United States v Wheeler

Wheeler appealed his conviction for transmitting threats in violation of 18 USC 875(c) arguing the district court failed to properly charge the jury and the evidence was insufficient. The panel agreed on the instruction issue and reversed and remanded for a new trial. It held that under circuit precedent handed down after the trial here, subjective intent to threaten must be proved and the jury was never instructed that subjective intent was required. It further rejected the government’s harmless error argument holding a rational juror could have acquitted based on Wheeler’s testimony he did not believe he had any friends on Facebook or any religious followers when he posted his calls to followers to kill police and children and thus a jury must decide if he subjectively intended to threaten.. The panel held the posts could constitute true threats as circuit precedent required a fact intensive evaluation whether a reasonable person would have felt threatened. The panel rejected Wheeler’s proposed bright line rule that only threats to be carried out by the speaker or specific identified people under the speakers control violate 875(c) as this would allow the statute to be skirted by clever phrasing. It further held that reasonable people could believe that explicit calls to commit specific violent acts on identifiable persons and groups of people, including children at a specific day care, were true threats. Thus, retrial was required as the evidence was sufficient to prove a true threat, but, the jury was not properly instructed.