U.S. v. Aman

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before POSNER; RIPPLE
• Citation: U.S. v. Aman, 31 F.3d 550 (7th Cir. 1994)
• Decision Date: 04 August 1994
• Docket Number: No. 93-3372,93-3372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reinhold AMAN, Defendant-Appellant.

Page 550

31 F.3d 550

UNITED STATES of America, Plaintiff-Appellee, v. Reinhold AMAN, Defendant-Appellant.

No. 93-3372.

United States Court of Appeals Seventh Circuit.

Argued May 17, 1994.

Decided Aug. 4, 1994.

Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, WI (argued) for U.S.

Hans Peter Koesser, Kenosha, WI (argued) for Reinhold Aman.

Before POSNER, Chief Judge, and HILL ^* and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

After his divorce, Dr. Reinhold Aman began mailing threatening letters to his ex-wife, her attorney, and the judge presiding over the Amans' division of assets. Dr. Aman was indicted on five counts of violating 18 U.S.C. Sec. 876, ¹ which prohibits the mailing of threatening communications. Dr. Aman was convicted of three of those counts and was sentenced to twenty seven months' imprisonment. He now appeals and challenges his conviction and sentence. We affirm his conviction, but remand for resentencing.

I BACKGROUND

In early 1989, the defendant's former wife, Shirley Aman, retained Charles Phillips to initiate divorce proceedings against Dr. Aman. A trial on division of assets was conducted before Waukesha, Wisconsin County Judge Marianne Becker. After the divorce decree was issued, Dr. Aman began sending these three individuals threatening letters. Based on these letters, Dr. Aman was indicted on five counts of mailing threatening communications in violation of 18 U.S.C. Sec. 876. Portions of the letters that were the basis of the indictments upon which Dr. Aman was convicted are set out below. ²

At trial, the defendant testified on his own behalf. The defendant explained that, early in his academic career, he began to specialize in "maledicta," a Latin term he coined meaning bad words. Maledicta encompasses "insults, slurs, curses, threats, blasphemy, obscene words, nasty proverbs, jokes about racism, religion and professions." Tr. 168. He incorporated this expertise into an annual journal: Maledicta, The International Journal of Verbal Aggression. Dr. Aman testified that there were two ways for people to vent anger: physical aggression and verbal aggression. Verbal aggression, he explained, is the means used by "civilized people."

Dr. Aman claimed that, although his letters were a means to vent frustration and anger, they were not "true threats." With respect to the communications which formed the basis of Count 1, Dr. Aman testified that he never intended to threaten either Phillips or Judge Becker. In stating that he would "destroy" the recipients, he meant that he would destroy them professionally. Tr. 176. With regard to his statement that shooting Phillips and Judge Becker "would be too fast and too painless," he simply meant to state that these two should feel the pain that they had inflicted on him. Tr. 178. The postcard which served as the basis for Count 4 ("Man Kills Ex-Wife"), Dr. Aman testified, was mailed in order to keep Ms. Aman's guilt alive and to make her spend another $125.00 reviewing it with her attorney. Tr. 187. The same was true of the post-card which served as the basis for Count 5 ("Estranged Wife Found Slain In Home"). Dr. Aman explained that he mailed the postcard with the same "mischievous intent." Furthermore, he stated, the communication could not have applied to his ex-wife because they were already divorced and "estranged" meant that "you are not divorced yet." Tr. 189.

After the close of evidence, the court held a jury instruction conference. At this conference, Dr. Aman's counsel requested that the court employ the jury instruction used in the Fourth Circuit for violations of 18 U.S.C. Sec. 871, ³ which is known as the "subjective standard." The instruction Dr. Aman submitted reads as follows:

The defendant, Dr. Reinhold Aman is accused of mailing allegedly threatening letters to Marianne Becker, Attorney Charles Phillips and Shirley Bieschel Aman.

First, you must find Dr. Aman mailed a letter addressed to Judge Marianne Becker, Charles Phillips and Shirley Bieschel Aman, containing a threat to injure Marianne Becker, Attorney Charles Phillips and Shirley Bieschel Aman.

Second, that Dr. Aman intended the threat to be taken seriously and not merely as a joke or exaggeration.

Third, that Dr. Aman actually intended to carry out the threat.

R. 39. The request to use this instruction was denied. Instead, the court instructed the jury according to the governing standard in the Seventh Circuit. The instruction as given reads:

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following elements beyond a reasonable doubt:

First: That the defendant knowingly deposited or caused to be deposited, in the mail, for delivery by the Postal Service, a communication containing a threat, as charged.

Second: That the nature of the threat was to injure the person of someone.

* * * * * *

A "threat" is a serious statement expressing an intention to inflict bodily injury upon someone, which under the circumstances would cause apprehension in a reasonable person, as distinguished from idle or careless talk, exaggeration, or something said in a joking manner. ⁴

The jury returned a verdict of guilty on three of the five counts.

At the sentencing hearing, Dr. Aman's counsel objected to a three-point increase in Dr. Aman's offense level for threatening an "official" as defined in Sentencing Guideline Sec. 3A1.2(a). Defense counsel maintained that such an increase was not appropriate because the Sentencing Guidelines specifically referred to 18 U.S.C. Sec. 1114 which prohibits attempts to kill a federal judge. Here, counsel argued, there had not been an attempt to kill Judge Becker, and consequently, an increase was not warranted. Sentencing Tr. 23. Dr. Aman's counsel, however, never argued that application of the revised Sec. 3A1.2(a), which broadened the definition of "official," violated the Ex Post Facto Clause.

The district court rejected counsel's statutory argument. It stated that the post-November 1992 Sentencing Guidelines defines an official victim as "a government officer or employee, a former government officer or employee, or a member of the immediate family of any of the above." The court noted that there was nothing in this definition that required an intent to kill. Id. at 24. Applying the guidelines in effect at sentencing, the district court increased Dr. Aman's offense level by three and sentenced him to twenty-seven months' imprisonment. Dr. Aman now appeals his conviction and sentence.

II DISCUSSION

Dr. Aman raises two issues on appeal. First, he argues that a subjective not an objective standard should govern violations of Sec. 876. Second, he claims that retroactive application of the amended Sec. 3A1.2(a) violated the Ex Post Facto Clause because it worked to his detriment. Both issues raised by Dr. Aman have been presented to this court on previous occasions. We have spoken definitively on these matters and therefore believe that the doctrines of stare decisis and precedent compel our adherence to our prior decisions. Adherence to these decisions in this case results, as we have noted earlier, in the affirmance of Dr. Aman's conviction but requires that he be resentenced.

A. Subjective v. Objective Standard

The defendant first challenges his conviction on the ground that the subjective and not the objective standard for violations of 18 U.S.C. Sec. 876 should be used. The defendant acknowledges the fact that this court has repeatedly, and recently, applied the objective standard to violations of Sec. 876. We have recognized

that there are two essential elements to prove a violation of 18 U.S.C. Sec. 876, viz, (1) that the defendant wrote a letter addressed to a certain person containing a threat to injure the person of the addressee or of another, (2) that the defendant knowingly caused the letter to be forwarded by the United States mail.

United States v. Khorrami, 895 F.2d 1186, 1191 (7th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990). In defining a "threat" for the purposes of the first element, we explicitly have held that the inquiry is governed by an objective standard: "[I]t is not what the defendant intended, but whether the recipient could reasonably have regarded the defendant's statement as a threat." United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.1990). Specifically, we have defined the threat requirement as a statement

in the context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual].

Khorrami, 895 F.2d at 1192 (quoting United States v. Hoffman, 806 F.2d 703, 712 (7th Cir.1986), cert. denied, 481 U.S. 1005, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1987)). "In demonstrating a 'true threat' 'the government is not required to establish that the defendant actually intended to carry out the threat.' " Id. (quoting Hoffman, 806 F.2d at 707).

Despite this recent affirmation of the objective standard, Dr. Aman nonetheless urges this circuit to adopt a subjective standard for violations of Sec. 876. Under the subjective standard, the government would have to prove that (1) the defendant intended to make a threat, (2) the statement he made was in fact threatening, and (3) the defendant intended to carry out the threat. United States v. Patillo, 438 F.2d 13, 16 (4th Cir.1971). ⁵ Dr. Aman rests his argument that the objective standard should be abandoned on the Patillo case from the Fourth Circuit, on dicta in Watts v. United States, 394 U.S 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), and on Justice Marshall's concurring opinion in Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). We briefly discuss these authorities below.

We first note, however, that we do not take lightly...