Background
From 2011 to 2013, James Henrikson operated trucking and oil-drilling businesses in North Dakota. He hired Timothy Suckow to murder two business associates—Kristopher Clarke (killed with a tire jack) and Douglas Carlile (shot six times in his home)—each for $20,000. Henrikson also hired a different hit man to murder three other associates, but those murders were never carried out. In 2016, a jury convicted Henrikson of eleven counts, including four counts of solicitation to commit murder-for-hire under 18 U.S.C. §§ 373(a) and 1958(a). Counts 7 and 8 were based on solicitations resulting in death; Counts 9 and 10 were based on solicitations that did not result in death.
The district court vacated Henrikson’s convictions on Counts 9 and 10, relying on United States v. Linehan, 56 F.4th 693 (9th Cir. 2022), which held that a violation of § 1958(a) without personal injury or death is not a crime of violence. However, the district court upheld Counts 7 and 8, holding that a violation of § 1958(a) resulting in death is categorically a crime of violence and therefore a valid predicate offense under § 373(a). Henrikson appealed the denial of relief on these two convictions.
The Ninth Circuit held that a violation of 18 U.S.C. § 1958(a) resulting in death is not categorically a crime of violence under 18 U.S.C. § 373(a) and therefore cannot serve as a predicate offense for solicitation charges. The critical question was whether the “if death results” element of § 1958(a) satisfies § 373(a)’s requirement that a crime of violence involve the use of physical force with a sufficiently culpable mens rea (guilty mind).
The court applied textual analysis consistent with Dean v. United States and McDuffy v. United States, concluding that Congress intentionally omitted a mens rea requirement in § 1958(a)’s death-results element. The court noted that the language lacks explicit intent language, uses the passive voice focusing on whether death occurred “without respect to any actor’s intent or culpability,” and appears in a statute where Congress included specific intent requirements in other provisions—demonstrating that the omission was intentional. The court therefore held that a defendant may be convicted of § 1958(a) even if the resulting death was accidental, because the statute’s earlier elements (intent to murder for pecuniary gain) already contain sufficient mens rea.
The court rejected the Fourth Circuit’s approach in Runyon, which would have carried forward the earlier intent requirements to the death-results element. Following the Supreme Court’s elimination of the “realistic probability” test in Taylor v. United States, the court declined to assume prosecutors would not charge accidental deaths.
This decision significantly narrows the scope of federal murder-for-hire prosecutions. By holding that § 1958(a) resulting in death is not a crime of violence, the court prohibits prosecutors from using solicitation charges under § 373(a) as an additional predicate for enhanced liability in murder-for-hire cases—even when death actually results. This reflects a broader doctrinal trend, following Supreme Court decisions like Borden v. United States and Taylor v. United States, that constrains what qualifies as a “crime of violence” in federal criminal law by requiring robust mens rea elements tied to the use of physical force.
The decision also demonstrates how textualist statutory interpretation can protect defendants’ rights by refusing to read requirements into criminal statutes beyond what Congress explicitly stated. The court’s emphasis that it is “not unusual to punish individuals for the unintended consequences of their unlawful acts” clarifies that § 1958(a) can still reach accidental deaths—the issue is simply that such convictions cannot serve as predicates for separate solicitation offenses under § 373(a). Henrikson’s convictions on Counts 7 and 8 were therefore vacated and remanded with instructions for dismissal.