U.S. v. Lincoln, CR 02-208-RE.

• Decision Date: 09 January 2003
• Docket Number: No. CR 02-208-RE.,CR 02-208-RE.
• Citation: 255 F.Supp.2d 1169
• Parties: UNITED STATES of America, Plaintiff, v. Jonathan LINCOLN, Defendant.
• Court: U.S. District Court — District of Oregon

255 F.Supp.2d 1169

UNITED STATES of America, Plaintiff, v. Jonathan LINCOLN, Defendant.

No. CR 02-208-RE.

United States District Court, D. Oregon.

January 9, 2003.

Michael R Levine, Portland, OR, for Defendant.

OPINION AND ORDER

REDDEN, District Judge.

On May 15, 2002, defendant was indicted on one count of knowingly and wilfully, in violation of 18 U.S.C. § 871, threatening to take the life of George W. Bush, the President of the United States, by depositing in the mail, on September 24, 2001, a letter containing such a threat.

A 1-day court trial was held on October 28, 2002, and continued on November 4, 2002, for the taking of additional testimony. Thereafter, the court received additional briefing from the parties.

The matters before the court are (1) resolution of defendant's motion to dismiss the indictment because of the government's misconduct (doc. 30) and renewed motion for acquittal (doc. 31); and (2) the court's judgment of defendant's guilt or innocence based on the court trial and post-trial briefing.

Background

Defendant is an inmate at the Oregon State Penitentiary, presently scheduled for release in May 2003.

In March 2001, prison officials informed United States Secret Service Agent Ron Wampole that, in an anger management workbook required by the penitentiary, defendant wrote statements that threatened the life of President Bush. The government summarizes those statements, and defendant does not challenge the accuracy of the summary. Gvmt. Post Trial Memo., pp. 9-10; Def. Reply to Gvmt Post Trial Memo., pp. 4-5. On page 2 of the workbook, defendant made four threats: "1. Kill people; 2. Ml Bush; 3. Kill Bush wife; 4. Kill the FBI." On page 4, defendant wrote "Something you have fun when you kill the President like Bush or Bill Cliton or his wife." On page 5, defendant wrote at the top of the page: "Kill Bush, Kill Bush, Kill Bush," and then wrote "President shread his body up into little pieces Kill his wife famialy." On page 6, defendant indicated that he thinks killing the President is a good thing to do and that killing people and hurting them makes him feel good. On page 9, defendant wrote he is going to shoot the President with a 30-06 rifle that would put a hole in the President 3-1/2 inches wide.

Approximately a month later, in April 2001, Agent Wampole interviewed defendant in the attorney/client room at the Oregon State Penitentiary for 45 minutes to one hour. He testified that he conducted the interview because of the workbook statements and that his purpose in the interview was to assess the degree of threat defendant posed to the President.

Agent Wampole said defendant was cooperative and stated he was angry with the President because his friends had lost jobs because of the President's actions. Defendant told Agent Wampole that he wanted to kill President Bush and, in reference to other threats he allegedly had made against the President, said that he really meant them. Agent Wampole testified that defendant said when he got out of prison, he would assemble a team of people to stake out the White House, watch the President, and shoot the President through an open window of his limousine. In response to a question by Agent Wampole, defendant denied making the threats in order to be placed in a federal prison instead of a state prison.

Agent Wampole testified that he reported defendant's threats in the workbook and interview to the United States Attorney's Office, which took no action against defendant at that time.

Approximately six months later, on September 24, 2001, defendant attempted to mail to President Bush the letter that is the subject of the indictment. The letter read:

President Goerge Bush

You think cause you go over there and blow them up that the killing will stop in your dream They got over 275,800 or more since, Never mind that this is only the Beging of the Badass war To come Just think Their army is over here already hiding They have more Posion gas then you know, ha ha. Too bad you don't think like them. You will see a good Job Done agin may 2 week's, maybe 2 months, 3, who know's. YOU WILL DIE TOO GEORGE W BUSH REAL SOON THEY PROMISSED THAT YOU WOULD LONG LIVE BINLADEN. Motion to Dismiss Indictment, Exh. A. Prison officials intercepted the letter before it was mailed and gave it to Agent Wampole. Thereafter, defendant was indicted for the alleged threats made in the letter.

Motion to Dismiss Indictment—Alleged Government Misconduct

Defendant argues that the indictment should be dismissed because the government engaged in outrageous misconduct when the Agent Wampole intentionally failed to give Miranda warnings to defendant in the April interview at the Oregon State Penitentiary.

It is not disputed that Agent Wampole did not advise defendant of his Miranda rights. He said that, as a general rule, when threats are made against the President, Secret Service agents do not give Miranda warnings because the agents are charged with the responsibility of ascertaining the level of the threat to the President. If Miranda warnings are given, the person often will not cooperate and the agency will be unable to ascertain the level of threat. Agent Wampole did not tell defendant he was free to leave, but also did not threaten him or make promises to him. Defendant never asked for an attorney.

The defense of outrageous conduct "is available only where the conduct of the law enforcement officials is so outrageous that it violates notions of fundamental fairness implicit in the Due Process Clause of the Fifth Amendment.". United States v. Smith, 7 F.3d 1164, 1168 (5th Cir.1993). For an outrageous conduct defense, the defendant bears the burden of proving that he was not an active participant in the criminal activity and the government was overinvolved in the charged crime. Id. at 1167-68.

The facts in Smith are similar to those in this case. In Smith, the defendant-inmate told another inmate he was going to kill the President when he got out of the penitentiary. Id. at 1165. The inmate reported the threats to the warden, and the warden reported the threats to the Secret Service. Thereafter, the warden and a Secret Service agent interviewed the defendant in the warden's office. Id. The court stated that the agent's intent in questioning the defendant was to determine whether he posed a serious threat to the President. Id. The defendant was not given complete Miranda warnings during the interview, and he made threats to kill the President. Id. at 1165-66.

The court assumed, without deciding, that a violation of Miranda had occurred. The court concluded that the defense of outrageous conduct does not apply to a Secret Service agent's questioning of an inmate to assess the seriousness of alleged earlier threats against the President without giving Miranda warnings. The court noted that the defendant was an active participant in the criminal activity of making threats on the President's life, and that the agent was not overinvolved in the crime charged. Id. at 1169. While the agent afforded defendant the opportunity to express threats in the interview, he was not pressured or tricked into doing so. The threats were not drawn from defendant by prolonged questioning. Id. The court noted that the case is unlike cases where the outrageous conduct defense is normally asserted in which the government instigates a sting operation and entices the defendant into participating in illegal activity. Smith, 7 F.3d at 1169.

In the case presently before the court, defendant was an active participant in the threats, Agent Wampole was not overinvolved, and the interview was not prolonged. As an agent of the governmental agency charged with maintaining the President's safety, Agent Wampole attempted to determine the seriousness of defendant's threats. Questions concerning defendant's feelings about the President were therefore necessary and proper. Although, as in Smith, the questions might be expected to, and in fact did, lead to defendant's renewed threats on the President's life, it was also possible that defendant could have attempted to conceal or minimize his hostile attitude or intentions. Id. Thus, although defendant's criminal responses during the interview were perhaps probable, they were not predictable with reasonable certainty.

I conclude that Agent Wampole's failure to give Miranda warnings did not amount to outrageous conduct. Defendant's motion to dismiss the indictment because of governmental misconduct is denied.

Renewed Motion for Acquittal

The primary issue in this case is whether the September 24th letter constitutes a true threat such that it is not protected by the First Amendment. The statute defendant is charged with violating, 18 U.S.C. § 871, provides in relevant part that "[w]hoever knowingly and willfully deposits for conveyance in the mail ... any letter ... containing any threat to take the life of ... the President of the United States ... shall be fined under this title or imprisoned not more than five years, or both." The statute initially requires the government to prove a true threat. Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969).

The Supreme Court has admonished that "[w]hat is a threat must be distinguished from what is constitutionally protected speech." Watts, 394 U.S. at 707, 89 S.Ct. 1399. "A statute such as [18 U.S.C. § 871], which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech." Id. The test of a true threat is whether defendant has intentionally made a statement wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates as a serious expression of an intention to inflict bodily harm upon or to take the life of the President, although it is not necessary that the maker...