by David Kim

The United States Court of Appeals for the Ninth Circuit held that a violation of 18 U.S.C. § 1958(a) resulting in death is not categorically a crime of violence and cannot serve as a predicate offense for solicitation under 18 U.S.C. § 373(a). Congress intentionally omitted a mens rea requirement from the statute’s death-results element, so a defendant may be convicted for an accidental killing, the Court reasoned.

Background

James Terry Henrikson paid one hit man $20,000 to murder one business associate and offered him another $20,000 to murder a second. He also hired a different hit man to murder three other associates, but those killings never occurred. In 2016, a jury convicted Henrikson on 11 counts, including four counts of solicitation to use interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. §§ 373(a) and 1958(a). Counts 7 and 8 were based on solicitations that led to deaths, while Counts 9 and 10 were based on solicitations that did not. The 20-year terms on Counts 7 and 8 each ran concurrently with at least one of Henrikson’s unchallenged life sentences.

In 2023, Henrikson moved under 28 U.S.C. § 2255 to vacate all four solicitation convictions, arguing that a § 1958(a) violation is not categorically a crime of violence. The U.S. District Court for the Eastern District of Washington vacated Counts 9 and 10 under United States v. Linehan, 56 F.4th 693 (9th Cir. 2022), which so held as to violations involving neither personal injury nor death. It declined to vacate Counts 7 and 8, determining that a violation resulting in death is categorically a crime of violence, an issue Linehan had reserved. The Ninth Circuit granted a certificate of appealability on that question, the parties agreeing that Henrikson’s innocence would excuse any procedural default or untimeliness.

Analysis

The Court began its analysis by observing the concurrent sentence doctrine permits a court, as a matter of discretion, to decline review of one conviction when another is affirmed, the sentences run concurrently, and no adverse collateral legal consequences result. The Ninth Circuit eliminated the doctrine in direct appeals in United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc), but has not decided whether it applies in collateral review. Other circuits have extended, rejected, or limited the doctrine in that setting. See United States v. Smith, 104 F.4th 314 (D.C. Cir. 2024); Ruiz v. United States, 990 F.3d 1025 (7th Cir. 2021); Oslund v. United States, 944 F.3d 743 (8th Cir. 2019); United States v. Charles, 932 F.3d 153 (4th Cir. 2019). Because application of the doctrine is discretionary, the Court did not resolve the collateral-review question. The merits had already been fully briefed and argued, so declining review would not significantly advance the doctrine’s “only justification” of judicial economy.

Sections 373(a) and 1958(a)

Turning to the merits, the Court discussed § 373(a), which punishes soliciting another to engage in conduct constituting a felony “that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another.” That elements clause demands both “violent force – that is, force capable of causing physical pain or injury to another person” and a “sufficiently culpable mens rea to the use of force[,] as opposed to other elements of the crime[,]” meaning purposeful or knowing conduct or conduct evincing extreme recklessness. Johnson v. United States, 559 U.S. 133 (2010); Borden v. United States, 593 U.S. 420 (2021); United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc).

Under the categorical approach, the facts of a case are irrelevant, and a statute is not a crime of violence unless the “least culpable act” it criminalizes requires that force. United States v. Taylor, 596 U.S. 845 (2022); Begay. Because § 1958(a) is divisible, defining a base offense and aggravated offenses that carry heightened penalties where personal injury or death results, the Court applied the modified categorical approach. Mathis v. United States, 579 U.S. 500 (2016). It declined to decide whether the two aggravated offenses can or should be differentiated. Since Linehan held that the statute’s first three elements do not require physical force, the death-results element was the only one capable of satisfying § 373(a), the Court explained.

Death-Results Element
of § 1958(a)

The Court assumed without deciding that the death-results element satisfies the physical-force requirement. Delligatti v. United States, 604 U.S. 423 (2025). What remained was whether all violations resulting in death satisfy the mens rea requirement. The Government argued that the element reaches only intentional killings. Henrikson argued that it carries no intent requirement and encompasses negligent, reckless, and accidental conduct.

The Court noted that the element supplies no explicit mens rea, providing only “if death results.” Criminal statutes are ordinarily read to require a guilty mind as to every element, but dispensing with mens rea requires “some indication of congressional intent, express or implied.” Staples v. United States, 511 U.S. 600 (1994). The Court explained that the Supreme Court applied that principle in Dean v. United States, 556 U.S. 568 (2009), holding that “if the firearm is discharged” imposes no intent requirement because the text carries no words of limitation, the passive voice “focuses on an event that occurs without respect to a specific actor,” and Congress had imposed intent requirements in neighboring subsections. United States v. McDuffy, 890 F.3d 796 (9th Cir. 2018), applied that analysis to identical language in the federal bank robbery statute.

Consistent with Dean and McDuffy, the Court held that the text and structure of § 1958(a) demonstrate that Congress intentionally omitted a mens rea requirement from the death-results element, which lacks an explicit mens rea, describes the killing in the passive voice, and appears alongside two express intent elements in the same section. That reading accords with sister circuits’ constructions of identical or similar language, according to the Court. United States v. Ross, 2022 U.S. App. LEXIS 25379 (8th Cir. 2022); United States v. Lowell, 2 F.4th 1291 (10th Cir. 2021); United States v. Williams, 998 F.3d 716 (6th Cir. 2021); In re Hall, 979 F.3d 339 (5th Cir. 2020), abrogated by Borden, as recognized in United States v. Elkins, 161 F.4th 899 (5th Cir. 2025); United States v. Burkholder, 816 F.3d 607 (10th Cir. 2016); United States v. Nichols, 38 F. App’x 534 (10th Cir. 2002).

The Court declined to adopt the Fourth Circuit’s contrary reasoning in United States v. Runyon, 994 F.3d 192 (4th Cir. 2021), which determined that § 1958(a)’s heightened mens rea elements “must nonetheless carry forward to the resulting-in-death element” because no realistic probability existed that an accidental or negligent killing would be prosecuted. Runyon preceded Taylor, which eliminated that test, and courts supply a mens rea only to separate wrongful from otherwise innocent conduct, which § 1958(a)’s other elements already accomplish, the Court explained. A defendant may therefore be convicted for an accidental killing, e.g., where he lures an intended victim into his car for pecuniary gain and then causes a fatal crash.

Conclusion

Accordingly, the Court affirmed in part, reversed the District Court’s denial of Henrikson’s § 2255 motion as to Counts 7 and 8, and remanded with instructions to vacate those convictions. See: United States v. Henrikson, 2026 U.S. App. LEXIS 20744 (9th 2026).  

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