MEMORANDUM
In December 2001, Defendant, Arthur D’Amario, “was convicted of ... threatening to kill a federal judge.”
United States v. D’Amario,
Acting pro se, D’Amario has challenged the Government’s interpretation of the statute he is charged with violating, which provides in pertinent part as follows:
Whoever ... threatens to assault, kidnap, or murder ... a United States judge ... with intent to impede, intimidate, or interfere with such ... judge ... while engaged in the performance of official duties, or with intent to retaliate against such ... judge ... on account of the performance of official duties, shall be punished as provided in subsection (b).
18 U.S.C. § 115(a)(1)(B). Section 115 is one of several statutes that prohibit individuals from making threats. See, e.g., 18. U.S.C. § 871 (prohibiting threats against the President and successors to the Presidency); 18 U.S.C. § 875 (prohibiting threats transmitted in interstate commerce); 18 U.S.C. § 876 (prohibiting threats sent through the mail).
Relying primarily on the Supreme Court’s decision in
Virginia v. Black,
D’Amario disputes the Government’s interpretation of what constitutes a “true threat” under § 115.
Although D’Amario’s contentions are less than clear, I believe he has misconstrued and confused § 115’s elements of criminal intent and wrongful act. As I explain below, whether D’Amario’s utterance constitutes a “true threat” under § 115 does not turn on whether he actually intended to carry out the threat.
The Supreme Court created the “true threat” standard to determine whether a statement may, consistent with the First Amendment, constitute a crime.
Watts v. United States,
Whoever knowingly and willfully ... makes any ... threat against the President [of the United States] shall be [guilty of a crime].
18 U.S.C. § 871(a). The Supreme Court reversed Watts’s conviction, holding that his statement did not constitute a “true threat,” but instead was First Amendment-protected “political hyperbole.”
Id.
at 708,
In United States v. Kosma, the Third Circuit upheld the defendant’s conviction under § 871 for threatening the President’s life, concluding that an utterance is a “true threat” if
the defendant intentionally make[s] a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or take the life of the President, and [if] the statement [is not] the result of mistake, duress, or coercion. The statute does not require that the defendant actually intend to carry out the threat.
Courts have similarly construed § 115 and other threat statutes as requiring the Government to prove a “true threat” under an “objective listener” standard.
See, e.g., United States v. Davila,
The rationale underlying these decisions is compelling, and was set out by the Third Circuit in
Kosma.
The proscription of threats is “meant to protect” not only the official’s “life, but ... is also meant to prevent the disruptions and inconveniences which result from the threat itself, regardless of whether there is any intention to execute the threat.”
Kosma,
D’Amario contends that the
Black
Court implicitly overruled all this authority, in-
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eluding
Kosma.
The appellants in
Black
had been convicted under a Virginia law that prohibited burning a cross “with the intent of intimidating any person or group ....”
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
Id.
The trial court instructed the jury that under this provision, “[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent.”
The trial court’s instruction combined with the law’s presumption troubled the Supreme Court, which did not agree that all cross-burnings were intended to intimidate: “Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity.”
Id.
at 365-66,
‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
D’Amario apparently contends that the Black Court thus held that the First Amendment precludes the prosecution of a threat unless the Government can prove that the speaker intended to carry out the threat. D’Amario has ignored the very next sentence of the Court’s decision, however:
The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
The
Kosma
Court employed the same rationale in holding that a “true threat” would be determined under an objective standard.
See Kosma,
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The Ninth Circuit alone has questioned whether
Black
modified the “true threat” standard. In
United States v. Cassel,
the Court held that under
Black,
“speech may be deemed unprotected by the First Amendment as a ‘true threat’ only upon proof that the speaker subjectively intended the speech as a threat.”
The Third Circuit does not share the Ninth Circuit’s apparent inability to determine what comprises a “true threat.” Indeed, since
Black,
the Third Circuit employed an objective standard to determine whether the defendant’s mailing was a “true threat” under § 876.
United States v. Zavrel,
Finally, in reviewing the sentence imposed on D’Amario after his 2001 conviction, the Third Circuit indicated quite clearly that § 115 does not require the Government to prove that the utterer of a threat actually intended to carry out his threat.
D’Amario,
Under U.S.S.G. § 2A6.1(b)(l), a court is instructed to increase the offense level by six “[i]f the offense involved any conduct evidencing an intent to carry out such threat.” Thus, the base offense level is meant to apply to cases — such as the present one (as the District Court viewed it) — -in which there is no evidence at all that the defendant intended to carry out his or her threat. Threatening communications are made criminal, not just because they may be harbingers of violence, but because they are harmful in themselves in many ways.
Id. In these circumstances, it is evident that the Third Circuit — in agreement with almost every other Circuit — requires the existence of a “true threat” to be determined under an objective standard. Accordingly, as required by Kosma, I will employ an “objective listener” standard in the instant case.
That conclusion does not relieve the Government of proving § 115’s
mens rea
clement, however. The Government
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agrees that it must prove that D’Amario sent the threatening communication with the intent to impede, intimidate, or interfere with a federal judge while the judge was engaged in the performance of official duties, or with the intent to retaliate against the judge on account of his performance of official duties. (Doc. No. 123 at 3).
See
18 U.S.C. § 115(a)(1)(B).
See also United States v. Veach,
CONCLUSION
In sum, I reject D’Amario’s apparent contention that § 115 requires the Government to prove that he actually intended to carry out his threat. As the Government acknowledges, however, it is required to prove under § 115 that D’Amario made his statement with the specific intent to impede, intimidate, interfere, or retaliate against a federal judge.