U.S. v. Viefhaus

• Decision Date: 16 February 1999
• Docket Number: No. 97-5207,97-5207
• Parties: 51 Fed. R. Evid. Serv. 546, 1999 CJ C.A.R. 1394 UNITED STATES of America, Plaintiff-Appellee, v. James Dodson VIEFHAUS, Jr., also known as Thorsson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 392

168 F.3d 392

51 Fed. R. Evid. Serv. 546, 1999 CJ C.A.R. 1394

UNITED STATES of America, Plaintiff-Appellee, v. James Dodson VIEFHAUS, Jr., also known as Thorsson Defendant-Appellant.

No. 97-5207.

United States Court of Appeals, Tenth Circuit.

Feb. 16, 1999.

Stephen J. Greubel, of Ungerman & Iola, Tulsa, Oklahoma, for appellant.

John Russell, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, and Neal B. Kirkpatrick, Assistant United States Attorney, on the brief), Tulsa, Oklahoma, for appellee.

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant James Dodson Viefhaus, Jr., appeals his convictions for conspiracy to use and use of a telephone to transmit a bomb threat. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Viefhaus and his fiancee, Carol Howe, formed a white supremacy organization in Tulsa, Oklahoma, known as the National Socialist Alliance of Oklahoma, of which they were the only members. The organization promoted white racial superiority and advocated destruction of, inter alia, blacks, Jews, homosexuals, and federal law enforcement officials. One of the primary methods used to disseminate its messages was a telephone "hotline" under the listing "Aryan Intelligence Network." The hotline was an answering machine on which Viefhaus recorded commentary reflecting the organization's viewpoints.

On December 8, 1996, Viefhaus recorded a lengthy message that formed the basis for his subsequent criminal prosecution. The message stated in part:

It is time for all white people to realize that the current system of government is beyond repair. Our revolution is not about fixing this system, but to absolutely destroy it, by any means necessary. Only then can we build an Aryan society for our children and grandchildren. The first major step in solidifying the revolutionary mentality is to understand that there are only two classes in life, those who support our cause and the enemy. As in the case of the bombing of the Murrah Federal Building, the revolutionary understands and accepts no matter how painful that innocent people must be considered expendable if necessary, in order to successfully complete any action.... This is a war ... racial ... holy war. As an added ultimatum to those of you who are still unwilling to pick up a sword, a letter from a high ranking revolutionary commander has been written and received demanding that action be taken against the government by all white warriors by December 15th and if this action is not taken, bombs will be activated in 15 pre-selected major U.S. cities. That means December 15, 1996, one week from today. In [other] words, this war is going to start with or without you. For all of you out there that have been bragging about being ready and willing to jump in when the time comes, well you better lace up your jump boots.

Appellant's Br. at 5 (emphasis added). Journalist William Morlin telephoned the hotline. Morlin's reporting had been dedicated to coverage of white supremacy groups and the militia movement for the previous eighteen years. He believed the recorded comments were "particularly ominous," most notably the threat of the imminent bombing of fifteen cities. Morlin contacted Special Agent Kenneth Pernick, chief of the FBI Domestic Terrorism Unit. Agent Pernick called the hotline and then asked colleagues to call the hotline. After listening to the message, the agents decided to contact the local FBI office in Oklahoma City.

FBI agents executed a search warrant at Viefhaus' house in Tulsa, Oklahoma, on December 13, 1996. Agents seized literature espousing hate and violence, Nazi propaganda, a cache of weapons, books on making bombs, chemicals and other materials that could easily be converted into high-powered pipe bombs, and a list of facilities in the Tulsa area occupied by Jewish, Muslim, and Native American groups, as well as various federal agencies.

Viefhaus was indicted on one count of using a telephone to transmit a bomb threat, in violation of 18 U.S.C. § 844(e), ¹ and one count of possession of an unregistered explosive device, in violation of 26 U.S.C. § 5861(d). A superseding indictment charged Viefhaus and his fiancee with the original two counts as well as one count of conspiracy, in violation of 18 U.S.C. § 371. Viefhaus filed a pretrial motion to dismiss the original two counts, claiming the hotline message did not represent a "true threat," and the message was protected speech. The motion was denied.

At trial, over Viefhaus' objection, the court permitted the government to introduce into evidence the items seized at Viefhaus' home pursuant to the search warrant. Viefhaus moved for judgment of acquittal under Fed.R.Crim.P. 29(a) after the government completed its case and again at the close of all evidence, and the motions were denied. A jury found Viefhaus guilty of the three counts and he was sentenced to thirty-eight months' imprisonment. Viefhaus does not appeal his conviction for possession of an unregistered firearm or that portion of the conspiracy conviction relating to that charge.

II.

On appeal, Viefhaus contends (1) the message on the answering machine represented constitutionally protected speech; (2) the district court erred in submitting this ostensibly pure legal issue to the jury; and (3) the court improperly admitted evidence of previous statements by Viefhaus disparaging minorities and law enforcement officials, as well as inflammatory materials seized from his house.

First Amendment issues

Viefhaus argues his comments amounted only to "vulgar political speech" within the context of a "political agenda." Appellant's Br. at 22. He relies primarily on Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam). In Watts, an eighteen-year-old Vietnam draftee, in discussing police brutality at a public rally, remarked, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Id. at 708, 89 S.Ct. 1399. Watts was convicted of making a threat against the President, in violation of 18 U.S.C. § 871(a) (a statute employing language very similar in all relevant respects to that in § 844(e)). The Supreme Court reversed the conviction, holding the government must prove the defendant made a "true threat" to establish a violation of the statute. "Political hyperbole" will not suffice. Id.

A "true threat" means "a serious threat as distinguished from words as mere political argument, idle talk or jest." United States v. Leaverton, 835 F.2d 254, 257 (10th Cir.1987). We have previously defined "threat" by referencing the language of Black's Law Dictionary. See id. at 256-57. We again rely on that definition, but elaborate on the meaning of "intent" as it is used in that definition. Thus, we define "threat" as a declaration of intention, purpose, design, goal, or determination to inflict punishment, loss, or pain on another, or to injure another or his property by the commission of some unlawful act. See Black's Law Dictionary 1480 (6th ed.1990); Webster's Third New Int'l Dictionary (unabridged) 1176 (1993). It is not necessary to show that defendant intended to carry out the threat, nor is it necessary to prove he had the apparent ability to carry out the threat. The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. It is the making of the threat and not the intention to carry out the threat that violates the law. Leaverton, 835 F.2d at 257.

Although the bulk of the recorded message at issue is comprised of crude political rhetoric, Viefhaus crossed the threshold from political rhetoric to criminal threat when he stated unequivocally that fifteen cities would be bombed. The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability. United States v. Crews, 781 F.2d 826, 832 (10th Cir.1986) (per curiam); United States v. Welch, 745 F.2d 614, 618 n. 3 (10th Cir.1984).

Viefhaus further suggests his actions are beyond the purview of § 844(e) because (1) he did not directly communicate with anyone; (2) the warning in the message was conditional in that no bombing would commence if action was "taken against the government by all white warriors"; and (3) the message merely related a threat leveled by a third party. As the district court correctly held, § 844(e) does not mandate that a defendant initiate the call. In addition, we have held that a "statement may constitute a threat even though it is subject to a possible contingency in the maker's control." Leaverton, 835 F.2d at 256.

While we have found no cases squarely addressing the issue in the context of § 844(e) or any statute criminalizing the "making" of threats, it is logical that a defendant who repeats a third party's threat may be subjected to criminal liability. In determining the existence of a threat under similar statutes, we have adopted an objective test focusing on how a "reasonable person would foresee ... the statement [being] interpreted by persons hearing or reading it." Welch, 745 F.2d at 619-20. If a defendant's repetition of a third party's threat is reasonably interpreted as a simple disclosure of the existence of the threat for informational purposes, no illegality has occurred. If, on the other hand, a defendant's repetition of a third party's threat is reasonably interpreted as communicating the defendant's own intent, purpose, or goal to "kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive," the defendant has violated 18 U.S.C. § 844(e). In the latter scenario, the defendant has effectively adopted the third party's threat as his own. There is no requirement that the defendant convey an intent to carry out the threatened conduct himself. See United States v. Dinwiddie, 76 F.3d...