suffering, and suggested that knowledge of “reasonably likely” results could come within the definition of specific intent.
Consistent with this, the specific intent requirement in CAT‘s implementing regulations excludes “unanticipated” or “unintended” severity of pain and suffering.
Under CAT, “illicit purposes” include, but are not limited to, “such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind“; exempted from CAT is “pain or suffering arising only from, inherent in or incidental to lawful sanctions,” defined to “include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty,” but to exclude those “sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.”
By conflating purpose with specific intent, the majority has excluded from the definition of torture those acts that we all
A military official in Haiti desires information from a detained, suspected terrorist. His purpose in interrogating the detainee is to solicit information. In the course of the interrogation, he begins to use coercive tactics. The official‘s only purpose and conscious desire is to receive information. He is indifferent as to whether his tactics (electric shock) cause severe pain and suffering; indeed, he had hoped that the detainee would give him information without the infliction of pain and suffering. The shock treatment is administered and does cause severe pain and suffering.
Is this not torture? Under the majority‘s interpretation, it is not. Although obtaining information is an illicit purpose satisfying that prong of CAT‘s implementing regulations, the official‘s conduct will not meet the standard the majority has set for the specific intent requirement; his purpose is to obtain information, not to inflict severe pain and suffering. By contrast, an interpretation that adopts the criminal law definition of specific intent and encompasses knowledge or desire that severe pain and suffering will occur includes the above hypothetical in the definition of torture under CAT.
Although I disagree with majority‘s interpretation of specific intent and its resulting conflation of the specific intent and illicit purpose elements under the CAT statute, I concur in the result. In this case, the petitioner simply failed to adduce adequate evidence before the IJ from which we can conclude that there will be intentional infliction of pain—i.e., with knowledge or dеsire on the part of the prison officials. In this way, the present case is distinguishable from Lavira. Here, the allegations made before the IJ were not substantiated with proof of either intent or proscribed purpose and were, at most, akin to a generalized challenge to prison conditions rejected in Auguste. I therefore concur in the result reached by the majority, but disagree with its conclusion that the “intentional infliction” element of torture requires a finding that the actor‘s purpose is to cause severe pain and suffering.11