U.S. v. Kelner

• Decision Date: 09 April 1976
• Docket Number: No. 396,D,396
• Citation: 534 F.2d 1020,34 A.L.R. Fed 767
• Parties: UNITED STATES of America, Appellee, v. Russell KELNER, Appellant. ocket 75-1290.
• Court: U.S. Court of Appeals — Second Circuit

Page 1020

534 F.2d 1020

34 A.L.R.Fed. 767

UNITED STATES of America, Appellee, v. Russell KELNER, Appellant.

No. 396, Docket 75-1290.

United States Court of Appeals, Second Circuit.

Argued Oct. 29, 1975.

Decided April 9, 1976.

Nathan Lewin, Miller, Cassidy, Larroca & Lewin, Washington, D. C., for appellant.

Robert J. Costello, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., S. D. N. Y., New York City, Don D. Buchwald and John D. Gordan III, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before MULLIGAN, OAKES and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

This appeal is from a conviction for causing to be transmitted in interstate commerce a communication containing a "threat to injure the person of another," 18 U.S.C. §§ 2, 875(c). ¹ The offense charged in the indictment was that Russell Kelner, a member of the Jewish Defense League (JDL), caused to be transmitted in interstate commerce a threat to assassinate Yasser Arafat. Kelner was convicted after a jury trial in the United States District Court for the Southern District of New York, before Richard Owen, Judge. He was sentenced to imprisonment for one year with execution suspended, placed on probation for four years and given a $1,000 committed fine. We affirm.

The objective facts are not seriously disputed. On November 11, 1974, Yasser Arafat, leader of the Palestine Liberation Organization (PLO), was to be in New York to attend a session of the United Nations General Assembly which he had been invited to address. Both his presence in New York and his invitation to appear before the United Nations had aroused resentment among American Jews, particularly in New York City. About 5:30 p. m. on that day United Press International (UPI) received notification from the JDL of a news conference to be held later that evening at JDL headquarters. UPI thereupon notified its assorted radio, television and newspaper customers of the upcoming news event. One of those notified was WPIX-TV (Channel 11), a licensed television station in New York City with a telecast range of 50 miles extending into Connecticut and New Jersey. The station had previously dispatched WPIX reporter John Miller to cover a JDL demonstration in front of the Waldorf-Astoria Hotel in Manhattan where Arafat and a PLO delegation were expected to stay. ²

After attending the demonstration, Miller was assigned to cover the JDL press conference. When he and his film crew arrived at the JDL headquarters the conference had already started. Appellant, Kelner, was seated in military fatigues behind a desk with a .38 caliber "police special" in front of him. To Kelner's right another man was dressed in military fatigues. Miller heard one of the several reporters at the conference ask Kelner whether he was talking about an assassination plot and heard Kelner answer in the affirmative. The WPIX crew quickly filmed general shots of the press conference without sound for use as a "lead-in" on the news and then began filming an actual interview of Kelner by Miller. The reporter, holding a microphone with the WPIX channel number in large numerals on it, asked Kelner to go ahead and the following exchange took place:

Kelner: We have people who have been trained and who are out now and who intend to make sure that Arafat and his lieutenants do not leave this country alive.

Miller: How do you plan to do that? You're going to kill him?

Kelner: I'm talking about justice. I'm talking about equal rights under the law, a law that may not exist, but should exist.

Miller: Are you saying that you plan to kill them?

Kelner: We are planning to assassinate Mr. Arafat. Just as if any other mur just the way any other murderer is treated.

Miller: Do you have the people picked out for this? Have you planned it out? Have you started this operation?

Kelner: Everything is planned in detail.

Miller: Do you think it will come off?

Kelner: It's going to come off.

Miller: Can you elaborate on where or when or how you plan to take care of this?

Kelner: If I elaborate it might be a problem in bringing it off.

Following the interview, the film was reviewed at the WPIX studios where the film editors determined that it should be televised on the ten o'clock WPIX Channel 11 news that evening with the tape of the exchange above quoted in unedited form. The exchange between Kelner and Miller was then broadcast on television in its entirety and constituted the principal evidence of the Government at the trial. We have seen the videotape as it was played for us at the oral argument of this appeal.

Several character witnesses testified on Kelner's behalf at the trial. Kelner himself testified that at the time his statements were made neither he nor the JDL had any plans to carry out an assassination attempt but that what he was trying to convey was a JDL response to threats from the PLO. Kelner claimed that his sole objective was to show the PLO that "we (as Jews) would defend ourselves and protect ourselves and . . . (that the PLO) would not be able to accomplish anything in accordance with their threats."

Appellant makes five claims on this appeal. Our acceptance of any one of the first four would require reversal of the conviction and dismissal of the indictment; acceptance of the fifth claim would require a remand for a new trial. The first point argued for reversal is that Kelner did not "cause" the transmission of a communication in interstate commerce within the meaning of 18 U.S.C. § 2, note 1 supra, because his alleged threat was made in the context of a television news interview and it was the wholly independent conduct of the television station that resulted in the film of the interview being telecast throughout metropolitan New York on the television news. The second is that there was no "communication" within the statute, 18 U.S.C. § 875(c), note 1 supra, because there was no specific addressee of the alleged threat, that is to say, the appellant was not expecting Arafat to watch the WPIX ten o'clock news and there was no evidence that the "threat" actually reached Arafat. Appellant's third claim is that there was no communication "in interstate commerce" within the statute because even though WPIX televises beyond the borders of New York the communication did not have to cross state lines to travel from Kelner to Arafat. The fourth and most troubling of appellant's claims is that the statements made were not "threats" within the meaning of the statute because appellant had no intention of actually using force and the statements were only "political hyperbole." Kelner has also asked for a remand for a new trial on the basis that the prosecutor was improperly allowed to cross-examine appellant's reputation witnesses in connection with arrests occurring after the alleged offense here involved.

Appellant's first point is by no means unique to offenses charged under 18 U.S.C. § 875(c). Although grounded in the statutory language of 18 U.S.C. § 2, the argument that a person cannot be liable for criminal conduct which he has not "caused" has been a premise of our criminal law from its very origin. Cases such as Terry v. United States, 131 F.2d 40, 44 (8th Cir. 1942), and United States v. Fox, 95 U.S. 670, 671, 24 L.Ed. 538, 539 (1878), have long recognized that "(u)pon principle, an act, which is not an offense at the time it is committed cannot become such by any subsequent independent act of (a) party with which it has no connection." Id. See also United States v. Dietrich, 126 F. 676, 685 (8th Cir. 1904). However, viewing the evidence in this case most favorably to the Government's position, as the jury verdict requires us to do, it is apparent that Kelner willfully caused the transmission of his threat over the WPIX facilities in that he took action without which the communication would not have occurred, intending (or at least reasonably foreseeing) that his statement would be transmitted in interstate commerce by others. It is clear enough that a person may be held responsible as a principal under 18 U.S.C. § 2(b), see note 1 supra, for causing another to do an act which would not have been criminal if it had been performed independently by that other person. United States v. Kelley, 395 F.2d 727, 729 (2d Cir.), cert. denied, 393 U.S. 963, 89 S.Ct. 391, 21 L.Ed.2d 376 (1968); United States v. Lester, 363 F.2d 68, 72-73 (6th Cir. 1966), cert. denied, 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967). It is a general principle of causation in criminal law that an individual (with the necessary intent) may be held liable if he is a cause in fact of the criminal violation, even though the result which the law condemns is achieved through the actions of innocent intermediaries. See, e. g., United States v. Giles, 300 U.S. 41, 48-49, 57 S.Ct. 340, 344, 81 L.Ed. 493, 497-498 (1937); United States v. Scandifia, 390 F.2d 244, 249 (2d Cir. 1968), vacated on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed. 297 (1969). The charge at appellant's trial closely followed the language of United States v. Scandifia, supra, stating that appellant could be found to have "caused" the transmission of the alleged threat in interstate commerce if he made the threat in fact and intended, or could reasonably have foreseen, that the threat would be transmitted by WPIX-TV. The fact that WPIX made an editorial decision to publicize the news does not render this basic principle of criminal law inapposite. It is unnecessary that the intermediary who commits the forbidden act have a criminal intent. ³ See United States v. Bryan, 483 F.2d 88, 92 (3d Cir. 1973) (en banc); United States v. Lester, supra. See also Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435, 444 (1954) (delivery of check drawn on out-of-state bank to local bank for collection "caused" it to be transported in interstate commerce as deliverer intended local bank to send check to...