The defendant, Phuoung Nguyen Le, was charged with Mailing Threatening Communications to Congressman Bobby Scott. Le originally pled guilty to the charge, but later made a motion to withdraw his guilty plea due to legal innocence. The district court granted Le’s motion.

The parties, by and large, do not dispute the material facts. The Defendant, Phuong Le, is a 49-year-old who lived in Vietnam until 1991, at which time he relocated to a Malaysian refugee camp with his family following his release from prison. Le had been imprisoned for “political reasons.” Le and his family, including his first wife, moved to the United States in 1998, when they were granted refugee status. Le became a naturalized citizen in 2004 and divorced his wife in the same year. During several trips to Vietnam throughout the period of 2004 to 2007, the Defendant met and married his current wife, My Nga Ly.

Ms. Ly applied for a visa to visit the United States, but her application was denied. Le requested information about the denial from Congressman Bobby Scott; Scott obtained a letter from Charles Bennett, the Consular Chief in Vietnam, which stated that Ly’s application had been denied because there was no evidence of a “bona fide relationship” between her and Le.

Upset by this news, Le sent a letter to Congressman Scott that made references to the Virginia Tech shootings of 2007, threatened to decapitate Bennett, and indicated that Le planned to commit suicide. The letter was also smeared with Le’s blood. Le states that his letter was not intended to threaten, but rather to insult, and somewhat belatedly, has blamed his lack of understanding of English language and a difference in cultures for the misunderstanding.

Le was charged with a violation of 18 U.S.C. § 876, Mailing Threatening Communications, in a one count Indictment on December 15, 2008. Le pled guilty to that charge on February 4, 2009; and the guilty plea was taken by a Magistrate Judge, who issued a report and recommendation that the Court accept Le’s guilty plea on the same day . . .

A sentencing hearing was held for Le on April 24, 2009, at which time Le, and his counsel, indicated that Le might seek to withdraw his guilty plea.

. . . Le argues that the statute under which he was charged, 18 U.S.C. § 876(c), requires that the perpetrator mail a communication knowing that the content of the communication was a threat . . . Le argues that, because he was linguistically and culturally incapable of understanding that his communication was threatening, he could not have possessed the required mens rea. Le proffers expert testimony to support his factual claims. The United States argues that no mens rea requirement is attached to the “threat” element of § 876.

The relevant statute provides:
whoever knowingly . . . deposits or causes to be delivered . . .
any communication with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another is guilty of a crime. 18 U.S.C. § 876. The Fourth Circuit has stated that § 876 creates a specific intent crime, but only insofar as the act of mailing is concerned. However, the court of appeals also has held that “the defendant must have a general intent to threaten the recipient at the time of the mailing.”
This general intent “can be gleaned from the very nature of the words used in the communication; extrinsic evidence to prove an intent to threaten should only be necessary when the threatening nature of the communication is ambiguous.”
Id. The communication must also encompass a “true threat”-a communication that a “reasonable recipient who is familiar with the context of the letter would interpret [] as a threat of injury.”
There can be no reasonable dispute that a letter smeared with blood that contains a threat to decapitate another individual, a reference to a notorious massacre, and a threat to commit suicide is a “true threat” under the objective standard set forth by Maxton. Le has not argued that he did not knowingly place that communication in the mail. Therefore, the remaining question in assessing whether there is a credible showing of innocence is his mental state respecting the threat contained in the letter which he admittedly sent.
. . . However, Le has offered evidence in support of his motion in the form of expert testimony that, in Le’s culture and in his language, the communication would not be threatening. This kind of evidence is generally regarded as being potentially relevant to the issue of mens rea in a criminal proceeding.
Dr. Leung, Le’s expert, offers conclusions about the subjective meanings of Le’s words as they were communicated in the letter . . . Amidst a flurry of conclusions of questionable relevance and admissibility, Dr. Leung makes three salient statements. First, Dr. Leung states that the phrase “cut his head off,” as idiomatically used in Vietnamese, expresses an insult rather than an actual threat. Second, Dr. Leung states that Le’s act of smearing the letter with blood is a Vietnamese tradition called “letting blood,” which has the effect of vouching for the truthfulness of the content of the document. These points support Le’s argument that he had no general intent to threaten and/or knowledge that his letter contained a threat and, thereby, they support Le’s claim of actual innocence.
Finally, Dr. Leung opines that Le, due to his limited grasp on the English language and American culture, would not have realized that those statements and actions could lead to another individual feeling threatened. That testimony may not be admissible in that form but Dr. Leung likely would be permitted to testify to the closely-related proposition that the difference in language and culture would lead a Vietnamese not to appreciate that the English language used could constitute a threat. If that is what Dr. Leung intends to convey, it likely would be admissible and, if it is admitted, would be further evidence probative of Le’s asserted innocence.
Of course there is significant contrary evidence. Dr. Leung does not explain how the stated intent to decapitate and smearing of the blood should be read in the context of the references to the Virginia Tech massacre and Le’s threat of suicide. These are undoubtedly violent images, and frame the remainder of the letter in a more threatening tone. Therefore, Dr. Leung’s conclusions about Le’s subjective meaning are thrown into doubt by the presence of that unexplained context.
Furthermore, Le had been in the country for over ten years at the time the letter was sent, and had significant contacts with the English-speaking justice system and English-speaking authorities. The likelihood that Le would misunderstand the threatening nature of the content and style of his communication is reasonably called into doubt by his long experience in America and with English speakers.
Taken as a whole, the record shows that Le has made a non-frivolous showing of legal innocence. That evidence is not particularly strong, but it creates factual issues which, if resolved in Le’s favor by a jury, could result in acquittal. The second Moore factor, therefore, weighs in his favor . . .
For the foregoing reasons . . . Le has shown a fair and just reason for withdrawing his guilty plea, notwithstanding that the record reflects a fully complete and satisfactory Rule 11 colloquy. This is one of those few cases that circumstances not made known to the Magistrate Judge dispel the presumption created by an adequate colloquy. On this record, it is fair and just to permit Le to withdraw his guilty plea.
Counsel have been so informed by a telephone conference and the case will be set for trial. It is so ORDERED.

Questions:-

1. Why does Le want to withdraw his guilty plea? What is his legal argument?
2. Do you think a defendant’s cultural background should be relevant in determining guilt or innocence?
3. What did the court ultimately rule in regards to Le’s motion?