# United States Court of Appeals

f or the Fifth Circuit

____________ No. 23

- 30569 Summary Calendar

____________ United States of America, Plaintiff

— Appellee ,

versus Aaron Wade Knight, Defendant

— Appellant

.

______________________________ Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:22

- CR

- 151

- 1

________________ ______________ Before Willett, Duncan, and Ramirez, Circuit Judges

. Per Curiam : * Aaron Wade Knight was convicted by a jury of two counts of interstate transmission of extortionate communication, in violation of 18 U.S.C. § 875(c). He was sentenced to 27 months of imprisonment and three years of supervised release on each count , to run concurrently.

_____________________

* This opinion is not designated for publication. See 5th Cir

. R

. 47.5. United States Court of Appeals

Fifth Circuit 

### FILED March 4, 2024 Lyle W. Cayce Clerk Case: 23-30569 Document: 74-1 Page: 1 Date Filed: 03/04/2024No. 23

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2 On appeal, Knight argues that the jury instructions were plainly

erroneous based o n the Supreme Court’s holding in Counterman v. Colorado , 600 U.S. 66 (2023), which was decided after his conviction. He contends that under Counterman , th e jury should have been instructed that the Government must prove that Knight acted reckless ly with r espect to the threatening nature of his communication

. T he Government claims that Knight invited the error he now argues on appeal because defense counsel proposed the instructions ultimately given to the jury. Invited error occurs when the defendant or his counsel induces the error , and an invited error is reviewed only for manifest injustice. United States v. Green , 272 F.3d 748, 754 (5th Cir. 2001)

. Although the district court provided defense counsel with the opportunity to brief any ar gument for different or additional jury instructions, counsel declined to do so. Moreover, t he proposed jury instruction submitted by defense counsel was the instruction used by the court during trial. Thus, Knight arguably invited the alleged jury inst ruction error and review should be limited to manifest injustice. See Green , 272 F.3d at 754. R egardless, Knight loses under the more generous standard of plain error, as discussed below.
Under plain error review , Knight must show a clear or obvious err or that affected his substantial rights. See United States v. Capistrano , 74 F.4th 756, 769 (5th Cir. 2023)

. When reviewing a jury instruction, this court considers the jury charge as a whole and will reverse only if the charge leaves it “with the substa ntial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Id. at 769

- 70 (internal quotation marks and citation omitted). To amount to plain error, Knight must show that the error in the instruction meant the differenc e between his conviction and acquittal. See id. at 769

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3 In United States v. Elonis , 575 U.S. 723, 740 (2015), the Supreme Court held that a negligence standard was insufficient to support a conviction under § 875(c), and it stated that there was no dispute that the mental state requirement in § 875(c) “is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” It declined to address whether recklessness would suff ice for a conviction under that statute. Id. at 725, 740

- 41. In Counterman , 600 U.S. at 73, 82, the Supreme Court held , citing to Elonis throughout the opinion, that the First Amendment requires proof of a defendant’s subjective mindset in “true

- threats cases,” and it established a minimum constitutional mens rea of recklessness that the Government must prove to convict a criminal defendant for use of threatening speech. When reviewing a jury instruction, this court considers the jury charge as a whole and will reverse only if the charge leaves it “with the substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.” Capistrano , 74 F.4th at 769 (internal quotation marks and citation omitted). A district court does not err by giving a charge that tracks this court’s pattern instructions and is a correct statement of the law. See United States v. Whitfield , 590 F.3d 325, 354 (5th Cir. 2009). The jury in this case was instructed from the Fifth Circuit Pattern Jury I nstructions that the Government needed to prove that Knight “knowingly” communicated a threat. See Fifth Circuit Pattern Jury Instructions (Criminal) § 2.39 (2019)

. The pattern jury instruction at issue specifically references the decision in Elonis rega rding the mens rea necessary for a conviction. Id. Th e standard articulated in Elonis goes beyond the recklessness requirement

. Accordingly, because the jury instructions were the pattern jury instructions and represent a correct statement of law, Knigh t cannot show that the district court Case: 23-30569 Document: 74-1 Page: 3 Date Filed: 03/04/2024No. 23

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4 committed obvious or clear error. See Capistrano , 74 F.4th at 769 ; Whitfield , 590 F.3d at 354. The district court’s judgment is AFFIRMED

. Knight’s motion for limited remand under Federal Rule of Appellate Procedure 12.1 is DENIED

. Case: 23-30569 Document: 74-1 Page: 4 Date Filed: 03/04/2024