The mens rea for threats is only an intent to utter the words, not an intent to threaten, but stay tuned for possible reconsideration en banc

Lee Carrell v. United States, No. 12-CM-523

(decided November 21, 2013) 

Players: Thompson, Newman, Schwelb.  Opinion by Senior Judge Newman.  Dissent by Senior Judge Schwelb.  Fletcher Thompson for Mr. Carrell.  Trial judge: Heidi Pasichow. 

Facts:  The complainant testified (credited in full by the trial judge) that Mr. Carrell said to the complainant, “I wish you would die,” and told her that if she called any of her family or friends for help, he would kill them.  He later yelled, “I could kill you right now, I could fucking kill you” with both hands around her throat while pushing her against a window.  The trial court found Carrell guilty but in her findings indicated that the intent required was “an intent to utter the words which constituted a threat.

Issue:  Whether the charge of threats requires only a “general intent,” i.e. an intent to say the words that constitute the threat, or whether it requires a “specific intent,” i.e. an intent to utter the words as a threat (an intent to threaten). 

Holding: Over a strong dissent, the majority determines that it is bound by prior precedent to conclude that a threats conviction requires only a “general intent,” an intent to say the words that constitute the threat. 

Of note: 

• This case is ripe for en banc review. For record preservation purposes, defense counsel in threats cases should continue to argue that the mens rea is an intent to utter the words as a threat while acknowledging the contrary holding of a divided panel in this case.
•  Senior Judge Newman, joined by Judge Thompson, explored the DCCA’s prior cases which contain different language regarding the intent element of threats.  A footnote in a 1982 case, Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982), articulating the element as an intent “to utter the words which constituted the threat,” pre-dated a 1983 case, United States v. Baish, 460 A.2d 38 (D.C. 1983), articulating the element as an intent “to utter the words as a threat.”  Two DCCA cases subsequently used Campbell’s language, and four DCCA cases subsequently used Baish’s language.  Because the Campbell footnote pre-dated Baish by 1 year, the majority held that it was bound by M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), to follow Campbell.   Judge Newman also concluded that the Court was bound by language in Holt v. United States, 565 A.2d 970 (D.C. 1989) (en banc), describing threats as a “general intent” crime.  The majority also noted that the majority of federal circuits, interpreting a similar federal threats statute, have stated that the federal threats statute requires only a general intent. 
• Senior Judge Schwelb dissented.  The dissent argued that none of the prior language cited by the majority (for either proposition) constitutes binding precedent because the Court has never been asked to focus on the difference between merely intending to utter the words and intending to utter the words as a threat.  The dissent concluded that, because neither Campbell nor Holt focused on the issue, neither is binding under M.A.P. v. Ryan, while also noting that of the eight DCCA decisions with language on the topic, five refer to the mens rea as the intent to utter the words “as a threat.”  The dissent acknowledged that most federal circuits interpreting a similar federal statute include general intent language, but nonetheless concluded that the mens rea for threats should be an intent to under the words as a threat for two reasons.  First, common sense: virtually every time a person utters words, they have intended to utter those words, thus for the intent element of the statute to have any real meaning it must require that the person intended those words to be threatening.  Second, in the absence of clear language in the statute or clues from the legislative history (no legislative history was presented to the Court), the rule of lenity should be applied to require a meaningful mens rea element.             
• Read full opinion here