Opinion of the Court
“I have more muscle in my little finger than you have in your whole body and if you take this restraining gear off, I’ll show you what I will do to you.” These words form the basis of one specification of a threat that a special court-martial found the appellant guilty of. Our review is to determine whether the quoted words constitute an offense.
A special court-martial composed of a military judge alone found the appellant guilty of five different specifications alleging failure to obey a lawful order, disrespect to a superior petty officer, communicating threats, and disorderly conduct. He was sentenced to a bad-conduct discharge, forfeiture of $80.00 a month for two months, and confinement at hard labor for the same period. The convening authority approved the sentence but suspended the confinement and forfeiture.
While the appellant was confined at Port Hueneme, California, he created a disturbance and was placed in restraining gear after he requested and
According to appellate defense counsel, if language alleged to communicate a threat contains a contingency, then there must be “a reasonable possibility that the uncertain event may happen.” United States v Gionfriddo,
Fundamentally, “[e]very threat un-executed involves some contingency, if none other than that the maker’s purpose be not abandoned, or that execution by him be not prevented.” United States v Metzdorf, 252 Fed 933, 938 (D Mont) (1918). But if an utterance is conditioned on a variable that cannot occur, the condition negates the threat. Watts v United States, 402 F2d 676 (CA DC Cir) (1968), reversed on other grounds,
In United States v Humphreys,
This Court has not directly addressed the issue of whether, as a matter of law, conditional words in a declaration of intent to harm may negate the words as a threat. The Court has indicated, however, that the understanding of the person to whom the statement is communicated and the circumstances of the communication may be significant in contradicting or belying the language of the declaration. United States v Gilluly,
In United States v Holiday,
In United States v Kelly,
If the accused in the instant case had said, “When I get this restraining gear off I will show you what I’ll do,” we would have no difficulty in agreeing that the condition was one reasonably possible of fulfillment. But when he used the words, “if you take this restraining gear off,” we believe he indicated a limitation on the period within which he would effectuate his words and that no reasonable guard would have removed the restraining gear in order to permit an attack on himself. The words were more braggadocio than a threat of a kind that a reason
To avoid any impression that an inmate of a confinement facility may, with impunity, condition various promises of harm on his being released from his cell or on having his handcuffs removed, we note that language of the type involved in this case may be the basis of specifications involving disrespect to a noncommissioned officer. Moreover, with only a slight variation, the words this appellant uttered could produce a threat. The exact language used here in the circumstances then obtaining, however, is not enough to support the threat specification.
Since the military judge found the specification at issue here to be multi-plicious with another specification of communicating a threat to which the appellant pleaded guilty and as to which no controversy exists about its adequacy, no prejudice resulted. Consequently, specification 3 of Charge II is ordered dismissed, and the remaining findings and sentence, as approved by the United States Navy Court of Military Review, are affirmed.