United States v. Dutcher
851 F.3d 757
7th Cir.2017Background
- On June 30, 2015, Brian Dutcher posted on Facebook that he planned to assassinate President Obama and drove to La Crosse, WI for the President’s July 2 speech.
- Dutcher told multiple people (a library security guard, police, Secret Service, and hospital staff) that he intended to kill the President; he possessed a high-powered slingshot and admitted on the record he could kill with it.
- Police and Secret Service interviewed Dutcher, searched his Facebook with consent, and he was detained for a mental-health evaluation; he was later found competent for pretrial release.
- A grand jury indicted Dutcher on two counts under 18 U.S.C. § 871(a) for knowingly and willfully threatening the President; after a two-day trial a jury convicted him on both counts.
- The district court instructed the jury that “willfully” could be found if Dutcher either intended his statement to be a true threat or knew others reasonably would view it as a true threat but made it anyway.
- The district court sentenced Dutcher to 36 months’ imprisonment and three years’ supervised release; Dutcher appealed challenging sufficiency of the evidence and certain jury instructions.
Issues
| Issue | Plaintiff's Argument (Dutcher) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency: whether statements were "true threats" under § 871(a) | Statements were political hyperbole; Dutcher lacked capacity and had no ticket, so threats not credible | Statements were objectively threatening; multiple witnesses and online responses show seriousness; slingshot could inflict harm | Affirmed: evidence sufficient for reasonable juror to find true threats |
| Mens rea: meaning of “knowingly and willfully” under § 871(a) | Court must require defendant know his conduct was illegal or require subjective intent to threaten | Mens rea requires subjective knowledge that audience would perceive a threat or intent to threaten; not knowledge of illegality | Affirmed: instruction consistent with Elonis; no need to prove defendant knew his conduct was illegal |
| Jury instruction wording: whether instruction improperly allowed objective willfulness | Instruction allowed willfulness based on objective standard without defendant's subjective awareness | Instruction required that defendant "knew" others reasonably would view statement as threat, so it required subjective awareness | Affirmed: instruction, read as whole, fairly and accurately stated law |
| Relevance of listener reactions (e.g., few Facebook likes) | Limited reaction indicates statements were not serious threats | Some readers responded with concern; other contemporaneous reactions and later conduct support seriousness | Affirmed: jury could rely on responses plus conduct to find threats |
Key Cases Cited
- Virginia v. Black, 538 U.S. 343 (2003) (defines "true threat" as a serious expression of intent to commit unlawful violence)
- Elonis v. United States, 135 S. Ct. 2001 (2015) (threat statutes require the defendant know the communication was threatening; rejected requirement that defendant know his conduct was illegal)
- United States v. Fuller, 387 F.3d 643 (7th Cir. 2004) (adopts an objective definition of "true threat" under § 871(a))
- Watts v. United States, 394 U.S. 705 (1969) (distinguishes true threats from political hyperbole)
- United States v. Parr, 545 F.3d 491 (7th Cir. 2008) (true threat need not include capacity or intent to carry out threat)
- United States v. Bates, 96 F.3d 964 (7th Cir. 1996) (discusses when "knowingly and willfully" may require knowledge that conduct is unlawful)
- United States v. Coté, 504 F.3d 682 (7th Cir. 2007) (standard for reviewing jury instructions)