Michaud v. United States, 7872.

• Decision Date: 07 July 1965
• Docket Number: No. 7872.,7872.
• Citation: 350 F.2d 131
• Parties: Normand P. MICHAUD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

350 F.2d 131 (1965)

Normand P. MICHAUD, Appellant, v. UNITED STATES of America, Appellee.

No. 7872.

United States Court of Appeals Tenth Circuit.

July 7, 1965.

Glenn W. Clark, Denver, Colo., for appellant.

David K. Winder, Asst. U. S. Atty. (William T. Thurman, U. S. Atty., was with him on the brief), for appellee.

Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.

LEWIS, Circuit Judge.

Appellant was convicted of having threatened the life of the President of the United States, a violation of 18 U.S.C. § 871,¹ in a telephone conversation placed to the White House from a coin-operated telephone in Kanab, Utah. The verbal threat, received by a Secret Service agent at the White House, was contained in substantially the following language:

"I was in on the assassination of President Kennedy and I am going to kill President Johnson in the near future. I have sold some cattle and purchased a rifle with a scope. I have written a letter to the White House today in which I told the President I would kill him."

Among appellant's contentions respecting the occurrence of prejudicial error during the course of the trial is the claim that the identification of appellant as the person making the telephone call was based entirely upon inadmissible hearsay and consequently is insufficient to support conviction. Particular claim is made that the court erred in allowing the Secret Service agent to testify to his conversation with a Kanab, Utah, telephone operator to the effect that the subject telephone call to the White House had originated from a particular pay telephone in Kanab. This evidence was admitted not for the purpose of proving the truth of the operator's statements but to show that the call handled by the operator and received by the agent was one and the same. It was properly admitted for such purpose. Proof of the place of origin of the call was made by the proper admission of routine business records of the telephone company under 28 U.S.C. § 1732 and the testimony of the telephone operator that the caller stated he was calling from a particular number. Eyewitness testimony that appellant was in and near the telephone booth at such time clearly supplied a proper foundation for the admission of the operator's testimony, presenting a jury question upon the identity of the caller. See Andrews v. United States, 10 Cir., 78 F.2d 274, 105 A.L.R. 322; VII Wigmore on Evidence, 3d ed., § 2155. We therefore find no merit to this claim of error; other similar claims are also without merit. However, we find it necessary to reverse the judgment because of plain error affecting substantial rights in the general administration of justice in jury trials, Rule 52(b), Fed.R.Crim.P.

In instructing the jury as to the elements of the crime defined by 18 U.S.C. § 871, specifically the meaning to be given the words "knowingly and willfully otherwise makes any such threat against the President * * *," the trial court stated:

"However, in threats — and this is our case — made to one not incited to carry them out there must be proof beyond a reasonable doubt that the maker of such threats intended to carry them out himself."

This instruction, to which no objection was taken, was apparently based upon the holding in United States v. Metzdorf, D. Mont., 252 F. 933. But the Metzdorf case represents the extreme minority view and has not been followed by other courts, see, e. g., Ragansky v. United States, 7 Cir., 253 F. 643; United States v. Reid, W.D.La., 49 F.Supp. 313, aff'd, 5 Cir., 136 F.2d 476, cert. denied, 320 U.S. 775, 64 S.Ct. 87, 88 L.Ed. 465; United States v. Stickrath, S.D.Ohio, 242 F. 151. By inserting the words "knowingly and willfully" in the statute, Congress was referring to the intentional nature of the threat....