Criminal Law Blog

DCCA En Banc: Mens Rea for Threats Requires Purpose or Knowledge that Words Will Be Construed as a Threat, Maybe Recklessness

Carrell v. United States
(decided August 3, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judge Washington. Opinion for the court by Judge Easterly. Partial concurrence/dissent by Judge Thompson. Fletcher P. Thompson for Mr. Carrell. PDS as amicus. Trial Judge: Heidi M. Pasichow

Facts: As we previously summarized in noting the Division opinion:

The complainant testified that Mr. Carrell said to her, “I wish you would die,” and told her that if she called any of her family or friends for help, he would kill them. He later yelled, “I could kill you right now, I could fucking kill you” with both hands around her throat while pushing her against a window. The trial court credited the complainant’s testimony and found Carrell guilty. To find Carrell guilty, the judge said the law required Carrell to have “an intent to utter the words which constituted a threat.” She found such intent and convicted him of attempted threats.

Issue: What mens rea must the government prove in order to obtain a conviction for misdemeanor or felony threats?

Holding: The government must prove the defendant’s mens rea to utter the words as a threat, and may do so by establishing the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.

On granting rehearing, the Court asked the parties to brief Elonis v. United States, 135 S.Ct. 2001 (2015), which held that the federal threats statute requires a finding of mens rea as to both the conduct and the result elements of the statute. Adopting the Court’s reasoning in Elonis, the DCCA “reach[ed] the same conclusion.” To sustain a threats conviction, the en banc court held, “more is required than a showing that a reasonable person would have understood the defendant’s words as a threat or that a defendant should have known that that would be the case.”

The Court did not decide whether a lower-threshold mens rea of recklessness would suffice. The U.S. Attorney’s office had stated that it doesn’t intend to prosecute future threats cases on a recklessness theory.

The Court went on to find that, although there was legally sufficient evidence to support a finding that Mr. Carrell intended to threaten, the trial judge had failed to make a finding on that element, the error was not harmless beyond a reasonable doubt, and thus the case was remanded to the trial court to make the necessary mens rea finding in determining whether Carrell is guilty.

The partial concurrence/dissent: Judge Thompson said she agreed that a threats conviction “requires more than evidence that the defendant intended to utter the words that constitute the threat,” and that she agrees with the majority’s position on the mens rea required for the crime. But she said the opinion doesn’t go far enough, and — citing Justice Alito’s “eloquent[]” concurrence and dissent in Elonis — said the Court should have concluded that a finding of recklessness is enough to satisfy the mens rea element, at least for the misdemeanor threats statute, if not the felony threats statute.

Of Note:

  • The Court endorses the Model Penal Code's gradations of intent (purpose, knowledge, recklessness, negligence) over the vague concepts of general and specific intent.
  • The Court held that Carrell had preserved the intent issue raised on appeal, although he did expressly raise it at trial. "A 'full range of challenges' to the sufficiency of the evidence are automatically preserved at a bench trial by a defendant‘s plea of not guilty."


Read the full opinion here.