Appeal from the United States District Court for the Eastern District of Wisconsin. No. 85 CR 6 -- Terence T. Evans, Judge.
Before CUMMINGS and COFFEY, Circuit Judges, and WILL, Senior District Judge.*fn*
COFFEY, Circuit Judge. The defendant, David Hoffman, appeals his conviction for threatening the life of the President of the United States. We affirm.
On December 17, 1984, the following letter was received in the White House mail room:
"Ronnie, Listen Chump! Resign or You'll Get Your Brains Blown Out." At the end of the unsigned letter was a crude drawing of a pistol with a bullet emerging from the barrel. A mailroom employee opened the letter, observed and noted that the letter contained not only threatening words, but that also inscribed thereon was the threatening drawing of a gun with a bullet emerging therefrom. She placed the same and its envelope in a plastic evidence bag and forwarded it to the United States Secret Service, the federal agency charged with the responsibility of providing personal security for the President. An intelligence research specialist with the Secret Service reviewed the letter and envelope and, after noting a Milwaukee, Wisconsin, post-mark, notified the Secret Service's Milwaukee field office that the White House mail room had received the document. The letter and envelope were forwarded to the Forensic Service Division of the Secret Service where an "indentation analysis" (the process of bringing out indentations caused by previous writing on paper placed on top of the sheet under analysis) was performed. The indentation analysis procedure and handwriting comparisons established that a David Hoffman, residing at 2508 E. Bellview Place, Milwaukee, 53211, was the author of the letter.
On December 28, 1984, Hoffman was arrested by a Special Agent of the Secret Service and a Milwaukee Police Officer. After being advised of his constitutional rights, the defendant was confronted with a copy of the threatening letter and responded, stating "the letter wasn't signed and could be forged." He further stated "he didn't know it was against the law to threaten the President."
Hoffman was indicated and charged with violating 18 U.S.C. sec. 871(a) which provides:
"Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, 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."
Before trial, the defendant filed a motion in limine:
"For an order excluding for use at trial any evidence or statements made by the defendant to any witness in this action relating to the religious and political views of the defendant, inasmuch as the probative value of such statements is substantially outweighed by the danger of prejudice to this defendant."
In addition, the defendant submitted a proposed voir dire question dealing with the question of religious prejudice:
"Does anyone here have any bias or prejudice against the Unification Church or the Reverend Sun Yung Moon, and would that bias or prejudice prevent you from judging the facts in this case fairly and objectively?"
Responding to the defendant's motion in limine, the Government argued that the religious belief evidence "may be relevant--even essential--evidence to prove a violation of [sec. 871]...." Specifically, the government contended that the religious belief evidence was necessary to prove a "true threat" under sec. 871:
"In this case, the government intends to show 'that the threat letter was written by the defendant not as a joke or as part' of a political debate, but out of defendant's anger with the President for his failure to pardon Sun Yung Moon the leader of a religious group with which defendant was associated for a time and to whom he retained loyalty. This information is critical to an understanding of the context of the statement and of the willfulness of defendant in making it."
At trial, the district judge denied the defendant's motion in limine, ruling that the religious belief evidence would be admitted to demonstrate the defendant's "motivation in sending the letter." During the voir dire, the district court judge pointedly and specifically advised the jury that "there may be some evidence in this case regarding the religious views of the defendant. And the question is: if it appears that you hear evidence of that nature and the religious views of the defendant are different than your particular views, are there any members of the panel who would hold that against the defendant in this case?"
Two panel members responded that they held a bias or prejudice against the Unification Church and Reverend Moon, and the Court in its attempt to secure a completely antiseptic jury excused those two panel members from serving on that jury.
At trial, a handwriting expert with the Secret Service testified that he had compared the writing of the letter with a lease signed by Hoffman and a notebook of Hoffman's confiscated at the time of his arrest. The witness testified that, after comparing the exhibits with the threatening letter, he concluded Hoffman was the author of the threatening letter. The defendant's mother testified that her son was a member of a religious group headed by the Reverend Moon. When asked, "Did your son, David, express to you any concerns that he had involving President Reagan?" Mrs. Hoffman replied, "I think he was concerned about many things. One, that a religious leader had been imprisoned, and he thought that he's [Reverend Moon] highly principled, and he did not think this is right."
The defendant neither testified, nor presented any testimony, but his counsel argued to the jury that the government failed to prove beyond a reasonable doubt that he was the author of the threatening letter. The court's instructions to the jury included the following instruction as to the elements of the offense:
"Three essential elements are required to be proved in order to establish the offense charged in the indictment. First, that the defendant caused a letter to be mailed that contained a threat to take the life or to inflict bodily harm upon the President of the United States.... Second, that the words contained in the letter constituted a true threat as defined in these instructions and understood as such. And, three, that the defendant acted knowingly and willfully.
The prosecution, that is, the government, must establish a true threat, which means a serious threat as distinguished from words uttered as mere political argument, idle talk, or jest. In determining whether words were uttered as a threat, the context in which they were spoken must be considered. A threat is knowingly made if the maker of it comprehends the meaning of the words uttered by him. And a threat is willfully made if in addition to comprehending his words the maker voluntarily and intelligently utters the words as a declaration of an apparent determination to carry out the threat. Before you can convict the defendant under the statute, you must be convinced beyond a reasonable doubt that the defendant intentionally made the written statement with which he is charged in the context and under such circumstances that a reasonable person would foresee that the statement would be interpreted by persons hearing or reading it as a serious expression of an intention to inflict bodily harm upon or to take the life of the President of the United States. And you must be further convinced beyond a reasonable doubt that the statement was not the result of mistake, duress, or coercion."
After the jury returned a verdict of guilty against Hoffman, the district judge sentenced Hoffman to four years imprisonment pursuant to 18 U.S.C. sec. 4205(b)(2) and recommended that Hoffman be committed to the federal psychiatric facility at Springfield, Missouri where he could receive psychiatric treatment. The court ordered, received and reviewed a pre-sentence report from the Probation Department which is a part of this record.*fn1 The Probation Department reported that Hoffman had been hospitalized in psychiatric institutions on several occasions and in fact had been arrested in a McDonald's restaurant in Milwaukee, Wisconsin, in October 1980 with a revolver under his coat, and as late as May 1985, had assaulted a woman on the University of Wisconsin, Milwaukee campus, while out on bond on this sec. 871 charge.
A. Elements of the Offense
18 U.S.C. sec. 871(a) prohibits any person from "knowingly and willfully ... [making] any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States ...." In Watts v. United States, 394 U.S. 705, 22 L. Ed. 2d 664, 89 S. Ct. 1399 (1969), the Supreme Court cautioned that because the statute "makes criminal a form of pure speech, [it] must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech." Id. at 707. The court construed the statute "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id. at 708. To protect these First Amendment values, the Court held that "the statute initially requires the government to prove a true 'threat.'" Id. The Court concluded that "political hyperbole" does not constitute a "true threat." Id.
In determining what constitutes a "true threat," we are called upon to consider the clear language and the dual purposes of the statute. A threat upon the President's life may very well have a detrimental effect upon his activities or movements regardless of whether the person making the threat actually intends to assault the president. Therefore, the courts have ruled, many of them relying on Justice Marshall's concurring opinion in Rogers v. United States, 422 U.S. 35, 45 L. Ed. 2d 1, 95 S. Ct. 2091 (1975), that Congress intended sec. 871 to prohibit any statement that would disrupt the activities and movements of the president. As Justice Marshall noted in his concurring opinion in Rogers :
"Plainly, threats may be costly and dangerous to society in a variety of ways, even when their authors have no intention whatever of carrying them out. Like a threat to blow up a building, a serious threat on the President's life is enormously disruptive and involves substantial cost to the government. A threat made with no present intention of carrying it out may still restrict the President's movements and require a reaction from those charged with protecting the President."
Id. at 47 (Marshall, J., concurring). To interpret the statute any other way would, in effect, preclude those charged with the safety of the President from protecting the President until that very moment when the President finds himself staring down the barrel of a loaded gun. Thus, Congress did not intend that sec. 871 limit a citizen's right to speak freely, Watts, nor did it intend to unduly restrict the ability of those charged with protecting the President from effectively carrying out their responsibilities.
Thus, in order for the government to establish a "true threat" it must demonstrate that the defendant made a statement
"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."
Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969). Contrary to the dissent's interpretation of case law, the government is not required to establish that the defendant actually intended to carry out the threat. As the Second Circuit noted, "it is the utterance which the statute makes criminal, not the specific intent to carry out the threat ...." United States v. Kelner, 534 F.2d 1020, 1025 (2d Cir. 1976). Thus, Justice Marshall asserted
"Because sec. 871 was intended to prevent not simply attempts on the President's life, but also the harm associated with the threat itself, I believe that the statute should be construed to proscribe all threats that the speaker intends to be interpreted as expressions of an intent to kill or injure the President.
I would therefore interpret sec. 871 to require proof that the speaker intended his statement to be taken as a threat, even if he had no intention of actually carrying it out."
Rogers at 47, 48. See also United States v. Carrier, 708 F.2d 77, 79 (2nd Cir. 1983) (there was sufficient evidence to support a conviction under Sec. 871 where evidence entitled the jury to infer that the defendant intended that her statements be understood by others as a serious threat to the President); United States v. Callahan, 702 F.2d 964 (11th Cir. 1983) (to establish violation of sec. 871 the government must prove that the defendant "understood the meaning of the words to be an apparent threat"); United States v. Compton, 428 F.2d 18 (2nd Cir. 1979) (approved the following jury instruction: "although for a finding of guilt it is not necessary for you to find that the defendant actually intended to carry out the threat, it is necessary for you to find that he intended to make the threat and actually made the threat knowingly and willfully"); United States v. ...