Metropolitan News-Enterprise


Wednesday, May 25, 2005


Page 1


Court Tosses Man’s Conviction for Threatening Potential Neighbors


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Northern California man whose desire to live without neighbors allegedly caused him to threaten potential purchasers of nearby federal land is entitled to a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Judges rejected Paul Kent Cassel’s First Amendment challenge to 18 U.S.C. Sec. 1860, which permits a jail term of up to one year to be imposed on anyone who “by  intimidation, combination, or unfair management, hinders, prevents, or attempts to hinder or prevent, any person from bidding upon or purchasing any tract of land” offered for sale by the federal government.

But the panel, in an opinion by Judge Diarmuid F. O’Scannlain, concluded that a magistrate judge gave a faulty jury instruction with respect to the requisite intent, and that the error was not harmless beyond a reasonable doubt.

Defendant Charged

Cassel was charged in 2000 with having interfered with two federal land sales by intimidating potential purchasers who were looking at Bureau of Land Management properties near his residence in the vicinity of Randsburg in the Mojave Desert. The witnesses testified that Cassel, accompanied by his aggressive dog “Mr. Mooch Face,” gave them a large assortment of reasons not to buy in the area.

Among other things, they said, Cassel told them that the area was inhabited by child molesters, murderers, producers of illegal drugs, devil-worshippers, and witches, that the ground was contaminated, that the house where he and his girlfriend were living had been damaged by mining explosions, and in one case, that if the potential buyer “tried to build anything on [the property] that it would definitely burn” and that the person’s property “would be stolen, vandalized.”

Cassel denied making the latter statements, but the witness said the defendant’s threats were the reason he did not bid on the lot, which was eventually purchased by Cassel’s girlfriend.

A jury convicted Cassel of two violations of Sec. 1860 and one count of witness tampering. A magistrate judge sentenced him to five months’ imprisonment followed by 150 days of home confinement, and Senior U.S. District Judge Robert E. Coyle of the Eastern District of California affirmed.

Argument Rejected

On appeal, O’Scannlain rejected the government’s argument that Cassel could be convicted of a criminal threat on the basis of a statement that a reasonable person would understand to be a threat, even if the defendant did not so intend.

The judge cited the 2003 Supreme Court decision upholding Virginia’s cross-burning statute. The act was upheld, O’Scannlain explained, because it only punished “true threats,” which the high court defined as “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 jurist, however, rejected the defense contention that the lack of an explicit intent element rendered the statute unconstitutional. The general rule, he explained, is that such an element will be read into a criminal statute in the absence of language suggesting a contrary intent on the part of lawmakers, and that in any event, a statute must be read to avoid a finding of unconstitutionality, if reasonably possible.

But the judge, while rejecting the facial challenge to Sec. 2860, agreed with the defense that the magistrate erred in defining “intimidation” as “to make a person timid or fearful through the use of words and conduct that would put an ordinary, reasonable person in fear or apprehension for the purpose of compelling or deterring legal conduct of that person.”

The instruction was flawed, O’Scannlain explained, because it failed to require intent to intimidate, and because it failed to make clear that the victim’s “fear or apprehension” had to be a fear of the defendant.

The error was not harmless beyond a reasonable doubt, the judge added, because there was conflicting testimony as to what the defendant said, and thus as to what intent could be inferred from his comments.

The case is United States v. Cassel, 03-10683.


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