Conviction Reversed for New Trial Because of Faulty Jury Instructions

U.S. v. Wheeler, 2015 WL 191149 (1/15/15) (Col.) (Published)(slip opinion here) - The 10th follows its recent decision in U.S. v. Heineman, 767 F.3d 9870 (2014), that the threat statute requires a subjective intent to threaten, resulting in a reversal of the conviction. Nonetheless the 10th does find the evidence was sufficient to convict, making a retrial possible. Mr. Wheeler made Facebook posts which called on his religious followers to kill police officers, children, judges, DAs and public defenders (!). The jury instructions only required the jury to find a reasonable person would have perceived the posts as threats.

The failure to require a finding of subjective intent was error. It was not harmless, the 10th ruled, because: the jury could believe, as Mr. Wheeler told the police, that he had no Facebook friends [very sad] and there was no evidence Mr. Wheeler had any religious followers to follow his commands. Mr. Wheeler's vague sense that his statements were illegal and his statement that he was trying to "stick it to the man" did not constitute uncontroverted evidence that he intended his posts to be threatening. On the other hand, there was sufficient evidence that the posts constituted a "true threat" which the First Amendment is okay with prosecuting. The 10th rejects the approach of some circuits to make an independent review of constitutional facts to see if the statements were a "true threat." Rather the 10th applies the usual any-rational-juror standard. A statement is a true threat if a reasonable person under the circumstances would understand the statement as a declaration of an intent to inflict bodily injury. In conflict with the 9th and 4th Circuits, the 10th holds that exhortations to others to cause harm, as in this case, can constitute a true threat, especially when a reasonable person might believe the individuals ordered to take violent action are subject to the declarant's will. The line between threats and incitement to violence, which is protected by the First Amendment unless directed to produce and likely to produce imminent lawless action, is not so clear, especially in the world of cyberspace, the 10th says. The 10th doesn't want people to be able to hide behind the First Amendment by exhorting others. In this case Mr. Wheeler's statements could reasonably be considered true threats. He commanded specific deadly action against a number of people, which must be evaluated in light of recent massacres by active shooters. The question is not whether Mr. Wheeler actually had religious followers who would follow his commands, but whether a reasonable reader of the statements could have thought so. Evidence of this possibility, although not dispositive, is the fact that some people were frightened by the posts. So there will be a retrial with intent-to-threaten instructions.