U.S. v. Merrill

Decision Date14 January 1985
Docket NumberNo. 83-1013,83-1013
Citation746 F.2d 458
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Josiah L. MERRILL, III, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Sherry P. Herrgott, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Josiah L. Merrill, III, pro se, c/o David J. Itzkowitz, Phoenix, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and SKOPIL, Circuit Judges, and KENYON, * District Judge.

WALLACE, Circuit Judge:

Merrill, who has defended himself, appeals his convictions for mailing injurious articles, threatening the life of the President, and mailing obscene materials in violation of 18 U.S.C. Secs. 1716, 871, and 1461. Merrill argues that the evidence is insufficient to support his convictions and that the district court abused its discretion by not allowing him to present his defense. We affirm.

I

Merrill is a 39-year-old former Captain in the United States Air Force. He served two tours of duty in Vietnam as a jet fighter pilot. Beginning in 1974, Merrill grew increasingly disillusioned about America's leadership and its military bureaucracy. In 1975, he left active duty and began work on what he describes as a book entitled "In Defense of Reason, The War on Stupidity." Apparently attempting to gain publicity for his cause, Merrill began what he viewed as a military operation against the political and military establishment. Although the precise aims of what Merrill calls "The Military Abscam Watergate Operation" are unclear, the implementation of his plan involved mailing bizarre materials to community leaders in Phoenix, Arizona. These materials consisted primarily of collages of photocopied newspaper articles and pictures annotated by Merrill with various written messages through which Merrill attempted to express his views on society's problems. Many of the letters he mailed contained live .22 caliber rim fire bullets. Several of the letters included macabre and bloody depictions of President Reagan along with the words "Kill Reagan." Two of the communications were illustrated with photocopies of pornographic playing cards.

In October 1981, Merrill was arrested by a Secret Service agent and a Postal Inspector after several of his letters were referred to them for investigation. Merrill admitted mailing the materials and told the investigators that he intended to force the government to bring him to trial, where he would have a public forum for his complaints against it. An eleven-count indictment charged Merrill with four counts of threatening the life of the President in violation of 18 U.S.C. Sec. 871, five counts of mailing injurious articles in violation of 18 U.S.C. Sec. 1716, and two counts of mailing obscene materials in violation of 18 U.S.C. Sec. 1461. Following two psychological evaluations, the district court determined that Merrill understood the nature of the proceedings against him, was able to assist counsel, and was thus competent to stand trial. The district court subsequently allowed Merrill's attorney to withdraw as attorney of record and appointed him as advisory counsel to assist Merrill in his pro se defense. Merrill waived trial by jury.

Merrill was convicted on all eleven counts. He was sentenced to concurrent three year prison terms for each of his convictions of mailing injurious articles and threatening the life of the President, and to a consecutive term of five years probation for his convictions of mailing obscene material. We have jurisdiction over Merrill's timely filed appeal pursuant to 28 U.S.C. Sec. 1291.

II

Merrill's appellate briefs continue his rambling attacks on the federal government, the military, and the various members of the justice department and judiciary involved in his case. Although it is difficult to identify the precise contentions Merrill makes on appeal, we will attempt to respond to the legal arguments that are raised, either explicitly or implicitly, by his lengthy briefs. Merrill's major attack is that the evidence admitted at trial was insufficient to support his convictions.

In reviewing the sufficiency of the evidence underlying a conviction on appeal, we view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the government. We will affirm the conviction if any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Ramirez, 710 F.2d 535, 545 (9th Cir.1983). We accept the factual findings of the district judge unless we conclude that they are clearly erroneous. United States v. Pace, 454 F.2d 351, 356-57 (9th Cir.1972); see also United States v. Thoreen, 653 F.2d 1332, 1342-43 (9th Cir.1981); United States v. Baker, 641 F.2d 1311, 1317 (9th Cir.1981).

A.

Counts five through nine of the indictment charge Merrill with violating 18 U.S.C. Sec. 1716 by knowingly mailing letters containing live .22 caliber bullets. In a pretrial stipulation, Merrill admitted having written and mailed the letters that were the subjects of these counts. He further stipulated that he had enclosed a .22 caliber bullet in each of the letters. At trial, the government presented the testimony of a Secret Service firearms expert about the nature of the bullets. He testified that because of their "rim fire" design, .22 caliber bullets may be detonated by striking any part of the metal flange encircling the end of a .22 caliber cartridge. The danger posed by mailing the bullets was corroborated by the testimony of a Postal Service employee who described the mechanical canceling machines used to process the letters Merrill mailed. He concluded that the machines could easily have detonated the mailed bullets.

Merrill presented no contradictory evidence. He merely suggested during his cross-examination of one of the government's witnesses that .22 caliber bullets are not powerful enough to present any real danger.

On the basis of this evidence, we conclude that the district judge was not clearly erroneous in making the necessary factual findings which demonstrated beyond a reasonable doubt that Merrill violated 18 U.S.C. Sec. 1716. We therefore affirm his convictions on counts five through nine.

B.

We turn now to Merrill's convictions on counts one through four of the indictment for threatening the life of the President in violation of 18 U.S.C. Sec. 871. The letters that are the subjects of these counts all include depictions of President Reagan's head impaled on a stake and dripping blood. They also include the words "Kill Reagan." One of the letters has a .22 caliber bullet taped to it and pointing at a picture of President Reagan's head. The letters were addressed to two judges, a newspaper, and a church leader in the Phoenix area. The return addressees indicated on the envelopes were various community leaders.

As was the case in counts five through nine, Merrill does not contest most of the elements involved in the charge of threatening the President's life. Before trial, Merrill stipulated that he wrote the letters, that he mailed them, and that the return addressees on the letters neither knew of nor authorized them. Notwithstanding these factual concessions, Merrill's briefs raise two legal challenges to his convictions.

First, Merrill asserts that the statements and pictures contained in the letters are political expressions protected by the first amendment. Cases interpreting 18 U.S.C. Sec. 871, however, have uniformly concluded that "true" threats, of the type proscribed by the statute, are not constitutionally protected speech. E.g., Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (per curiam) ("What is a threat must be distinguished from what is constitutionally protected speech."); United States v. Howell, 719 F.2d 1258, 1260-61 & n. 2 (5th Cir.1983) (analogizing threats to other nonprotected speech such as obscenity and fighting words). The Supreme Court specifically rejected the suggestion that section 871, although it criminalizes a form of pure speech, is facially invalid. The Court stated "[c]ertainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence." Watts v. United States, 394 U.S. at 707, 89 S.Ct. at 1401.

These authoritative determinations that the statute is not unconstitutional on its face limit our inquiry to whether the letters mailed by Merrill constitute a "threat" for purposes of section 871. This determination is directly linked to Merrill's second challenge to these convictions: that the letters were not true threats because he never intended actually to carry them out.

In Roy v. United States, 416 F.2d 874, 877-78 (9th Cir.1969), we interpreted section 871's intent requirement:

[T]o require only that the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President, and that the statement not be the result of mistake, duress, or coercion.

Other circuits have generally also concluded that section 871 establishes an objective test. See United States v. Callahan, 702 F.2d 964, 965-66 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Vincent, 681 F.2d 462, 464 (6th Cir.1982); United...

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