Tuesday, May 24, 2005
Sometimes a judicial opinion catches your eye, and this one did, although it's at best only tangentially a white collar crime case (well, there's a property sale, so that brings it under our giant tent). The Ninth Circuit has a rather wry recitation of the facts of a criminal prosecution for interfering in the sale of government land. In United States v. Cassel (here), the defendant was charged with violating 18 U.S.C. Sec. 1860 for his statements made to potential purchasers of federal land in the Mojave Desert. It seems that Mr. Cassel (and his girlfriend, Anastasia Kafteranis, who owned the property on which they lived) did not want any neighbors on property the Bureau of Land Management planned to sell, so when the first potential purchasers came to look at the property, the following interchanges took place:
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 walking 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 conversation 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, producers of illegal drugs, devil-worshipers, and witches; that the ground was a toxic waste dump contaminated with cyanide; 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.
After making similar comments to a second set of potential purchasers -- who decided not to buy the property for some unfathomable reason -- the government charged Cassel with two counts of violating Section 1860 along with one count of witness intimidation. Section 1860(a) (here) provides: "Whoever, 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 so offered for sale—Shall be fined not more than $1,000 or imprisoned not more than one year, or both." Cassel challenged his conviction under the statute on First Amendment grounds. The court first rejected his facial unconstitutionality argument, holding that the statute must be interpreted to incorproate an intent element regarding the intimidation to meet the requirements of the Supreme Court's opinion in Virginia v. Black (on the constitutionality of Virginia's cross-burning statute). The Ninth Circuit went on to overturn the conviction on the ground that the jury instructions did not articulate the requisite specific intent to intimidate element of the crime, read into the statute by the court to avoid First Amendment problems. The court held:
In view of our holding that 18 U.S.C. § 1860 includes a mens rea element of subjective intent, Cassel’s first contention is correct, for the instruction included no such requirement. 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. It is not enough that the defendant 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 Amendment nor with the statute’s purpose, which is to punish interference by intimidation, not to prevent potential land buyers from hearing negative viewpoints on the land for sale.
Cassel may not be the friendliest neighbor around, and spending too much time out in the sun in the Mojave Desert can do funny things to you, but when has being unneighborly (to say the least) been a federal offense? Now, naming your dog "Mr. Mooch Face" is another matter. (ph)