United States v. Lincoln, 72-1093.

• Decision Date: 28 June 1972
• Docket Number: No. 72-1093.,72-1093.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Clyde LINCOLN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

462 F.2d 1368 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Clyde LINCOLN, Defendant-Appellant.

No. 72-1093.

United States Court of Appeals, Sixth Circuit.

June 28, 1972.

Robert S. Brandt, Nashville, Tenn. (Court-appointed) for appellant.

Ira E. Parker, Nashville, Tenn., for appellee; Charles H. Anderson, U.S. Atty., M. D. Tennessee, on brief.

Before WEICK, PECK, and McCREE, Circuit Judges.

PER CURIAM.

This is an appeal from conviction of knowingly and willfully making a threat to take the life of the President of the United States in violation of 18 U.S.C. § 871(a). Appellant was convicted by a jury and sentenced to serve two and one-half years in prison. The only substantial issue presented is whether the District Court properly instructed the jury about the meaning of the phrase "knowingly and willfully" as used in the statute:

Whoever knowingly and willfully deposits for conveyance in the mail . . . any threat to take the life 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.

The court instructed the jury that:

By inserting the words knowingly and willfully in the statute Congress was referring to the intentional nature of the threat. The words knowingly and willfully were intended to signify that the defendant at the time of making the threat charged against him knew what he was doing and with that knowledge proceeded in violation of the law to make it. Thus, a threat is knowingly made if the maker of it comprehends the meaning of the words uttered by him and it is willfully made if in addition to comprehending the meaning of the words the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution.

Appellant contends that the statute is violated only when a threat is uttered with a willful intent to carry it out. He concedes that this contention has been rejected by every United States Court of Appeals which has considered it. We, too, reject appellant's contention, and adopt the construction of the Ninth Circuit in Roy v. United States, 416 F.2d 874, 877-878 (9th Cir. 1969):

This Court therefore construes the willfulness requirement of the statute to require only that the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President, and that the statement not be the result of mistake, duress, or coercion. The statute does not require that the defendant actually intend to carry out the threat. Footnotes omitted.

. . . If a threat were made in a context of levity, so that a reasonable person would interpret the words used to be mere hyperbole or jest, not intended to express a true intention to inflict bodily harm upon the President, then the words would not constitute a threat within the scope of the statute. In this context it would be apparent to a reasonable person that the individual uttering the words was not making a serious threat.

Accord, United States v. Patillo, 438 F.2d 13 (4th Cir. 1971); United States v. Compton, 428 F.2d 18 (2d...