Holy Hoaxes, I’m Convicted? But, It Was Only Soap Not Scienter!

May 17, 2010

United States v. Castagana (08-50057), May 14, 2010

Ok . . . Mr. Castagana (Defendant – Appellant).  Notes to self:

1.  If you are ever (again) tempted to commit “threats and hoaxes” you should know there’s a Hoax Statute: 18 U.S.C. § 1038(a)(1). (full text here)

2.  Sending celebrities and political figures – or anyone else for that matter – threatening letters containing a white powdery substance (even if only a mixture of laundry soap & cleanser and not a biological weapon) = bad evidence against you = likely jury conviction.

3.  Big FYI:  Prosecutors do not have to prove that you “specifically intended the recipients of the letters to reasonably believe that they received anthrax.” Your requested jury instruction = denied.

  • Once caught and after being advised of your Miranda rights the following pretty much eviscerates your defense: (a) admitting to sending the  letters; and then (b) describing the steps you took to avoid getting caught – – wearing gloves so no fingerprints, mixing powders so hard to identify the substance, mailing the letters from a faraway location, using fictitious return addresses of other celebrities to ensure the letters are opened, and (a personal favorite) expressing surprise that you got caught.

Full text of the Ninth Circuit opinion in United States v. Castagana (08-50057) May 14, 2010 available here.

On A More Serious Note  . . . Statutory Interpretation: Where to start?  With the text of the statute.   

(a) Criminal violation.—

(1) In general.—Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of [specified anti-terrorism laws, shall [be fined or imprisoned as provided]. 18 U.S.C. § 1038(a)(1).

Castagana claimed that the statute is ambiguous, and therefore argued that the Court should apply the “presumption [that] a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.”United States v. X-Citement Video, Inc., 513 U.S. 64,72 (1994).

 The Ninth Circuit disagreed holding that the statute is not ambiguous with regard to the scienter requirement.  First, the statute refers to “conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that [terrorist] activity has taken, is taking, or will take place.” 18 U.S.C. § 1038(a)(1) (emphasis added).  The Ninth Circuit noted that these phrases clearly indicate that Congress intended to apply an objective standard to the second part of the statute, explicitly distinguished from the initial portion to which the explicit subjective intent requirement applies.

 Noted the Ninth Circuit:  It is difficult to imagine how we could interpret the statute as Castagana suggests, because it makes little sense to say that a perpetrator can intend that anything be “reasonably believed.”

 PS Fun Fact: The Ninth Circuit reviews de novo the denial of a jury instruction based on a question of law. See United States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir.2001).

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