Pierre v. Attorney General of United States

RENDELL, Circuit Judge,

concurring, joined by

McKEE and AMBRO, Circuit Judges.

The majority is correct that a finding of torture requires an examination of purpose. The examination occurs, however, not in connection with “specific intent,” but, rather, in connection with the element of “illicit purpose.” The majority conflates the two by deciding that specific intent to inflict severe pain and suffering only exists if the actor’s purpose is to inflict pain. In doing so, it has obscured the meaning of specific intent and its proper contours as developed in the criminal law jurisprudence.

The definition of torture in CAT and its implementing regulations contains an intent element and a purpose element. See 8 C.F.R. § 208.18 (a)(1) (“Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as----”). In Matter of J-E-, the BIA summarized the test under 8 C.F.R. § 208.18 (a) as requiring that the act be:

(1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions.

23 I. & N. Dec. 291, 297 (B.I.A.2002). The BIA’s decision in Matter of J-E- also introduced the concept of using the criminal law to interpret the term “specifically intend” in implementing regulations. Id. at 301 (citing the definition of specific intent in Black’s Law Dictionary).

Our Court subsequently looked to the criminal law for guidance in both Auguste v. Ridge, 395 F.3d 123 (3d Cir.2005), and Lavira v. Attorney General, 478 F.3d 158 (3d Cir.2007). In Auguste , we concluded that the BIA had correctly defined the specific intent requirement by reference to domestic criminal law as “the intent to accomplish the precise criminal act that one is later charged with while general intent commonly takes the form of recklessness.” 395 F.3d at 145 . We did not require that a would-be torturer have the purpose to inflict severe pain and suffering, but, rather, simply concluded that mere recklessness was insufficient to satisfy CAT’s “specific intent” requirement. Id. at 146 . In Lavira , we similarly resorted to criminal law for guidance, and concluded that the specific intent requirement was satisfied by evidence that, given the petitioner’s “obvious vulnerability and its nearly inevitable consequences” and the expert report submitted regarding the treatment of HIV/AIDS patients, he would be singled out and targeted by prison guards. 478 F.3d at 169-71 . By contrast to Auguste , the petitioner in Lavira alleged that “[sjevere pain is not ‘a’ possible consequence that ‘may result from placing Lavira in the facility, it is the only possible *192 consequence given what Haitian officials know about Lavira and about their own facility.’ ” Id. at 170 . We held that he, therefore, had properly demonstrated specific intent, in the form of the prison official’s knowledge that severe pain and suffering would certainly result. Neither case hinted at a need for a purpose to inflict pain, nor have specific intent crimes historically included purpose as an element. 9 Today, disregarding the weight of criminal authority, the majority adds this requirement.

The majority equates “intentionally inflicted” under CAT, which requires specific intent, to “pain for pain’s sake.” This goes beyond the meaning of intentional infliction under J-E-. The specific intent aspect does not speak to, or require a finding as to, the purpose; the illicit purpose element does. As discussed below, “pain for pain’s sake” would be an illicit purpose.

Specific intent, as it has been developed through the criminal caselaw and treatises, is no more than intent to do the prohibited act with knowledge or desire that it will cause a certain result. Tison v. Arizona, 481 U.S. 137, 150 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987); United States v. U.S. Gypsum Co., 438 U.S. 422, 445 , 98 S.Ct. 2864 , 57 L.Ed.2d 854 (1978); 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 354 (2d ed.2003); see also Carter v. United States, 530 U.S. 255, 268 , 120 S.Ct. 2159 , 147 L.Ed.2d 203 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime”).

The source of the majority’s requirement of “purposeful pain” is, therefore, somewhat curious. It is regrettable that an errant sentence in a different context in United States v. Bailey, suggesting that “[i]n a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent,” veered from the historical meaning. 444 U.S. 394, 403 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980). The sentence is at best incomplete and misleading and certainly cannot be relied upon to establish that “specific intent” must mean “purpose.” If, as the government urges, Bailey does establish that specific intent can only be proven where an individual acted with the purpose of causing a particular consequence, it would also mean that, since 1980, all prosecutions for specific intent crimes either proved the defendant’s purpose as to consequences (and did not rely on knowledge of the certainty of consequences) or resulted in acquittals based on Bailey. We know this is not the case. Our own jury instructions continue to define “intentionally” — the term used in the CAT regulations-and “with intent” to mean: “Either that (1) it was [defendant’s] conscious desire or purpose ... to cause a certain result, or that (2) [defendant] knew that (he)(she) ... would be practically certain to cause that result.” Third Circuit Jury Instructions § 5.03 (Sept.2006). This is the proper definition of specific intent. Furthermore, Bailey purported only to summarize the state of the law, not to overrule precedent interpreting the common law term. Indeed, the term “loosely” used by the Bailey Court indicates that specific intent, in fact, has meanings other *193 than purpose. As a common law term, it retains its traditional meaning — that urged by petitioner.

The issue before us has been the subject of recent commentary that is timely and persuasive. In an August 1, 2002 memo to the White House Counsel, Jay Bybee, Assistant Attorney General, set forth an interpretation of “specific intent” that is similar to that espoused by the majority. There, he stated that “knowledge alone that a particular result is certain to occur does not constitute specific intent.” Id. at 182-83. It concluded that “even if a defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” Id. at 183. This is the interpretation that was relied upon in defense of the abuse at Abu Ghraib and the torture of prisoners during interrogations at facilities in Iraq and Afghanistan.

However, this interpretation of “specific intent” has since been soundly repudiated by the very office that promulgated it. See Justice Department Dec. 30, 2004 Memo on U.S. Torture Policy for Deputy Attorney General James B. Comey (“2004 Memo”). The 2004 Memo explained that:

In the August 2002 Memorandum, this Office concluded that the specific intent element of the statute required that infliction of severe pain or suffering be the defendant’s “precise objective” and that it was not enough that the defendant act with knowledge that such pain “was reasonably likely to result from his actions” (or even that that result “is certain to occur”). Id. at 182-83. We do not reiterate that test here.

Id. at n. 27.

The Memo then went on to state:

It is well recognized that the term “specific intent” is ambiguous and that the courts do not use it consistently. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 355 & n. 79 (2d ed.2003). “Specific intent” is most commonly understood, however, “to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.” Id. at 354; see also Carter v. United States, 530 U.S. 255, 268 , 120 S.Ct. 2159 , 147 L.Ed.2d 203 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime”). As one respected treatise explains:

With crimes which require that the defendant intentionally cause a specific result, what is meant by an “intention” to cause that result? Although the theorists have not always been in agreement ..., the traditional view is that a person who acts ... intends a result of his act ... under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.

1 LaFave, Substantive Criminal Law, § 5.2(a), at 341 (footnote omitted).

As noted, the cases are inconsistent. Some suggest that only a conscious desire to produce the proscribed result constitutes specific intent; others suggest that even reasonable foreseeability suffices. In United States v. Bailey, 444 U.S. 394 , 100 S.Ct. 624 , 62 *194 L.Ed.2d 575 (1980), for example, the Court suggested that, at least “[i]n a general sense,” id. at 405 , 100 S.Ct. 624 , “specific intent” requires that one consciously desire the result. Id. at 403-05 , 100 S.Ct. 624 . The Court compared the common law’s mens rea concepts of specific intent and general intent to the Model Penal Code’s mens rea concepts of acting purposefully and acting knowingly. Id. at 404-05 , 100 S.Ct. 624 . “[A] person who causes a particular result is said to act purposefully,” wrote the Court, “if ‘he consciously desires that result, whatever the likelihood of that result happening from his conduct.’ ” Id. at 404 , 100 S.Ct. 624 (internal quotation marks omitted). A person “is said to act knowingly,” in contrast, “if he is aware ‘that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” Id. (internal quotation marks omitted). The Court then stated: “In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.” Id. at 405 , 100 S.Ct. 624 .

In contrast, cases such as United States v. Neiswender, 590 F.2d 1269 (4th Cir.1979), suggest that to prove specific intent it is enough that the defendant simply have “knowledge or notice” that his act “would have likely resulted in” the proscribed outcome. Id. at 1273 . “Notice,” the court held, “is provided by the reasonable foreseeability of the natural and probable consequences of one’s acts.” Id.

We do not believe it is useful to try to define the precise meaning of “specific intent” in section 2340. In light of the President’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture. Some observations, however, are appropriate. It is clear that the specific intent element of section 2340 would be met if a defendant performed an act and “consciously desire[d]” that act to inflict severe physical or mental pain or suffering. 1 LaFave, Substantive Criminal Law § 5.2(a), at 341. Conversely, if an individual acted in good faith, and only after reasonable investigation establishing that his conduct would not inflict severe physical or mental pain or suffering, it appears unlikely that he would have the specific intent necessary to violate sections 2340-2340A. Such an individual could be said neither consciously to desire the proscribed result, see, e.g., Bailey, 444 U.S. at 405 , 100 S.Ct. 624 , nor to have “knowledge or notice” that his act “would likely have resulted in” the proscribed outcome, Neiswender , 590 F.2d

Two final points on the issue of specific intent: First, specific intent must be distinguished from motive. There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute. See Cheek v. United States, 498 U.S. 192, 200-01 , 111 S.Ct. 604 , 112 L.Ed.2d 617 (1991). Second, specific intent to take a given action can be found even if the defendant will take the action only conditionally. Cf., e.g., Holloway v. United States, 526 *195 U.S. 1, 11 , 119 S.Ct. 966 , 143 L.Ed.2d 1 (1999) (“[A] defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose.”). See also id. at 10-11 & nn. 9-12, 119 S.Ct. 966 ; Model Penal Code § 2.02(6). Thus, for example, the fact that a victim might have avoided being tortured by cooperating with the perpetrator would not make permissible actions otherwise constituting torture under the statute. Presumably that has frequently been the case with torture, but that fact does not make the practice of torture any less abhorrent or unlawful.

Id. at 16-17 (emphases added). Thus, the 2004 memorandum both affirmatively stated that the specific intent element is not tied to a purpose or “precise objective” to inflict severe pain and suffering, and suggested that knowledge of “reasonably likely” results could come within the definition of specific intent.

Consistent with this, the specific intent requirement in CAT’s implementing regulations excludes “unanticipated” or “unintended” severity of pain and suffering. 8 C.F.R. § 208.18 (a)(5). Again, I cannot emphasize enough, the mental element is knowledge or desire that pain and suffering will result. This is different from the underlying purpose of the act. The distinction is subtle, but important. We should hold that if severe pain and suffering is desired or known to result from the actor’s conduct, the specific intent element is fulfilled. 10 Only then does the inquiry turn to the “purpose” element under CAT, as set forth in J-E-.

Under CAT, “illicit purposes” include, but are not limited to, “such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind”; exempted from CAT is “pain or suffering arising only from, inherent in or incidental to lawful sanctions,” defined to “include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty,” but to exclude those “sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.” 8 C.F.R. §§ 208.18 (a)(1) & (3). This list sets forth examples and is not exhaustive. (As a matter of statutory interpretation, the term “such ... as” does not designate a closed list). It is this “purpose” element that will require a finding as to the actor’s motive. Pain for pain’s sake would clearly be an illicit purpose — but is just one of a number of possible proscribed motives. Each element — specific intent and purpose, respectively — is analytically separate.

By conflating purpose with specific intent, the majority has excluded from the definition of torture those acts that we all *196 would agree constitute torture. Imagine the following situation:

A military official in Haiti desires information from a detained, suspected terrorist. His purpose in interrogating the detainee is to solicit information. In the course of the interrogation, he begins to use coercive tactics. The official’s only purpose and conscious desire is to receive information. He is indifferent as to whether his tactics (electric shock) cause severe pain and suffering; indeed, he had hoped that the detainee would give him information without the infliction of pain and suffering. The shock treatment is administered and does cause severe pain and suffering.

Is this not torture? Under the majority’s interpretation, it is not. Although obtaining information is an illicit purpose satisfying that prong of CAT’s implementing regulations, the official’s conduct will not meet the standard the majority has set for the specific intent requirement; his purpose is to obtain information, not to inflict severe pain and suffering. By contrast, an interpretation that adopts the criminal law definition of specific intent and encompasses knowledge or desire that severe pain and suffering will occur includes the above hypothetical in the definition of torture under CAT.

Although I disagree with majority’s interpretation of specific intent and its resulting conflation of the specific intent and illicit purpose elements under the CAT statute, I concur in the result. In this case, the petitioner simply failed to adduce adequate evidence before the IJ from which we can conclude that there will be intentional infliction of pain — i.e., with knowledge or desire on the part of the prison officials. In this way, the present case is distinguishable from Lavira . Here, the allegations made before the IJ were not substantiated with proof of either intent or proscribed purpose and were, at most, akin to a generalized challenge to prison conditions rejected in Auguste . I therefore concur in the result reached by the majority, but disagree with its conclusion that the “intentional infliction” element of torture requires a finding that the actor’s purpose is to cause severe pain and suffering. 11

. At common law, specific intent crimes included burglary, false pretenses, embezzlement, attempt, solicitation, and conspiracy. See Black’s Law Dictionary 825 (8th ed.2004). They required intent in the form of knowledge or desire that the result will occur-not “purpose.” General intent, according to Black’s Law Dictionary, requires “the intent to perform an act even though the actor does not desire the consequences that result.” Id. It “usually takes the form of recklessness.” Id. It is readily agreed that general intent crimes at common law, such as manslaughter, require no more than a reckless state of mind.

. To the extent that the majority fears that such a holding would open the floodgates to CAT petitioners from places such as Haiti where the petitioner will likely be subjected to deplorable conditions, there remains an evi-dentiary burden of showing that would-be torturers in such places know of or desire the resulting infliction of severe pain and suffering. Furthermore, CAT's other requirements must also be met, such that a deportation to a country with sub-par medical treatment will not constitute torture because, among other things, there needs to be official action in a custodial situation that subjects the petitioner to inevitable pain and suffering. See 8 C.F.R. § 208.18 (a)(6) (requiring that an act of torture be performed by or at the acquiescence of a public official and directed against a victim in the torturer’s custody or physical control).

. I also agree that our discussion of willful blindness in Lavira was dicta, referring as we did only to the possibility that it would suffice to fulfill the "intent” prong. I conclude that while "willful blindness” may permit a jury to conclude that someone was aware of, for example, the illegal nature of an enterprise, its application to satisfy the scienter requirement for torture is a different matter which we need not now explore. I disagree with the majority's reason for rejecting "willful blindness” as a way to prove the specific intent element in the torture context, however, because it is based on its misconception that it is "purpose,” not knowledge of a certain result, that must be demonstrated.