FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-10683 Plaintiff-Appellee, v.  D.C. No.

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 5644 UNITED STATES v. CASSEL

COUNSEL

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

Jonathan B. Conklin, U.S. Attorney’s Office, Fresno, Califor- nia, argued the cause for the appellee. McGregor W. Scott, U.S. Attorney’s Office, Fresno, California, was on the brief. UNITED STATES v. CASSEL 5645

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, Anasta- sia 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 pri- vacy, 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 walk- ing 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 con- versation 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, 5646 UNITED STATES v. CASSEL producers of illegal drugs, devil-worshipers, and witches; that the ground was a toxic waste dump contaminated with cya- nide; 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 person- ally 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. UNITED STATES v. CASSEL 5647 In November 2000, Cassel was charged in the Eastern Dis- trict 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 gov- ernment filed a superseding information dropping one of the witness tampering counts. Cassel was tried before a magis- trate 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 fol- lowed.

II

Cassel argues that the statute under which he was con- victed, 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 improp- 1 Cassel divides this argument in two, arguing first that the statute is “overbroad” and then that it is unconstitutional “as applied.” His dichoto- mous terminology, however, is merely a gloss on a single substantive argument—namely, that any prosecution under § 1860 would be unconsti- tutional 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 chal- lenge 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 uncon- stitutional in one of two ways: either it is unconstitutional in every con- ceivable application, or it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad.” (internal quotation marks and ellipses omitted)). 5648 UNITED STATES v. CASSEL 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 pro- tected 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 scru- tiny 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 ana- lyzed 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 2 Cassel 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. UNITED STATES v. CASSEL 5649 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 intimidat- ing conduct, such as approaching the couples while accompa- nied by aggressive dogs), we treat it as content-based.

In arguing to the contrary, the government directs our atten- tion 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 rea- sonably regulates the time, place, and manner of speech, irre- spective 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.3 See 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 con- 3 The 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. 5650 UNITED STATES v. CASSEL 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 pun- ishes speech precisely because of the “intimidat[ing]” mes- sage it contains. It must, therefore, be analyzed as a content- based restriction on speech.

2

[3] Not all content-based restrictions on speech are uncon- stitutional, 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 pro- tected speech.”). The government argues that § 1860 com- ports with the First Amendment because it only punishes speech that falls within this unprotected category. Cassel rec- ognizes that true threats are unprotected, but he contends that only intentional threats are unprotected by the First Amend- ment and that the crime defined in § 1860 lacks the constitu- tionally 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 Amend- ment 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 stat- ute. (We intimate no view as to whether this minimal element UNITED STATES v. CASSEL 5651 of intent is required by the Constitution; the issue is not before us.)

On the other hand, no one now contends that the Constitu- tion requires proof that the defendant intends to carry out the threat—that is, actually to inflict the harm that he has threat- ened. One of the chief evils wrought by a threat is its deleteri- ous 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 sig- nificant 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 con- strue the term “threat” in the statute to exclude the sort of political hyperbole the defendant had used. Id. at 707-08. The 5652 UNITED STATES v. CASSEL Court declined to address the question of what mens rea requirement the statute imposed,4 see id., and so it did not explain whether intent to threaten is a necessary part of a con- stitutionally 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 spe- cific 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” commu- nicating a threat against the President. Roy did not raise con- stitutional 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 state- ment . . . under such circumstances wherein a rea- sonable 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. 4 The Court noted that the D.C. Circuit’s opinion affirming the convic- tion 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)). UNITED STATES v. CASSEL 5653 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 ‘reason- able 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 threaten- ing a federal law enforcement officer under 18 U.S.C. § 115(a)(1)(B). We were not primarily concerned with consti- tutional 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 per- son, is unprotected by the first amendment.” Orozco- Santillan, 903 F.2d at 1266. Again, our reference to a “reason- able person” seems to suggest that the First Amendment per- mits punishing a threat made with only negligence as to the statement’s threatening character.5 See 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 men- tioning constitutional issues, that 49 U.S.C. App. § 1472(j), which prohibits “intimidat[ing] or threaten[ing]” a crew mem- ber onboard an airplane “so as to interfere with the perfor- mance” 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 5 The statute, however, explicitly included “intent to . . . intimidate” as an element of the crime, Orozco-Santillan, 903 F.2d at 1265, so our impli- cation that negligence suffices was perhaps dictum. 5654 UNITED STATES v. CASSEL 1523 (9th Cir. 1987), we upheld, against an overbreadth chal- lenge, 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 inter- fere 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 ele- ment of intent specified in section 3631 [is] the determinative factor separating protected expression from unprotected crim- inal 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 “in- tent 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 dis- cussing 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 Parent- hood 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 ser- vices.” 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 sub- jected to physical violence upon his person, is unprotected by the first amendment.” Planned Parenthood, 290 F.3d at 1075 UNITED STATES v. CASSEL 5655 (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 majori- ty’s holding in just that way. Id. at 1108 n.9 (Berzon, J., dis- senting) (“The majority opinion does not appear to embrace any such subjective intent standard as a constitutional require- ment . . . .”).

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 reasonable- person 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, 6 On 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 subjec- tive 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 con- cerned 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)). 5656 UNITED STATES v. CASSEL 293 F.3d at 1084 (citing Planned Parenthood for the proposi- tion 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 fol- lows:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of per- sons, 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 Vir- ginia 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 gen- erally unprotected category of true threats, it “selectively chooses only cross burning because of its distinctive mes- sage.” 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 pro- hibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Id. UNITED STATES v. CASSEL 5657 [4] The Court laid great weight on the intent requirement. It offered this definition of unprotected “true threats” and “in- timidation”:

“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 defi- nition 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 com- munication 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 uncon- stitutional precisely because the element of intent was effec- tively eliminated by the statute’s provision rendering any burning of a cross on the property of another “prima facie evi- dence 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 5658 UNITED STATES v. CASSEL 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 unnec- essary 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 burn- ing 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 politi- cal 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 par- ticular 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 four- Justice 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. Jus- tice Scalia agreed that the Virginia statute was unconstitu- tional 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 stat- ute; instead, he would have permitted case-by-case challenges UNITED STATES v. CASSEL 5659 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 elimi- nated 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 unconstitu- tionality. 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 constitu- tional 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.8 See Frederick 7 Even the ninth, Justice Thomas, did not disagree that intent to intimi- date is necessary; he would, however, have permitted intent to be inferred from the act of cross burning itself. 8 We 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 gov- ernment 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 pun- 5660 UNITED STATES v. CASSEL 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, Mock- ing 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.9 See 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 inter- est 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 compel- ling interest in prohibiting intimidation of flight crews onboard an air- plane). 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 con- sider the implications of Virginia v. Black, it does not constrain our analy- sis 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 fore- closed from deciding whether it had jurisdiction to review a district court’s refusal to depart downward from the Sentencing Guidelines where a previ- ous panel had reached the merits of such a case without raising or consid- ering the reviewability issue). UNITED STATES v. CASSEL 5661 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 requi- site subjective intent. His argument relies on a literal reading of the statute:11 taken literally, the phrase “[w]hoever, by 10 In 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 dis- cuss it; crucially, it provided no explanation of how the prima facie evi- dence 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. 11 Section 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. 5662 UNITED STATES v. CASSEL 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 inten- tional.

Yet this literal reading ignores a cardinal principle of statu- tory 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 unconstitutionali- ty.” 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) (instruct- ing courts to avoid “constitutionally doubtful constructions”). 12 Certain 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 deter- mine . . . 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 respon- sible relation to a public danger.” (internal quotation marks omitted)). The government does not suggest that 18 U.S.C. § 1860 defines a public wel- fare offense, and it plainly does not, since it does not deal with a “category of dangerous . . . devices” at all. UNITED STATES v. CASSEL 5663 Having held that intent to threaten is a constitutionally neces- sary 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 inconsis- tent with our decision in United States v. Tabacca, 924 F.2d 906 (9th Cir. 1991). In Tabacca we rejected a vagueness chal- lenge to 49 U.S.C. App. § 1472(j), which criminalizes “in- timidat[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 “intimida- tion” 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 Gil- bert, 813 F.2d at 1530.

C

We now consider Cassel’s argument that the jury instruc- tions given by the trial court were erroneous and require 5664 UNITED STATES v. CASSEL 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 apprehen- sion 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 conten- tion is correct, for the instruction included no such require- ment. 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 Amend- ment nor with the statute’s purpose, which is to punish inter- ference 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 13 In 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.” UNITED STATES v. CASSEL 5665 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 testi- mony 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 demon- strate 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 intim- idated, we cannot agree. The proper focus is on the defen- dant’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. “Intimida- tion,” 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 com- 5666 UNITED STATES v. CASSEL mits intimidation when, with intent to cause another to per- form or to omit the performance of any act, he communicates . . . a threat to . . . [i]nflict physical harm on the person threat- ened 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 intimi- dation. The purpose of 18 U.S.C. § 1860 is to prevent interfer- ence with federal land sales, and we see no reason why Congress would have intended to exclude interference accom- plished 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) (defin- ing 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 “in- timidation” 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. 14 The defendant might, of course, threaten to bring about the injury indirectly—for example, by having a third party harm the victim. UNITED STATES v. CASSEL 5667 [13] Again, this error in the jury instruction cannot be said to be harmless. Most of the statements Cassel made to poten- tial buyers did not suggest any threat of force on his part. For example, his claim that the area was inhabited by devil wor- shipers 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 defen- dant. 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)) (sec- ond 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 inconve- nience 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 conversa- tion with Cassel about the distrust Cassel felt for his attorney; 5668 UNITED STATES v. CASSEL Cassel had several opportunities to present his concerns and the court gave every indication that it was willing to take Cas- sel seriously. When Cassel described his disagreement and frustration with his attorney’s decision to make certain objec- tions and pursue certain lines of questioning, the judge care- fully explained to Cassel why his attorney had objected and why the objection made perfect sense from a legal perspec- tive. 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 ade- quate 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 attor- ney 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, compli- mented 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 sen- UNITED STATES v. CASSEL 5669 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 defen- dant’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 Cas- sel’s request.

III

Although Cassel’s facial challenge to 18 U.S.C. § 1860 fails, his conviction was based on jury instructions that inade- quately 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.