U.S. v. Frederickson, 79-1148

• Decision Date: 17 July 1979
• Docket Number: No. 79-1148,79-1148
• Citation: 601 F.2d 1358
• Parties: 4 Fed. R. Evid. Serv. 520 UNITED STATES of America, Appellee, v. Fred Anthony FREDERICKSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1358

601 F.2d 1358

4 Fed. R. Evid. Serv. 520

UNITED STATES of America, Appellee, v. Fred Anthony FREDERICKSON, Appellant.

No. 79-1148.

United States Court of Appeals Eighth Circuit.

Submitted May 14, 1979.

Decided July 17, 1979.

Michael H. Irvine, Cedar Rapids, Iowa, argued and on brief, for appellant.

Judith A. Whetstine, Asst. U. S. Atty., Cedar Rapids, Iowa (argued), and James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, on brief, for appellee.

Before BRIGHT, HENLEY, and McMILLIAN, Circuit Judges.

BRIGHT, Circuit Judge.

Fred Anthony Frederickson appeals from his convictions following a jury trial for, on three occasions (counts I-III), knowingly and willfully making threats to take the life of or to inflict bodily harm upon the President of the United States, in violation of 18 U.S.C. § 871 (1976). ¹ On appeal, Frederickson contends (1) the Government presented insufficient evidence to establish that any of Frederickson's statements constituted a "true threat" to inflict harm upon the President of the United States; (2) the trial court erred in admitting evidence of Frederickson's prior convictions of other offenses. We affirm the convictions on counts I and III, but reverse the conviction on count II for reasons set forth in this opinion.

I. Factual Background.

On October 25, 1978, Frederickson drove into Cedar Rapids, Iowa, to visit his sister, Majorie Decker. Frederickson, age thirty-seven, had travelled from California, where for several years he had led a nomadic-type existence, mostly living alone in a tent. Frederickson's old and battered pickup truck contained substantially all of his worldly possessions.

After a brief visit with Ms. Decker, Frederickson left Cedar Rapids to find a park where he could camp for the night. Shortly after eight o'clock that evening, Frederickson approached the gate of a corn processing plant near Cedar Rapids where Detective Kenneth Millsap of the Cedar Rapids Police Department served, while not on police duty, as security guard. Frederickson parked his truck in front of the plant guardhouse, partially blocking the plant entrance, and engaged Millsap in a conversation concerning, among other things, where Frederickson might camp out for the night. Millsap, then dressed in blue jeans and a sweatshirt, did not at first identify himself to Frederickson as a police officer. Millsap asked Frederickson to move his truck on several occasions, but Frederickson ignored those requests and continued his conversation.

At trial, Officer Millsap testified that Frederickson possessed long hair and wore a band around his head, torn blue jeans, and a blue shirt. He described Frederickson's conversation as "anti-establishment" in tone and as "violent almost in its entirety." For example, Frederickson mistook the corn processing plant for a power plant and stated, "how easy it would be, a couple well-placed bombs should blow it up." However, Millsap characterized Frederickson's demeanor as "personable, with the exception of (the) subject matter (of his conversation)."

After about ten minutes of sporadic conversation, interrupted at times by truckers checking in with Millsap prior to entering the plant, Millsap asked Frederickson where he was from. Officer Millsap testified at trial:

He (Frederickson) told me at that time that he was from * * * California * * * and was on his way to Washington to sue the president.

I said I asked him why he was going to sue the president and he said, "Sue him? I probably wouldn't get any money anyway. I will have to kill him."

Officer Millsap testified that Frederickson's manner in making these statements was "serious, or matter of fact(.)" These statements by Frederickson formed the basis for his conviction on count I of the indictment for making threats against the President's life. ²

Frederickson briefly continued his violent declarations, maintaining that if he possessed the amount of money the Government spent to keep Charles Manson incarcerated, he (Frederickson) could "kill a lot of pigs."

Because Frederickson would not leave the guardhouse and because his truck had been blocking one lane of the plant entrance, Officer Millsap identified himself as a police officer and stated that he was placing Frederickson under arrest for criminal trespass. Cedar Rapids Police Officers Gerald Chapman and David McKibben responded to Millsap's call for assistance in making the arrest. These officers searched Frederickson and his truck but found no weapons apart from a knife. ³

Count II of the indictment arises from statements made by Frederickson to Officer Chapman during booking procedures at the Cedar Rapids Police Station. ⁴ Officer Chapman testified at trial that Frederickson was "very upset" about his arrest, and he related several angry remarks by Frederickson, including that "he (Frederickson) was going to get some pigs," pigs being defined as people connected with law enforcement. During the booking procedure, Frederickson was asked his occupation and replied, "I enjoy sex." In response to a further inquiry as to who employed him, Frederickson initially stated, "Russia, North Korea," then eventually answered the question more seriously. Frederickson also told Officer Chapman, "I am going to ask the Lord to give me you so I can torture you."

Shortly thereafter, with his face only inches from that of Officer Chapman, Frederickson made the following statement giving rise to count II of the indictment:

Well, as soon as my toys get here I will eliminate all the pigs from the president on down. ⁵

Officer Chapman testified that Frederickson made the above statement "(v)ery convincingly," but at the time Chapman responded merely by "advis(ing Frederickson) to turn back around and finish being booked."

Following booking, police took Frederickson to the county jail and left him temporarily in the custody of Officer Orville Casteel. Casteel asked Frederickson where he came from, and Frederickson responded that he had come from a desert in California. Frederickson then said, "I used to be a Hells Angel." He added, "I always wanted to blow away a pig." Officer Casteel testified at trial that he was accustomed to hearing that type of statement from arrestees and that he paid little attention to several additional remarks of Frederickson.

Then Frederickson said, "You know, I have an M-79." That remark caught Casteel's attention, for he recognized the term "M-79" as referring to a grenade launcher capable of throwing a projectile some two hundred yards.

Officer Casteel asked Frederickson what he planned to do with the M-79. According to Casteel's trial testimony, Frederickson looked at him, "kind of smiled" and said, "I am going to blow them all up." Casteel, somewhat stunned by the turn of the conversation, inquired, "Who?" Frederickson responded, "I start with the President and go down." Officer Casteel asked, "Would you really do that?" Frederickson replied, "Sure, I would." These statements by Frederickson form the basis for his conviction on Count III. ⁶

Despite the violence of Frederickson's language, he did not display any physical aggressiveness towards anyone during the events described above. In a subsequent interview with a Secret Service agent, and again at trial, Frederickson denied possessing any intention to physically harm the President or anyone else. He admitted at trial, however, that he "might have said all those words" alleged to be threats.

On cross-examination, Frederickson admitted that he had been in Washington, D.C., ten or fifteen times, that he had been in the White House twice, and that he had climbed over the White House fence during a civil disobedience demonstration a few years previously.

II. Sufficiency of the Evidence.

The record contains ample evidence to support jury findings that Frederickson made statements corresponding to the three counts of the indictment substantially as set forth above. The issue here is whether the record, taken as a whole, permits a conclusion that each of those statements amounted to a "threat" falling within 18 U.S.C. § 871. In resolving that issue, we must view the evidence in the light most favorable to the jury's verdict. See Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

18 U.S.C. § 871 provides in relevant part:

(a) Whoever knowingly and willfully deposits for conveyance * * * any letter * * * containing any threat to take the life of or to inflict bodily harm upon the President of the United States * * * or Knowingly and willfully otherwise makes any such threat against the President * * * shall be fined not more than $1,000 or imprisoned not more than five years, or both. (Emphasis added).

The courts have disagreed as to the proper construction of the willfulness requirement of section 871, ⁷ and the Supreme Court has not yet resolved that controversy. ⁸ Here the district court, in its instructions to the jury, adopted the construction of section 871 enunciated by Mr. Justice Marshall in his concurring opinion in Rogers v. United States,422 U.S. 35, 41-48, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). As no objection was made to those instructions, the Rogers view of the statute constitutes the law of this case, against which we measure the sufficiency of the evidence.

Thus, for the purposes of this case, to obtain a conviction under section 871 the Government was required to establish

that the defendant appreciated the threatening nature of his statement and intended at least to convey the impression that the threat was a serious one. (Rogers v. United States, supra, 422 U.S. at 46, 95 S.Ct. at 2098 (Marshall, J., concurring).)

The proof of such intention must turn upon the circumstances under which the statement was made. Id. at 48, 95 S.Ct. 2091.

In addition, in determining whether statements constituted a "threat" within the meaning of section 871, the court must keep the commands of the first amendment clearly in mind so as to...