The Supreme Court Wrestles with Juror Racism

Nick Lutz, Online Editor

Early last month, the Supreme Court heard oral arguments in Pena-Rodriguez v. Colorado,[1]  an appeal from the Colorado Supreme Court evaluating the impact of juror racism on Defendants’ fair trial rights.  Miguel Pena-Rodriguez was tried and convicted on charges related to the alleged sexual assault of two young women.  Following trial, multiple jurors reported that the deliberations had been tainted by discriminatory comments regarding Mr. Rodriguez-Pena’s Hispanic heritage.[2]  Affidavits from the jury described numerous racist comments by one juror in particular.  “Juror H.C.,” a former law enforcement officer, allegedly made statements such as,




Rodriguez-Pena’s counsel argued that Juror H.C.’s conduct amounted to a clear violation of Mr. Rodriguez-Pena’s Sixth Amendment right to an impartial jury.[3]  The trial court refused to consider the juror affidavits, finding that they were inadmissible under Colorado Rule of Evidence 606(b).  Rule 606 prohibits courts from considering testimony, affidavits, or other evidence provided by jurors regarding “any matter or statement occurring during the course of the jury’s deliberations” or use of such testimony “upon an inquiry to the validity of verdict.”[4]

The rule against juror testimony, in the form of an affidavit or otherwise, is known as the “no-impeachment rule.”  It is followed in one form or another in a majority of states and is codified under Federal Rule of Evidence 606.  Under Colorado’s no-impeachment rule, juror testimony is barred on all matters other than “whether extraneous prejudicial information was improperly brought to the jurors’ attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.”[5]

The no-impeachment rule is intended to promote finality and ensure the opportunity for jurors to engage in full and fair deliberation.  As the Supreme Court explained in McDonald v. Pless,[6]

But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

In perhaps the most infamous case regarding juror impairment and misconduct, Tanner v. United States,[7] the court was asked to consider several juror affidavits alleging rampant drug and alcohol intoxication during trial and deliberations. The affidavit signed by juror Daniel Hardy was particularly damning:

Hardy indicated that seven of the jurors drank alcohol during the noon recess. Four jurors, including Hardy, consumed between them ‘a pitcher to three pitchers’ of beer during various recesses. Of the three other jurors who were alleged to have consumed alcohol, Hardy stated that on several occasions he observed two jurors having one or two mixed drinks during the lunch recess, and one other juror, who was also the foreperson, having a liter of wine on each of three occasions.  Juror Hardy also stated that he and three other jurors smoked marijuana quite regularly during the trial. Moreover, Hardy stated that during the trial he observed one juror ingest cocaine five times and another juror ingest cocaine two or three times. One juror sold a quarter pound of marijuana to another juror during the trial, and took marijuana, cocaine, and drug paraphernalia into the courthouse.

Still, the Supreme Court ruled that FRE 606(b) barred consideration of the juror testimony. The Court held that to prove a Sixth Amendment violation of a defendant’s right to an impartial jury, nonjuror evidence was required.  The Court further elaborated that defendants’ Sixth Amendment rights were sufficiently protected by other trial processes, negating a need for a juror misconduct exception to the no-impeachment rule:

Petitioners’ Sixth Amendment interests in an unimpaired jury, on the other hand, are protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel. Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict. Finally, after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct.[8]

Mr. Rodriguez-Pena’s appeal argues, however, that unlike juror intoxication, racist juror conduct should be exempted from the no-impeachment rule for the simple reason that “the most pernicious and odious discrimination in our law is based on race.”[9]   As Colorado Supreme Court Chief Justice Nancy Rice noted, Rodriguez-Pena’s appeal centers around the “interplay between two fundamental tenets of the justice system: protecting the secrecy of jury deliberations and ensuring a defendant’s constitutional right to an impartial jury.”[10]

During oral argument, the justices struggled with whether a racist conduct exception would open a floodgate of litigation without an additional limiting principle.  Justice Alito, in particular, expressed concern regarding the changing nature of our societal understanding of racism, transparently implying that jurors might be overly sensitive regarding issues of race:

JUSTICE ALITO: But here we have — in this case, we have a very blatant statement, but let’s consider the standard that now applies on a lot of college campuses as to statements that are considered by some people to be racist. What would happen if one of the jurors has the sensibility of a lot of current college students, and thinks that one of the — something that’s said in the jury room that falls into one of those categories was a racious — was a racial comment?

MR. FISHER: We’re talking here, Justice Alito, only about intentional racial bias. So —

JUSTICE ALITO: Even the first time a person says something that is considered improper on a college campus today and another juror thinks that that shows intentional racial bias.

MR. FISHER: No, I think, as I said, it’s an objective test. Even under the Court’s equal protection jurisprudence, the Court hasn’t —

JUSTICE ALITO: Yeah. How will the judge decide — how will the judge decide whether the statement is — is racist?[11]

Despite those concerns, commentators have argued that the Court appears ready “to issue at least a narrow ruling in Pena-Rodriguez’s favor.[12] The Court’s decision is expected next year.  Check back for more analysis from the Criminal Law Review following the announcement.

For an excellent summary of the oral arguments, see Amy Howe’s recent article on SCOTUS Blog.

Listen to the full oral argument here.


[1]136 S. Ct. 1513, 194 L. Ed. 2d 602 (2016).

[2] Pena-Rodriguez v. People, P.3d 287, 289 (June 15, 2015).

[3] Id.

[4] Colo. R. Evid. 606.

[5] Id.

[6] McDonald v. Pless, 238 U.S. 264, 267–68 (U.S. 1915).

[7] Tanner v. United States, 483 U.S. 107, 115–16 (1987) (internal citations omitted).

[8] Id. at 127.

[9] Transcript of Oral Argument at 6, Pena-Rodrguez v. Colorado, 136 S.Ct. 1513 (2016) (No. 15-606).

[10]Pena-Rodriguez v. People, P.3d 287, 289 (June 15, 2015).

[11] Transcript of Oral Argument at 26, Pena-Rodrguez v. Colorado, 136 S.Ct. 1513 (2016) (No. 15-606).


Tenth Circuit Case Summary: Hagos v. Raemisch, 811 F.3d 363 (10th Cir. 2015)

by Tim Tarr, Staff Editor


Appellant Hagos is currently serving two consecutive life sentences in Colorado State prison for two separate prosecutions. Hagos v. Raemisch, 811 F.3d 363 (10th Cir. 2015). Appellant was convicted of first-degree murder in April 2002. Id. at 364. In December of the same year he was separately convicted of first-degree kidnapping. Id. Appellant sought federal habeas review under 28 U.S.C. § 2254 for both the murder case and the kidnapping case. Id. at 4. When the Appellant filed the § 2254 habeas petition in the kidnapping case in September 2013, Appellant’s request for a certificate of appealability (COA) on his § 2254 petition in the murder case was pending before the Tenth Circuit. Id. at 365.

Relying on persuasive authority in a case decided more than 40 years ago, the district court dismissed Appellant’s § 2254 application as non-justiciable for lack of a case or controversy. Id. at 366. The court concluded that granting habeas relief in the Appellant’s kidnapping case would not reduce his sentence or effect his immediate release because the Appellant was serving a life sentence for his murder conviction. Id. Therefore, the habeas petition would not satisfy the United States Constitution’s case or controversy requirement under Article III.

Relying on Peyton v. Rowe, 391 U.S. 54 (1968), and Garlotte v. Fordice, 515 U.S. 39 (1995), Appellant argued he was “in custody” for purposes of habeas review, however, the district court rejected his arguments. Id. Appellant was granted a COA and he appealed that decision to the Tenth Circuit. Id. at 365. The issue presented before the Tenth Circuit is whether Appellant’s § 2254 petition presented a case or controversy for the purposes of Article III. Id. at 367.


The Tenth Circuit agreed with Appellant that Garlotte and Peyton stood for the proposition that “a prisoner’s consecutive sentences compose a ‘continuous stream,’ id., and the prisoner remains in custody for purposes of habeas review until all of the sentences are served.” Id. The Tenth Circuit found that because the Appellant’s § 2254 petition for his murder conviction was still pending, and because Appellant’s kidnapping conviction could affect his eligibility for prison programs, he indeed presented a justiciable case and controversy. Id. at 370.


The Tenth Circuit reversed the district court’s order for two reasons: (1) the appellant was “in custody” for his kidnapping conviction for purposes of habeas review, and (2) an Article III case or controversy existed to permit the district court’s review of his § 2254 petition. Id.

An Uncertain Future for Future Dangerousness: Texas Death Penalty Statute Under Review

Last month, the Supreme Court granted certiorari in Buck v. Stephens [1], a case centering on a highly controversial provision of Texas’s death penalty law – the so-called “future dangerousness” inquiry.  The provision requires capital juries, during the capital sentencing phase, to first consider the likelihood that a particular defendant will commit future crimes of violence prior to consideration of any mitigating information. The seemingly straightforward sentencing inquiry is somewhat anomalous among capital jurisdictions.  In fact, only Texas and Oregon require any inquiry into future dangerousness as part of the capital punishment analysis.  And that may be for good reason.  The future dangerousness standard has been widely criticized for facilitating the introduction of junk science into courtrooms and further reinforcing the racial disparities already endemic to capital punishment.

Indeed, the constitutional error alleged in Buck is the introduction of expert testimony by a psychologist who claimed that the Defendant, as an African American male, was likely to commit future crimes of violence.  “He said flatly that his studies had shown that black people and males were more likely to be a danger to the public.” [2]  The case strikes at the heart of the capital punishment debate.  Is the Texas law, as its proponents claim, a legitimate means of eliminating arbitrariness in death penalty sentencing? Or is it, as many commentators have argued, an open door to racially prejudiced sentencing, masquerading as science?

Bobby Moore (left) and Duane Buck (right), petitioners in consolidated appeal. Source.

In the University of Denver Criminal Law Review’s Fourth Volume, Ana M. Otero takes the latter position.  In her article The Death of Fairness: Texas’s Future Dangerousness Revisited[3]  Otero argues that the Texas law is subject to invalidation based on both constitutional and evidentiary grounds.  She concludes that “future dangerousness is neither reliable, nor constitutional,” and serves to undermine our “most basic of moral and social values.” For now, we can only speculate as to whether that view will find a receptive audience in the Court.  Be sure to check back for more analysis from The Criminal Law Review when the decision comes down.

[1] 136 S. Ct. 2409 (2016)


[3] Read Professor Otero’s article, and the entire Fourth Volume of University of Denver Criminal Law Review here:

Symposium Success

Thank all of you who joined the Criminal Law Review for our 2016 symposium on the “State of the Death Penalty. Our panel of guest speakers, moderated by DU Law Professor Nancy Leong, argued about the constitutionality, social utility, and future availability of capital punishment in our legal system. Speakers included criminal defense attorney Jim Castle, Senior Deputy DA Rich Orman, DU Law Professor Ian Farrell, former Chief Deputy DA and radio host Craig Silverman, and candidate for Denver DA Michael Carrigan. The expertise and unique viewpoints of the panelists made for an exciting two-hour debate.

For those of your who are interested, you can watch the full symposium here.

State of the Death Penalty Symposium

Criminal Law Review

4:00 – 6:00 PM
Reception to Follow in the Forum
*Guest Parking will be available in Lot L for $6*

Speakers Include:
Stan Garnett, Elected District Attorney, 20th Judicial District
Jim Castle, Colorado Criminal Defense Attorney
Rich Orman, Senior Deputy District Attorney, 18th Judicial District
Professor Ian Farrell, University of Denver Sturm College of Law
Professor Nancy Leong, University of Denver Sturm College of Law

The death penalty, its use and misuse, and its place in our society are undoubtedly among the most controversial topics faced by our political and justice systems. Especially in Colorado, the pressure of victims’ families and communities to seek or support the death penalty has clashed against a relatively recent surge of arguments to the contrary. As a state central to the nation-wide debate regarding the death penalty, Colorado needs a platform conducive to intelligible dialogue on the contemporary state of capital punishment.

The inaugural symposium of the University of Denver, Criminal Law Review, “The State of the Death Penalty,” to be hosted at the University of Denver, Sturm College of Law, on April 2, 2016, will feature speakers with differing backgrounds from a variety of areas of the law intersecting with the death penalty, including Colorado prosecutors and defense attorneys. The symposium will be structured as a moderated debate that highlights the modern controversies surrounding capital punishment, including those issues presently before the Supreme Court. Specifically, the panelists will address the legal, social, and constitutional arguments for and against the continued availability and usefulness of the death penalty, both in Colorado and across the nation.

2015 Fall Candidacy Opens October 2.

The Criminal Law Review Fall 2015 candidacy period will take place October 2-19, 2015. Materials will be available on TWEN beginning October 2.
There are 4 components to the candidacy packet:

1. Source/cite check
2. Case Comment
3. Resume/Cover Letter
4. 30-minute Interview

Please insure that components 1-3 are completed by October 19 at 11:59pm. Late submissions will not be considered for the staff editor positions absent extenuating circumstances. Interviews will be scheduled following the October 19.

Please contact Samit Bhalala with questions at

We look forward to welcoming a group of new staff editors to the CLR!!

Whitfiled v. United States (SCOTUS)

Before we take a short break for the finals season, CLR’s exceptional staff editor, Courtney Mohan has prepared this blog entry discussing a recently decided U.S. Supreme Court case.


Shortly after botching a bank robbery, Larry Whitfield fled police. While on the run, he was able to find an unlocked home nearby and enter the home. That home belonged to 79-year-old Mary Parnell. Mr. Whitfield encountered Ms. Parnell while in the home and forced her to follow him from the hallway to another room within the house. Once inside the room, Ms. Parnell suffered a heart attack and passed away. Whitfield then fled the house and was later apprehended by police. Whitfield v. United States, 135 S. Ct. 785, 787 (2015).

After a grand jury hearing, Mr. Whitfield was indicted for many charges including violating 18 U.S.C. §2113(e) which states “[w]hoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense… forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.” Id. at 787. A jury later found Mr. Whitfield guilty of the offense. Id. at 788.

Mr. Whitfield appealed his conviction, stating that he did not violate §2113(e) because his movement with Ms. Parnell was not “substantial.” The Court of Appeals disagreed with Mr. Whitfield’s argument and stated that the short distance from the hall to the room during the very brief period of time was enough to satisfy a conviction. Id.

Mr. Whitfield then appealed to the Supreme Court of the United States. Id.


In 1934, Congress enacted §2113(e) as a response to the “bank robberies committed by John Dillinger and others.” Carter v. United States, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting). The phrase “forces any person to accompany him without the consent of such person” from the statute has remained unchanged since 1934. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 783 (2000).

The Court looked to the meaning of the word “accompany” in 1934 when interpreting the statute. Whitfield, 135 S. Ct. at 788. The Court determined that the word simply means “to go along with” someone and does not require the “substantial” movement that Mr. Whitfield argued for. Id. The Court stated that there must be some sort of movement “from one place to another” to satisfy the statute. Id. Thus, the movement from the hall to the nearby room was sufficient. Id.

Mr. Whitfield also attempted to argue that because the statute carried harsh penalties, the movement must be “substantial.” Id. at 789. The Court rejected this argument and stated that the distance of the movement does not make the accompaniment more or less dangerous. The Court offered examples to prove this point including having a victim go to a window and be subjected to police fire. Id. Because Congress did not allow for a distance limitation in the statute, the Court refused to adopt one. Id.

Mr. Whitfield then attempted to convince the Court to adopt a narrow reading of the statute to require a forced accompaniment over a substantial distance because anyone involved in the bank robbery who moved could cause Mr. Whitfield to be convicted under §2113(e). Id. at 789. The Court disagreed and stated that the word “accompany” requires that the victim go somewhere with the robber and does not include victims who move without force. Id.


The Court concluded that Mr. Whitfield violated §2113(e) because he forced Ms. Parnell to accompany him from the hall to a room. Therefore, his conviction was affirmed.

Do we think section 2113 was intended to punish defendants in Mr. Whitfield’s position with life imprisonment or death?  Is it appropriate to treat this “forced accompaniment” that results in death similarly to felony-murder that exists in many jurisdictions?

Please let us know your thoughts, we love hearing from our audience.

State v. Christeson

Before everyone enjoys Spring Break, we have another great post for you to read.  This one comes from Tyler McAnelly and discusses another avenue where a defendant is entitled to assistance of counsel.


In 1999, a jury convicted Mark Christeson of three counts of capital murder. It returned verdicts of death on all three counts and the Missouri Supreme Court affirmed Christeson’s conviction and sentence in 2001, see State v. Christeson, 50 S.W.3d 251 (en banc).

Under the strict 1–year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before this critical deadline, the District Court appointed attorneys Phil Horwitz and Eric Butts to represent Christeson in his federal habeas proceedings. See 18 U.S.C. § 3599(a)(2) (providing for appointment of counsel for state death row inmates). Christeson v. Roper, 135 S. Ct. 891, 892 (2015). After having only met with Christeson for the first time after the deadline passed, Horwitz and Butts filed Christeson’s federal habeus petition on August 5, 2005, 117 days late. Id. Horwitz and Butts asserted that they had miscalculated the AEDPA limitations period. Id. The District Court dismissed the petition as untimely, and the Court of Appeals denied Christeson’s application for a certificate of appealability. Id.

Nearly seven years later, Horwitz and Butts contacted attorneys Jennifer Merrigan and Joseph Perkovich to discuss how to proceed in Christeson’s case. Merrigan and Perkovich immediately noticed a glaring problem – Christeson’s only hope for securing review of the merits of his habeas claims was to file a motion under Fed. R. Civ. P. 60(b) seeking to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. However, Horwitz and Butts could not be expected to file such a motion on Christeson’s behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition. While initially receptive to Merrigan and Perkovich’s assistance, Horwitz and Butts soon refused to allow outside counsel access to their files. Id. at 893.

Merrigan and Perkovich, working independent of the original defense counsel, filed another motion for substitution of counsel. The District Court denied the motion. Christeson appealed to the Eighth Circuit. On September 19, 2014, while this appeal was still pending before the Eighth Circuit, the Missouri Supreme Court issued a warrant of execution setting October 29, 2014, as Christeson’s execution date. Id.

Merrigan and Perkovich again filed a motion for substitution of counsel on Christeson’s behalf. The District Court again denied the motion, explaining that substitution of “federally-appointed counsel is warranted only when it would serve the interests of justice,” it offered four reasons for its decision. Id. First, it deemed the motion to be untimely because it “was not filed until 2014, and shortly before [Christeson’s] execution date.” Second, it observed that Horwitz and Butts had not “abandoned” Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri’s lethal injection protocol. Third, it noted that although Horwitz and Butts had represented Christeson before the Eighth Circuit, that court had not appointed substitute counsel. Fourth and finally, the District Court expressed its belief that granting the motion would set “an untenable precedent” by allowing outside attorneys to seek “’abusive’” delays in capital cases. Christeson again appealed and the Eighth Circuit summarily affirmed the District Court’s order. The US Supreme Court reversed the Eighth Circuit’s judgment on the District Court’s order, remanding to the lower courts. Id.


18 U.S.C. § 3599 “entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings.” Congress has not conferred capital habeas petitioners with the right to counsel of their choice. The statute leaves it to the court to select a properly qualified attorney and contemplates that a court may “replace” appointed counsel with “similarly qualified counsel … upon motion” of the petitioner. § 3599(a)-(e). Id. at 894.

The Court found that a motion for substitution should be granted when it is in the “interests of justice.” See Martel v. Clair, 132 S.Ct. 1276, 1286 (2012). The Court further explained that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion “include: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and, 3) the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s responsibility, if any, for that conflict).” Id. The District court’s principal error was its failure to acknowledge Horwitz and Butts’ conflict of interest. Christeson, 135 S.Ct. at 894. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for “serious instances of attorney misconduct.” Holland v. Florida, 560 U.S. 631, 651–652 (2010).

The Court determined that advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Because such argument would threaten their professional reputation and livelihood, counsel cannot reasonably be expected to make such an argument. Christeson, 135 S.Ct. at 894. Indeed, the Court went so far as to say that given a capital defendant’s “statutory right to counsel,” even “in the absence” of § 3599(e) a district court would be compelled “to appoint new counsel if the first lawyer developed a conflict. Id. at 895.

The Court then disposed of the second and third factors relied on by the District Court, that appointed counsel continued to represent Christeson in litigation challenging the means of his execution, and that the Eighth Circuit had not previously substituted counsel. “Whether Horwitz and Butts had currently ‘abandoned’ Christeson is beside the point: Even if they were actively representing him in some matters, their conflict prevented them from representing him in this particular matter. Likewise, it is irrelevant that the Eighth Circuit had not previously sua sponte directed substitution of counsel in the course of denying Christeson’s request for a certificate of appealability and adjudicating his challenge to Missouri’s execution protocol, when the conflict was not evident.” Id.

The Court found that the District Court’s sole reliance on the first and fourth factors was improper because “[t]hese factors alone cannot warrant denial of substitution. Christeson’s first substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately a month after outside counsel became aware of Christeson’s plight and well before the State had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b) motion.” Id.


The Court concluded Christeson should have that opportunity and is entitled to the assistance of substitute counsel while addressing the equitable tolling of the AEDPA’s statute of limitations, and in turn, the Fed. R. Civ. P. Rule 60(b) relief. Christeson, 135 S.Ct. at 896.

US v. Wheeler

The CLR is happy to present the great work of yet another one of our talented staff editors.  This blog entry regarding a recent case decided by the 10th Circuit was brought to you by Samit Bhalala.

United States v. Wheeler, No. 14-1031, 2015 WL 191149 (10th Cir. Jan. 15, 2015).


On March 12, 2012, Kenneth Wheeler, while abroad in Italy, posted several status updates to his Facebook page advising his “religious followers” to “kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines” and provided names, and made a serious of other vengeful and threatening remarks.  United States v. Wheeler, No. 14-1031, 2015 WL 191149, at *1 (10th Cir. Jan. 15, 2015).

Mr. Wheeler is described as a man with strong anti-government views and has become irate at specific police officers in Grand Junction, Colorado, because of, among other things, a DUI arrest that he believed was a set up.  Id.

Even though, as evidenced by Facebook’s records, there was no implication that Mr. Wheeler was a member of any “network” at the time he made his postings, two officers testified that they had viewed Mr. Wheeler’s Facebook page on March 16, 2012, and thought he had Facebook friends listed on it.  Id.   Subsequently, the US District Court for the District of Colorado convicted Mr. Wheeler of two counts of transmitting a threat in foreign commerce under 18 U.S.C § 875(c) based on his March 12 and March 16 Facebook status updates that called upon his “religious followers” to carry out violent acts.  Id. at *1-3.  Mr. Wheeler was sentenced, among other penalties, to forty months imprisonment for each count, running concurrently.  Id.


Under 18 U.S.C. § 875(c), “whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injury the person of another, shall be fined under this title or imprisoned not more than five years, or both.”  Id. at *2 (quoting 18 U.S.C. § 875(c) (2014)).

Pursuant to 28 U.S.C. § 1291 jurisdiction, the Tenth Circuit Court of Appeals heard Mr. Wheeler’s appeal and released a decision on January, 15, 2015.  Id. at *1.  Mr. Wheeler contends that his convictions must be reversed because: (1) the jury was not properly instructed that it had to find Mr. Wheeler had a subjective intent to threaten in order to convict; and (2) the evidence was insufficient to support a finding that Mr. Wheeler transmitted a “true threat.”  Id.  The court, in an opinion by Circuit Judge Kelly, reversed for a new trial, holding that: (1) “the jury was not properly instructed,” and (2) the court is “not persuaded that the evidence was insufficient to convict.”  Id.

(A) Erroneous Jury Instruction

At trial, Mr. Wheeler proposed two jury instructions on the elements of the offense, both requiring the jury to find that “Mr. Wheeler understood and meant the words as a true threat.”  Id. at *2.  The government opposed these proposed instructions, arguing that it incorrectly makes § 875(c) “a specific intent crime rather than the general intent crime that it is.”  Id. The district court agreed, rejecting Mr. Wheeler’s proposed instructions, and thereby instructed the jury as to the requisite state of mind element of a “threat,” stating: “Whether the defendant intended or had the ability to carry out the threat is not relevant. The inquiry is how a reasonable person would have perceived the threat.”  Id. at *2-3 (emphasis added).

In United States v. Heineman, the Tenth Circuit recently held that § 875(c), in accordance with the First Amendment, requires evidence of a defendant’s subjective intent to threaten.  Id. (Citing United States v. Heineman, 767 F.3d 970 (10th Cir. 2014)).  The government, although arguing that Heineman was incorrectly decided, does concede that under current Tenth Circuit law the trial court’s jury instructions were erroneous.  Id. at *3.  Still, however, the government contends that the conviction should be affirmed because the erroneous instructions were harmless.  Id.

“Where an element is improperly omitted from a jury instruction, “a court” must reverse unless ‘it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’”  Id. (citing Neder v. United States, 527 U.S. 1, 18 (1990)); see also United States v. Sierra-Ledesma, 645 F.3d 1213, 1217 (10th Cir. 2011).  Here, the court found that a rational juror could conclude, based on the evidence presented, that Mr. Wheeler did not subjectively intend for his remarks to be threatening.  Id. at *3-4.

First, Mr. Wheeler states that he believed he had no Facebook friends at the time of both status updates; therefore it would not seem far-fetched for a rational juror to believe that Mr. Wheeler honestly thought nobody would see his posts.  Id.  Second, Mr. Wheeler states that he had no religious followers, whereby a rational juror can use that fact in evaluating whether Mr. Wheeler had the requisite intent to threaten.  Id.

In response, the government suggests several uncontested facts, which convincingly confirms Mr. Wheeler’s intent to instill fear in the individuals he mentioned in his Facebook posts, including 1) Mr. Wheeler’s understanding of the illegality of his actions and 2) Mr. Wheeler intended his posts to be threatening.  Id.  The court found the second argument to be lacking, because Mr. Wheeler’s intention to break the law does not establish that he intended for the mentioned parties to feel threatened.  Id.

Because Mr. Wheeler’s intent was not “supported by uncontroverted evidence,” the court held that a jury, upon retrial, must determine the issue of intent, thereby making this erroneous jury instruction not harmless.  Id. at *3-4 (citing Neder, 527 U.S. at 18).

(B) Evidence was Sufficient to Support Mr. Wheeler’s Conviction

On appeal, Mr. Wheeler argues that the evidence presented at trial was insufficient to support his conviction because his Facebook status updates did not express his own intent to do violence.  Id.

  • Standard of Review Exception

Generally, the Tenth Circuit reviews claims of evidentiary sufficiency under a deferential standard, thereby “view[ing] all the evidence, direct or circumstantial, together with all reasonable inferences therefrom, in the light most favorable to the prosecution.”  United States v. Leaverton, 835 F.2d 254, 255 (10th Cir. 1987).   Under this deferential standard, the reviewing court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 319 (1979).

However, the United States Supreme Court has set forth an exception to this deferential rule, applicable when a defendant argues the First Amendment protects his speech.  2015 WL 191149, at *4.  In Bose Corp. v. Consumers Union of United States, Inc., the Supreme Court held that in cases involving “constitutional facts,” the reviewing court must undertake an “independent review” of the record to determine if the speech qualifies as unprotected speech and whether the fact-finder correctly applied First Amendment law.  446 U.S. 485, 500-08 (1984).

(2) Exhortation as a “True Threat”

In Watts v. United States, the Supreme Court previously held that § 875(c), like all threat statutes, “must be interpreted with the commands of the First Amendment clearly in mind.”  394 U.S. 705, 707 (1969).  Consequently, § 875(c) applies only to “true threats”, which are threats outside the protective scope of the First Amendment.  2015 WL 191149, at *5 (quoting Viefahus, 168 F.3d at 397).  In distinguishing “true threats” from First Amendment protected speech, it is not essential to demonstrate that “the defendant intended to or had the ability to actually carry out the threat.”  Id. (quoting Viefahus, 168 F.3d at 395-96).  Instead, a court must undergo “a fact-intensive inquiry, in which the language, the context in which the statements are made, as well as the recipients’ responses are all relevant.”  Id. (quoting Nielander v. Bd. Of Cnty. Comm’rs, 582 F.3d at 1155, 1167-68 (10th Cir. 2009)).

Mr. Wheeler argues that his Facebook posts were directed to non-existent “religious followers” and therefore cannot amount to true threats.  Id. at *6.  The court rejected this argument, maintaining that: “if a reasonable person might believe the individuals ordered to take violent action are subject to the will of the threatening party, such exhortations may amount to true threats.”  Id. (emphasis added).

(a) “Incite” Versus “Threat”

Mr. Wheeler argued that by defining true threats to include exhortations, like the one in this case, would “abolish the constitutional distinction between threats and incitement to violence,” thereby, would allow “incitement to be charged under the more lenient threat standard.”  Id. at *7.

In “cyberspace,” the line between incitement and threat is not always clear.  Id. (contrasting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)).  The court found, that although Mr. Wheeler’s speech may appear to be closer to incitement,” the speech “fits squarely within the rationale for excluding true threats from First Amendment Protection.”  Id.  The court reasoned that if it did not view Mr. Wheeler’s status updates as a “true threat,” it would leave the state “powerless against the ingenuity of threateners.”  Id. (citing United States v. Turner, 720 F.3d 411, 422 (2d Cir. 2013)).

(b) Reasonable Person Standard

In determining whether Mr. Wheeler’s exhortations amount to “true threats,” the court addressed whether a reasonable person would interpret Mr. Wheeler’s Facebook posts to be serious threats, “in light of the full context in which the posts were made, including the reaction of the recipients.”  Id. (emphasis added).

In light of the circumstances surrounding the Facebook posts, the court found that a rational juror could consider them to be true threats.  Id. at *8.  Recently, in the wake of recent massacres at educational and other institutions by active shooters, a Facebook post, which commands “religious followers” to take deadly action against a number of specific individuals and their children, could be viewed by a reasonable person as “serious directives to kill.”  Id.

Although Mr. Wheeler places dispositive weight on the fact that these “religious followers” do not exist, he did concede “had he directed anyone under his control to do violence, his posts would have amounted to true threats.”  Id.  Therefore, a reasonable person could conclude that a command to followers to commit acts of violence.  Id.

Furthermore, the evidence presented at trial suggests that the parties referenced in Mr. Wheeler’s posts were frightened, some frightened enough to inform the police.  Id. at *9

The court held, that in light of the context and circumstances surrounding the event, a fact-finder could find Mr. Wheeler’s posts and the reactions therefrom, as “eminently reasonable.”  Id.


This court, on appeal, was unable to say that no rational fact-finder could find Mr. Wheeler’s statements to be true threats; therefore the district court’s jury instruction was erroneous.  Id. at *4.  Additionally, this court found the evidence presented at trial was sufficient, thereby permitting a re-trial.  Id. at *9.

Should a general threat made on social media amount to a criminal offense?  Does this have any implications on the 1st Amendment right to free speech and expression?