02-2151 U.S. v. Jones

Listen to this article

“The indictment charged that Jones ‘willfully and maliciously’ disseminated false information about the harmless powder he placed in the premises of the Hoosier Heartland Travel Center, a facility used in interstate transportation. (The Travel Center is a truck stop near an interstate highway.) Real anthrax spores would have been a ‘destructive substance’ for purposes of sec. 33(a) and would have endangered the safety of persons engaged in interstate commerce.

“The indictment does not allege that Jones intended to endanger anyone’s safety. Such intent is required for a violation of sec. 33(a), and without a violation of sec. 33(a) (or some other predicate offense) there can be no violation of sec. 35(b) either, Jones insists. That’s wrong because the reference in sec. 35(b) to ‘any act which would be a crime prohibited by this chapter’ is to the actus reus of sec. 33(a) (or another predicate offense), not to its mens rea. Section 35(b) has its own mental-state requirement. It would make no sense to borrow a mental-state rule from elsewhere, because the point of sec. 35(b) is to penalize hoaxes, and hoaxers do not intend people to be harmed. They intend shock, fright, inconvenience, but not injury or death. A bomb scare and a real bomb are designed to cause distinct kinds of injuries, so the mental-state requirements for the offenses also differ. One can imagine situations where a prank could cause death – a cry of ‘anthrax!’ in a packed night club might lead to people being trampled or crushed-but these are rare, and a plan to cause injury is not essential to the offense. The reference in sec. 35(b) to predicate offenses defined elsewhere in Title 18 just identifies the types of acts that, if faked, may cause panic and divert the resources of law enforcement from real to phony threats. A person who carries out a bomb or toxin scare ‘willfully and maliciously, or with reckless disregard for the safety of human life’ violates sec. 35(b) even if he lacks the intent to produce physical injury or death that is required under statutes such as sec. 33(a). So two other circuits have held. See United States v. Allen, 317 F.2d 777 (2d Cir. 1963); United States v. White, 475 F.2d 1228 (4th Cir. 1974). We agree with these decisions.”

Affirmed.

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Easterbrook, J.