United States Court of Appeals

for the Fifth Circuit

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No. 23-30569

Summary Calendar

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United States of America, 

Plaintiff—Appellee,

versus

Aaron Wade Knight, 

Defendant—Appellant.

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Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:22-CR-151-1

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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. 

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* 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

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On appeal, Knight argues that the jury instructions were plainly 

erroneous based on 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, the jury should have been instructed that the 

Government must prove that Knight acted recklessly with respect to the 

threatening nature of his communication.

The 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 argument for 

different or additional jury instructions, counsel declined to do so. 

Moreover, the proposed jury instruction submitted by defense counsel was 

the instruction used by the court during trial. Thus, Knight arguably invited 

the alleged jury instruction error and review should be limited to manifest 

injustice. See Green, 272 F.3d at 754. Regardless, Knight loses under the 

more generous standard of plain error, as discussed below. 

Under plain error review, Knight must show a clear or obvious error 

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 substantial 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 difference between his conviction and 

acquittal. See id. at 769-72. 

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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 suffice 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 Instructions 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 regarding the mens rea necessary for a conviction. Id. The 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, Knight cannot show that the district court 

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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. 

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