U.S. v. Davis

Decision Date31 May 1989
Docket NumberNo. 88-1147,88-1147
Citation876 F.2d 71
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lutrell DAVIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John Ashford Thompson, Honolulu, Hawaii, for defendant-appellant.

Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

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

Before HUG, TANG and KOZINSKI, Circuit Judges.


Appellant Lutrell Davis is a Hawaii state prisoner. He mailed a letter to Chief District Judge Harold M. Fong, threatening to kill both Judge Fong and Senior District Judge Samuel P. King. As a consequence, he was convicted of mailing a threatening letter with intent to extort, and threatening to murder a United States judge with intent to impede, intimidate, interfere with, or retaliate against such judge, in violation of 18 U.S.C. Sec. 115(a) (Supp. IV 1988) and 18 U.S.C. Sec. 876 (1982). He contends that the district court's refusal to give certain jury instructions, its admission of certain testimony and its exclusion of certain defense exhibits warrant reversal of his conviction. He also contends that the district court erred in refusing to grant his motion for acquittal on count one, 18 U.S.C. Sec. 876. We review the trial court's evidentiary rulings for abuse of discretion. United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir.1988).

A. Davis first contends that the district court erred by refusing his proposed self-defense and necessity instructions. The proposed self-defense instruction was appropriate, he argues, because he had testified that "the Federal Judges were part of the system wherein his life had been threatened," Appellant's Opening Brief at 15, and that mailing the threatening letter was the only way Davis could defend himself. The proposed necessity instruction was likewise warranted, he argues, because he had introduced evidence that there were no other means of avoiding what he believed to be his unlawful incarceration.

Our cases are not entirely consistent as to the proper standard for reviewing a district court's denial of a proposed jury instruction. Compare United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987) (district court's refusal to give defendant's jury instruction on theory of case reviewed de novo) and United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir.1986) (same) (dicta), cert. denied, 481 U.S. 1005, 107 S.Ct. 1628, 95 L.Ed.2d 201 (1987), with United States v. Busby, 780 F.2d 804, 806 (9th Cir.1986) (refusal to give defendant's entrapment instruction reviewed for abuse of discretion) and United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.) (same), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). If the outcome of this appeal were to turn on the standard of review, we might be required to bring the issue before the court en banc. See Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988). The result in this case, however, is the same under either standard, because Davis' contentions are totally devoid of merit.

"Lafave and Scott suggest that self defense is appropriate only for crimes committed against the person in defending oneself." United States v. Nolan, 700 F.2d 479, 484 n. 1 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983) (discussing W. Lafave & A. Scott, Handbook on Criminal Law 374-77 (1972)). Judges King and Fong's only contact with Davis was that they had denied his petitions for habeas corpus and other relief. Davis introduced no evidence that Judges King or Fong had used or were about to use unlawful force against him.

"The defense of necessity is available when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greater evil." United States v. Contento-Pachon, 723 F.2d 691, 695 (9th Cir.1984). Davis argues that threatening the lives of these federal judges was the only way for him to escape a confinement which he believed to be illegal. It goes without saying that the desire to get out of jail cannot serve as license to threaten the lives of judicial officers, no matter how earnestly one may believe that their conduct is unjust or illegal. See United States v. Kinslow, 860 F.2d 963, 966 (9th Cir.1988) (district court properly rejected proffered duress instruction where "[n]o imaginable set of circumstances could possibly justify" defendant's illegal actions). Defendant's proffered instructions had no basis in fact and were therefore properly rejected by the district court.

B. Davis next contends that the district court erred in admitting Judge Fong's testimony regarding the judge's knowledge of a prior assassination of a federal judge, as well as evidence regarding the steps taken to protect Judge Fong. We disagree. Evidence of the recipient's state of mind, as well as his actions taken in response to the letter, are highly relevant in establishing an essential element of both counts of the indictment--whether the letter could reasonably be read as containing a threat of injury. See United States v. Reynolds, 532 F.2d 1150, 1155-56 (7th...

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  • U.S. v. Saunders
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 2, 1999
    ...reactions is relevant to that inquiry."); United States v. Malik, 16 F.3d 45, 49 (2d Cir.1994) (citing United States v. Davis, 876 F.2d 71, 73 (9th Cir.) (per curiam), cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 143 (1989)); United States v. Roberts, 915 F.2d 889, 890-91 (4th Cir......
  • English v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 21, 1994
    ...in allowing the magistrate to preside over voir dire. On May 31, 1989, this court affirmed Davis's conviction. See United States v. Davis, 876 F.2d 71 (9th Cir.1989). Less than two weeks later, on June 12, 1989, the Supreme Court issued its decision in Gomez. Davis filed a petition for cert......
  • State v. Taylor
    • United States
    • North Carolina Court of Appeals
    • March 17, 2020
    ...of the alleged threat and how seriously the threat is received. In re White , 2013 WL 5295652 at *45 ; see also United States v. Davis , 876 F.2d 71, 73 (9th Cir. 1989) (considering recipient's state of mind as well as actions taken in response relevant to determination of a true threat). D......
  • Abbott v. State
    • United States
    • Court of Special Appeals of Maryland
    • February 25, 2010
    ...that message conveys a `true threat'"), cert. denied, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 147 (1997); United States v. Davis, 876 F.2d 71, 73 (9th Cir.) (per curiam) (noting that the recipient's state of mind, as well as actions taken in response, are relevant to the determination of w......
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1 books & journal articles
  • Freedom of speech and true threats.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 25 No. 1, September 2001
    • September 22, 2001
    ...v. Francis, 164 F.3d 120, 120-21 (2d Cir. 1999); United States v. Whiffen, 121 F.3d 18, 20 (1st Cir. 1997); accord United States v. Davis, 876 F.2d 71, 73 (9th Cir. (100.) See Kelner, 534 F.2d at 1020-21. (101.) See id. at 1021. (102.) See id. (103.) See id. (104.) Id. (105.) Id. (106.) Id.......

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