A jury convicted Anthony Teague of transmitting in interstate commerce a communication to James Locatelli containing a threat. See 18 U.S.C. § 875(c). On appeal Mr. Teague claims that the district court erred by (1) requiring as a special condition of supervised release that he have no contact with the court except through counsel and (2) instructing- the jury incorrectly on the elements of the offense. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm the judgment of the district court.
I. Background
A. The Divorce
Mr. Teague hired attorney James Loca-telli to represent him in divorce proceedings in the summer of 2000. At that time Mr. Teague lived in Texas and Mr. Loca-telli lived in Las Cruces, New Mexico, where Mr. Teague’s estranged wife had relocated. Mr. Teague paid Mr. Locatelli a $1,000 retainer. The two men did not meet in person but communicated by phone, letter, fax, and e-mail.
From the beginning of the divorce proceeding, Mr. Locatelli thought that Mr. Teague might be a “troublesome” client. R. Yol. IX at 51. They had a “negative” relationship. Id. at 52. Mr. Teague wanted “contradictory things” from him, such as requesting that he receive either full custоdy and control of his daughter or no parental rights at all (so that he Would not have to pay child support). Id. at 53. At one point Mr. Locatelli confronted Mr. Teague about alleged lies relating to accusations of domestic abuse.
Mr. Teague became verbally abusive to Mr. Locatelli and his staff, and he refused to pay further fees after the $1,000 retainer had been exhausted. Early in 2001 Mr. Locatelli requested permission from the court to withdraw as Mr. Teague’s attorney, but the court denied the request. After Mr. Teague learned that Mr. Loсatelli had asked to withdraw, he decided to deal with opposing counsel on his own and Mr. Locatelli ceased working on the case.
When the divorce proceeding concluded in May 2001, Mr. Locatelli sent a copy of the final order to Mr. Teague along with a bill for the money still owed. Mr. Locatel-li had no further communication with Mr. Teague until almost two years later.
B. The E-mails
Mr. Teague resurfaced in February 2003. He called Mr. Locatelli (who had become a municipal court judge) and began to send him e-mails accusing him of mishandling the matter. On February 15, 2003, Mr. Teague e-mailed Mr. Locatelli to ask that his records from the divorce case be sent to him. The e-mail concluded, “You really fucked me and my daughter over, and you’re not exactly on my favorite person list right now. Do this immediately. Love, Tony.” R. Vol. IX at 67. A few minutes later he sent another e-mail demanding the return of his $1,000 retainer, saying he needed it to pay “a pretty steep overdue fee for renting ‘Emma’ that has to be' paid off.” Id. at 68. Emma was also the name of Mr. Locatelli’s daughter. Mr. Locatelli testified that it was this e-mail that “startеd giving [him] the creeps” and that he considered it “a veiled threat.” Id. at 68.
Four days later Mr. Teague sent three more emails to Mr. Locatelli. The first inquired about the court records and the retainer, and ended with the statement, “Colleen says ‘hi,’ by the way.” Id. at 69. Mr. Locatelli did not know anyone by that name. Mr. Teague’s second e-mail said:
Where is it, Jimminy? God, it sucks losing a daughter ... it’s fucking traumatizing, man. I really hope you get me those files and that $1,000 you owe me, “toute de suite,” so I can trust the *1312 legal system again. Without the rule of law, what are we? Dumb beasts? Repent on what you have done to me and refund my fees and give me my files immediately. This is not a request. Love, Tony.
Id. Mr. Locatelli replied by e-mail that he would send the records, provided Mr. Teague paid the copying costs and stopped swearing and using invectives. In his third e-mail of the day, Mr. Teague responded that he might “swing by your house sometime and pick up the files” and “discuss the outstanding legal debt.” Id. at 70. He also said that he might move to New Mexico “so we can be neighbors” and asked Mr. Locatelli whether his Texas driver, fishing, and concealed-firearm licenses would be valid thеre. Id. He ended the e-mail by suggesting that Mr. Locatelli was being paranoid and that he should “consult a psychologist whom you can trust.” Id. Mr. Locatelli’s wife was a psychologist, and he considered this “a direct threat” because it “buil[t] on, I felt, another threat in the previous e-mail, knowing his history of violence with his ex-wife, having personally, you know, heard him when he was abusing both myself and my secretary.” Id. at 70-71. He notified the FBI about the threats.
One day later Mr. Teague again emailed:
J-Lo, you owe me some serious money here, amico mio. Stop fencing with me and pay up. I shall consider any itemized charges against my fees that I paid to yоu. Be sure to include entries for the following services:
Number 1, breaking attorney-client privilege and discretely disclosing sensitive information to other parties in New Mexico;
Number 2, furthering the emotional damage done to myself and my daughter by facilitating our continued separation; Number 3, lying to me about gaining telephone visitation and building my hopes up as to being able to even speak with my daughter; And 4, generally behaving like the all-around cock-sucking piece of shit/kyke/dago/whatever the fuck you are.
I hope you still have my address, but I can provide it for you again, Jimminy. I shall expect a cashier’s check very soon in the full amount of $1,000.
As far as the files are concerned, I have no interest in the official court records. Dig up the archives of your professional notes. I want the originals in my office, and I don’t want copies anywhere else. Do this today, J-Lo. Tony.
Id. at 71-72. Mr. Locatelli responded by informing Mr. Teague that he had contacted the FBI.
On March 18, 2003, an FBI agent called Mr. Teague to tell him to be careful about his e-mails. The next day Mr. Teague sent his final e-mail. Under the subject linе “Sunshine and rainbows,” the body of the message simply said, “You and your family are going to die,. Jim.” Id. at 73. Mr. Teague was arrested the next day.
C. Mr. Teague’s Defense
At trial Mr. Teague admitted sending the e-mails. But he gave an “explanation” for his actions. He stated that he had sent the e-mail mentioning the name of Mr. Locatelli’s daughter to “ring his bell, so to speak, as hard as I could, to get him to file a report with the FBI.” Id. at 121. He said that his ex-wife had instigated an FBI investigation, and he had tried to induce Mr. Locatelli to contact the FBI because he was “very angry with the FBI for investigating me for the past three years,” id., and wanted to get them attention. But, he said, he had not actually intended to threaten Mr. Locatelli or his family.
*1313 Referring to his e-mail of February 19, 2003, he explained that “Colleen” was a confidential informant and by mentioning her name he meant to alert the FBI that he was willing to “out” her. Id. at 124. Likewise, his e-mail suggesting that he might “swing by” Mr. Locatelli’s house was intended “to further annoy Locatelli, to get him to file the FBI — to get him to go back and twist the FBI’s tail again. I was trying to push his buttons as hard as I possibly could by not doing anything overtly illegal, but by staying in gray area, so to speak.” Id. “[I]t was my intent from the very beginning,” he testified, “to press Mr. Lоcatelli’s buttons as hard as possible, so he would go off and press the FBI’s buttons as hard as possible.” Id. He said that he continued to mention money “because if you were attempting to collect on a debt, then, legally, what you are doing could not possibly be construed as harassment.” Id. at 125. Mr. Teague further testified that he never intended to go to Las Cruces, he had not so much as held a gun in his life, and he had assumed that the FBI would inform Mr. Locatelli of that fact. He meant the e-mail suggestion that Mr. Lo-catelli see a psychologist to refer to Mr. Lоcatelli’s wife, a psychologist.
As for his final e-mail, Mr. Teague testified that it was meant in an “almost humorous” way to get Mr. Locatelli to forward the e-mail to the FBI. Id. at 127. The FBI had already contacted him the day before about his earlier e-mails and he “thought [he would] throw another piece of wood onto the fire, so to speak.” Id. at 129. When asked why he would send another e-mail after having already been contacted by an FBI agent, who had left him a voice mail warning him that he “really need[ed] to be careful,” id. at 128, he said that the e-mail was “a very flippant, kind of on-the-cuff [sic], spur-of-the-moment type of thing,” id. at 130. He insisted that his statement ‘You and your family are going to die” was a literal, biological truth and was not meant to imply that he was going to kill them. He had not intended to convey a death threat, but acknowledged that it was “an incredibly smartass thing to say to somebody, especially after all the other things I was doing, but, then again, I thought this was very safely well within the gray area.” Id. When asked on cross-examination whether he felt he had succeeded in getting the attention of the FBI, he replied, “I would say that I have succeeded far beyond my wildest hopes, yes.” Id. at 139..
After the defense rested, the district court held an instruction conference. The prosecutor requested that the proposed elements-of-the-offense instruction be modified to emphasize that what must be proved is that a reasonable recipient of the communication would consider it a threat under the circumstances. Mr. Teague’s counsel argued that the proposed instruction .should remain as is. The district court agreed and rejected the prosеcutor’s proposed modification. The jury returned a guilty verdict.
D. Sentencing
Mr. Teague’s sentencing hearing was held on March 25, 2004. He was sentenced to 21 months’ imprisonment, to be followed by a three-year term of supervised release. The government requested that during his supervised release Mr. Teague not be permitted to write the United States Attorney’s Office or the FBI, unless through a lawyer. Mr. Teague’s counsel agreed to the condition and suggested that it be broadened to include “any courts.” R. Vol. VI at 22. The district court eventually approved a condition stating: “No contact with the victims and no contact with agencies or the court unless through counsel.” R. Vol. I Doc. 61 at 4.
*1314 II. Standard of Review/Waiver and Forfeiture
Mr. Teague did not raise in district court the challenges to the jury instruction and condition of release that he now raises on appeal. Ordinarily, when an error claimed on appeal was not presented below, we review the claim under the plain-error doctrine. Under that doctrine we will reverse the judgment below only if “there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Gonzalez-Huerta,
But, despite a common misunderstanding to the contrary, not every unpreserved claim of error is entitled to plain-error review. Sometimes the alleged error was intentionally caused by the party claiming prejudice on appeal. For example, a defendant may seek to present to the jury a confession by an alleged fellow culprit. There may be components of the confession that could be damaging to the defendant, but the defendant believes that the overall impact would be quite favorable. The trial judge admits the confession into evidence. If the defendant is convicted, an appellate court will not reverse the conviction because of the admission of the confession (although, it should be noted, the defendant may have a claim of ineffective assistance of counsel). The reason is that the defendant invited the error. Or, to be more precise, the defendant waived the right that was violated by admission of the confession: the right to confront the witnesses against him. To use the terminology of the Supreme Court in
United States v. Olano,
In
Olano
the Court discussed the meaning of Federal Rule of Criminal Procedure 52(b), which now states: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”
1
Rule 52(b), said the Court, “provides a court of appeals a limited power to correct errors that were
forfeited
because not timely raised in district court.”
We applied
Olano
in
United States v. Hardwell,
With these principles in mind, we proceed to address Mr, Teague’s issues on appeal. In partiсular, we consider whether the errors he challenges on appeal were invited, and therefore waived. We begin with the conditions of his release and then turn to the jury instructions.
III. Post-Release Condition
Mr. Teague argues that the district court erred in requiring, as a special condition of supervised release, that he not contact the court except through counsel. This condition, he urges, violates his constitutional right of access to the courts. We hold that he waived this right and cannot claim error on appeal.
At the sentencing hearing the prosecutor, Richard Watts, suggested that one of Mr. Teague’s supervised-release conditions be that he have no contact with the United States Attorney’s Office or the FBI, unless through a lawyer, and Mr. Teague’s counsel, Steven Ryan, agreed:
MR. WATTS: Your Honor, Mr. Teague has written letters to various people. I’d ask that a condition be that he not write me or the U.S. Attorney’s Office any correspondence, nor the FBI, unless it’s through a lawyer.
THE COURT: Mr. Ryan?
MR. RYAN: Certainly. And I think that it’s appropriate to include in the fist, also, any courts, including this Court and the 10th Circuit Court of Appeals and the United States Supreme Court.
R. Vol. VI at 21-22. At this point, Mr. Teague chimed in as well:
THE DEFENDANT: And, for the record, I never meant, in that letter that I wrote to you, any — I didn’t intend for that to be threatening; that was not what I was going for at all. I think you know what letter I’ve been talking about.
THE COURT: Yes. There has been some correspondence from Mr. Teag-ue to me, as well. While I didn’t feel terribly threatened by it, I thought I was being fairly even tempered in just suggesting that wasn’t a good way to start a letter to a judge, talking about threats to his family. You probably ought to limit your contact with people involved in this cаse or the legal system to that which is through your counsel—
THE DEFENDANT: Okay.
THE COURT: — that would probably be best. And unless there’s anything else?
R. Vol. VI at 22. The district court’s judgment included the following special condition of supervision: “No contact with the victims and no contact with agencies or *1316 the court unless through counsel.” R. Vol. I Doc. 61 at 4.
Mr. Teague now argues that the restriction on contact vvith the court imposes “a greater deprivation of liberty than is reasonably necessary,” and violates his constitutional right of access to the courts. Aplt. Br. at 22. Mr. Teague concedes that he did not object in the district court and urges us to review the condition under a plain-error standard. But not only did his counsel not object, he proposed the very limitation (indeed, a broader limitation) to which Mr. Teague now objects. As is clear from the sentencing transcript, Mr. Teague’s counsel was the one who suggested that the originally proposed condition be expanded to include “any courts.” R. Vol. IV at 22.
We therefore consider whether under these circumstances Mr. Teague’s claimed right was waived below. “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.”
Olano,
To begin the analysis, we must describe the right denied Mr. Teague. He is not totally deprived of all access to the courts. First, he may communicate through an attorney, which, even today, is the typical means of accessing the courts. Second, he is not forbidden from communicating with all courts. Although his attorney suggested restricting communications to “any сourts, including [the sentencing] Court and the 10th Circuit Court of Appeals and the United States Supreme Court,” R. Vol. VI at 22, the conditions imposed stated only “No contact with ... the court unless through counsel.” R. Vol. I Doc. 61 at 4. The condition thus restricts communication only with the sentencing court.
We see no reason why this limited right cannot be waived. Nonwaivable rights are rare. “The most basic rights of criminal defendants are ... subject to waiver.”
Peretz v. United States,
When waiver has not been allowed, it has been because of the need to protect a public interest beyond that of the defendant or because of concern that undue, and unprovable, pressure may have been brought to bear on the defendant. In
Wheat v. United States,
Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.... Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.
*1317
Id.
at 160,
Similarly, in explaining the nonwaivability of the right to a unanimous jury, which we have declared to be “a right so fundamental that it may not be waived,”
United States v. Morris,
A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury.... Both the defendant and society can place special confidence in a unanimous verdict, and we are unwilling to surrender the values of that mode of fact-finding.
United States v. Lopez,
Waiver of unanimity was prohibited [by Fed.R.Crim.P. 31(a) ] in response to concern thаt a defendant would inevitably be under pressure to accede to the suggestion of a trial judge that he accept a non-unanimous verdict and the difficulty of ascertaining a defendant’s true motivation under such circumstances.
United States v. Pachay,
There may be greater doubt regarding whether counsel сould waive this right for Mr. Teague. But that question is not before us because Mr. Teague was present when his attorney suggested the condition and he immediately pitched in affirmatively, apologizing for his prior letter to the court and responding “okay” to the court’s agreement with Mr. Teague’s counsel. This constituted unambiguous approval of his counsel’s suggestion.
Finally, there can be no question that Mr. Teague’s waiver was voluntary and knowing. Although those elements of waiver would ordinarily be in doubt when a party is silent or is responding to a request from another party or the court, when a party “invites” an error by suggesting that the court take particular action, we can presume that the party has acted voluntarily and with full knowledge of the material consequences. Nothing before us suggests otherwise in this case. Perhaps if the court had imposed in full the condition suggested by Mr. Teague’s counsel and had precluded him from even filing pro se pleadings in unrelated litigation, we may have doubted that Mr. Teag-ue knew what he was agreeing to. But that is not what happened here. His statement immediately following his counsel’s suggestion of the limitation clearly shows that he knew that he would not be permitted to send a personal communication to the court concerning this case.
We conclude that Mr. Teague waived the right of access to the courts denied by *1318 his conditions of release, and we will not review his challenge on appeal.
IV. Jury Instruction
The statute that Mr. Teague was found to have violated, 18 U.S.C. § 875(c), provides:
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.
Section 875(c) does not have an explicit mens rea requirement. The district court proposed the following elements-of-the-offense instruction:
Title 18 U.S.C. § 875(c), makes it a crime for anyone to transmit a threatening communication in interstate or foreign commerce. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First, that the defendant knowingly transmitted a communication containing a threat to injure the person of another as charged in the Indictment;
Second, that the communication was sent in interstate commerce.
A “threat” is a serious statement expressing an intention to injure any person which, under the 'circumstances, would cause apprehension in a reasonable person, as distinguished from mere idle or careless talk, exaggeration, or something said in a joking manner. It is not necessary to prove that the defendant actually intended to carry out the threat.
R. Vol. IX at 155-57.
During the instruction conference the prosecutor requested that the proposed instruction be modified to emphasize that “the thing that must be proved is that the defendant intentionally sent the message.” R. Vol. IX at 143. (The record does not contain the requested instruction.) But defense counsel objected to the modification and the court decided to make no change.
Mr. Teague now argues that the instruction given was erroneous. Although he does not suggest alternative language, he complains that the elements instruction did not properly state what state of mind was necessary to violate § 875(c). In light of Mr. Teague’s testimony at trial, we understand his argument to be that it was not enough for the jurors to find, as the elements instruction directed them, that he sent the e-mail with knowledge that a reasonable person would take the message as a threat. After all, he essentially conceded this knowledge in his trial testimony. Rather, he claims, it was essential for the jury to find that he intended the message as a threat, which we take to mean that he wanted the recipiеnt (Locatelli) to feel threatened.
The government contends that Mr. Teague cannot challenge the instruction because any error was invited. Perhaps Mr. Teague did waive his right to raise any objection to the court’s instruction. But one could say that the only argument waived was an argument that Mr. Teague is not making — namely, that the government’s tendered instruction was superior to the actual instruction. We need not resolve that matter. Regardless of whether there was waiver, it is clear that Mr. Teague failed to object to the instruction and any error was forfeited. Accordingly, he is entitled to relief only if he can establish plain error, and that he cannot do.
As we stated above, “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness,
*1319
integrity, or public reputation of judicial proceedings.”
Gonzalez-Huerta,
Mr. Teague concedes that neither the Supreme Court nor this сourt has spoken on the mens rea issue he raises on appeal. And in the circuits to address the matter, there is hardly unanimity in his favor. At best (from his point of view), there is a split of authority. Indeed, it is not clear to us that any circuit has adopted the contention advanced by Mr. Teague. Several circuits have considered the mens rea necessary to violate § 875(c). The issue is generally discussed in terms of whether the statute requires specific intent or merely general intent, with only the Ninth Circuit requiring specific intent,
see United States v. Twine,
Y. Conclusion
We AFFIRM the judgment of the district court.
Notes
. When
Olano
was decided in 1993, Rule 52(b) read: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
Olano,