Watts v. United States

• Citation: 402 F.2d 676
• Decision Date: 25 September 1968
• Docket Number: No. 21528.,21528.
• Parties: Robert WATTS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

402 F.2d 676 (1968)

Robert WATTS, Appellant, v. UNITED STATES of America, Appellee.

No. 21528.

United States Court of Appeals District of Columbia Circuit.

Argued April 10, 1968.

Decided September 25, 1968.

Mr. Joseph Forer, Washington, D. C., (appointed by this court) for appellant.

Mr. Lee A. Freeman, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and BURGER and WRIGHT, Circuit Judges.

BURGER, Circuit Judge:

This is an appeal from a conviction for threatening the life of the President of the United States in violation of 18 U.S. C. § 871(a) (1964).¹

Appellant attended a DuBois Club meeting and participated in a discussion group dealing with police brutality. In the course of these discussions, Appellant allegedly made a statement that he would refuse induction into the armed forces and "if they ever make me carry a rifle the first person I want or would want or would like to have in my sights is LBJ."² There is evidence that he also stated that Negroes should not shoot their "black brothers" or Vietnamese. The following day he was arrested by Secret Service agents for threatening the life of the President. When arrested, Appellant was found to possess marijuana and an information was filed in the Court of General Session charging him with this misdemeanor.

Prior to his trial for threatening the President, Appellant moved to dismiss the indictment on the ground that his words did not constitute a "threat" within the language of the statute. This motion was denied. Subsequently, in the marijuana prosecution, Appellant moved to suppress the evidence on the ground that the arrest and search were illegal since the arresting officers lacked probable cause to believe that a felony — threatening the life of the President — had been committed. The Court of General Sessions granted the motion. The government's request for reconsideration being denied, the government nolle prossed the marijuana charge.

The felony charge of threatening the President was tried in the District Court and Appellant was convicted.³ Appellant raises three grounds for reversal (1) that the evidence was insufficient to support a finding that he uttered a "threat" against the President; (2) that a conviction would violate the First Amendment; and (3) that the prior judicial determination on the motion to suppress in the Court of General Sessions operated as collateral estoppel to the felony charge in the District Court.

I.

Turning to the language of 18 U.S.C. § 871 (1964), we see that what it prohibits is "knowingly and willfully * * * making any * * * threat to take the life of or to inflict bodily harm upon the President * * *." On its face, and under conventional standards of statutory construction, the statute prohibits the knowing and willful act of threatening the life of the President. The forbidden utterance is the criminal act; the adjective "willfully" precedes and modifies "threaten"; it has no relation whatever to the act of killing or injuring. The act of killing or assaulting is a separate crime. Therefore, the District Judge correctly instructed the jury: "It is the making of the threat, not the intent to carry it out, that violates the law."

Given this clarity of the statute itself, there is little necessity to turn to the legislative history, except to discern the broad purposes of Congress. However, in light of the dissent's reliance on some utterances of an individual Congressman in terms that would actually alter the clear meaning of the statute, we turn to the total legislative history. The record of the House debates on section 871 does not, as the dissent asserts, "indicate that Congress considered specific intent to execute the threat an element of the offense * * *." Indeed the House record is to the contrary.⁴

The ultimate purpose underlying section 871 is to deter the act of killing or injuring the President by deterring the act of theatening his life or safety. As Congressman Webb, the proponent of the bill, asserted: "That is one reason why we want this statute — in order to decrease the possibility of actual assault by punishing threats to commit an assault." 53 Cong.Rec. 9377-78 (1916) (emphasis added). The act of willfully threatening was itself made the crime not only to deter the threat but also the consequences of verbal or published threats in terms of their incitement of others — including those less stable than the speaker and perhaps more suggestible. Congressman Webb's explication of the rationale behind a prohibition of "threats" is of interest:

A bad man can make a public threat, and put somebody else up to committing a crime against the Chief Executive, and that is where the harm comes. The man who makes the threat is not himself very dangerous, but he is liable to put devilment in the mind of some poor fellow who does try to harm him the President.

Id. at 9377 (emphasis added). Prophetically, Congressman Webb added: "I think the time may come when we will have great need for this kind of a statute." This review of the factors which prompted the promulgation of legislation prohibiting "threats" would seem to cast doubt upon the assertion of the dissent that "Congress considered specific intent to execute the threat an element of the offense."⁵

The dissent correctly quotes Congressman Webb's comment that "I think it must be a willful intent to do serious injury to the President." But we need to look at the context in which this statement was made. Some Representatives were troubled by the possibility that in the absence of the need for a "willful" threat, a man might be convicted for mailing to a friend, as a matter of news, an article he had discovered which contained a threat by the author of the article on the life of the President.⁶ A reading of the entire debate on section 871 reveals that Congressman Webb's comment about "willful intent to do serious injury to the President" is the only time that the concept of "willful intent" was joined with the act of killing or injuring. Without exception, every other reference to "willful intent" was in the context of a "willful intent to threaten". Reviewing the entire legislative debate on section 871, we conclude that, as is so often the case when various members address themselves extemporaneously to statutory language, these speeches are not without ambiguity; certainly the debate is far from indicating a Congressional desire to demand proof that the accused "made the statement with the specific intent to execute it" as Judge Wright argues.⁷ Indeed if the legislative history were to be so read, it would repeal the statute.

Prior decisions construing section 871 similarly evidence the interpretation that it is the threat which must be "knowingly and willfully" made and not that the intent to execute the content of the threat be an element. To meet these requirements the government must establish that "the maker of the threat comprehends the meaning of the words uttered by him" and that "the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution." Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918). See Pierce v. United States, 365 F.2d 292, 294 (10th Cir. 1966). There is no requirement that the person uttering the threats have an intention to carry them out. Cf. Michaud v. United States, 350 F.2d 131 (10th Cir. 1965). Nor is it a defense that the words were intended merely as a jest. Pierce v. United States, supra; Ragansky v. United States, supra.

Appellant contends that the words he used could not be interpreted as a threat because they did not contain a statement of present intention to injure the President. Appellant asserts that his statement was a matter of common hyperbole rather than a true threat, that it expressed a desire rather than an intention to carry it out, and that it was conditional upon his being forced — by involuntary service — to carry a rifle whereas he had stated an intention to avoid induction into the Army.

Appellant's conditional theory stems from the principle of the classic case of Tuberville v. Savage, 86 Eng. Rep. 684 (K.B. 1669), in which it was held that there was no assault where the defendant, at assize time, placed his hand on his sword and stated: "If it were not assize-time, I would not take such language from you." If an utterance is conditioned on factors which cannot be fulfilled, the condition negates any threat. Such a condition removes the apparent intent which is a necessary element. But the fact that the threat is conditional does not per se prevent it from being a violation of 18 U.S.C. § 871 (1964). Convictions have been affirmed⁸ and indictments sustained⁹ where the language was conditional. The "condition" of Appellant's submitting to induction into the Army does not negate the presence of apparent present intent since it is a matter within his control.¹⁰ Statements with conditions such as "if I had the opportunity" or "if I had the power" or "if I ever get close enough to him," have been held violations of the statute. See notes 8 & 9 supra.

Appellant also claims that, when he stated he "would want" or "would like to have" or "wanted" to have "LBJ" in his rifle sights, he was merely expressing a desire, and not a threat. Other convictions under this statute have been affirmed where the statement was essentially in the form, as Appellant urges his statements were, of mere expressions of desires or wishes.¹¹ Appellant relies, however, on two cases in which there was found to be no statement of apparent intention to inflict harm. In United States v. Daulong, 60 F.Supp. 235 (W.D. La.1945), the indictment was quashed because it charged that the accused only stated he "had a notion" to kill the President and that, if no one else did it, he "felt...