U.S. v. Robin, 82-1162

Decision Date24 November 1982
Docket NumberNo. 82-1162,82-1162
Parties11 Fed. R. Evid. Serv. 1856 UNITED STATES of America, Plaintiff-Appellee, v. Emile Mitchell ROBIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

John M. Pickney, III, Joseph G. Street, San Antonio, Tex., for defendant-appellant.

Sidney Powell, Steven C. Hilbig, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, JOHNSON and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Emile Mitchell Robin appeals from his conviction for threatening the life of the President in violation of 18 U.S.C. Sec. 871. Appellant raises three issues on appeal: 1) whether the trial court erred in refusing to order the government to elect one of the threats summarized in a one-count indictment as the basis of its prosecution; 2) whether the trial court erred in failing to dismiss the indictment or arrest the judgment because of lack of clarity in the indictment, and 3) whether the trial court erred in refusing to grant a mistrial following a government witness's testimony that violated a motion in limine. Finding no merit in any of appellant's claims, we affirm.

I. FACTS

At approximately 9 p.m. on November 14, 1981, Don Dailey, the Assistant City Editor for the San Antonio Express, received a phone call from an unidentified man who said, "I understand the President is in South Texas shooting turkeys this weekend. I want you and anyone else who cares to know that I will take care of the big turkey before he leaves town. Rest assured I will shoot him." About 9:30 p.m. that same evening, a man telephoned Richard Eckhardt, a San Antonio physician and said, "Richard, How would you feel about joining me and about 135 other fellows at that turkey shoot down south of here and shooting the President?" The caller stated that he had also called the newspaper. Shortly after midnight on November 15, 1981, Neville Murray, a San Antonio psychiatrist received a message from his answering service to call appellant. When he did so, appellant identified himself and during the conversation stated that he was trying to get a party together to go down south to kill the President. When asked by Murray why he wanted to kill the President, appellant replied, "I hate the son-of-a-bitch." Dailey, Eckhardt and Murray each called the Secret Service, and an agent arrested Robin. After a trial before a jury, Robin was convicted, given a two-year suspended sentence, and placed on probation.

II. THE INDICTMENT

The indictment charged Robin as follows:

On or about the 14th day of November, 1981 in the Western District of Texas, Defendant EMILE MITCHELL ROBIN willfully and knowingly did make an oral threat to take the life of, and to inflict bodily harm upon, the President of the United States, in the verbal use of threatening language, substantially summarized as follows: "that he (EMILE MITCHELL ROBIN) was trying to get a party together to go kill Reagan. That he (EMILE MITCHELL ROBIN) knew the President was in Texas, turkey hunting, and that he (EMILE MITCHELL ROBIN) would take care of the big turkey tomorrow," in violation of Title 18, United States Code, Section 871.

Appellant argues that the inclusion of more than one threatening statement in a single count renders the indictment duplicitous. "Duplicity" is the joining in a single count of two or more distinct and separate offenses. C. Wright, Federal Practice and Procedure: Criminal Sec. 142 at 469.

We find that the threatening statements could be consolidated in a single count because they were part of a single, continuing scheme that occurred within a short period of time and that involved the same defendant. The consolidation is proper and thus the indictment is not duplicitous notwithstanding that each statement alone might constitute an offense. See United States v. Alsobrook, 620 F.2d 139 (6th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980) (consolidation in one count of six trips in interstate commerce in violation of Travel Act proper). See also United States v. Girard, 601 F.2d 69 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979) (consolidation in one count of unlawful sale and receipt of records of four individuals in violation of 18 U.S.C. Sec. 641 proper); United States v. Pavlovski, 574 F.2d 933 (7th Cir.1978) (consolidation in one count of charges of embezzlement by presenting forged checks to bank and by converting cash dues and initiation fees belonging to union proper); Cohen v. United States, 378 F.2d 751 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967) (consolidation in one count of series of wagering-related telephone calls over short period to two individuals proper).

The acts of the defendant need not be separated into separate counts when they represent a single, continuing scheme if the following dangers are not present: 1) the defendant may not be notified of the charges against him, 2) he may be subject to double jeopardy, 3) he may be prejudiced by evidentiary rulings during trial, and 4) he may be convicted by less than a unanimous verdict. See Alsobrook, 620 F.2d at 142. These dangers are not present on this record. First, the indictment accused appellant of knowingly and willfully threatening the President's life. Robin could not possibly have construed the indictment to allege some other offense and thus have been hampered in the preparation of his defense. Second, the indictment does not expose appellant to the risk of double jeopardy. In United States v. Marable, 578 F.2d 151 (5th Cir. 1978), this court set forth the test for determining the question of double jeopardy: whether the proof for charges in a second indictment would have been admissible in the first trial and would have supported a conviction. Because the specific threats summarized in the indictment were introduced into evidence, none could be used as the basis of a future indictment. 1 Third, appellant has not shown that the indictment resulted in prejudicial evidentiary rulings during trial. 2 Finally there is no danger that because of more than one alleged threat being charged in the indictment, Robin was convicted by a nonunanimous jury verdict. The court instructed the jury on the necessity of a unanimous verdict. Moreover, there is no danger that although the jurors found Robin guilty, they may not have agreed as to all the threats made. Appellant did not deny that he did the acts charged, but only that he had the requisite mental state. As the court in United States v. Pavlovski, 574 F.2d 933 (7th Cir. 1978), recognized:

[I]n the case at bar the defense did not dispute that [appellant] did all the acts charged, which were proved beyond peradventure, but denied only that he possessed the necessary mental state required for violation of the statute. There was therefore no possibility of prejudice through lack of unanimity.

Id. at 936.

Appellant's reliance on Bins v. United States, 331 F.2d 390 (5th Cir. 1964) fails to place Bins in its factual context. In Bins, this court declared duplicitous a single-count indictment alleging submission of two false documents in connection with a Federal Housing Administration loan in violation of 18 U.S.C. Sec. 1010 (1976). That statute made the utterance of each false statement or each document a crime. See 331 F.2d at 392 n. 2. Under 18 U.S.C. Sec. 871, it is not clear from the legislative history or judicial interpretation that each statement in a continuing scheme to threaten the life of the President is a separate offense. As a determination that separate offenses are involved would make possible multiple punishment for the same conduct, unless Congress has indicated clearly that it contemplates separate crimes, doubt should be resolved "against turning a single transaction into multiple offenses...." Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). "When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity." Id. 3 Thus, the district court did not err in refusing to require the government to elect one statement as the basis of the one-count indictment.

Even if the indictment were considered duplicitous, appellant must show that he was prejudiced by its duplicity. In United States v. Salinas, 654 F.2d 319, 326 (5th Cir. 1981), we held that "a duplicitous indictment and an erroneous denial of a motion to elect are not reversible error where the defense preparation has not been affected and the jury's verdict is unambiguous." As we pointed out above, see pages 378-379 supra, Robin has not demonstrated prejudice here.

Appellant also contends that the indictment does not sufficiently allege the essential elements of the offense because it only gives a "substantial summary" of the threatening statements. This court in United States v. Rogers, 488 F.2d 512, 514 (5th Cir. 1974), observed that the essential elements of the offense are (1) a true threat (2) knowingly and intelligently made. To allege a true threat, the exact wording of the threatening statement need not be set out in the indictment. If, as here, the indictment sets forth the elements of the offense so as fairly to apprise the defendant of the charges against him and does not expose him to the risk of double jeopardy, it is sufficient. See United States v. Mouton, 657 F.2d 736, 739 (5th Cir. 1981). In United States v. Carrier, 672 F.2d 300 (2d Cir. 1982), a presidential threat case, the Second Circuit, rejecting an argument that the indictment must include a description of the factual context within which the utterance occurred, approved an indictment that set out the threats "substantially as follows." Id. at 302 n. 3. We likewise find...

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