United States District Court, Northern District of Illinois, E.D
January 24, 1957
UNITED STATES OF AMERICA
ANTHONY JOSEPH MARINO.
The opinion of the court was delivered by: Sullivan, District Judge.
An indictment was returned against this defendant on September
28, 1956. Two days later, on October 1, on motion of the United
States Attorney, an order was entered stating that there was
reasonable grounds to suppose that defendant was not competent to
stand trial, and that he should present himself to a named
psychiatrist for examination on October 10, 1956, all as
authorized by Title 18 U.S.C.A. § 4244.
That section provides that at any time after arrest and prior
to sentence, on the motion of the United States Attorney that
there is reason to believe that the defendant "charged with an
offense against the United States" may not be mentally competent
to assist in his own defense, the court shall order a psychiatric
examination; and that "If the report of the psychiatrist
indicates * * * such mental incompetency in the accused, the
court shall hold a hearing * * * at which evidence as to the
mental condition of the accused may be submitted". In the case at
bar the psychiatrist conducted an examination and reported to the
court, using the technical and (to the legal mind) esoteric
language of his profession. In fact, so cryptic was the report
that counsel were unable to agree on whether or not it "indicates
a state of mental incompetency". Defendant says that it does not
so indicate and accordingly no further hearing is warranted; the
government contends the reverse; and the court agreed that the
parties had reason to differ on the question.
While court and counsel considered this situation, two further
motions were made. On December 18, 1956, defendant moved to
vacate the order of October 1, 1956, and counsel for defendant
stated orally that he felt the court had no jurisdiction to enter
it. The order was not vacated since it had already been executed,
but defendant was given permission to file briefs stating his
objections. Then on January 2, 1957, the government filed a
motion asking for an early hearing on defendant's competency to
stand trial. Briefs have been filed on all questions.
Defendant contends that the court has no authority to proceed
further (and had none in the beginning) under section 4244 for
the reason that the indictment fails to state an offense against
the United States. If this be true, the power of the court to act
must certainly fall. The power under which a hearing may be held
and a commitment made is "the power to prosecute for federal
offenses." Greenwood v. United States, 1955, 350 U.S. 366, 375,
76 S.Ct. 410, 415. If there is no federal offense there is no
power. Any other holding would transform section 4244 into a
vehicle by which the federal government could assume the care and
responsibility for the mentally ill — a result surely not
contemplated by Congress.
An examination of the indictment to determine whether a federal
offense is charged does not require a prior finding as to
defendant's competency. The court may and should dismiss the
indictment on its own motion if it is insufficient, Fed.Rules
Crim.Proc. Rule 12(b)(2), 18 U.S.C.A. In this case defendant's
counsel has urged the point in his brief, which may be treated as
a motion to dismiss.
This indictment charges a violation of Title 18 U.S.C.A. § 871
which provides fine or imprisonment or both for one who makes
"any threat to take the life of * * * the President of the United
States". It is alleged that the threat was accomplished by
posting in a public place on two occasions (Counts I and II) a
paper stating "There can be slain no sacrifice to God more
acceptable than an unjust President".
That this is not a threat against the life of the present
President of the United States is apparent. According to Webster,
a "threat" is "the expression of an intention to inflict evil or
injury on another". The legal definition goes further: "A threat
is an avowed present determination or intent to injure presently
or in the future". United States v. Metzdorf, D.C.Mont. 1918, 252
F. 933, 938. There is in the quoted words no expression of intent
on the part of the defendant to injure the President or anyone
else, or in fact to do anything whatsoever. Considered as a
general observation, the alleged assertion is not pleasant and
makes little sense; but it is not a "threat". Further, it is not
at all clear to what President the statement refers. Under the
Statute, the threat must be against the then President of the
United States, Metzdorf, supra. The indictment alleges no
innuendo connecting it with the present President, and certainly
none is apparent. The statement could relate to any president,
past or future, of any country.
In the light of the above discussion, Count III is manifestly
insufficient. It alleges the mailing of a writing as follows:
"The officials who aught (sic) to be arrested and shot are
protected! There can therefor be no respect for any law or its
The indictment fails to state an offense against the United
States under Title 18 U.S.C.A. § 871 and will be dismissed. This
court accordingly has no power to proceed under Title 18 U.S.C.A.
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