10th Circuit Notes Split Re Mens Rea Requirement for Kidnapping Threat Statute

Per U.S. v. Teague, 443 F.3d 1310 (10th Cir. Apr. 21, 2006):

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.

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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, 853 F.2d 676, 680 (9th Cir.1988). The others state that general intent is all that is required. See United States v. Whiffen, 121 F.3d 18, 21 (1st Cir.1997); United States v. Francis, 164 F.3d 120, 121 (2d Cir.1999); United States v. Himelwright, 42 F.3d 777, 783 (3d Cir.1994) (“[S]ection 875(c) requires proof of a defendant's general intent to threaten injury, but does not require proof of a specific intent to injure another or the present ability to carry out the threat.” (emphasis added, internal italics omitted)); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir.1994); United States v. Myers, 104 F.3d 76, 81 (5th Cir.1997); United States v. DeAndino, 958 F.2d 146, 150 (6th Cir.1992) (Section 875(c)“does not require specific intent in regard to the threat element of the offense, but only general intent”); United States v. Stewart, 411 F.3d 825, 827-28 (7th Cir.2005). We recognize that the terms general intent and specific intent can be ambiguous in many contexts, and further elaboration may be necessary to clarify precisely what the accused must know and intend. See United States v. Zuni, --- F.3d ----, ----, slip. op at 5-10 (10th Cir.2006); 1 Wayne R. LaFave, Substantive Criminal Law § 5.1(b), at 336-37, 355 (2d ed. 2003) (“[C]ourts have often said that a ‘general intent’ is needed, but this is often not helpful because of the ambiguity attending that phrase···· [G]reater clarity could be accomplished by abandoning the ‘specific intent'-‘general intent’ terminology····”); 1 Paul H. Robinson, Criminal Law Defenses § 65(e), at 298 (1984) (“The distinction [between general and specific intent] is a troublesome one.”). But the thrust of the circuit opinions is clear. Even Mr. Teague acknowledges that there is a circuit split on the issue before us.