FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-10683 Plaintiff-Appellee,

D.C. No.

v.  CR-00-05431-REC

PAUL KENT CASSEL,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Robert E. Coyle, Senior Judge, Presiding

Argued and Submitted

December 7, 2004—San Francisco, California

Filed May 24, 2005

Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and

Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

*The Honorable Robert E. Cowen, Senior United States Circuit Judge

for the Third Circuit, sitting by designation. 

5641
COUNSEL

Joan Jacobs Levie, Fresno, California, argued the cause for

the appellant. 

Jonathan B. Conklin, U.S. Attorney’s Office, Fresno, California, argued the cause for the appellee. McGregor W. Scott,

U.S. Attorney’s Office, Fresno, California, was on the brief.

5644 UNITED STATES v. CASSEL
OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether the First Amendment permits the

government to punish a threat without proving that it was

made with the intent to threaten the victim.

I

In early 1998, Paul Kent Cassel and his girlfriend, Anastasia Kafteranis, were living on property owned by Kafteranis

and located near Randsburg, California, in the Mojave Desert.

The federal government owned several lots near Kafteranis’s

property and it sought to sell them, acting through the Bureau

of Land Management (BLM). Cassel apparently liked his privacy, though, and was not about to let neighbors move in

without doing what he could to stop them. 

Arthur and Alice Rinard, a married couple, were interested

in buying one of the government lots, and in January 1998

they visited the property to look around. As they were walking around, Cassel approached them. He was accompanied by

two of his dogs. One of the dogs—a certain “Mr. Mooch

Face”—was extremely ugly and at least somewhat aggressive,

probably because it had once been run over by a car. Cassel

began a conversation with the Rinards that would continue

over the following two days. Cassel’s participation in the conversation consisted mostly of providing the Rinards with a

series of dramatic reasons why the property that the Rinards

were considering was quite undesirable. Cassel claimed,

among other things, that the government’s maps misidentified

the boundaries between the various lots; that bidding on one

of the lots—lot 107—was pointless because Cassel and

Kafteranis were going to purchase it no matter what the cost;

that it would cost at least twenty thousand dollars to get the

permits needed to build a residence on the property; that the

surrounding area was inhabited by child molesters, murderers,

UNITED STATES v. CASSEL 5645
producers of illegal drugs, devil-worshipers, and witches; that

the ground was a toxic waste dump contaminated with cyanide; that local law enforcement officials were corrupt; that

mining explosions had damaged Kafteranis’s own house; and

that a neighbor had developed a disease known as “silica

lung.” 

Cassel invited the Rinards to join him and Kafteranis for

dinner, and despite his generally unneighborly demeanor, they

agreed. Cassel kept up his invective during the meal, and his

dogs continued to appear aggressive. He ultimately succeeded

in dissuading the Rinards from purchasing the lot they had

been considering—not, according to Mr. Rinard’s testimony,

because they believed his stories about nearby witches, but

because they did not want Cassel as a neighbor. The Rinards

told the BLM about their conversations with Cassel, and Mr.

Rinard informed the BLM that while he did not feel personally intimidated by Cassel, he believed that others might. 

About a month later, another couple, Mickey and Terry

Goodin, came to visit two of the lots. Again Cassel greeted

the couple, this time accompanied by only one of his dogs.

Cassel’s conversation with the Goodins proceeded along the

same lines as his earlier conversation with the Rinards. He

referred to the BLM as “crooks” and threw in at least one less

polite term to boot; he described the toxic waste dump, the

child molesters, the drug labs, the devil worshipers, and the

cyanide in the ground. Mr. Goodin found Cassel obnoxious

and could tell he did not want neighbors. He testified that

Cassel told him “that if I [Goodin] tried to build anything on

Lot 107, that it would definitely burn. He would see to that.

That if I left anything there, it would be stolen, vandalized. He

would see to that.” Cassel denied making that statement. The

Goodins ended up buying a lot about a quarter of a mile from

Kafteranis’s property, but Mr. Goodin testified that he did not

bid on lot 107 because of Cassel’s threat to burn any house

the Goodins might build. Kafteranis eventually purchased lot

107 at auction. 

5646 UNITED STATES v. CASSEL
In November 2000, Cassel was charged in the Eastern District of California with two counts of interfering with a federal

land sale under 18 U.S.C. § 1860 and two counts of witness

tampering under 18 U.S.C. § 1512(c). In April 2001, the government filed a superseding information dropping one of the

witness tampering counts. Cassel was tried before a magistrate judge by his consent, and a jury convicted Cassel on all

remaining charges. 

In September 2001, before his sentencing hearing, Cassel

wrote a letter to the magistrate judge requesting new counsel.

The court denied that request after a hearing and sentenced

Cassel to five months’ imprisonment and 150 days of home

confinement. Cassel appealed to the district court, which

affirmed his conviction and sentence. This appeal timely followed. 

II

Cassel argues that the statute under which he was convicted, 18 U.S.C. § 1860, is facially unconstitutional, both

because it punishes constitutionally protected speech1 and

because it is unconstitutionally vague. He further contends

that the trial court erroneously instructed the jury and improp1Cassel divides this argument in two, arguing first that the statute is

“overbroad” and then that it is unconstitutional “as applied.” His dichotomous terminology, however, is merely a gloss on a single substantive

argument—namely, that any prosecution under § 1860 would be unconstitutional because the statute fails to require proof that the defendant acted

with a mens rea sufficient to place his conduct outside the protection of

the First Amendment. Accordingly, we treat his argument as a facial challenge to § 1860 based not in overbreadth but on the claim that the statute

is unconstitutional in all its applications. See Foti v. City of Menlo Park,

146 F.3d 629, 635 (9th Cir. 1998) (“An ordinance may be facially unconstitutional in one of two ways: either it is unconstitutional in every conceivable application, or it seeks to prohibit such a broad range of protected

conduct that it is unconstitutionally overbroad.” (internal quotation marks

and ellipses omitted)). 

UNITED STATES v. CASSEL 5647
erly denied his request for new counsel. We consider these

claims in turn.2

A

[1] 18 U.S.C. § 1860 punishes, in relevant part, “[w]hoever,

by intimidation . . . hinders, prevents, or attempts to hinder or

prevent, any person from bidding upon or purchasing any

tract of” federal land at public sale. Cassel argues that this

language criminalizes a wide range of constitutionally protected speech merely because such speech has the effect—

intended or not—of “intimidati[ng]” a potential land buyer

and thus making it more difficult for the government to sell

its land.

1

As an initial matter, we must consider what level of scrutiny we are to apply to the statute. Its language is not

addressed specifically to speech: rather, it criminalizes the act

of interfering with a federal land sale “by intimidation,”

whether through speech or conduct. The government appears

to contend, on that basis, that the statute should not be analyzed as a restriction on speech at all, but rather as a perfectly

legitimate restriction on conduct that only incidentally

restricts some speech. Cf. United States v. Brice, 926 F.2d

925, 931 (9th Cir. 1991) (“If conduct contains both speech

and non-speech elements, and if Congress has the authority to

regulate the non-speech conduct, incidental restrictions on

freedom of speech are not constitutionally invalid.”). But

when the definition of a crime or tort embraces any conduct

2Cassel also argues (1) that the evidence was insufficient to support his

conviction, (2) that the magistrate judge erred by failing to make specific

factual findings as to whether his disability (a heart condition) constituted

an “extraordinary physical impairment” under U.S. Sentencing Guidelines

§ 5H1.4, and (3) that his sentence was based on facts not found by a jury

beyond a reasonable doubt. Because we remand for a new trial, we do not

reach these issues. 

5648 UNITED STATES v. CASSEL
that causes or might cause a certain harm, and the law is

applied to speech whose communicative impact causes the

relevant harm, we treat the law as content-based. See, e.g.,

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (holding

that “public figures and public officials” must show actual

malice to prevail on a state-law tort claim for intentional

infliction of emotional distress based on the defendant’s

speech). 18 U.S.C. § 1860 is just such a law: its prohibition

applies to any conduct that causes the harm of interfering by

intimidation with a public land sale. Since it was applied in

this case to Cassel’s speech (as well as his allegedly intimidating conduct, such as approaching the couples while accompanied by aggressive dogs), we treat it as content-based. 

In arguing to the contrary, the government directs our attention to the Fifth Circuit’s decision in United States v. Hicks,

980 F.2d 963 (5th Cir. 1992). In Hicks, the Fifth Circuit

upheld a conviction under 49 U.S.C. App. § 1472(j), which

prohibits “intimidat[ing] or threaten[ing]” a member of the

crew onboard an airplane. The court held that “the statute reasonably regulates the time, place, and manner of speech, irrespective of its particular content. The content of passengers’

speech is thus regulated only in an incidental fashion.” Hicks,

980 F.2d at 971. Accordingly, it analyzed the statute under the

deferential standard applied to content-neutral restrictions on

speech.3See id. 

[2] We cannot agree with this analysis, however. “Time,

place, and manner” restrictions regulate matters such as how

loud speech can be, see, e.g., Ward v. Rock Against Racism,

491 U.S. 781 (1989), or whether residents may place signs in

their lawns, see, e.g., City of Ladue v. Gilleo, 512 U.S. 43

(1994). These are issues that have nothing to do with the con3The Hicks court also noted that even if it analyzed the statute as a

content-based regulation of speech, it would uphold the statute because of

the compelling government interest in ensuring safety onboard airplane

flights. Hicks, 980 F.2d at 971-72. 

UNITED STATES v. CASSEL 5649
tent of the speech. Excessively loud speech is objectionable

whether it consists of rock music or nursery rhymes, and signs

on lawns may be unsightly whether they advertise political

candidates or a garage sale. In contrast, 18 U.S.C. § 1860 punishes speech precisely because of the “intimidat[ing]” message it contains. It must, therefore, be analyzed as a contentbased restriction on speech.

2

[3] Not all content-based restrictions on speech are unconstitutional, of course. The Supreme Court has recognized that

certain categories of speech are of such low value and inflict

such serious harm that they are outside the protection of the

First Amendment. One such category is composed of “true

threats.” See, e.g., United States v. Hanna, 293 F.3d 1080,

1084 (9th Cir. 2002) (“[T]he Court [has] left no doubt that

true threats could be criminalized because they are not protected speech.”). The government argues that § 1860 comports with the First Amendment because it only punishes

speech that falls within this unprotected category. Cassel recognizes that true threats are unprotected, but he contends that

only intentional threats are unprotected by the First Amendment and that the crime defined in § 1860 lacks the constitutionally necessary mens rea element of intent. We are thus

faced with the question whether intent to threaten the victim

is required in order for speech to fall within the First Amendment exception for threats. 

As a preliminary matter, we should be clear about precisely

what is at issue. On one hand, it is not in dispute that, to be

convicted under § 1860, the defendant must intend the speech

or conduct that has the effect of intimidating the potential land

buyer. In other words—though it is almost too obvious to

mention—a defendant whose involuntary epileptic fit caused

him to appear menacing during a land auction, frightening off

a potential buyer, would doubtless not have violated the statute. (We intimate no view as to whether this minimal element

5650 UNITED STATES v. CASSEL
of intent is required by the Constitution; the issue is not

before us.) 

On the other hand, no one now contends that the Constitution requires proof that the defendant intends to carry out the

threat—that is, actually to inflict the harm that he has threatened. One of the chief evils wrought by a threat is its deleterious and coercive effect on the victim (and, here, in the

consequent effect on the government’s ability to sell its land),

and that effect is not diminished merely because the defendant

is bluffing. See Roy v. United States, 416 F.2d 874, 877 (9th

Cir. 1969); Virginia v. Black, 538 U.S. 343, 359-60 (2003). 

Rather, the disputed question is whether the government

must prove that the defendant intended his words or conduct

to be understood by the victim as a threat. Cassel argues that

it must. The government’s position is that mere negligence

with regard to the victim’s understanding is enough: in other

words, speech is punishable if a reasonable person would

understand it as a threat, whether or not the speaker meant for

it to be so understood. 

3

The Supreme Court has decided very few cases directly

addressing the threat exception. For many years, its only significant pronouncement on the subject was its opinion in

Watts v. United States, 394 U.S. 705 (1969). The defendant

in Watts had announced at a public rally against the Vietnam

War in 1966 that “[i]f they ever make me carry a rifle the first

man I want to get in my sights is L.B.J.” Id. at 706. He was

convicted of violating 18 U.S.C. § 871(a), which prohibits

“knowingly and willfully mak[ing] any threat to take the life

of or to inflict bodily harm upon the President of the United

States.” Id. at 705 & n.*. The Court overturned his conviction,

holding that First Amendment principles required it to construe the term “threat” in the statute to exclude the sort of

political hyperbole the defendant had used. Id. at 707-08. The

UNITED STATES v. CASSEL 5651
Court declined to address the question of what mens rea

requirement the statute imposed,4see id., and so it did not

explain whether intent to threaten is a necessary part of a constitutionally punishable threat. 

Our own cases, it must be said, have not been entirely clear

or consistent on that question. We have often held or implied

that negligence is enough. In Roy v. United States, 416 F.2d

874 (9th Cir. 1969), we were called upon to answer the specific statutory question left unresolved by the Supreme Court

in Watts: what degree of intent is required by 18 U.S.C.

§ 871(a)’s prohibition of “knowingly and willfully” communicating a threat against the President. Roy did not raise constitutional issues in his appeal, and we did not address them

except to say, in a footnote, that “there does not appear to be

a free speech issue in this case.” Roy, 416 F.2d at 879 n.17.

Nevertheless, as a matter of statutory construction, we held

that the statute required

only that the defendant intentionally make a statement . . . under such circumstances wherein a reasonable person would foresee that the statement

would be interpreted by those to whom the maker

communicates the statement as a serious expression

of an intention to inflict bodily harm upon . . . the

President, and that the statement not be the result of

mistake, duress, or coercion. 

4The Court noted that the D.C. Circuit’s opinion affirming the conviction apparently rested on the belief that a threat was made “willfully”

within the statute’s meaning if “the speaker voluntarily uttered the charged

words with an apparent determination to carry them into execution.”

Watts, 394 U.S. at 707 (internal quotation marks omitted). The Court

noted that it had “grave doubts” about that construction, citing Judge

Skelly Wright’s dissent in the Court of Appeals, which would have held,

on constitutional grounds, that the statute required both a subjective intent

to carry out the threat and an objective manifestation of that intent. See id.

(citing Watts v. United States, 402 F.2d 676, 686-93 (D.C. Cir. 1968)

(Skelly Wright, J., dissenting)). 

5652 UNITED STATES v. CASSEL
Id. at 877-78. The reference to a “reasonable person” makes

clear that we were describing a negligence standard, with no

requirement of actual intent to threaten. We subsequently

reaffirmed Roy’s holding in United States v. Hanna, 293 F.3d

1080 (9th Cir. 2002), and stated clearly that “Roy’s ‘reasonable speaker’ standard does not violate the First Amendment.”

Id. at 1084. 

In United States v. Orozco-Santillan, 903 F.2d 1262 (9th

Cir. 1990), we upheld the defendant’s conviction for threatening a federal law enforcement officer under 18 U.S.C.

§ 115(a)(1)(B). We were not primarily concerned with constitutional questions, but we observed that “[a] ‘true’ threat,

where a reasonable person would foresee that the listener will

believe he will be subjected to physical violence upon his person, is unprotected by the first amendment.” OrozcoSantillan, 903 F.2d at 1266. Again, our reference to a “reasonable person” seems to suggest that the First Amendment permits punishing a threat made with only negligence as to the

statement’s threatening character.5See also Wurtz v. Risley,

719 F.2d 1438, 1441 (9th Cir. 1983) (stating that “implicit in

the nature of . . . punishable threats is a reasonable tendency

to produce in the victim a fear that the threat will be carried

out” and holding that a Montana statute was overbroad

because it contained no such requirement); cf. United States

v. Meeker, 527 F.2d 12 (9th Cir. 1975) (holding, without mentioning constitutional issues, that 49 U.S.C. App. § 1472(j),

which prohibits “intimidat[ing] or threaten[ing]” a crew member onboard an airplane “so as to interfere with the performance” of the crew member’s duties, does not require specific

intent to interfere with the crew member’s performance). 

Yet at other times the language of our cases has suggested

that intent is required. In United States v. Gilbert, 813 F.2d

5The statute, however, explicitly included “intent to . . . intimidate” as

an element of the crime, Orozco-Santillan, 903 F.2d at 1265, so our implication that negligence suffices was perhaps dictum. 

UNITED STATES v. CASSEL 5653
1523 (9th Cir. 1987), we upheld, against an overbreadth challenge, a provision of the Fair Housing Act that criminalizes

“willfully . . . intimidat[ing]” anyone for various reasons

related to racial discrimination in housing. See 42 U.S.C.

§ 3631. A conviction under the statute requires proof that the

defendant specifically intended “to injure, intimidate or interfere with the victim.” See, e.g., United States v. McInnis, 976

F.2d 1226, 1230 (9th Cir. 1992). Addressing Gilbert’s First

Amendment challenge to § 3631, we observed that “the element of intent specified in section 3631 [is] the determinative

factor separating protected expression from unprotected criminal behavior.” Gilbert, 813 F.2d at 1529; see also id. (“[T]he

statute’s requirement of intent to intimidate serves to insulate

the statute from unconstitutional application to protected

speech.”). That language seems to imply that a subjective “intent to intimidate” (or intent to threaten) is necessary before

a threat can constitutionally be punished. Cf. United States v.

Twine, 853 F.2d 676 (9th Cir. 1988) (holding, without discussing constitutional issues, that subjective intent to threaten

is necessary to a conviction under 18 U.S.C. §§ 875(c) and

876, which punish threats to kidnap or injure another person).

On one occasion, we seemed to advocate both positions

within the confines of a single opinion. In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition

of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), we

rejected a First Amendment challenge to the Freedom of

Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248,

which provides a right of action against whoever by “threat of

force . . . intentionally intimidates any person because that

person is or has been . . . providing reproductive health services.” 18 U.S.C. §§ 248(a)(1), (c)(1)(A). In the course of

holding that FACE does not require intent or ability to carry

out the threat, we repeated our statement in Orozco-Santillan

that “[a] true threat, that is one where a reasonable person

would foresee that the listener will believe he will be subjected to physical violence upon his person, is unprotected by

the first amendment.” Planned Parenthood, 290 F.3d at 1075

5654 UNITED STATES v. CASSEL
(quoting Orozco-Santillan, 903 F.2d at 1265). We also wrote

that “the only intent requirement for a true threat is that the

defendant intentionally or knowingly communicate the threat.”

6

Id. Thus far, someone reading our decision in that case would

think our holding was clear: no subjective intent to threaten

is necessary. Indeed, one of the dissents described the majority’s holding in just that way. Id. at 1108 n.9 (Berzon, J., dissenting) (“The majority opinion does not appear to embrace

any such subjective intent standard as a constitutional requirement . . . .”). 

Yet our opinion in Planned Parenthood also noted that the

statute in question contained an explicit requirement of intent

to threaten (or “intent to intimidate”), and we cited Gilbert for

the proposition that “the requirement of intent to intimidate

serves to insulate the statute from unconstitutional application

to protected speech.” Id. at 1076 (quoting Gilbert, 813 F.2d

at 1529). Moreover, we observed that “the requirement of

intent to intimidate cures whatever risk there might be of

overbreadth.” Id. at 1079. And we wrote that the reasonableperson definition of a true threat, “coupled with the statute’s

requirement of intent to intimidate, comports with the First

Amendment.” Id. at 1088 (emphasis added). In these passages

we seemed to hold—or at least keep open the possibility—

that subjective intent to threaten is necessary. But see Hanna,

6On its face, that language might be ambiguous as to whether it is the

communication itself or its threatening nature that the defendant must

intend, but at least one of the cases we cited in support of the statement

clearly held that the First Amendment imposes no requirement of subjective intent to threaten. Id. (citing United States v. Francis, 164 F.3d 120,

123 (2d Cir. 1999) (holding that “the government need not prove that a

defendant intended his communication to be threatening”)). The other

cases we cited also affirmed an objective standard, but were primarily concerned with rejecting any requirement of intent to carry out the threat. See

id. (citing United States v. Miller, 115 F.3d 361, 363-64 (6th Cir. 1997);

United States v. Aman, 31 F.3d 550, 553-56 (7th Cir. 1994); United States

v. Patrick, 117 F.3d 375, 377 (8th Cir. 1997); United States v. Martin, 163

F.3d 1212, 1215-16 (10th Cir. 1998)). 

UNITED STATES v. CASSEL 5655
293 F.3d at 1084 (citing Planned Parenthood for the proposition that subjective intent is unnecessary).

4

We need not delve deeper into the vagaries of our own case

law. For in an opinion more recent than any of our relevant

cases, the Supreme Court revisited the topic of threats and the

First Amendment. In Virginia v. Black, 538 U.S. 343 (2003),

the Court held that it does not violate the Constitution for a

state to prohibit burning a cross with the intent to intimidate.

The state of Virginia had enacted a statute providing as follows:

It shall be unlawful for any person or persons, with

the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the

property of another, a highway or other public place.

. . . Any such burning of a cross shall be prima facie

evidence of an intent to intimidate a person or group

of persons. 

Va. Code Ann. § 18.2-423 (1996). The Supreme Court of Virginia consolidated the appeals of three people convicted under

this statute and held the statute unconstitutional on its face on

the grounds that, although it punishes speech within the generally unprotected category of true threats, it “selectively

chooses only cross burning because of its distinctive message.” Black v. Virginia, 553 S.E.2d 738, 744 (2001). The

U.S. Supreme Court disagreed, holding that a state may single

out “cross burnings done with the intent to intimidate” for

punishment because “burning a cross is a particularly virulent

form” of threat. Black, 538 U.S. at 363. “Thus, just as a State

may regulate only that obscenity which is the most obscene

due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to

inspire fear of bodily harm.” Id.

5656 UNITED STATES v. CASSEL
[4] The Court laid great weight on the intent requirement.

It offered this definition of unprotected “true threats” and “intimidation”:

“True threats” encompass those statements where the

speaker means to communicate a serious expression

of an intent to commit an act of unlawful violence to

a particular individual or group of individuals. The

speaker need not actually intend to carry out the

threat. . . . Intimidation in the constitutionally

proscribable sense of the word is a type of true

threat, where a speaker directs a threat to a person or

group of persons with the intent of placing the victim

in fear of bodily harm or death. 

Id. at 359-60 (citations omitted). The clear import of this definition is that only intentional threats are criminally punishable

consistently with the First Amendment. First, the definition

requires that “the speaker means to communicate . . . an intent

to commit an act of unlawful violence.” A natural reading of

this language embraces not only the requirement that the communication itself be intentional, but also the requirement that

the speaker intend for his language to threaten the victim. 

The Court’s insistence on intent to threaten as the sine qua

non of a constitutionally punishable threat is especially clear

from its ultimate holding that the Virginia statute was unconstitutional precisely because the element of intent was effectively eliminated by the statute’s provision rendering any

burning of a cross on the property of another “prima facie evidence of an intent to intimidate.” At the trial of one of the

petitioners, the jury had been instructed that “[t]he burning of

a cross, by itself, is sufficient evidence from which you may

infer the required intent.” Id. at 364. This language mirrored

Virginia’s Model Jury Instruction for the statute, see Va.

Model Jury Instructions, Criminal, Instruction No. 10.250

(1998 & Supp. 2001), and the Supreme Court of Virginia had

not disavowed the instruction; accordingly, Justice

UNITED STATES v. CASSEL 5657
O’Connor’s plurality opinion held the Court bound by the

instruction’s interpretation of the provision. Id. at 364-65. 

Because the prima facie evidence provision makes it unnecessary for the government actually to prove the defendant’s

intent, the plurality held that the statute violated the First

Amendment. See id. at 365 (“[T]he prima facie provision

strips away the very reason why a State may ban cross burning with the intent to intimidate.”). Its holding thus affirms

our own dictum—not always adhered to in our cases—that

“the element of intent [is] the determinative factor separating

protected expression from unprotected criminal behavior.”

United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987).

The Court emphasized that the very “same act” “may mean

that a person is engaging in constitutionally proscribable

intimidation [or] only that the person is engaged in core political speech.” Black, 538 U.S. at 365. “[A] burning cross is not

always intended to intimidate,” the Court noted, and when it

is not so intended it may not be punished as a threat. Id.; see

also id. at 366 (noting that the prima facie provision “does not

distinguish between a cross burning done with the purpose of

creating anger or resentment and a cross burning done with

the purpose of threatening or intimidating a victim” (emphasis

added)); id. at 367 (“The . . . provision . . . ignores all of the

contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First

Amendment does not permit such a shortcut.”). 

Although Justice O’Connor’s opinion was only for a fourJustice plurality of the Court, each of the other opinions—

with the possible exception of Justice Thomas’s dissent—

takes the same view of the necessity of an intent element. Justice Scalia agreed that the Virginia statute was unconstitutional insofar as it failed to require the state to prove the

defendant’s intent. Id. at 368 (Scalia, J., concurring in part,

concurring in the judgment in part, and dissenting in part). He

disagreed only with the Court’s facial invalidation of the statute; instead, he would have permitted case-by-case challenges

5658 UNITED STATES v. CASSEL
to convictions in which the prima facie provision operated to

remove the state’s burden to prove intent. Id. at 372-73. 

Justice Souter, joined by Justices Kennedy and Ginsburg,

agreed that the prima facie evidence provision rendered the

statute facially unconstitutional because it effectively eliminated the intent requirement. Id. at 385 (Souter, J., concurring

in the judgment in part and dissenting in part) (noting that

“the symbolic act of burning a cross . . . is consistent with

both intent to intimidate and intent to make an ideological

statement”). He disagreed only with the plurality’s holding

that the Virginia Supreme Court could, on remand, apply a

narrowing construction to the prima facie evidence provision

and thus save the statute as a whole from facial unconstitutionality. Id. at 387. 

Justice Thomas dissented outright; he would have held that

the statute reaches only conduct, not expression, and thus

raises no First Amendment concerns at all. Id. at 394-95

(Thomas, J., dissenting). Alternatively, even under First

Amendment analysis, he would have held that “the fact that

the statute permits a jury to draw an inference of intent to

intimidate from the cross burning itself presents no constitutional problems.” Id. at 395. 

[5] Thus, eight Justices agreed that intent to intimidate is

necessary and that the government must prove it in order to

secure a conviction.7 We cannot but conclude that the same

principle governs in the case before us.8See Frederick

7Even the ninth, Justice Thomas, did not disagree that intent to intimidate is necessary; he would, however, have permitted intent to be inferred

from the act of cross burning itself. 

8We are not faced with the question of what effect our holding has on

other specific statutes that we have previously held do not require the government to prove subjective intent. See, e.g., Roy v. United States, 416

F.2d 874 (9th Cir. 1969) (so holding as to 18 U.S.C. § 871(a), which punUNITED STATES v. CASSEL 5659
Schauer, Intentions, Conventions, and the First Amendment,

55 Sup. Ct. Rev. 197, 217 (2003) (“[I]t is plain that . . . the

Black majority . . . believed that the First Amendment

imposed upon Virginia a requirement that the threatener have

specifically intended to intimidate.”); Roger C. Hartley, Cross

Burning—Hate Speech as Free Speech, 54 Cath. U. L. Rev.

1, 33 (“Black now confirms that proof of specific intent (aim)

must be proved also in threat cases.”); Lauren Gilbert, Mocking George: Political Satire as “True Threat” in the Age of

Global Terrorism, 58 U. Miami L. Rev. 843, 883-84 (2004);

cf. Jennifer E. Rothman, Freedom of Speech and True

Threats, 25 J.L. & Pub. Pol’y 283, 317-18 (arguing, before

Black, for a subjective intent requirement, and observing that

“First Amendment law often requires proof of a specific state

of mind before finding a speaker liable or allowing a criminal

conviction of the speaker”). 

[6] The Court’s definition of a constitutionally proscribable

threat is, of course, binding on us even though it is in tension

with some of the holdings and language in prior cases of this

circuit.9See Miller v. Gambie, 335 F.3d 889, 899 (9th Cir.

2003) (en banc) (holding that when a three-judge panel is

ishes threats against the President). It may be that the government’s interest in suppressing certain forms of speech is sufficiently compelling to

permit some such statutes to survive strict scrutiny. Cf. United States v.

Hicks, 980 F.2d 963 (5th Cir. 1992) (finding, in the alternative, a compelling interest in prohibiting intimidation of flight crews onboard an airplane). 

9

In United States v. Lincoln, 403 F.3d 703 (9th Cir. Apr. 8, 2005), we

cited the objective definition of a “true threat” in the course of overturning

a conviction under 18 U.S.C. § 871. See Lincoln, 403 F.3d at 706. Because

Lincoln merely applied longstanding precedent and did not raise or consider the implications of Virginia v. Black, it does not constrain our analysis in this case. See United States v. Johnson, 256 F.3d 895, 916 (9th Cir.

2001) (en banc) (plurality op. of Kozinski, J.) (a prior decision has binding

effect to the extent that “it is clear that a majority of the panel has focused

on the legal issue presented by the case before it and made a deliberate

decision to resolve the issue”); United States v. Morales, 898 F.2d 99,

101-02 (9th Cir. 1990) (holding that a three-judge panel was not foreclosed from deciding whether it had jurisdiction to review a district court’s

refusal to depart downward from the Sentencing Guidelines where a previous panel had reached the merits of such a case without raising or considering the reviewability issue). 

5660 UNITED STATES v. CASSEL
faced with intervening precedent from a higher court that is

“clearly irreconcilable” with a prior holding of this court, the

panel is bound by the intervening authority). We are therefore

bound to conclude that speech may be deemed unprotected by

the First Amendment as a “true threat” only upon proof that

the speaker subjectively intended the speech as a threat.10

5

We turn now to Cassel’s claim that 18 U.S.C. § 1860 is

facially unconstitutional because it fails to require the requisite subjective intent. His argument relies on a literal reading

of the statute:11 taken literally, the phrase “[w]hoever, by

10In a case decided after the Supreme Court’s decision in Virginia v.

Black, the Fifth Circuit restated its view that “[s]peech is a true threat and

therefore unprotected if an objectively reasonable person would interpret

the speech as a serious expression of an intent to cause a present or future

harm.” Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir.

2004) (internal quotation marks omitted); cf. United States v. Fuller, 387

F.3d 643 (7th Cir. 2004) (rejecting a requirement of subjective intent

under 18 U.S.C. § 871(a) (punishing threats against the President)); United

States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003) (“A true threat is one

that a reasonable recipient familiar with the context of the communication

would find threatening.”). The language quoted from Porter is perhaps

dictum, since the court held that the speech in question was not a true

threat because it was not even intentionally communicated. Id. at 617. In

any event, we cannot agree. The Porter court cited Black but did not discuss it; crucially, it provided no explanation of how the prima facie evidence provision in Black could offend the First Amendment if intent to

intimidate were constitutionally irrelevant. Neither the Seventh Circuit in

Fuller nor the First Circuit in Nishnianidze cited Black at all. In short, it

appears that no other circuit has squarely addressed the question whether

Black requires the government to prove the defendant’s intent. 

11Section 1860 has apparently never been construed by us or by any

other circuit. It is based on a prior statute enacted in 1830, and the

Supreme Court explained in an 1861 decision that the 1830 statute “was

intended to protect the Government and punish all persons who enter into

combinations or conspiracies to prevent others from bidding at the sales,

either by agreement not to do so, or by intimidation, threats or violence.”

Fackler v. Ford, 65 U.S. 322, 332 (1861). The Court has not provided any

further guidance on the scope of the statute’s prohibition. 

UNITED STATES v. CASSEL 5661
intimidation . . . hinders [or] prevents [a bid on public land]”

would apply to anyone whose conduct happened to intimidate

a potential bidder, whether or not the intimidation was intentional. 

Yet this literal reading ignores a cardinal principle of statutory construction: “The existence of a mens rea is the rule of,

rather than the exception to, the principles of Anglo-American

criminal jurisprudence.” United States v. Pasillas-Gaytan,

192 F.3d 864, 868 (9th Cir. 1999) (quoting Dennis v. United

States, 341 U.S. 494, 500 (1951)). Thus, except in unusual

circumstances, we construe a criminal statute to include a

mens rea element even when none appears on the face of the

statute.12 See, e.g., id. (construing 18 U.S.C. § 1425, which

criminalizes the unlawful procurement of naturalization, to

include a requirement that the defendant either know he is not

eligible for naturalization or knowingly lie in his application).

[7] Cassel’s argument is all the more untenable in light of

the principle that “every reasonable construction must be

resorted to, in order to save a statute from unconstitutionality.” United States v. Buckland, 289 F.3d 558, 564 (9th Cir.

2002) (quoting Hooper v. California, 155 U.S. 648, 657

(1895)); INS v. St. Cyr, 533 U.S. 289, 299-300 & n.12 (2001);

see also Miller v. French, 530 U.S. 327, 336 (2000) (instructing courts to avoid “constitutionally doubtful constructions”).

12Certain statutes defining so-called “public welfare offenses” constitute

an exception to the rule that courts will imply a mens rea element where

none appears on the statute’s face. See Staples v. United States, 511 U.S.

600, 606-07 (1994). Such statutes “[t]ypically . . . regulate potentially

harmful or injurious items.” Id. at 607; see also id. at 612 n.6 (“[T]o determine . . . whether a particular statute defines a public welfare offense, a

court must have in view some category of dangerous and deleterious

devices that will be assumed to alert an individual that he stands in responsible relation to a public danger.” (internal quotation marks omitted)). The

government does not suggest that 18 U.S.C. § 1860 defines a public welfare offense, and it plainly does not, since it does not deal with a “category

of dangerous . . . devices” at all. 

5662 UNITED STATES v. CASSEL
Having held that intent to threaten is a constitutionally necessary element of a statute punishing threats, we do not hesitate

to construe 18 U.S.C. § 1860 to require such intent. Cassel’s

argument that the statute is facially unconstitutional therefore

fails.

B

[8] Cassel also argues that the statute is unconstitutional

because it is unacceptably vague. This contention is inconsistent with our decision in United States v. Tabacca, 924 F.2d

906 (9th Cir. 1991). In Tabacca we rejected a vagueness challenge to 49 U.S.C. App. § 1472(j), which criminalizes “intimidat[ing], or threaten[ing]” a member of the crew onboard

an airplane. We held that the term “intimidate” was not

unconstitutionally vague because the statute

clearly includes modifying language which provides

parameters of conduct. The proscribed acts must

occur while aboard an aircraft and must “interfere

with the performance by . . . [an] attendant of his

duties . . . .” 

Id. at 913. Those limitations on the statute’s scope, we held,

gave the defendant reasonable notice of the sort of “intimidation” that was proscribed. Similar limitations exist in this

case: the “intimidation” punishable under 18 U.S.C. § 1860

must occur in connection with a public sale of land, and it

must hinder or prevent someone from bidding in such a sale.

That suffices to give “fair notice to those who might violate”

the statute, and so Cassel’s vagueness challenge fails. See Gilbert, 813 F.2d at 1530.

C

We now consider Cassel’s argument that the jury instructions given by the trial court were erroneous and require

UNITED STATES v. CASSEL 5663
reversal of his conviction. The trial judge instructed the jury

as follows:

Intimidation is to make a person timid or fearful

through the use of words and conduct that would put

an ordinary, reasonable person in fear or apprehension for the purpose of compelling or deterring legal

conduct of that person.

Cassel argues that the instruction failed to include a sufficient

mens rea element. He also argues that the trial court should

have instructed the jury that intimidation must involve the

belief of the victim that there is reasonable fear of bodily

harm or violence. 

[9] In view of our holding that 18 U.S.C. § 1860 includes

a mens rea element of subjective intent, Cassel’s first contention is correct, for the instruction included no such requirement. It did require that the intimidation be “for the purpose

of compelling or deterring legal conduct,” but that is by no

means the same thing.13 It is not enough that the defendant

intend to influence the potential bidder; rather, he must intend

to do so by means of a threat. Were it otherwise, a defendant

could be convicted under § 1860 who, for example, merely

attempted to dissuade the potential bidder by informing him

of dangerous conditions in the area surrounding the land to be

sold. Such a result comports neither with the First Amendment nor with the statute’s purpose, which is to punish interference by intimidation, not to prevent potential land buyers

from hearing negative viewpoints on the land for sale. 

[10] A jury instruction that omits a necessary element of

the offense is fatally flawed and requires reversal unless the

13In any case, the instruction is less than ideally phrased because of its

reference to “compelling . . . legal conduct.” The meaning was doubtless

intended to be: “for the purpose of compelling illegal conduct or deterring

legal conduct.” 

5664 UNITED STATES v. CASSEL
error is harmless beyond a reasonable doubt. See United

States v. Pasillas-Gaytan, 192 F.3d 864 (9th Cir. 1999);

Neder v. United States, 527 U.S. 1, 8-15 (1999). The record

in this case does not suffice to establish Cassel’s intent with

the degree of certainty necessary to take a contested factual

issue out of the hands of the jury. There was conflicting testimony at trial as to precisely what Cassel said and did to the

Rinards and the Goodins, and the fact that the jury convicted

Cassel based on the instruction quoted above does not demonstrate beyond a reasonable doubt that it would have convicted

him under an instruction that accords with our decision today.

Cassel also contends that “intimidation” under § 1860

requires a fear of bodily harm on the victim’s part. Several

aspects of this contention require consideration. First, insofar

as Cassel is suggesting that the victim must actually be intimidated, we cannot agree. The proper focus is on the defendant’s conduct and its effect on the federal land sale, not the

subjective emotions which the victim experiences. Cf. United

States v. Meeker, 527 F.2d 12 (9th Cir. 1975) (“Nor is proof

that the victim was in fact frightened for his own physical

safety required in order to find that a defendant performed the

criminal act of intimidation.”); United States v. Alsop, 479

F.2d 65, 67 n.4 (9th Cir. 1973) (suggesting a jury instruction

that “[t]o take . . . ‘by intimidation’ ” under 18 U.S.C.

§ 2113(a), which prohibits bank robbery, “means wilfully to

take . . . in such a way that would put an ordinary, reasonable

person in fear of bodily harm”). As we have noted, “[w]ere

it otherwise, a fearless banker could never be robbed by

intimidation. We refuse to reach such an absurd result.” Id. at

67. It would be equally absurd to hold that a fearless bidder

can never be deterred by intimidation. 

[11] Second, we do not agree that the scope of the statute

is necessarily limited to threats of bodily harm. “Intimidation,” both in common and legal usage, can refer to the act of

placing someone in fear of injury other than harm to the body.

See, e.g., 720 Ill. Comp. Stat. 5/12-6(a)(1) (“A person comUNITED STATES v. CASSEL 5665
mits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates

. . . a threat to . . . [i]nflict physical harm on the person threatened or any other person or on property” (emphasis added)).

In some cases, arising under other statutes, we have approved

jury instructions defining “intimidation” as involving a threat

of bodily harm. See, e.g., United States v. Alsop, 479 F.2d 65,

67 n.4 (9th Cir. 1973). We are aware of no case, however,

squarely presenting the issue whether threatened injury to

property falls within the ambit of a statute prohibiting intimidation. The purpose of 18 U.S.C. § 1860 is to prevent interference with federal land sales, and we see no reason why

Congress would have intended to exclude interference accomplished through threats to property from the statute’s scope.

A potential bidder who fears that his house will be burned to

the ground may be just as “intimidat[ed]” as one who fears an

assault on his person. We conclude that “intimidation” under

18 U.S.C. § 1860 requires the threat of harm inflicted by the

defendant upon the victim’s person or property. Cf. United

States v. Viefhaus, 168 F.3d 392, 394 (10th Cir. 1999) (defining a “true threat” to include “a declaration of intention . . .

to injure another or his property by the commission of some

unlawful act” (emphasis added)). 

[12] Nevertheless, Cassel’s objection contains a kernel of

merit. For while the jury instruction correctly stated that “intimidation” involves “words and conduct that would put an

ordinary, reasonable person in fear or apprehension,” it failed

to specify that the statute requires “fear or apprehension” of

injury inflicted by the defendant. Whether the threat is of

injury to person or property, there is no doubt that it must be

a threat of injury brought about—rather than merely predicted

—by the defendant.14 Indeed, the First Amendment requires as

much. See Planned Parenthood, 290 F.3d at 1076. 

14The defendant might, of course, threaten to bring about the injury

indirectly—for example, by having a third party harm the victim. 

5666 UNITED STATES v. CASSEL
[13] Again, this error in the jury instruction cannot be said

to be harmless. Most of the statements Cassel made to potential buyers did not suggest any threat of force on his part. For

example, his claim that the area was inhabited by devil worshipers and producers of illegal drugs could fall within the

court’s instruction that intimidation consists of words and

conduct that “would put an ordinary, reasonable person in fear

or apprehension.” Such claims, however, cannot constitute

intimidation under § 1860, because they do not involve a

threat of harm to person or property inflicted by the defendant. Accordingly, Cassel is entitled to a new trial on this

ground as well. 

D

[14] Finally, we address Cassel’s argument that the trial

court improperly denied his request for new counsel. We

review the denial of a motion for substitution of counsel for

abuse of discretion. United States v. Gonzalez, 113 F.3d 1026,

1028 (9th Cir. 1997). The trial court’s discretion “must be

exercised . . . within the limitations of the Sixth Amendment,

which grants criminal defendants a qualified constitutional

right to . . . counsel of their choice.” Id. (quoting United

States v. D’Amore, 56 F.3d 1202, 1204 (9th Cir. 1995)) (second omission in original). We consider three factors when

evaluating the trial court’s decision: (1) the adequacy of the

court’s inquiry into the defendant’s complaint, (2) the extent

of conflict between the defendant and counsel, and (3) the

timeliness of the motion and the extent of resulting inconvenience or delay. Id.

i

The first factor we consider is whether the trial court has

“conduct[ed] an inquiry adequate to create a sufficient basis

for reaching an informed decision.” Gonzalez, 113 F.3d at

1028. The trial judge in this case had an extended conversation with Cassel about the distrust Cassel felt for his attorney;

UNITED STATES v. CASSEL 5667
Cassel had several opportunities to present his concerns and

the court gave every indication that it was willing to take Cassel seriously. When Cassel described his disagreement and

frustration with his attorney’s decision to make certain objections and pursue certain lines of questioning, the judge carefully explained to Cassel why his attorney had objected and

why the objection made perfect sense from a legal perspective. The judge even gave Cassel an example of the sort of

behavior on a lawyer’s part that would justify removing him

from the case and gave Cassel an opportunity to compare his

attorney’s conduct to the judge’s example. Our review of the

record satisfies us that the magistrate judge conducted an adequate inquiry. 

ii

The second factor concerns the degree to which the conflict

between the defendant and his attorney prevented the attorney

from providing effective assistance. See Gonzalez, 113 F.3d

at 1029. The record supplies no indication that Cassel’s attorney provided inadequate assistance. As the district court

noted, despite Cassel’s statement that his attorney considered

him paranoid, “Mr. Cassel never suggested that at any time he

and [his attorney] Mr. Rainwater were unable to communicate

about his defense.” The magistrate judge, in fact, complimented the attorney’s performance, noting that he was at all

times “a very strong advocate within the legal bounds, and

within the professional ethical bounds” on Cassel’s behalf and

that he was “a very focused lawyer.” Cassel did report a great

deal of frustration and lack of trust in his attorney, which

weighs in favor of his request. Nevertheless, nothing he said

indicated either that a conflict of interest existed or that the

attorney-client relationship had broken down in a way that

would diminish the attorney’s ability to represent Cassel. Cf.

Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990).

iii

The third factor is the timeliness of the defendant’s request.

Cassel made his request for new counsel on the day of sen5668 UNITED STATES v. CASSEL
tencing. If granted, it would certainly have resulted in some

delay, possibly substantial, as a new attorney became familiar

enough with the case to represent Cassel at sentencing. 

iv

[15] Two of the three relevant factors—the adequacy of the

magistrate judge’s inquiry and the timeliness of the defendant’s request—weigh heavily in favor of the magistrate

judge’s decision not to grant Cassel’s request for new counsel.

The third factor—the degree of conflict between client and

attorney—is slightly more equivocal but still supports the

judge’s decision: Cassel’s mistrust of his lawyer was real, but

nothing suggests that it threatened to affect the attorney’s

ability to represent him. We are therefore satisfied that the

magistrate judge did not abuse his discretion in denying Cassel’s request.

III

Although Cassel’s facial challenge to 18 U.S.C. § 1860

fails, his conviction was based on jury instructions that inadequately described the elements of the crime. Accordingly, the

district court’s judgment of conviction is VACATED and the

case is REMANDED for a new trial.

UNITED STATES v. CASSEL 5669