U.S. v. Kosma

• Decision Date: 16 October 1991
• Docket Number: No. 91-1423,91-1423
• Citation: 951 F.2d 549
• Parties: UNITED STATES of America v. Louis A. KOSMA, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 549

951 F.2d 549

UNITED STATES of America v. Louis A. KOSMA, Appellant.

No. 91-1423.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Oct. 16, 1991.

Decided Dec. 13, 1991.

Michael J. Kelly, Asst. Defender, Defender Ass'n of Philadelphia, Federal Court Div., Philadelphia, Pa., for appellant.

Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Joan L. Markman, Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Before SLOVITER, Chief Judge, COWEN and WEIS, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Louis A. Kosma appeals his conviction under 18 U.S.C. § 871 (1988) for making threats against then-President Ronald Reagan. His appeal alleges that the district court erred in: 1) finding that Kosma's letters to Reagan were "true threats" under Section 871 and, therefore, constitutionally unprotected speech, and; 2) construing section 871 under an objective "reasonable person" standard. We agree with the determination of the district court and will affirm.

I

In 1988, Louis Kosma mailed a series of written communications to President Reagan and presidential assistant Marlin Fitzwater. All of these letters were of a threatening nature, some quite graphic and explicit. Although the opinion of the district court provided a thorough description of the facts, United States v. Kosma, 749 F.Supp. 1392 (E.D.Pa.1990), the content of Kosma's rather bizarre communications to the President are worth repeating in order to evaluate their effect on the intended audience.

Kosma's first communication with President Reagan was in a postcard postmarked March 2, 1988, which was addressed to President Reagan, "C/O Ye Ol Whitehouse." The postcard states in full:

Mr. Reagan: You are hereby invited to PHILADELPHIA. We are going to give you a 21 Gun-Salute.

21 guns are going to put bullets thru your heart & brains. You are a Disgrace to the Air-Force. You are a Disgrace to Teddy Roosevelt. You are a Disgrace to John F. Kennedy. You a Disgrace to Nancy Reagan. You have insulted her intelligence, and dignity, and honor, and integrity, and I resent this very much.!! You are In Contempt of EVERYTHING that I represent, and standby, and believe. Officially: an Act of Contempt of Court. Your name is going to be removed from ALL documents, and books. OFFICIALLY: you were NEVER the "president" of anything.!!

App. at 21-2. The return address of the postcard is "Louis A. Kosma (acting Director.FBI)."

On April 6, 1988, Kosma sent mailgrams to President Reagan, Secret Service Agent Kevin White, and Postal Service attorney Randy Levin notifying them that they were "suspended without pay ... pending a special grand jury indictment." App. at 21-5.

A document postmarked April 20, 1988 was sent to the U.S. Marshal's office in Baltimore. The document which seems to be a cut-and-paste of several other documents has the heading "IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA" and purports to be an "Official Court Order," "Official Proclamation" and "Motion to Proceed in Forma." The text of the document states:

To: Wilson Goode.

Ronald Reagan.

WHEREBY; You criminals have caused many Crimes against Humanity, and it would be Futile for you to seek Justice. YOU CAN ONLY SEEK MERCY.!! "Give me Liberty or give me Death." WE can NOT give you Liberty, but we can give you Death, to end your Mental Anguish.!! You should choose an Honorable Death. You are hereby ORDERED to Philadelphia, Penna. We are going to give you a 21 Gun-Salute. Twenty-one guns are going to put bullets thru your heart & brains. Place: FEDERAL COURTHOUSE. 601 Market street. Time: 6:O'clock am. Date: June 14th. 1988. Flag Day.

App. at 21-4 (emphasis in original). The document claims to be from the "Senior Commander. REGIONAL TASK FORCE" and the "U.S. MARINES," but is signed by Kosma.

Four letters, all postmarked July 4, 1988, were sent separately to presidential assistant Marlin Fitzwater. The first letter states:

To: President Reagan

Stevan P. White (Henchman) (in Phila).

Official Death Sentence

O. D. S.

Because of your crimes against humanity, accessories to the actual fact, aiding and abetting several felonies. O.D.S: July 14th, 1988. Potassium-Cyanide Gas.

App. at 21-9. The letter is signed by the "Hon. Peter Scuderi, Hon. Conrad Syr, Hon. Stephan Rinehardt." ¹ The second letter, also directed at President Reagan, states that "you are officially sentenced to death, by potassium-cyanide gas pellets. The impeachment is too lienient for you." App. at 21-12. This letter is signed by Kosma. The third letter, an "official death sentence" and "warrant" for President Reagan, calls the President "Lucifer" and "Saten" and lists a series of criminal charges against the President. App. at 21-14, 21-15. This letter is purportedly signed by Scuderi, Syr, and Rinehardt. The fourth letter seems to be a continuation of the criminal charges against President Reagan.

Finally, a letter postmarked July 5, 1988 was sent to Fitzwater:

To: Marlin Fitzwater

You should not have intercepted the postcard meant for Reagan. He doesn't know that he is sentenced to death, and should get his affairs in order.

* * *

Reagan cannot seek justice. Reagan can only seek mercy. In order to break the Republican conspiracy, and since the impeachment is much too lienient, Reagan is sentenced to death.

* * *

Furthermore; Reagan has been suspended without pay, or pension, or pecuniary gain, incidental or otherwise, since April 6th. 1988. No if's, and's or but's!! Now tell him!! Also sentenced to death is: Stevan P. White (Reagan's henchman) (in Phila)

App. at 21-20, 21-21.

In June 1988, Kosma was arrested and charged with two counts of making threats on the life of the President of the United States in violation of 18 U.S.C. § 871. ² In October 1988, the government moved to dismiss the complaint against Kosma without prejudice. This motion was premised upon Kosma's agreement to receive in-patient psychiatric care. Kosma violated the terms of the agreement, and the charges were reinstated in November 1989. Despite the threatening nature of all the letters, Kosma was only charged under section 871 for the letters postmarked March 2, 1988 and April 20, 1988.

While incarcerated and awaiting trial, Kosma sent the following letter postmarked May 10, 1990 to former President Reagan:

Dear Mr. Reagan,

You are invited to Phila, Penna. You are invited to an act of EUTHANASIA. You are invited to a 21 gun salute. 21 guns are going to blow holes in your heart and brain. You should pick an honorable way to die. You are a disgrace to your wife Nancy. You are a disgrace to the U.S. of A. You are all mouth except your ass, and that sucks canal water. If brains were dynamite, you couldn't blow your nose. You are an incorrigable, incurable, loathsome scum of the earth. How the fuck did you get to be president anyway? What are you going to do with $7,000,000 from that publisher? Why did you take an il-legal tax-rebate of $23,600 1985 1986?

I'm signing off.

10-04

Aufwiedersein,

Louis A. Kosma

App. 21-7. Kosma was then indicted on a third count of making a threat on the life of a former President of the United States in violation of 18 U.S.C. § 879 (1988). ³

In a non-jury trial in November 1990, the district court found Kosma guilty of violating section 871 (threats against the president) under an objective, reasonable person standard. However, the court found Kosma not guilty of violating section 879 (threats against a former president). Although the nature of Kosma's threat under section 879 was similar to the two threats under section 871, the district court found that the test for section 879 was more strict than that for Section 871. ⁴ The court relied on a House Judiciary Committee report which interpreted section 879 as requiring proof that "the statement could reasonably be perceived as a threat" and "the maker intended the statement to be a threat." ⁵ Kosma, 749 F.Supp. at 1401 (quoting H.Rep. No. 725, 97th Cong., 2d Sess. 3-4, U.S.Code Cong. & Admin.News 1982, pp. 2624, 2626). The district court found that psychiatric testimony presented at trial indicated that Kosma did not intend his May 10, 1990 letter to be a threat. Kosma was subsequently sentenced to prison for twenty-one months and supervised release for three years.

Kosma appeals from his conviction under section 871. Because this appeal involves the interpretation of a statute and its application to the facts of this case, our review is plenary. Ortiz v. Eichler, 794 F.2d 889, 891 (3d Cir.1986); see also Bose Corp. v Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958-59, 80 L.Ed.2d 502 (1984) ("[I]n cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.' ") (citation omitted).

II

Kosma argues that his letters to the President, though crude, offensive and inane, do not constitute "true threats," because they represent protected political speech under the First Amendment. He contends that the letters were merely his unique way of commenting on President Reagan's fitness for office and his Administration's policies. ⁶ At the outset, we recognize that the First Amendment was meant to encompass not only learned political discourse but also vituperative verbal and written attacks on the President and other high government officials. See Osborne v. Ohio, 495 U.S. 103, ----, 110 S.Ct. 1691, 1717, 109 L.Ed.2d 98 (1990) (Brennan, J., dissenting) ("When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed."); New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (19...