U.S. v. White, No. 10-4241

Decided Mar. 1, 2012

William White, the “Commander” of a neo-Nazi organization in Virginia, was indicted for several offenses of interstate transmission of “threat[s] to injure the person of another.” White moved to acquit the charges; he claimed that, while harsh, the threats were nothing more than political hyperbole protected by the First Amendment.

The district court denied acquittal for two for the charges (Counts 1 and 5 for which he was eventually convicted) and granted acquittal for another (Count 6). The court applied Fourth Circuit precedent from Darby that held the subjective intent of the person making threats was irrelevant—only the interpretation of a reasonable recipient in the context of the communication could factor into the analysis of whether a “true threat” had been made. However, the United States Supreme Court, after Darby, handed down a decision called Virginia v. Black that some courts have interpreted to require a “specific, subjective intent to threaten.” The district court did not follow this interpretation and chose to apply Darby. Thereafter, White appealed the decision not to acquit on Counts 1 and 5 and the government cross-appealed the acquittal of Count 6.

On appeal, the Fourth Circuit affirmed White’s convictions. It held that Darby and Black were not inconsistent and that the Supreme Court decision does not remove the objective test of the reasonable recipient in favor of one analyzing the threatener’s intent. The court also rejected White’s contention that this test stifles political speech because it requires an evaluation of the context in which the communication was made.

On the other hand, while the statements that lead to Count 6 of the indictment evinced a strong desire to see the person harmed, it did not demonstrate that White had the intent to actually do so. That Count, therefore, was properly dismissed.

White also appealed the district court’s decision not to acquit Count 3 of the indictment for “intimidation to influence, delay, and prevent the testimony of African–American tenants in Virginia Beach against their landlord by mailing intimidating letters to the tenants” because these letters did not constitute a “true threat” under Black and Darby. However, the statute that Count 3 was based upon focuses protecting testimony of witnesses, not the conduct of the communicator. That conviction was therefore affirmed.

The government also appealed White’s sentence because the district court did not correctly apply the test to determine an upward adjustment. The Fourth Circuit agreed with the government and vacated the sentence. “‘Under the current test, a court must first “determine that a victim was unusually vulnerable’ and, second, ‘assess whether the defendant knew or should have known of such unusual vulnerability.’” Because the district court failed to follow this test, the case was remanded for resentencing.

Judge Duncan wrote separately, though she agreed completely with the majority’s opinion, to point out that one panel of the Fourth Circuit cannot overrule another panel and is bound by its precedent. Thus, because Black did not overrule Darby, it would be impermissible for the court to reexamine or change its definition of “true threat.”

Judge Floyd wrote an opinion concurring in part and dissenting in part. He would hold that Black superseded Darby and imposed a requirement that threats contain a subjective intent on the part of the person making the communication. Because the district court did not apply this test, Judge Floyd would vacate White’s convictions for Counts 1 and 5, but otherwise join the opinion of the majority.

Full Opinion

-C. Alexander Cable

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