U.S. v. Carrier
| Citation | 672 F.2d 300 |
| Decision Date | 01 March 1982 |
| Docket Number | D,No. 534,534 |
| Parties | UNITED STATES of America, Appellant, v. Mary Frances CARRIER, Appellee. ocket 81-1310. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
George Lowe, U. S. Atty., N. D. N. Y., Syracuse, N. Y. (John J. McCann, Joseph Pavone, Asst. U. S. Attys., Syracuse, N. Y., Ronald N. Ohata, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellant.
Ronald R. Benjamin, Binghamton, N. Y., for appellee.
Before TIMBERS, KEARSE and CARDAMONE, Circuit Judges.
An indictment was dismissed which without embellishment simply tracked the language of 18 U.S.C. § 871(a) that makes it a crime "knowingly and willfully" to make "any threat to take the life of or to inflict bodily harm upon the President of the United States." 1 The district court found this indictment insufficient on its face because it failed to allege the factual context in which the actions of the defendant occurred. In dismissing it as a matter of law, the lower court concluded that the alleged threatening words could not under any circumstances constitute "threats" within the proscription of the statute. We reverse and remand this case for the reasons which follow.
The facts in this case may be briefly stated. Kevin Mitchell, a Special Agent with the United States Secret Service, submitted an affidavit to the District Court for the Northern District of New York to obtain a warrant to search a 1974 Ford Pinto with a Vermont license plate and to seize deadly weapons and various books, papers and letters containing threats to the life of the President. The basis for Mitchell's application was information he received on April 6, 1981 from the Binghamton, New York, Police Department concerning the arrest five days earlier of Mary F. Carrier. Appellee, age 43, and with no fixed address, was arrested by the Binghamton police for The following day, April 7, Agent Mitchell went to Binghamton and examined the envelope, then in the possession of the local police, and found the following inscriptions: "impeach the President," "murder the President" and "kill". He interviewed Carrier in the Broome County Jail and she stated to him In addition Mitchell observed written various inscriptions on the wall of Carrier's jail cell, including "shoot the Governor of the State of New York."
an unlawful attempt to retrieve her Ford Pinto from Star Auto Parts. The Vermont license plate on the vehicle revealed that it was registered to Mary Carrier, Hotel Coolidge, White River Junction, Vermont. Following her arrest Carrier was placed in custody in the Broome County (New York) Jail and was discovered to have in her possession an envelope which contained a threat to the life of the President of the United States.
The agent arrested Carrier on April 8 for a violation of 18 U.S.C. § 871(a). The following day Carrier stated in substance to Agent Mitchell, "I am a big game hunter and have owned numerous rifles, shotguns and a 32." She also remarked "the only thing I'll do is blow the head off the President of the United States."
As a result of Mitchell's affidavit a warrant was signed by the district court which authorized a search of the Ford Pinto. The inventory of the property seized revealed only notebooks and miscellaneous papers; no firearms were discovered. There was, however, a written slip in the car listing the cost of a .44 magnum and a .32 special.
At a hearing before the district court the United States Attorney advised it that Carrier had a lengthy "rap" sheet including convictions for assault and other crimes committed in New York and New Hampshire. On April 17 the government moved and was granted an order directing a psychiatric examination of the defendant pursuant to 18 U.S.C. § 4244. 2 As a result of that examination appellee was found competent to stand trial.
A two-count indictment returned in the United States District Court for the Northern District of New York charged defendant, Mary Frances Carrier, with threatening to take the life of or inflict bodily harm on the President of the United States. At arraignment on July 1, 1981 defendant orally moved to dismiss the indictment on the ground that it was insufficient on its face. This motion was granted on July 7, 1981. The district court ruled that the indictment was insufficient because it failed to state the factual context in which the actions of the defendant occurred. The Court also ruled that, as a matter of law, the words used would not, under any circumstances, constitute threats within the proscription of the statute. The United States appeals the dismissal of Count II 3 of the two-count indictment. It does not appeal the dismissal of Count I.
The indictment is valid on its face. Rule 7(c)(1) 4 of the Federal Rules of Criminal Procedure neither requires nor permits that a different rule-one engrafted by judicial construction-should apply where "free speech" considerations may constitute a defense to the crime charged.
Under Rule 7(c)(1) an indictment Fed.R.Crim.P. 7(c)(1). This rule is designed to eliminate prolix indictments and "to secure simplicity in procedure." United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92 (1953). The facts alleged must be adequate to permit a defendant to plead former jeopardy upon prosecution. The indictment must also be sufficiently specific to enable the defendant to prepare a defense. 8 Moore's Federal Practice P 7.04 (2d ed. 1981).
On its face, this indictment does contain a plain and concise statement of the essential facts constituting the offense charged. The language of the indictment charges that the defendant, Mary Frances Carrier, on April 9, 1981, in the presence of two named people did "willfully and knowingly" make a threat to take the life of or to inflict bodily harm upon the President of the United States by stating, "It's too bad that Hinckley wasn't successful in killing that son of a bitch ... the only thing I will do is blow the head off of the President of the United States." The court below, however, concluded that because of the imperatives of the First Amendment-"Congress shall make no law ... abridging freedom of speech"-the indictment was deficient since it failed to include a description of the factual context within which the defendant uttered these words. It also concluded that such failure denied the accused her Sixth Amendment right "to be informed of the nature and cause of the accusation."
We cannot agree. At the outset we observe that the operative key words of section 871(a)-"threat" and "willfully and knowingly"-are terms of art used in statutes too numerous to recite. Inasmuch as these terms do not change from statute to statute or indictment to indictment, they are definite enough in legal meaning to give defendant notice of the charge against her. Hamling v. United States, 418 U.S. 87, 118, 94 S.Ct. 2887, 2908, 41 L.Ed.2d 590 (1974); United States v. Trotta, 525 F.2d 1096, 1099, n.6 (2d Cir. 1975).
Further, neither the historical derivation of this statute, nor its purpose, as expressed by its sponsors in Congress, would dictate that an exception be made for indictments which raise a possible First Amendment issue. Rather than carve out such an exception to the established simplified construction, the preferable procedure would be for the defendant to seek a bill of particulars. Debrow, 346 U.S. at 378, 74 S.Ct. at 115. A bill of particulars may not save an invalid indictment; it may provide the defendant with the evidentiary details needed to establish his defense. 5
The court below speculated that, so far as one could gather from the language of the indictment, the threat in this case could have been protected speech spoken at a cocktail party. It is our view, however, that where the indictment is legally sufficient, as it is here, the district court may
not dismiss it simply because it deems the dismissal to be in the interests of justice. See United States v. Artuso, 618 F.2d 192, 196 (2d Cir. 1980).
Whether the words spoken by defendant constitute threats within the proscription of 18 U.S.C. § 871(a) may not be decided as a matter of law in this case. Even assuming the sufficiency of the indictment, the district court concluded that it must be dismissed as a matter of law because the threatening words could not, under any circumstances, constitute the kind of threat made criminal under section 871(a). The history and purpose of the statute, along with the precedents which have interpreted it, bring us to a different conclusion. In our view the defendant's intention when uttering these words and the circumstances surrounding their use, present issues of fact to be tried by a jury. 6
A brief look at the statute's historic derivation is helpful in shedding some light on its proper interpretation. A Statute of Treasons was enacted in the year 1352 (circa) during the reign of Edward III. Treason under the statute consisted of compassing or imagining the death of a King, his consort, or his oldest son. 25 Edw. III, sess. 5, c.2. The statute was interpreted to declare treasonous any intention, however manifested, which pointed at the death of the King, including mere words which showed such intent. 3 W. Holdsworth, A History of English Law, 292-93 (5th ed. 1931). For over 500 years the crime of treason rested primarily, if not solely, on this old English statute. 7 It is from this ancestry that section 871, as enacted in the federal legislation of February 14, 1917, was born. The interpretation we accord this...
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