U.S.A. v. Landham

• Decision Date: 26 October 2000
• Docket Number: No. 99-5471,99-5471
• Citation: 251 F.3d 1072
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. William M. Landham, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1072

251 F.3d 1072 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. William M. Landham, Defendant-Appellant.

No. 99-5471

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 26, 2000

Decided and Filed: May 25, 2001

Appeal from the United States District Court for the Eastern District of Kentucky at Ashland, No. 98-00010, Henry R. Wilhoit, Jr., District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Kenneth R. Taylor, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.

Michael J. Curtis, CURTIS LEGAL SERVICES, INC., Ashland, Kentucky, for Appellant.

Before: SUHRHEINRICH and MOORE, Circuit Judges; EDMUNDS, District Judge. ^*

OPINION

SUHRHEINRICH, Circuit Judge.

I. Introduction

Defendant William Landham was convicted of one count of knowingly transmitting a threat to kidnap in interstate commerce, in violation of 18 U.S.C. § 875(c) (Count Three); one count of knowingly transmitting a threat to injure in interstate commerce, also in violation of 18 U.S.C. § 875(c) (Count Four); and one count of making interstate telephone calls that were lewd, indecent, obscene, and lascivious, with the intent to abuse, harass, and annoy another person, in violation of 47 U.S.C. § 223(a)(1)(A) and (B) (Count Five). ¹ On appeal, Landham asserts that this Court should reverse his convictions because the district court abused its discretion in denying his motion to dismiss as to Counts Three and Four as his statements were not "true threats," and were therefore, constitutionally protected speech under the First Amendment; erred in denying his motion for judgment of acquittal as to Counts Three and Four because his statements were not "true threats"; erred in denying his motion for acquittal as to Count Five because his statements were not obscene; and abused its discretion in allowing the Government to introduce evidence of prior bad acts. Landham further alleges that the Government violated his Fifth Amendment right against self-incrimination by commenting during closing argument on Landham's silence. For the following reasons, we REVERSE all three convictions.

II. Background

Landham's convictions arise out of his tempestuous relationship with Belita Adams. In 1984, Landham, an actor, met Adams, an aspiring model, in New York City. Landham was about forty-two years old, Adams was nineteen. The two became romantically involved, and Adams moved to Los Angeles with Landham.

Adams characterized the relationship as "very stormy," "fast-paced," and with "a lot of drug and alcohol abuse." Adams testified that Landham became offensive and volatile when he was under the influence of either alcohol or drugs. However, she also testified that Landham never hit her throughout their entire relationship. Adams stated that Landham was "very much different" when he was sober - "very personable," "very intelligent."

The relationship in Los Angeles lasted about two and one-half years, but it was "very on and off during that whole period." At one point, after Landham shot a pistol past her head, Adams moved out. They maintained an on-again, off-again relationship, however.

Adams moved away in 1986 or 1987, and had no contact with Landham until 1995. On February 7, 1994, Adams' father, a school superintendent in Florida, was killed by a disgruntled employee. Adams' father was shot with a five-shot Taurus pistol, a fact whose significance will become apparent shortly. After the shooting, Adams decided to move with her daughter Rachel (who was not fathered by Landham) to the family farm in Kentucky. In early 1995, Adams spoke with Landham, and the two agreed to meet. Landham flew to Kentucky. Adams stated that Landham was "very, very nice," and that he indicated that he was no longer drinking.

In the spring of 1995, Adams and Landham agreed to shoot a motion picture together in Canada. Adams and her mother, Glenda Adams, had inherited $100,000, which they invested in the film. Adams was the executive producer and Landham was the director. Adams described the film as a low-budget, erotic action adventure. Adams testified that Landham drank heavily during filming.

Landham and Adams also began seeing each other again. After the filming, while back on the farm in October 1995, Landham threatened Adams with a knife. Adams testified that Landham pointed the knife at her and stated, "if you want to push my buttons like O.J. did Nicole, you know, and then said that if you want to play Nicole, do you want me to play O.J." As a result, Adams obtained a Domestic Violence Order ("DVO") on October 31, 1995, which ordered Landham to have no contact with Adams. Landham did not contest the allegations. He immediately violated the DVO by making repeated phone calls.

Shortly thereafter, in November 1995, Adams became pregnant with Landham's child. On December 6, 1995, Adams moved to remove the first DVO in its entirety, stating that she and Landham "have a business relationship that requires daily communications and occasional business meetings." Adams married Landham in December 1995. Their daughter Priscilla was born on August 8, 1996.

On November 5, 1996, Adams obtained a second DVO when Landham told Adams' mother that if he had a gun, he would kill Adams. In addition, Landham threatened Adams by saying, "don't make me into a Butch Monroe, Jr.," a reference to a man who wrecked his car the night he and his girlfriend split up. Adams testified that Landham would make jokes about everything Monroe was going to do to the ex-girlfriend. Again, Landham failed to appear to contest these allegations. Adams also filed for divorce at this time.

Notwithstanding, on November 22, 1996, Adams entered into another agreed order of reconciliation, and also stopped the divorce action. One of the terms of the reconciliation order was that Adams would retain custody of Priscilla during the period of reconciliation.

Adams obtained a third and final DVO on January 20, 1998. This DVO petition alleged that on January 7, 1998, Landham told Adams "that the children would be better off dead than having a psychotic mother," and that "cunts like you need a bullet between the eyes." Landham was removed from the home and ordered to have no contact. The third DVO states that Respondent "be restrained from any contact or communication with the above named Petitioner [Belita Landham]; [] by remaining at all times and places at least 500 feet away from petitioner and members of Petitioner's family or household." It awarded temporary custody of Priscilla to Adams, and ordered Landham to pay $60 a month in child support. Adams also filed for divorce again.

Adams testified that despite the DVO, Landham called and faxed her documents. She stated that he also faxed documents to a number of people in the community, including the elementary school principal, Adams' mother, and the court. In these documents he accused Adams of fraud and child abuse, among other things. Adams testified that Landham made numerous phone calls that lasted from January through June. She also stated that she did not know where Landham was living during this time.

Glenda Adams, Belita's mother, also obtained two DVOs against Landham, one in 1996 and another in 1998. These were also presented into evidence by the Government. In the first, Glenda Adams alleged that Landham told Glenda that he would shoot Belita if he had a gun. In the second, entered on May 12, 1998, Landham was ordered to have no contact with Glenda Adams.

On August 8, 1998, Priscilla's second birthday, a taxicab arrived with gifts from Landham. The store tags indicated that the presents were purchased locally. Landham was arrested on August 10, 1998, at his attorney's office in Kentucky. Adams did not actually see Landham again until the divorce hearing a few days later on August 13, 1998.

On August 26, 1998, a federal grand jury returned a four-count indictment against Landham. On October 21, 1998, a six-count superseding indictment was returned. Landham was charged with (1) crossing state lines with intent to violate the terms of a domestic violence order, in violation of 18 U.S.C. § 2262 (Count One); (2) crossing state lines with intent to injure and harass, in violation of 18 U.S.C. § 2261A (Count Two); (3) knowingly transmitting in interstate commerce a threat to kidnap, in violation of 18 U.S.C. §875(c) (Count Three); (4) knowingly transmitting in interstate commerce a threat to injure, in violation of 18 U.S.C. § 875(c) (Count Four); (5) transmitting interstate communications that were lewd, indecent, obscene, and lascivious with intent to abuse, harass, and annoy, in violation of 47 U.S.C. § 223(a) (Count Five); and (6) making repeated interstate telephone calls solely to harass, in violation of 47 U.S.C. § 223(A)(E) (Count Six).

Landham pleaded not guilty. Prior to trial, he moved, prose, to "drop all charges." As grounds for his motion, Landham argued that (1) he was not subject to federal jurisdiction because he is a Kentucky resident and was entitled to drive in the state; (2) harassing phone calls "do not violate the federal law as written;" and (3) that his accuser is "a child abuser with severe mental problems, a perjurier [sic], and a convicted lier [sic]." The district court summarily overruled the motion. ² Landham subsequently obtained counsel.

The Government filed a notice under Fed. R. Evid. 404(b) to introduce "prior bad acts" evidence. The Government sought to introduce prior DVOs, and testimony regarding their surrounding circumstances, Landam's discharging of a firearm in 1984, Landham's substance abuse problem, his conduct in a divorce proceeding, and his failure to pay child support. Landham objected to the 404(b) evidence, arguing that it was inadmissible character evidence. He also asserted that the firearms evidence was not substantially similar and too distant in time from the charged conduct. After an...