United States v. Barcley
Decision Date | 04 November 1971 |
Docket Number | No. 20481.,20481. |
Citation | 452 F.2d 930 |
Parties | UNITED STATES of America, Appellee, v. Homer Nelson BARCLEY, Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Merle Johnson, Sioux Falls, S. D., for appellant.
Richard D. Hurd, Asst. U. S. Atty., William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.
Before ALDRICH,* LAY and BRIGHT, Circuit Judges.
Homer Nelson Barcley was convicted by a jury on two counts of communicating threats by mail in violation of 18 U.S.C. § 876.1 He brings this timely appeal contending that the evidence was insufficient to show that the letter which he mailed contained threats of personal injury.2 We agree and reverse.
The events underlying Barcley's present difficulties began in 1969 when he suffered a conviction for forgery in a state court of South Dakota. Following the trial, the court appointed an experienced and competent South Dakota attorney to represent Barcley on an appeal to the South Dakota Supreme Court.3
On September 5, 1969, the day following his court appointment, this attorney interviewed Barcley at the South Dakota State Penitentiary. During the course of this interview, Barcley indicated that he had done some research on his case and that he expected to play an active role in the handling of the appeal. Additionally, Barcley instructed his attorney to file all of the assignments of error which had been prepared by Barcley's trial counsel.
At the close of this interview, the attorney told Barcley that he intended to review the trial transcript before proceeding with the appeal. It is not clear whether he promised to visit Barcley again at the penitentiary to discuss the case further. In his trial testimony, he said that he did not recall making this commitment, but he conceded that he might have said that he would return on September 12, 1969. He did not return for a second meeting.
On September 16, 1969, the attorney wrote a letter to Barcley advising him: (1) that he had entered into a stipulation with the State's Attorney in order to secure additional time for perfecting the appeal; (2) that the assignments of error had been filed; (3) that the record had been settled; and (4) that the only remaining steps of the appeal process were the filing of the brief and oral argument.
On September 20, 1969, the attorney received this response through the mail:
Sam Sechser, who is mentioned in the letter, served as the prosecutor in the state case against Barcley. Barcley's writing and mailing of this letter served as the basis for his present conviction.
At the close of the government's case, Barcley's counsel moved for a judgment of acquittal. He contended that the letter could not reasonably be construed as a threat of personal injury. Stressing the circumstances surrounding the mailing of the letter, he argued that the language could only be interpreted as Barcley's sharp criticism of the ethical conduct of his attorney and that of the prosecutor for proceeding with the appeal and entering into a stipulation without Barcley's consent. In denying this motion, the trial judge stated: "I suspect that the language might be capable of several interpretations, but it seems to me that's a question of fact for the jury to interpret. * * *" Tr. 92
In support of the trial court's ruling, the government points to the language of the letter which reads: "you are the first S.O.B. that will go, Sam Sechser will next." The government argues that this language, coupled with its suggested implications, was sufficiently clear to create a question of interpretation for the jury. The government, as did the trial court, relies on the Seventh Circuit's decision in United States v. Prochaska, 222 F.2d 1 (7th Cir. 1955).
In that case, the defendant was indicted on a charge of violating § 876 for mailing the following communication to one Maurice Frank:
222 F.2d at 2
In upholding the trial court's denial of the defendant's motion to dismiss the indictment, the court stated:
Written words or phrases take their character as threatening or harmless from the context in which they are used, measured by the common experience of the society in which they are published. * * * When language is employed by members of our society in context with an extortion demand its necessary implications are precisely clear. 222 F.2d at 2-3
Thus, in Prochaska, the fact that the allegedly threatening language appeared in the context of an extortion note supplied sufficient proof of its minacious meaning. In effect, the court found the language to be threatening on its face; any possible ambiguity was removed by the context in which it appeared. We deem the presence of the extortion scheme crucial to the Prochaska decision.
Here, unlike Prochaska, we find no extorsive overtones. We recognize that it is possible to construe the language as threatening injury. There are, however, a number of innocuous interpretations which are equally plausible. One such interpretation is that Barcley intended to file a complaint against his attorney seeking to have him discharged for unethical conduct.4 This interpretation is consistent with the general tone of the letter, as well as Barcley's final admonition to his attorney that "you better be on your Code of Ethics before you force me into an unsuitable position."
In order to sustain its burden of proof under § 876, the government must present evidence sufficiently strong to establish beyond a reasonable doubt that the communication in question conveys a threat of injury. Where a communication contains language which is equally susceptible of two interpretations, one threatening, and the other nonthreatening, the government carries the burden of presenting evidence serving to remove that ambiguity. Absent such proof, the trial court must direct a verdict of acquittal. See United States v. Jones, 418 F.2d 818 (8th Cir. 1969). See also United States v. Kelton, 446 F.2d 669 (8th Cir. 1971); Lerma v. United States, 387 F.2d 187 (8th Cir. 1968).
In evaluating the sufficiency of the evidence presented by the government to establish that the language in this case conveyed a threat, we are mindful that the letter communicated a client's dissatisfaction with the services of his attorney. Such communication falls within the purview of the First Amendment whether phrased in the King's English or peddler's French. When First Amendment considerations apply, courts must be careful to distinguish "what is a threat * * * from what is constitutionally protected speech." Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L. Ed.2d 664 (1969).
In Watts, the Court considered an issue similar to that presented here, albeit in a different context. There, a speaker at a political meeting said in part:
And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. Id. at 706, 89 S.Ct. at 1401
The speaker was convicted of violating 18 U.S.C. § 871 by knowingly and willfully making a threat to inflict bodily harm upon the President. The Court set the conviction aside, stating: Id. at 708, 89 S.Ct. at 1401. Continuing, the Court emphasized...
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