Robert Watts v. United States

allege particular, reliance Valley.46 in Green decision First Circuit’s WATTS, Appellant, Robert least, was, language Because it judicial approval of farm lo-

explicit America, UNITED STATES suggest differential, they cation Appellee. until payments terminated not be should No. 21528. finally deter- been the differential Appeals Court of equal by of at least court mined invalid District Columbia Circuit. judiciary. rank federal 10, 1968. April Argued plain- recognized that the in Blair We long acquiescence in the differen- tiffs’ Sept. Decided enjoyment years their tial and marketing price condi- blended and stable significant tions in the milkshed were bearing upon their entitlement to factors factors, equitable In view of relief. legitimately nearby farmers could expected .receive, the distant pay, the differential until

farmers to invalid, oppor- full

has tunity held after presentation of views sides, by think

both a court. We and, equities;

a fair view since

preliminary injunction not consti- does merits, judgment ap- tute final on the

pellant producers should receive January amounts escrowed between and June persuaded

We are not the endorse- nearby

ment of the differential Green

Valley equities alters the further between parties. nearby producers’ re- opinion amply recog- liance on that by preserving preference

nized their finally by until it has been invalidated

responsible having jurisdiction court expectations Their so. seri- cannot

ously encompass be said to a decision Appeals

to that effect a Court of but a District Court. judgment appealed from is af-

firmed and the case remanded to the Dis- proceedings

trict Court for con- further

sistent herewith.

It is so ordered. vastly complex regulation decision,

terest In his 1967 recommended marketing. Blair, Secretary of milk As we said noted he too relied however, Valley: “this a reason Green legislature Secretary’s enlarge to, subsequent substantially It was powers, upon, but not for the court to overlook in reliance this decision that farm authority provisions the limited nature of the hith- location differential Congress.” legal proper erto conferred F.2d considered to be England at 239. inclusion in other New orders. Fed.Reg. 9902, Forer, C., Joseph Washington,

Mr. D. court) appellant. (appointed by for Jr., Freeman, Asst. U. Mr. Lee A. S. Atty., with whom Messrs. David G. Bress, Atty., Q. U. S. Frank Nebeker Caputy, Attys., and Victor Asst. W. U. S. appellee. were on the for brief Before Cir- Senior Miller, Wilbur K. Burger Judge, cuit Cir- Wright, Judges. cuit BURGER, Judge: Circuit appeal This from a for is an conviction threatening life of the United of 18 U.S. violation 871(a) (1964).1 C. § Appellant DuBois attended Club meeting participated in a discussion dealing brutality. group police with discussions, Appellant course allegedly made that he would a statement refuse into armed forces induction carry rifle “if me ever make person would want first want [or my sights or like have] he LBJ.” There is also evidence Negroes stated that should not shoot or their “black brothers” Vietnamese. following day arrested threatening agents for Secret Service arrested, the life of the President. When possess found to mari- juana and an information was filed charging the Court of General Session him with this misdemeanor. provides: 871(a) (1964) or the Vice Presi- § U.S.C. willfully knowingly knowingly willfully dent-elect, (a) or Whoever conveyance any or deposits in the mail makes otherwise such post delivery any President, President-elect, office Vice letter, paper, any carrier President or other officer next letter missive, print, writing, or document order of succession to the office of containing any President, President-elect, life to take the or Vice shall $1,000 bodily im- be fined more than harm of or to inflict prisoned years, not more than five of the United both. President-elect, President or the Vice disputed in the order of suc- next officer It is not this referred to of President President Johnson. the office cession to Judge correctly in- fore, threatening the District his trial Prior to making jury: “It is the structed dismiss President, Appellant moved out, carry threat, not the intent ground indictment law.” that violates the a “threat” with constitute words did not This language of the statute. itself, clarity of the statute Given this Subsequently, m the denied. motion was marijuana necessity _ to turn to the is little there legislative Appellant prosecution, moved history, except discern the to ground suppress on the to the evidence However, Congress. purposes of broad illegal that the arrest and search light reliance on some of the dissent’s arresting proba officers lacked since the Congressman of an individual Frances felony ble cause to believe that —threat actually the alter in terms ening the life of the statute, meaning to we turn clear of committed. The Court General Ses |.be history. legislative record The total govern granted sions motion. The the section 871 does the House debates of being request ments for reconsideration asserts; not, “indicat[e] dissent as the denied, government prossed the nolle the specific intent considered charge. marijuana the threat an element to execute ” * * * felony charge threatening of House Indeed the offense . President was tried the District Court contrary.4 record is to the Appellant Appellant was convicted.3 underly purpose The ultimate grounds (1) raises three for reversal ing act kill deter the of section is to to evidence was insufficient injuring deter support finding or he uttered theatening ring or his life act against President; of Congressman (2) “threat” Webb, safety. As a conviction would violate the First bill, “That is proponent of the asserted: Amendment; (3) prior ju- that the why statute —in want this one reason dicial determination the motion to possibility of actual order decrease suppress in the Court of General Ses- commit punishing threats to operated assault estoppel sions as collateral Court, Cong.Rec. 9377-78 an felony charge assault.” in the District added). (1916) (emphasis The act of threatening

willfully itself made was Turning language only of 18 threat but crime not deter the U.S.C. we see that what pub § consequences or of verbal also the prohibits “knowingly willfully is terms of their incite Kshed threats in ** * * * * mak[ing] including less stable of those ment others— bodily to take the life of or to inflict perhaps speaker more a n * * upon harm the President On Congressman expl suggestible. Webb’s i face, its and under conventional st pr n cation of rationale behind a d r a statutory construction, ds of the stat t ohibi ion of "threats" is of interest: prohibits knowing ute and willful threatening threat, act of the Presi the life make a bad man can A of somebody up dent. The forbidden put utterance commit- else and ting act; adjective “willfully” criminal Execu- the Chief a crime precedes ; modifies “threaten” tive, the harm comes. and that is where has no relation whatever to the act makes The man who injuring. killing killing dangerous, Ha- very act he is but himself assaulting separate is a crime. There- put mind ble to devilment suspend- imposition sentence was 3. The remember Justice do well we would .to probation placed on ed admonition .that incisive Frankfurter’s years. for four unclear, history legislative when the language judges to the Congressional turn back should seeking discover 4. Before statute, unambiguous relating of the statute. intent news, mailing friend, try poor to harm to a as matter of who does some fellow con- article he had discovered President]. [the him tained a threat the author added). Pro- (emphasis at 9377 Id. A life of President.6 article on the “I Congressman added: phetically, Webb reading on section entire debate come when we time think the Congressman 871 reveals that Webb’s great kind a stat- need intent comment about “willful the factors which This ute.” review injury serious is the President” legisla- promulgation prompted the only concept time that the of “willful prohibiting seem “threats” would tion killing joined tent” with the act of dis- assertion doubt cast every injuring. exception, Without specific “Congress considered sent other reference “willful intent” was an element the threat to execute intent context of to threat- “willful of the offense.”5 Reviewing the de- en”. entire correctly quotes Congress- dissent that, The bate on as section we conclude “I it comment that think man Webb’s so mem- is often case when various the do in- extemporaneous- a to serious must be willful intent bers address themselves ly statutory language, speeches the But we to to need President.” to these certainly ambiguity; the this state- look at context not without Representatives indicating ment was made. Some the a debate is far from Con- possibility gressional proof that were troubled the to that desire demand a the absence need for “willful” the accused with “made the statement threat, might specific a man convicted it” be the intent to execute as intend others mand that whether With this dent” man This “the defendant made the statement with specific White rouser viously noted concern for the incitement the the dissent’s the threat.” ion, that: “What is clear sisted directed at the reckless exhortations of tion of his own See discussion Congressmen cognizance sible conviction dangers ed” We Nor can it word Volstead. Mr. Mr. we to make no would statute. following colloquy Webb, analysis would House upon § 871 cannot to the who profoundly intent to execute it. “willfully.” Suppose inherent therefore do serious thrust be the deterring the a urges evaluation defeat but a mistake to supra. Congressman Dissent at specific We does prohibited action, agree of a person threats. speaker sponsor kill the President. See that a mob to storm the troubled must ask ourselves uncontrolled the effectiveness of injury impotent be sustained unless absolutely with the ensued explicitly disagree. intent that if the Speaker, dissenting opin- “must take sufficient strike incitement of p. who “intend Webb’s a when some 687 n. 4. conviction * * * a statute Congress- no inten- assertion willfully threats. bill, prevent execute out I think rabble- person to Presi- pos pre- de- is ” ed). n not innocently, with the word and fully” found ingly would vey word he friend would instrument shall This fully,” that. criminal acts. and so as to take it out- of the instrument, as a matter gests, you strike out contains such a threat come within the dent. person. Cong.Rec. Mr. Volstead. Mr. Volstead. ^{[*****] [*****]} convey any call sent catch distinguishes statute send “willfully.” threat a be It adds an intention to If see that a his attention to it document person If, might guilty without the through so contained of news. He does not at say, as the threat. gentleman knowingly, document, “willfully” point all, be sent to some other who (1916) (emphasis be language a case of that any containing No; the you person might sent newspaper simply The gentleman sug intention to con require the word instrument mail to gentleman to some friend threat, have strike out the I did not not stricken might will word “will category and would the Presi threaten, sends an intending this hill. a threat that the a friend matter, read it and he know “toill mind. send does kind to a add out, say threat, argues.7 than true thát ex- rather it Judge Wright Indeed if read, pressed it history a desire rather than an intention be so were to carry out, that it condition- repeal statute. being by involuntary al forced— construing sec decisions Prior carry service—to a rifle whereas interpre similarly evidence tion an intention induction stated to avoid which must is the that it tation Army. into the willfully” “knowingly made be con theory execute Appellant’s conditional To an element. principle tent the threat stems from the classic government requirements Eng. Savage, meet case Tuberville v. (K.B. maker Rep. 1669), “the [of establish that must in which it was meaning comprehends held that there was no assault where threat] defendant, “the time, placed him” uttered assize voluntarily intentionally ut maker his hand on his sword and “If stated: appar assize-time, the declaration them ters were not I would not take carry exe language you.” them into determination ent such If an utter Ragansky cution.” v. United ance is conditioned on factors which 1918). (7th Pierce fulfilled, See negates F. Cir. cannot be the condition (10th 365 F.2d threat. Such a condition removes 1966). requirement apparent necessary There is Cir. intent which is a person uttering threats element. But the fact that carry them intention to out. per prevent conditional does not se Cf. it States, being 350 F.2d Michaud United v. a violation of 18 U.S.C. 871§ (10th 1965). a defense Cir. Nor Convictions have affirme merely that the words were intended d8 and indictments sustained9 where States, jest. language Pierce v. United as was conditional. The “con supra. supra; Ragansky United Appellant’s submitting v. dition” of to in Army duction negate into does not Appellant he that the words contends presence apparent present interpreted be as a threat used could not since it is a matter within his control.10 they not contain statement because did Statements with injure conditions such “if present as intention the Presi- to opportunity” I Appellant had the that dent. asserts his state- or “if I had the hyperbole power” was a matter common get ment enough or “if I ever close Congressman fact, it.”); In Raker felt that Clark v. United 250 F. sending conveying (5th 1918) (“I a known threat Cir. wish Wilson was enough hell, power should It be allow conviction. if I had and I would prevent there.’’) put was conviction cir- him “intend one not cumstances of who did Stickrath, States v. F. 151 willfully to threaten” that the word was (S.D.Ohio 1917) (“President ought Wilson See note 6 su- retained in the statute. to be killed. It is a wonder some one pra. already. oppor- done it not If had an I Rothering tunity, myself.”) 384 F.2d 385 I would do it (10th 1967) (“appellant said that he Cir. jail; go that he would wanted to 10. That conditioned thing again; subject contingency [rob] the same over that he to the maker’s con- they people; deprive quality and that ‘if would rob other trol does not it of the good threat, contingency pos- didn’t do will kill Presi- “I if the be a ’ necessary.” ”) ; Every if it dent United States sible one. threat unexecuted in- Stepp, F.Supp. (D.Colo.1956) contingency, volves some if none other (“President purpose is a Eisenhower German than that the maker’s be not [-], get enough abandoned, if I ever close or that execution him be prevented. him I kill have a him. I 30-30 Metzdorf, If bullet for him. he walks across United States v. 252 F. (D.Mont.1918). him street in front me would let message issue, that meant and what is at him,” violations held have been jury question un- of fact supra,. was & 9 notes 8 See statute. ap- appropriate On this der instructions. that, he when Appellant claims also challenge peal, instruc- there is no like or “would “would want” he stated tions. in his “LBJ” to have or “wanted” have” urged jury, as Appellant’s expressing merely counsel sights, was rifle Appellant appeal, was he does desire, convic a threat. Other expressing desire and that a mere af have been under this statute tions gratuitous hyperbole. statements were was essen statement firmed where the Judge charged jury in urges District form, Appellant tially in as developed case law were, expressions accordance with the of mere his statements statute, including relies, the defini- Appellant or wishes.11 of desires tion of threat. He also instructed however, was which there on two eases in jury desire apparent that “a declaration of a mere no statement found injure is not a threat” and that In United harm. intention to inflict (W.D. the context circum- F.Supp. were to consider Daulong, alleged statement La.1945), quashed stances in which the indictment only charged was made. accused because kill he “had a notion” stated Among the circumstances it, that, did if one else considered deter could have killing court him. The he “felt like” mining import the words here used any “expres found these words to lack testimony speaking Ap do the of determination or intent sion pellant gesture sighting made a Marino, itself.” act down barrel a rifle. (N.D.Ill.1957), F.Supp. an in points greeted out that his remarks were charged dictment was dismissed which by laughter argues applause, signs posted read accused had negates any acceptance by ing: “There can be slain no sacrifice genuine listeners as a threat. But it has unjust acceptable to God more than an laughter ap not been unknown for and again, court President.” Here found plause implications have sinister expression perform no of intent safety History records others. question. in act applause laughter frequently that and greeted predictions Hitler’s of the future cases, Appellant’s words, Unlike these earlier, of the German Even Jews. context, reasonably permit considered in holidays Roman celebrated in the Colos uttering that inference he was by punctuated seum often were cheers always threat. The naked words do not laughter Emporer gestured and when the story. example, tell the whole For gladiator. “thumbs down” on a fallen you “I words at street However, Appellant since not did claim meant, sundown” in certain times and at trial that his words were uttered in places, challenge shooting. to a The jest, we need not reach or in decide what important context was all Beacon —on appropriate structions would have been Boston, Hill the same words at except to ob claim made such a had he period might totally same have had a subjective passing that meaning serve different or none at all. It alone, message standing speaker, has not the words communicate that put Ragansky power States, him v. United 253 F. 643 I had (7th Stobo, 1918) (“We ought there.”) ; 251 Cir. v. to make the United cf. (“The biggest (D.Del.1918) bomb in the world and take F. 689 put ought to be I would like down to the White it on be House and shot (Demurrer up it.”) indict- the dome and blow to do Wilson one crooks.”); aver that and all the rest of failure Clark ment sustained anyone.) by (5th States, v. F. Cir. was heard 250 449 oral 1918) (“I hell, wish Wilson was in 682 doms,” Keyishian Regents, dispositive.12 v. Board We need considered 589, 603, 675, 385 would be U.S. 87 S.Ct. 17 L.Ed. what situation not decide “breathing (1967), 2d and needs under this statute claimed 629 if one accused space survive,” 604, 675, acting jest 87 and showed id. at S.Ct. he was listeners considered utter

that his analysis leading cases [a]n laid such. ance to be Here the Supreme [the which have Court] instruction, evidentiary basis for speech direct volved limitations jest uttered in his statements * * * * * * will demonstrate that accepted who as such those heard unlimited, unqualified this is not an him. On the evidence and contentions right, but societal value of trial, developed could reason speech must, occasion, be subordi- ably have concluded either words nated values considera- they were or that were not a threat and tions. range either conclusion is within Dennis 494, v. United permissible 341 U.S. verdict.13 503, 864, 857, 71 S.Ct. 95 L.Ed. 1137 (1951). II. Simply first because amend rights “balance,” ment are Con Appellant’s second contention is that gress precluded regulating not protected are utterances the First particular activity. individual Before a Amendment cannot be made the ba constitutionality reached, decision on argues prosecution. sis of a criminal He weighed must “there the value they their regulation of the ends which the very injury utterance tend to inflict Party achieve.” Communist v. peace, incite an immediate breach of the SACB, 1, 91, 1357, 367 U.S. 81 S.Ct. Chaplinsky Hampshire, v. State of New 1407, (1961). 6 L.Ed.2d 625 also See 568, 571-572, 766, 62 S.Ct. Dennis, supra; American Communica L.Ed. 1031 and that did Association, Douds, tions C. I. O. present constitute a clear 382, 674, U.S. S.Ct. L.Ed. danger a substantive evil (1950); Schenck v. United Congress power prevent. has the Den 47, 247, U.S. 39 S.Ct. 63 L.Ed. 470 nis 494, U.S. S.Ct. 95 L.Ed. 1137 Ameri can Douds, Communications Ass’n basis section is clear. U.S. L.Ed. 925 arrived at a deter S.Ct. also Georgia, See safety Wood mination that and freedom 82 8 L.Ed.2d of movement of the Chief Executive was (1962).14 overriding of such importance well-being of the nation entire Meeting directly, we these claims threats which would tend restrict his the First Amendment does conclude capacity to fulfill his duties or incite proscription prevent of utterances person others to harm his would not be comprise knowing and willful Congressional awareness of tolerated. safety the life of threats to the Presi past part Presidential in assassinations Although speech dent. of freedom is in precious of contributed the enactment the 1917 deed of “our one most free- challenge war. 12. He was free to and attack Pierce v. United F.2d 365 292 policies (10th 1966); Ragansky of the United States Cir. 1918); (7th actions of the President. Floyd, See Bond v. F. 253 Cir. cf. 116, 339, 385 U.S. 87 S.Ct. Morissette v. United (1966). Appellant (1952). L.Ed.2d 235 S.Ct. L.Ed. 288 prosecuted uttering a threat supra. 7-10, 13. threatening the life of the President any person, It is a crime to assault seems to be a trivial limitation on the but it not a is crime to the assault present capacity po- overall effective any any President more than other argument. thought litical Can it be that person. against per- is a It crime the by prohibit- “robust debate” is inhibited son, ought very but it a to be different very threats on the life Presi- Assaulting offense. the President of dent? quite the United States is different assaulting private matter entering some Without the fashionable seman- debate, dissent, pp. 690, individual. That 11, is reason tic 691 n. gentleman’s provision vitality present bill on the ger,” “balancing of “clear and dan- against interests,” threats. There is a now law of statutory “regu- for section 871’s Given sound basis this impediments which prohibition threats on the indi- of President’s of freedom entire causes to lation jury, having outweighed by life, feel acted we that indeed are action” vidual challenged here, under instructions ends public which of “the value finding Appellant that Commu- warranted regulation achieve.” willfully” “knowingly supfa, or had not SACB, at had Party U.S. nist v. life protection threatened of the President. of the 91, 1407. The 81 S.Ct. Here, import Appellant’s type of words of precisely sub- is susceptible justify interpreta- were indeed of an public can interest stantial jury Appellant preventing tion that made sub- prohibitions aimed such a threat.20 from the can flow evils which stantive activity. v. But- Cf. NAACP condemned jury require This does not statute 328, 444, ton, 415, 83 S.Ct. 371 U.S. impossible undertake almost task L.Ed.2d 405 evaluating Appellant’s subjective of men- processes executing tal “may in relation Although speech indeed best apparent intent as high that was mani- purpose induces when serve its it gestures unrest, fested his words and in con- of creates dissatis- a condition they are, text. faction with conditions anger,” people Terminello v. even stirs III. 5, City Chicago, 1, 69 S.Ct. of 337 U.S. 894, 896, (1919), a threat L.Ed. 1131 Appellant argues also “likely to of is on the life finding that his words con danger present produce a clear and stituted a 18 U.S.C. § evil rises far substantive serious (1964), cannot stand because of the col inconvenience, annoyance, ab£>ve estoppel prior judicial lateral effect of a Id. Trivial hazards must of unrest.” determination. His is claim based they course be tolerated fall within the suppression by Court General Amendment,19 purview First but Judge marijuana Sessions found upon the the turmoil attendant death or at the time his arrest. disability hardly a President is Judge found that there had been no gravity “trivial hazard.” When the probable cause the Secret Service im- evil discounted not so agents Appellant’s believe probable occurrence, likelihood its the President. a threat constituted “justifies

conclude such invasion in a crim It settled that a defendant speech necessary as is to avoid free estoppel case can assert collateral inal danger.” Dennis v. United proper in the 494, Government 510, 857, 868, 341 U.S. 71 S.Ct. estoppel L.Ed. 1137 circumstances.21 Collateral brutality, determining made within lice labeled “tests” First House, yards controversies, few hundred of the White Amendment we conclude factors; present regulation could irrelevant valid with- weighed jury’s evaluation. the strictures of criteria. only extraordinary dimensions Violence of Whitney People of Cali- State part by recently triggered in verbal fornia, 357, 377, 641, 274 U.S. 47 S.Ct. incitement—again within a few hundred (1927) (Brandéis, J., 71 D.Ed. 1095 yards of White House. concurring) speech : free “Prohibition of assembly stringent Sealfon United is a measure so (1948); inappropriate .68 S.Ct. 92 L.Ed. as the Oppenheimer, averting relatively means for trivial society.” 61 L.Ed. 161 harm to U.S.App. Laughlin 93, 344 F.2d D.C. 187 That these utterances made at were (2d Kramer, meeting focusing Cir. v. F.2d a on dissatisfaction 1961). police-community po- with relations and surrounding the state- relitigation that circumstances of an issue prevent by judgment Appellant, but sur- prior the events necessary ments a was. rounding subsequent arrest and disposition case.22 aof final told had been words that the witness into take Appellant’s does claim decision, spoken by Appellant. His were a determination there was that account Judge, was just as that of the District Judge present Court District a only legal issue with the concerned prior the Court case, action of to the spoken suffi- the words whether Judge, that indict General Sessions under the statute. cient charged sufficient statements ment statute. a conviction sustain difficulty further with A Judge acting aon A General Sessions estoppel that claim of collateral here holding charge a cannot reverse minor rulings authority on un holds that District Court —re United States appealable pre-trial motions mattérs lating ar same issue. proper subjects estoppel. for collateral gues decid Court order that the District only contrary The cases located were support only could that ed Appellant’s position.24 example, For conviction, depending surround 385, Kissane, People v. 347 Ill. 179 N.E. ing circumstances, whereas the General charged in a defendant Judge made a factual determi Sessions county pos court with the unauthorized considering surrounding sought those pistol nation estop session of a collateral record, however, pel municipal suppression circumstances. The court’s pistol prior support Appellant’s on the same case fails to characteriza Supreme charge. Court held Illinois tion of the decision of the Sessions General be not available ge.23 that the doctrine only He Jud heard testi prelim- decision was “mere mony related, cause the of one witness who not the illegal sup seizure argues information because The Government subsequent judicata in pression not res evidence was not a final order order offense); People prosecution related appealable. was not DiBella because it Prewitt, 330, 340, 130-131, P.2d 121, 52 Cal.2d 369 U.S. States. (prior 1, charge (1959) same 654, (1962). dismissal But 82 S.Ct. appealability 7 L.Ed.2d hearing preliminary on because the touchstone purposes. the evidence was it was determined that illegally final order judicata frequent type seized was not res most leads of order estoppel in sub- judicata collateral on same issue to a claim of res estoppel collateral sequent prosecution). see, & Vestal judgment See acquittal, is a Couglienour, Judicata 21, g., supra, e. cases in note Preclusion/Res cited Prosecutions, 19 subject Criminal appeal by Variables: is not (1966). However, judgments Government. Vand.L.Rev. according acquittal for not collateral One reason dismissals of cases even pre estoppel consequences rulings finality degree is absent when, prior trial quently of this is that fre here, motions nature as ter case is reflect full such action does not nolle minated the Government’s prosequi. and careful determination of the issue. case, instance, present assessing 23. In de- what have been issues granted Judge As General Sessions purposes termined of collateral for the Attorney only a sistant United States estoppel, appropriate it is examine short the Assistant recess to locate was raised before record to the what already Attorney had who question. judge in Sealfon v. United District Court convinced the 575, 579, 68 a vio constitute words were sufficient to 92 L.Ed. 180 871(a) of 18 U.S.C. § lation When Wolke, be lo 124 N.W. that Assistant could not Tell Wis.2d (prior discharge once, (1963) 2d after cated at General Sessions judicata prosecu jireliminary hearing Judge gave res is not short shrift prosecution argument subsequent same the same issue tor’s Eyk, already charge); People District been determined Van Cal.2d open Cal.Rptr. and was not the Court Court P.2d (1961) (order prior setting aside Sessions. case General inary had not a of a kill people motion” and there rel rifle to Vietnamese trial, entry plea by even of a he would rather look a rifle down defendant, prior in the case. aimed at the President.” appellant remark, persons After made his

Affirmed. laughed in applauded. the audience On the facts, appellant basis of these Judge WRIGHT, Circuit J. SKELLY “knowingly was convicted of and will- (dissenting). fully” making a “threat to take the life rally E. of the W. attended bodily injury of or inflict upon the Pres- Sylvan Theater Club at DuBois B. ident of the States,” under 18 Washington grounds. Monument (1964). U.S.C. § I believe that attending rally into Those divided conviction stand, cannot when Section groups, several discussion one of which 871 is construed in accordance with its joined. appellant rally dis- and the legislative history and the dictates of groups open public. cussion to the the First Amendment. police- of a discussion the course In group, appellant’s community relations I something effect participant to the said today 18 U.S.C. codified as The statute a better education should have that “we purposes in what for was enacted § things get this involved before regarded pres- its case can be of this According Freeburger, to nature.” report of in 1917.1 The brief form ent Army Intel- investigator Counter Committee, Judiciary which House observing ligence Corps the dis- who was bill, purpose as approved stated its appellant replied: cussion, then follows: get “They always holler at us to designed restrain and “This bill is to already yet re- I education and punish to those who would threaten my 1-A draft classification as ceived bodily of, or harm the life inflict take got report Monday to and I have this Republic. upon, the President of this go- coming my physical. I am not duty highest It is the first and carry ing. If make ever me governmen- protect Government its get first man want rifle agencies, performance tal sights They go- my is L.B.J. are not public services, their threats my make me kill black broth- violence would tend to coerce ers.” perform- them restrain them in the Shoemaker, sergeant detective ance their duties.” Police, essentially United States Park The House floor debate on the bill appellant confirmed version what this expanded upon somewhat clarified and According reporter Wieghart, said. cryptic expression Sentinel, appellant the Milwaukee responding complaint tent. said in substance: protection bill was useless as a “ * * * person, did not think that the President’s its chief Negroes ought Congressman spokesman, Webb, serve Vietnam to indicat- partly designed prevent shoot Vietnamese. He think didn’t ed that black men should look down the barrel incitement others assassina- significantly, Congressman of a rifle to kill tion.3 Vietnamese. He said More looking repudiated suggestion rather than down bar- Webb H.R.Rep.No. 1. Act Cong., was amended in in 64th 1st Sess. against clude threats the Vice President President-elect, and the 69 Stat. Cong.Rec. in 1962 include threats person Vice President-elect and the next line succeed the President when President, there is no Vice 76 Stat. up the make bombs and blow I and will willfully” from the deleted “and words charged view, trial court had The President.” his doing, he indicated In so bill. “ the lan- ‘the claim .that the which the committee representative of joke, not guage a in fun’ is used as bill, intent the the recommended had supporting In at 644. Id. offense a defense.” required element as an objection charge defendant's over created: it “willfully” ignored the word it “ * * * ought to be he I think appellate statute, court said: the the willfully. I it done have to shown made, willfully “And a threat to do intent abe must it think willful comprehending in addition If President. injury to the serious meaning words, maker offense, of his vol- technical a mere you it make intentionally untarily utters them chance a much of give him you not apparent de- declaration of an as the a before answer comes when carry them into execu- termination to think jury. do not I court tion.” convict ought anxious be too thoughtlessly. thing (Emphasis And, added.) does Id. at 645. man who expres- ought remarkably, to be a I think the court went on: willful carry threat out a an intent sion circumstances, “While under some hope Executive, ‘willfully’ penal the word statutes offer gentleman merely voluntarily, means but with amendment.” purpose omitted], a bad [citations nothing text, context, history (Emphasis Cong.Rec. legislation of this indicates mate- added.) requirement willfulness riality purpose of the hidden intent or enacted the bill was retained and * * * voluntarily of one who uses de- further substantive without into law language by him in form known to be in either house.4 bate * * such Congress consid indication that This added.) (Emphasis Ibid. specific intent to execute the ered largely the offense was element of only early one case did the court ignored by first con courts which requirement specific cleave in- during Thus act strued 1917-18. tent execute threat. In United Stickrath, S.D.Ohio, 242 United States v. Metzdorf, D.Mont., States v. 252 F. (1917), F. 151 intent to execute (1918), a District Court dismissed alleged required threat was to be an indictment act on the Stobo, also ground, shown. See among others, alleged D.Del., 251 F. supposedly threatening alone, including without the innuendo that Ragansky Cir., 253 accompanied by “present deter- gives (1918), cited defi- often F. injure presently mination nition the intent element of of- or in the future.” upheld fense. The court conviction alleged said, aof defendant Among to have reported the few decisions be- among things, “I can make bombs tween 1918 and 1965 which construe this punishing A statute only many “threat” made among concern with one dan- “knowingly willfully” hardly gers so which deletion of the word “will- unambiguous preclude looking fully” bring as to is clear on. What legislative history Webb, sponsor Congressman clarification required. the mental bill, element specific I do not insisted unambigu- claim that the House debate tent execute the threat. Because supports ously urged dangers posed by construction statute, the obvious Congressman remarks, amply here. history Volstead’s illustrated instance, use, can be read to its I consider the narrower view of import majority gives which the proper them. mental element one. They express can as well be read to Ragansky rule was extended statute, explicitly ac with the none deal sup Circuit Pierce v. the same shown to tual intent which must be Cir., F.2d 292 willfully port threaten a conviction jokes, apparently to include obvious cases, courts In two the President.5 Cir., Rothering v. 10 United words dismissed indictments because the hyper- (1967), to include F.2d alleged 384 385 were to have used defendants Pierce, defendant, an In in- they bole. threats; could not constituted Kansas, city jail Holton, in the of mate express apparent not intent. did even guard passed with orders that it be N.D.Ill., Marino, 148 United States v. piece paper sent the White House F.Supp. 75 United States pencil, “I on which he written in Daulong, W.D.La., F.Supp. 60 235 ** * swear kill the President of (1945).6 ques Neither case reached the America the first what, beyond objective pur tion get.” ap- chance To this oath he had port words, would have to be pended postscript, the ominous “and support shown at trial a conviction way cigarette send me $100.00 for Section under money.” Tried Section he de- construing Since three decisions ground fended that scrawled reported, Section 871 are inall the Tenth joke “threat” arose out aof with Circuit, which indicate that that Circuit charg- drunken cellmate. The trial court rejected requirement of intent ed, Ragansky, on the basis of that to execute the threats as element joke claim that the “threat” was a is no the offense. In Michaud v. United affirmed, defense. The Tenth Circuit Cir., 10 350 F.2d 131 rubric, under the used the District telephoned defendant explicit a clear and charge Court ease, in its in this against the President’s life to the making threat, “[i]t not the trial, White House. At in- court carry out, intent to that violates the jury that, structed the at least statute.” 365 F.2d at 294. inciting others ease of threats Rothering affirmed the Section 871 President, injure the must be “there who, conviction of a defendant after be- beyond proof a reasonable doubt breaking arrested for into a food the maker such threats intended to market, policeman told a “that he wanted carry appeal, them out himself.” On go jail; to thing that he would do the same charge the Tenth Circuit identified this again; over that he would rob Metzdorf, with which characterized as people; and that ‘if that didn’t minority view, for a remanded any good “I will kill the President if ’ ” Ragansky standard, new trial under the necessary.” it is Against the defense according specific to which intent is exaggeration that this statement was at issue. hyperbole, that, just the court held as 5. The cases I have located are Pierre v. killing kill and like” “felt the President. Cir., (1921) United F. These pressions ex- words were held be mere (indictment allega hope dismissed because no some- desire anyone threat) ; tion that might President, heard one kill than rather Stepp, D.Colo., F.Supp. States expression “an determination or (1956) (indictment sustained); Unit tent to do the act itself.” There was W.D.La., Reid, F.Supp. ed dictum to the effect the statute 313, affirmed, Cir., required apparent F.2d cert. but not actual denied, carry out threat. (1943) (motion L.Ed. 465 trial new Marino, alleged In the defendant was denied); Apel, United States v. N.D. posted reading a statement to have Ill., F.Supp. (1942) (indictment can be no sacrifice to God “There slain sustained); Daulong as well as acceptable unjust Presi- more than an and Marino cases cited in text. dent.” Here too the court found in Daulong, alleged expression apparent intent, the defendant was words to have said that “had a he notion to” hence no threat. using thoughtless lan- offensive was supposed threat —of claim against the implication guage, some with no defense joke held to be made as a jest, life, meant as exaggeration President’s which Pierce, claim “[t]he rhetoric, hyperbole. or as the same treatment.” is entitled Ragan- judge here relied The trial II charging Rothering in

sky, Pierce and my con- not rest belief that this I do jury as follows: upon the cannot stand viction makes if one are told that “You history 871 alone. The First of Section President, cannot restricts construction Amendment a claim shield himself constitutionally placed on lightly uttered without statute, the kind at least in eases of bodily It is harm. intent to today. which is before us making threat, not the intent my view, face 871 is on its Section carry out, that the law. to violates designed statute, valid ward off two Therefore, jesting talk not a idle or is ” * * * Congress evils which constitu- defense. power prevent. tional The first evil had established at trial attempt is an on the life of the Presi- laughed the audience had made when he dent. second is of restriction jury urged his He statement. movements, President's and hence inter- that, given circumstances, the offend- duties, ference with his of conduct his exag- at were most rhetorical safety caused reasonable fear for his geration hyperbole, or which the arising out of serious threats on his life.7 beyond could not believe a reasonable Congress legitimately That aimed at accompanied by doubt were an enacting these in evils what is now Sec- harm the President. is tion 871 indicated indulged history.8 overlong perhaps in a recitation of the facts of cases in which However, the statute Section 871 convictions were sustained relatively passed peacetime calm Ragansky under the simply construction spring of was destined to be first in order Congress- to demonstrate that war con construed a nation at when doing man Webb knew what when he was constitutionally protected cern for indi “willfully threaten” insisted rights ordinarily at vidual low ebb.9 execute” with intent to “threaten meant Stickrath, su in United v. Thus States ought “we his He did think bill. construing act, pra, the case first man who anxious to convict to be too interpreted the court the under thoughtlessly.” thing Where the does threatening standing that of use the House to convinced language against standard he the President “stimu ignored, policies, men have opposition has been how maintain national lates loyal something doing all wise,” affront “is convicted ever enough may endanger Any safety. 7. serious A threat the President’s endangering person punishment by indicating life making either warrant plans attempt presumably to re- also serve the threat as- life would mobility. sassination, inciting official others strict legisla- crime. If the former 3, supra. 8. See Notes concern, tive come the statute would ju widespread dangerously punishment For an account close responsibility for civil thoughts dicial abdication alone. latter Where I, gen during see feared, War World liberties the statute should be construed erally making Speech consistently Z. in- with other laws Free Chafee, (2d ed. 36-107 to crime an citement offense. 1941), of wartime purpose criticism protecting and for a Presi- statute, id. prosecutions appears this under dent’s freedom of movement purpose protecting at subsume right-thinking persons,” Chaplinsky and “is Hampshire, State New treason,” akin to F. at 568, 572, 86 L.Ed. 315 U.S. 62 S.Ct. of Con- Cantwell State The trial court necticut, 296, 310, 60 S.Ct. Stobo, supra,, held that vital “[t]he L.Ed. Thus threats are quiry act whether the every day properly punished under stat- is of such a nature as to create or tend extortion, prohibiting utes blackmail and disloyalty.” to create sedition or without consideration First assault F. 692. And in United States v. Ja- Amendment issues. sick, E.D.Mich., (1918), 252 F. find threats the Presi- hand, the other an utterance On where spirit disloyalty” dent “a indicate idea, convey particularly an does idea arouse “resentment concern about how affairs should be con- part patriotic citizens.” ducted, pre- label “threat” does not protection any clude First Amendment stated reasons inter- All “obscenity,” more than do the labels broadly cannot stand Section 871 preting Roth v. United scrutiny. Speech Amendment First L.Ed.2d country prohibited in because not be “libel,” Sullivan, New York Times Co. v. opposition poli- to national it stimulates supra. produces spirit cies, indicates right thinking disloyalty peo- or affronts provocative, tasteless, Nor is or even finally by ple. shocking speech This made clear New outside constitution- Sullivan, protection. York Times Co. v. 376 U.S. al The First Amendment fa- 710, 254, “uninhibited, robust, 84 S.Ct. 11 L.Ed.2d 686 vors and wide- open” public issues, which laid to rest the threadbare conten- debate debate preserved may First “unpleasantly tion that Amendment sharp” which include English common of seditious public law attacks on officials. New York libel. Sullivan, supra, Times Co. v. 376 U.S. 270, speech “may at 84 710. Free S.Ct. give Nor does First Amendment high purpose indeed best serve its when pursuing a free hand in its unrest, it induces a of condition creates objectives protecting of valid the Presi- dissatisfaction with conditions safety and dent’s his freedom of move- are, anger.” people or even stirs Ter- ment. Particular “threats” within the City Chicago, miniello 1, of 4, 337 U.S. may protected ambit of Section 871 be 894, 896, S.Ct. (1949). 69 L.Ed. 1131 93 speech, may required and courts be may pro- decide whether such reasons, speech threats be For which com- present ideas, hibited under the clear and municates particularly speech dan- ger course, spoken public test. all which policies public Of threats criticizes or * * * protected speech. officials, protected do not constitute against Ut- “is part censorship terances punishment, which “are no essential or of unless shown any exposition likely produce of ideas” or present which are a clear and any proper danger “not sense of communication a serious evil substantive opinion” of information or rises far within inconvenience, are above an- purview noyance, of the or First unrest.” Amendment. Ibid.11 suggestion threatening applications 10. Tlie statute, extreme Note, of this (1919). is “akin 32 to treason” is his 724 Harv.L.Rev. torically English suggests According Chafee accurate. defini careful law, “compass it had been Constitution, tion of treason to treason imagine” King III, 3, the death Article of the at least Section which excludes “imagining” 1352, since the “compassing,” statute of Edw. 3 invalidates by implication Z, and still was at time the Constitu Section 871. Chafee, supra 9, generally tion at Note was framed. See 2 J. History Stephen, of the Criminal 11. I present have no doubt that clear and England Law of 241-297 danger For proper apply is the test perhaps apocryphal an account of two protected speech. direct restrictions of proper can little doubt al There be under Section Prosecutions functioning branch parcel Executive part and leged which threats by particu these restrictions. On ideas, hindered of the communication hand, standard a First Amendment conform ideas, must thus larly political abridgement speech allow danger At which present test. clear sup to create a substantive because “tends” least, very consideration long rejected favor evil the statute ports construction danger present test. the clear and opinion. Where urged I of this Part supra, U.S. speech, Abrams United protected impinge statutes (dissenting opin- 627-628, 40 S.Ct. governing intent statutory provisions Holmes); West Vir- ion Mr. Justice ginia specific require intent. read Education v. Bar- 616, Board of State States, 250 U.S. United Abrams v. 624, 1178, nette, 633, (1919) 319 U.S. 17, 627, L.Ed. 1173 40 S.Ct. (1943) L.Ed. 1628 opinion (dissenting Mr. Justice Holmes); Dennis cf. wholly Many protected statements 857, 499-500, 71 S.Ct. First restriction Amend- allegation (1951). Where the L.Ed. 1137 ment “tend” to contribute threat, in is that the defendant climate of hate makes the free President, it is cited others kill the dangerous. movement bring clear about specific intent affirmations well affluent as must this result be shown. Yates as the militant possessed may exhortations the dis- 77 S.Ct. U.S. tendency. Many have this 1 L.Ed.2d 1356 Otherwise political may, statements implication affairs protection speech illu of free would be through hyperbole, com- sory, “[e]very one is an sense idea pass the violent end Chief Execu- People incitement.” Gitlow v. of State punishment tive. The threat of York, 652, 673, New 45 S.Ct. chilling all such statements would exert a (1925) (dissenting L.Ed. political speech effect too drastic to opinion Holmes).12 of Mr. Justice guarantee be consistent with the of free alleged Where the claim is that expression. brings about the other evil which I competing would reconcile these con Congress enacting concerned Section * * * alleged siderations as an follows. Where 871, “threats which would tend ** * threat which involves the communication to coerce or restrain [the thought of ideas is re to “coerce or performance President] du- of his performance strain” the President in the ties,” problem a more difficult arises in duties, of his a conviction under Section reconciling statutory this purpose with (1) can 871 be sustained if the defendant Congress may First Amendment. alleged specific made the threat with in legislate no doubt to meet this evil. The it, (2) in tent to execute and the context placed upon restrictions the movements unamb circumstances the statement President, and well as upon men, iguously a threat by danger constituted assassination have safety recently deplored. The much President. noted and life or by 684, 1362, Though 689, 1512 criticized both balancers 3 L.Ed.2d S.Ct. 79 (cid:127), absolutists, occasionally weakened the nary stress of extraordi courts under the appear event, any be 12. In there would circumstances, Dennis times inciting support for claim of States, 494, S.Ct. 341 71 United U.S. in this case. 857, L.Ed. the historic 95 1137 Georgia, 13. And Dennis v. United has survived. Wood v. standard 507, 11, 375, supra 1364, 341 at 71 S.Ct. Note U.S. L.Ed.2d 8 U.S. S.Ct. 857, explicit recognition Carolina, (1962); Edwards South early 229, 237, 680, Brandéis dissents L.Ed. Holmes 83 S.Ct. U.S. law. become Kingsley have First Amendment cases 2d Internation cf. Corp. Regents, al Pictures typically requirement from both the which constitute crimes follows first assault, History extortion and excluded from such and the consistent protection. inquiry requirement specific The here is intent whether strict any proper “in prosecutions impinging the words used were sense criminal protected speech, opin- communication information or Yates v. 318, Connecticut, supra, ion.” Cantwell v. State of at application S.Ct. 1064. U.S. supra, at is an the clear U.S. 60 S.Ct. second danger L.Ed. 1213. present test to purposes of Section 871. appellant’s version statement Dennis with Consonant damaging him, reported by most 511-515, 71 supra, 341 U.S. at Agent Freeburger, my was in mind un- question of 857, I leave the S.Ct. questionably expression political jury, but would subjective wrong idea. The idea was that it was objective application of the make Negroes kill their “black broth- question court. standard ers,” Vietnamese, because their real Dennis, doc- “[t]he the Court.ruled grievance the white estab- pres- a clear there must be trine that home, personified lishment at by the danger evil of a substantive ent President. The idea is the same as that right prevent has a developed articulated in more and refined judicial applied as a matter rule to be form in protected statement held at Id. the courts.” law the First Floyd, Amendment in Bond v. speech cases, appel- In free 87 S.Ct. 17 L.Ed.2d long engaged in detailed late courts facts to determine examination The fact expressed that the statement permitted the First Amendment whether political merely brings ideas the First particular expression in the restriction of play; Amendment into it does not decide situation.14 the case. The “I gun statement have a and I intend kill President, Ill be- cause that’s way the best to end the developed When the standards Part war in similarly expresses Vietnam” opinion applied to the facts idea, might but it well be the basis of case, very of this it is clear at the valid conviction under Section 871. The appellant least should have a new trial. language used and the surrounding cir- Ragan- The District Court followed the cumstances must examined to de- sky, charg- Rothering Pierce and cases appellant’s termine if words constituted jury intent to execute the unambiguous against an supposed threat was not an element President’s life. contrary the offense. This was to the meaning of Section 871 as en- conclude lead factors me Several Further, acted it. the First they Amendment not. First the “threat” did developed standards in II Part of this conjunction with an at- was uttered in obinion, my judgment, require killing rever- of “black tack on the war and entry sal judgment acquittal. fend of a context, In the words brothers.” Freeburger Agent reported are more standards, applying first In likely as nat- than not to have had their appellant’s supposed is whether question threat meaning purport ural ascribed speech of a kind which comes by Wieghart the witness rhe- them protection —the the First within appellant idea all, was, torical rather it like Amendment at or whether obscenity, malicious threats libel and the than shoot the Vietnamese. (1963); Richardson, 14. On the allocation Freedom of issues between Expression judge Courts, and the Function of First Amendment cases, Hudon, E. Freedom 65 Harv.L.Rev. 24-31 Speech in America 116- Press con- evoked it were taken in context Second, appellant’s “threat” their hyperbolic he emphasis hearers to be which stated an event ditioned political place they allowing supported.15 which view to take no intention forces. the armed into induction —his short, appellant’s words,' taken in upon a con- “threat” premising of a context, readily their suscepti- most power speaker has which dition interpretation they ble to the frustrate ren- intention and avowed offensive, even cruc|e, rhetorical device. unambig- something than less it ders They unambiguously cannot be read as uously threat. serious against a serious threat the President. response— Finally, audience’s my punishment appel- Thus view applause rele- laughter with mixed —is speaking lant for these words would de- laughter dispositive. Such vant prive right speech him of the to free argues, majority opinion may, as guaranteed himto the First Amend- However, implications. have sinister ment. interpret more reasonable to much indicating respectfully the words dissent. factors, course, go 15. These also As three such were doubtless statutory question jury. However, whether considered since my present danger threat- defendant made a view the clear and expression requires judicial of an the sense test determination apparent unambiguous harm him. See has been Marino, N.D.Ill., made, jury’s apparent findings United States can- F.Supp. controlling weight not have here. Daulong, W.D.La., F.Supp. See cases cited notes the life under a of President statute Contrary Appellant claims, narrowly prevent 14. to what drawn to such utter- expression prosecuted was not for his of ances. Negroes views on and the Vietnamese system, safety our dents. experience with Recent statute.15 Magistrate figures in so Chief of nation three of assassination that, hardly crucial welfare not years undermines national less than withstanding our traditional tolerance reached conclusion years ago 871. uninhibited and vicious criticism Section even it enacted when President,17 thought essential it was making it a criminal act A statute safety the life and make threats generally citizens as to utter threats ap of the preciate criminal President acts. To open might constitutional be to arguendo well protect the need President challenge. Assuming that a danger inhibiting from or the effect of applied might hot sustained be statute threats, only need recall the one shock any any 200 mil- one of toward waves which rocked the entire world Americans, ques- here in lion statute November when a President was judged by different stand-' tion must be political, murdered. The enormous soci Magis- ards, limited as is to the Chief ological, consequences and economic of the nation and his constitutional trate poignant are that event reminders of the language Threatening successors. sought evil to be avoided section 871. might thought when directed tolerable assassination, attempted or even as private citizen takes on a different sassination, suspicion conspiracy hue when directed at President end, living person to this upset of no can consequences are dimensions equilib nation’s—even world’s— important guide.16 rium as does such action directed aat unique are sur There considerations the United States. rounding the President the United protected When the interests to be are world, person per No States. light evaluated first amendment haps, comprehensively guarded. is so safeguards, consequences sought here pre protection Yet this intensive has prevented to be afford valid basis vented assassination of four Presi reasonable speech.18 limitation on Congressman Webb made this observa- covering private individual, as far tion: things concerned, as these are and the [E]veryone Chief admits extent; to the same but great Executive nation like ours you differentiating this bill ought way protected every to be President, office of and the man who possible, especially in view of the sad office, fills the other citizen experience losing we have had in as of the United States. sassination Presi three of our beloved Cong.Rec. dents. Few would claim that much of the edi- s{s

Notes

[*]

[*]

[*] commentary torial aimed prevention [A]n ounce worth a at our Presidents fails fulfill pound cure, prevent want sought “uninhibited, robust, the threats which often men to incite wide-open” necessary debate to a demo- kill and murder. society. cratic New York Times Co. v. Cong.Rec. Sullivan, (1964). Moreover, 11 L.Ed.2d 686 clearly recognized This distinction was prohibiting very limited “criticism” of by the drafters of section 871:

Case Details

Case Name: Robert Watts v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 25, 1968

Citation: 402 F.2d 676

Docket Number: 21528_1

Court Abbreviation: D.C. Cir.