In United States v. Curtin, No. 22-10509 (Aug. 28, 2023) (Wilson, Newsom, Luck), the Court affirmed Mr. Curtin’s convictions and 60-month sentence.

Mr. Curtin was convicted of (1) mailing a threatening communication, in violation of 18 U.S.C. § 876(c), and (2) threatening a federal official, in violation of 18 U.S.C. § 115(a)(1)(B).

First, Mr. Curtin challenged the sufficiency of the evidence as to both counts.  With regard to the § 876(c) count–mailing a threatening communication–the Court found sufficient evidence to convict.  In so holding, the Court noted that the Supreme Court’s holding in Counterman v. Colorado did not change its calculus because the record evidence sufficiently demonstrated that Mr. Curtin acted with a mens rea of at least knowledge, which surpasses the mens rea of recklessness that the Supreme Court found was required in order to satisfy any First Amendment concerns raised in Counterman.  With regard to the § 115(a)(1)(B) count–threatening a federal judge–the Court similarly found sufficient evidence to convict.

Second, Mr. Curtin argued that the district court erred when it denied his motion to dismiss the indictment on the ground that it violated 18 U.S.C. § 4241(d), which states that a district court may commit a defendant to the “custody of the Attorney General” to be hospitalized for “treatment in a suitable facility” if the “court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent.”  The statute goes on to say that the defendant’s hospitalization is authorized only for “a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.”  Here, Mr. Curtin was arrested and detained on August 24, 2020, ordered hospitalized on November 24, 2020, and only arrived at the hospital for treatment on March 22, 2021.  On July 22, 2021, he requested a transfer back to the detention facility in Miami and moved to dismiss his indictment on the ground that he had been hospitalized for too long.

On appeal, Mr. Curtin raised three arguments: first, that he was hospitalized beyond the statute’s 4-month deadline, and that the only proper remedy is dismissal; second, that the district court miscalculated the length of his hospitalization because it should have been deemed to have begun with the commitment order on November 24, 2020 rather than when he physically arrived at the hospital on March 22, 2021; and third, that the government doctors’ reports detailing their competency findings should have been submitted within the 4-month period.  As to the second argument, the Court found Mr. Curtin invited any error because he agreed that the 4-month period began when he arrived at the hospital on March 22, 2021.  As to the third argument, the Court found that § 4241(d)’s text does not require that psychiatric findings be released or received within the 4-month period.  As to the first argument–that Mr. Curtin was hospitalized for longer than the 4 months § 4241(d) permits–though the government conceded error, it argued, and the Court agreed, that the appropriate remedy was not dismissal of the indictment.  The Court held that the appropriate remedy here was what Mr. Curtin received–release from hospitalization.

Third, Mr. Curtin challenged the failure of the entire bench of the Southern District of Florida to recuse itself sua sponte from his case.  Reviewing this argument for plain error, the Court found none.

Finally, Mr. Curtin challenged both the procedural and substantive reasonableness of his sentence.  The Court found no error in his sentence.

Judge Newsom wrote a separate concurrence to “unmask the contradictions” in the Court’s procedural-and-substantive-reasonableness precedents and “propose a better way of classifying and adjudicating sentencing-related challenges.”  He focused his discussion on whether a judge’s consideration of an impermissible factor implicates procedural reasonableness or substantive reasonableness.  In his view, a judge’s consideration of an impermissible factor should be viewed as a procedural error.  He urged the en banc court to reconsider its precedents and “restore some order.”

***Judge Newsom’s concurrence is worth a read.  He outlines the Court’s messy precedents on procedural versus substantive error and suggests some helpful ways to argue that the error asserted is procedural rather than substantive, which is a better argument on appeal***