*1 safety device has not created or tested prevented suggests

which he court erred exclud- accident.2 The district testimony ing Siegel’s based on Daubert.3 Siegel’s Since we conclude admitted, we reverse the should have been summary judgment grant of district court’s expert testimony Siegel’s creates to Crown. fact genuine issue of material sufficient summary judgment defeat a motion. See Thomas, 42 F.3d at 1270.

Reversed and Remanded. Shartsis, Mountain, CA,

Loretta S. Pine Defendant-Appellant. for Fields, R. David Assistant United States America, UNITED STATES CA, Attorney, Angeles, Plaintiff-Ap- Los for Plaintiff-Appellee, pellee. KING, Defendant-Appellant. Will B.

No. 96-50299. Appeals, Court of Circuit. TASHIMA, Before: FARRIS and Circuit Argued July and Submitted 1997. STAGG,* Judges, Judge. District Aug. Decided 1997. TASHIMA; Opinion by Judge by Judge

Concurrence FARRIS.

TASHIMA, Judge: J. OVERVIEW King appeals Will B. from the district court’s denial of his motion for new trial following his conviction for ening communication in violation of 18 U.S.C. Co., However, Southland Sod Farms v. Stover Seed was based in Cf. (9th Cir.1997) (“Unlike Daubert, 1143 n. part application incorrect theories, novel scientific should be able to upon court committed an error of law which we determine whether asserted technical deficien- - States, ruling. base our See Koon v. United value.”). survey's probative cies undermine Likewise, -, -, 2035, 2048, U.S. 116 S.Ct. should be able to determine (1996) (noting L.Ed.2d 392 the abuse of Siegel's testimony to be accorded discretion standard includes review to determine cerning proposed safety device. guided by that the discretion was not erroneous conclusions); Cordoba, legal 104 F.3d at 229. 3. We note that had the excluded * Siegel's testimony only on Rule Stagg, Honorable Tom Senior United States Dis- Daubert, not mentioned we would still conclude Louisiana, Judge trict for Western District of excluding that the court abused its discretion sitting by designation. Thomas, testimony. 42 F.3d at 1269.

809 (C.D.Cal. v. 920 1078 King his motion on the district States § 876. 1996). that, jury instruct the refusal to violating § it had convict him of order to to threaten. As a specific intent to find III. ANALYSIS concerning jury instruc- conclusion of law The in failing district court erred to follow

tions, the district court’s determination specific explicit holding in Twine to require not the 876 did requires prove 876 the to prove specific intent to threaten is reviewed specific Contrary to threaten.1 to Tagalicud, v. 84 novo. United States de concluded, what the district court there is (question 1183 inconsistency in our case law. accurately instruction states ele- novo); of crime is reviewed de United Holding A. Twine’s Garcia, v. 1364 States Cir.1994). unequivocally we decided requires the to jurisdiction under 28 U.S.C. We specific intent to threaten. that, ques- § 1291 and conclude because the (“Today showing at 680-81 we hold that the already presented by tion this case was de- required by of an intent to v. 853 F.2d 676 cided United States showing of (9th Cir.1988), the court erred when district intent.”). give to intent instruc- it refused the King requested. therefore reverse tion We sought rely The defendant in Twine to judgment of conviction and remand for the defense; capacity specifically, diminished opinion. proceedings consistent with this argued he that he was entitled to introduce evidence of mental defect connection with II. BACKGROUND his an both to form intent to mail and trial, government proposed At the an in- ability to form intent to threaten. We requiring only that find struction concluded that of King knowingly mailed a communication that, specific intent to threaten and conse- containing any any person to addressed quently, the there was entitled to objected injure person. King to threat to have the court review the evidence of mental instruction, arguing that it failed to re- he which defect introduced tended to estab- prosecution prove specific quire the capacity as to both intent lish his diminished in- attorney proposed threaten. His to mail threaten: specific intent to struction which did contain Twine was entitled to have his mental de- threaten as an element of the crime. The fect evidence considered on the issue of rejected King’s proposed trial court instruc- possessed whether he gave requested tion and the instruction to form the government. home, group members of the and to trans- verdict, guilty After the returned a mit his threats. trial, arguing for new filed a motion omitted). (footnote Id. at 681 refusing give that the court had erred that, expressly recognized court we intent instruction. there, Al- claims King’s motion for a new trial. order to review defendant’s denied re- to determine first whether though recognized that Twine construed needed at 679. quired proof in- Id. requiring 876 as carefully reviewing prior all relevant it was free After tent to decided per- precedents, to follow on the basis of a we found ceived between Twine and sub- whether resolved. Id. at 680-

sequent authority. United threaten had been any person part, § ... threat 1. In 876 makes it a crime to relevant addressee or of another.” "knowingly any communication [mail] ¶ (1994). any 876 3 18 U.S.C. addressed to other deposits (discussing Seeber United (9th Cir.1964), mails, ening States v. in- F.2d 572 letter not that he (9th Cir.1969), Levison, tended or was able to threat.” United States v. requir- then concluded that Accord *3 proof specific intent to threaten ing under United States consistent with the statute curiam) (section 876 was more (per precedents. (citing Id. at 679-81 (1) and merely requires proof that Roy v. wrote or mailed a letter explicitly concluding, In so and recognized that our decision would create an deposited caused the letter to be in the apparent conflict with the Eleventh Circuit. mails).

Id. at n. 3. passage government Id. The on which the relies cannot bear Subsequent B. Are Cases Consistent above, place it. would on As noted Davis With Twine questions involved different from those ad- Despite analysis Twine’s careful and quoted passage dressed in Twine. The holding, clear the district court concluded merely responds argument to the defendant’s implicitly that Twine had been overruled proof “reasonably that was that he Davis, anticipated” get him the threats would Cir.1989), “language of Twine Therefore, prison. released from lan- holdings be reconciled with the [could not] in guage interpreted Davis cannot be to cre- Davis and Sirhan.” at especially ate with (i) 1080. The district court erred because given that Davis does not even cite or men- Davis did address issue confronted tion Twine. Twine and therefore is not with inconsistent Our conclusion that the statements (ii) only panel an en banc of this Davis are not inconsistent Twine is with explicit court can contradict Twine’s conclu strengthened the fact that the cases cited sion that Sirhan is in fact consistent with support Davis those statements were Twine. both reviewed in Twine. we de- Davis, we held that the district court dealing merely scribed Chatman as with (i) properly admitted from the carry whether an intent to out the threat is recipient of the threat to establish that the an element of but not with whether letter contained a “threat” under requires specific intent to threaten: (ii) correctly determined that 876 does holding require proof expected threaten and to transmit the threat are gain threats to him some concrete bene- essential elements of the crimes defined Davis, fit. holding 876 F.2d at 73. Neither and 876 does not conflict or dis- touches on the we faced in Twine agree pronouncements with the clear and, alone, on that basis it cannot be said (or other circuits that abili- that Davis is inconsistent with Twine. ty) the threat is not essen- argues that tial element under these sections. Davis and Twine are inconsistent following statement Davis: 1360-61 argues Davis also Twine, 853 F.2d at 681 n. 4. “reasonably failed to establish that Davis anticipated threatening judges Finally, expressly two we also stated Twine get prison.” him Ap- released from that Sirhan did not address whether pellant’s Reply required specific Brief at 4. Section 876 re- intent to threaten and that quires showing. only proof no such “The the issue therefore had not been resolved we, support a before. Id. at 680. Neither as a three- judge panel, conviction U.S.C. 876 is nor the district court is free to fore, dicta, Twine’s Sirhan Twine’s central interpretation being far from ignore holding. that its was explicit determination its

consistent with Sirhan.2 REVERSED and REMANDED.3 Are Not Dicta

C. Twine’s Statements (cid:127)FARRIS, Judge, concurring: government argues that our state- in separately I concur. I emphasize write they to threaten are dicta intent,” I that understand used necessary to decide the case. It were not opinion both this to include the that we could have based our deci- contends knowledge mental states of sion in solely on fact that The court stated that section 876’s *4 in fact examined the evi- language required a culpability level of of mental defect which Twine com- dence objective accept- exceeded “an standard of properly by plained had not been reviewed (e.g., negligence, able behavior reckless- reject argument. the court. We this ness),” and therefore that section 876 defined pronouncements in Twine intent crime. to threaten is 876 are not 676, Twine itself militates language dicta. Thus, Twine holds that against reading. We characterized requirement of section 876 includes those as follows: conclusion culpability greater negligence levels of than we hold Today of intent recklessness, i.e. knowledge statute], [the id.; Code, See Model Penal 2.02. Further, prohibits “knowingly” section 876 added). (emphasis at 680 a communication explicit. We could not have been more injure. prescribes statute When.a level government argues culpability, requirement ap- that mens rea because, Twine are dicta our statements elements, plies to all other material unless a conceivably, we could have chosen different contrary purpose plainly appears. Model path Although case. it is true to resolve that 2.02(4); see United States v. Penal Code resolved Twine without could have Video, X-Citement U.S. S.Ct. addressing to threaten” (applying 130 L.Ed.2d 372 issue, squarely the fact is that we decided to adjacent initial state words to later claus- so, question. doing resolve that we did es). “Knowingly” requisite is the level of unnecessary superfluous engage in an or culpability for the threat element of section because, exercise. binding had we expressed plainly Congress as that no intent to threaten was found trary purpose. required to convict under it would unnecessary to resolve whether have been to have the court

the defendant was entitled consider his evidence of diminished his mental to form an affected (as opposed to an intent to mail). Our conclusion requires specific intent there- required. gov- reject government's suggestion, to threaten is Under also court, apparently embraced the district the letter con- ernment must both that Orozco-Santillan, had a tained a threat and 1990), Cir. is inconsistent with Twine. intent to threaten. Orozco, we considered whether made the de- had shown that the statements a new trial 3. Because would be entitled to fendant there were threats under 18 U.S.C. remand, we do not need to consider identify 115. The issue in Orozco —how appeal. sentencing issues he raises on question at "threat” —was different from the is- (and Twine) sue here