MOHAMMED FARHAD KHORRAMI, PETITIONER V. UNITED STATES OF AMERICA No. 90-5546 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A2-A12) is reported at 895 F.2d 1216. JURISDICTION The judgment of the court of appeals was entered on February 12, 1990. A petition for rehearing was denied on May 11, 1990. Pet. App. A13. The petition for a writ of certiorari was filed on July 20, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's written threats to kill two Israeli public officials were constitutionally protected speech. 2. Whether certain tape recordings of petitioner's threatening telephone calls were properly admitted as evidence of similar acts under Fed. R. Evid. 404(b). STATEMENT Following a jury trial in the United States District Court for the District of Indiana, petitioner was convicted of mailing a threat to kill two individuals, in violation of 18 U.S.C. 876, and of placing harassing telephone calls, in violation of 47 U.S.C. 223(a)(1)(B). His sentence of three years' imprisonment was suspended and he was placed on probation for three years. The court of appeals affirmed. Pet. App. A2-A12. 1. The evidence at trial showed that petitioner directed a series of threats against a number of individuals to the New York headquarters of the Jewish National Fund (JNF), a non-profit organization that raises funds for Israel. The threats started on January 11, 1988, when two JNF employees listened to a telephone answering tape on which petitioner made threatening and profane statements about the JNF, Israelis, and Jews. The JNF then began to record incoming calls, and it received and taped threatening calls from petitioner on January 12 and 13. On Friday, January 15, 1988, the JNF received a number of similar phone calls. The calls were lengthy and consisted of statements calling for "death to" Jews, various individuals, and the JNF. The caller also stated "long live" Palestine and Hitler, and said that "Jews are scum" and "fuck all Jews." Petitioner's convictions for placing harassing telephone calls related to the calls that he made on January 15. The JNF received similar calls on February 20, March 4, and April 23 or 24, 1988. Pet. App. A4. On February 12, 1988, the JNF received through the mails a poster that contained pictures of Israeli and JNF officials taken from materials published by the JNF. The poster stated at the top "Wanted for crimes against humanity and Palestinians for fifty years." Swastikas and epithets were drawn over the pictures together with mustaches and other disfigurements. Under a picture of Israeli Prime Minister Yitzhak Shamir, petitioner had written "execute now!" Under a picture of Israeli Foreign Minister Shimon Peres, he had written "his blood need." Other pictures were labeled "must be killed" and "death to Jews." The poster also contained a picture of United States Senator Edward Kennedy accompanied by the expression "long live Sarhan Sarhan" (sic). Pet. App. A1, A5. Petitioner's conviction for mailing a threatening communication was based on the "wanted" poster. The indictment charged that it threatened Shamir and Peres. On the same day that it received the poster, the JNF also received a copy of its calendar on which petitioner had drawn swastikas. Vulgar language similar to the statements made in the phone calls was typewritten on the calendar. Each of the mailings was postmarked "Bloomington, Indiana, February 9, 1988." The JNF determined that, in response to a request from a "David Stein," it had mailed some of its material to Bloomington. A JNF official, Jaime Negroni, telephoned the number listed on the request and heard an individual answer the phone by stating "Financial Services of America." Negroni, who had heard some of the threatening phone calls, immediately recognized the voice of the individual who had answered the phone as the same person who had made the series of threatening calls to the JNF. Negroni asked to speak to David Stein, whereupon the person who had answered the phone hung up. Negroni called the same number two minutes later, but he heard a recording for Financial Services of America. Pet. App. A5-A6. Telephone records showed that the Bloomington number called by Negroni was petitioner's and that numerous calls had been placed from petitioner's number to the JNF in January 1988. Petitioner's fingerprints were found on the defaced JNF calendar that was sent from Bloomington to the JNF. A government documents examiner testified that petitioner had probably written the letters to the JNF and that the typed matter on the JNF calendar came from petitioner's word processor. Pet. App. A4, A6. In support of the charges that petitioner had committed multiple offenses involving a telephone on January 15, 1988, the government offered into evidence tape recordings of petitioner's telephone calls to the JNF on January 12, January 13, February 20, March 4, and April 23-24, 1988, as evidence of similar acts under Fed. R. Evid. 404(b). Petitioner objected to the tapes on the ground that the prejudicial effect of the evidence outweighed its probative value. The district court conditionally admitted the tapes, but stated that if the government did not show that petitioner had made the calls, the tapes would be stricken from the record. Portions of each of the five tapes were played for the jury. After the government introduced the telephone records showing that multiple phone calls were made from petitioner's telephone number in Bloomington to the JNF in January 1988, /1/ four of the tapes were admitted into evidence based on those records and the similarity between the caller's voice and petitioner's. In admitting the evidence, the district court did not specifically state that the probative value of the tapes outweighed their prejudicial effect. The April 23-24 tape was never admitted into evidence, but petitioner made no further objection to that tape, nor did he move to strike it from the record. Pet. App. A9-A11. 2. The court of appeals affirmed. Pet. App. A2-A12. The court first held that the evidence was sufficient to support petitioner's conviction for mailing a threatening communication. The court concluded that petitioner's "wanted" poster constituted a true threat rather than political hyperbole protected by the First Amendment. The court observed that petitioner's mailing of the poster was part of a lengthy campaign of harassment; he sent the poster at the same time that he sent another threatening letter to the JNF; by using JNF materials, he demonstrated that JNF officials were dealing with an individual with whom they had come into contact; and he included threats to JNF officials on the same poster that contained threats to Peres and Shamir. Furthermore, several JNF employees testified at trial that they felt threatened by petitioner's telephone calls. Pet. App. A4, A9. The court also upheld the admission of the tape recordings of petitioner's harassing telephone calls as evidence of similar acts under Fed. R. Evid. 404(b). The court concluded that the government had proven by telephone records that petitioner made the first three calls and that the tapes were properly admitted to show petitioner's identity and intent. The court acknowledged that the March 4 call was not reflected in the records for petitioner's telephone, but it concluded that the jury could have concluded that petitioner had made that call from the similarities in voice pattern and subject matter between that call and the previous calls. Pet. App. A9-A11. The court also ruled that the playing of a portion of the April 23-24 tape was not unduly prejudicial to petitioner even though the district court did not formally admit that tape into evidence. The court reasoned that the evidence was sufficient to demonstrate that petitioner made that telephone call to the JNF and, furthermore, the playing of that tape was merely cumulative to the playing of the other tapes. The court stated that petitioner was partially responsible for the court's failure to make a final ruling on the tape's admissibility because petitioner made no request for a final ruling and did not ask the court to strike the tape from evidence. Pet. App. A11-A12. Finally, the court concluded, in light of the overwhelming evidence against petitioner, that any error in the admission of the tapes was harmless. Id. at A12. ARGUMENT 1. Petitioner contends (Pet. 4-12) that his conviction for mailing a threatening communication is void because the statements on his "wanted" poster were not "true threats" but protected speech under the First Amendment. The court of appeals correctly decided this fact-bound claim and its decision does not conflict with any decision of this Court or with the decision of any other court of appeals. Accordingly, further review is not warranted. Whether a communication is a "true threat" or speech protected by the First Amendment depends on whether, in context, a reasonable person would have interpreted the communication as a threat of injury. See, e.g., United States v. Roberts, No. 89-5224 (4th Cir. Sept. 12, 1990), slip op. 4-5; United States v. Davis, 876 F.2d 71, 73 (9th Cir.), cert. denied, 110 S.Ct. 188 (1989) (communication "could reasonably be read as containing a threat of injury"); United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986), cert. denied, 481 U.S. 1005 (1987); United States v. Callahan, 702 F.2d 964, 965 (11th Cir.), cert. denied, 464 U.S. 840 (1983). /2/ This Court has held that mere hyperbole is protected. Thus, in United States v. Watts, 394 U.S. 705 (1969), this Court reversed a conviction based on the defendant's statement, made during a rally protesting the Vietnam War, that if he were drafted and forced to carry a rifle "the first man I want to get in my sights is L.B.J." The Court concluded that, in context, petitioner's statement merely expressed, in a crude manner, political opposition to the President's policies. Id. at 708. But direct threats consistently have been held unlawful. See e.g., United States v. Hoffman, 806 F.2d at 704 (letter told President Reagan that he would "get (his) brains blown out"); United States v. Merrill, 746 F.2d 458, 461-462 (9th Cir. 1984) (letter contained a picture of President Reagan's head on a stake with the words "kill Reagan"), cert. denied, 469 U.S. 1165 (1985); United States v. Callahan, 702 F.2d at 965 (letter stated that President Reagan and Vice-President Bush must be assassinated and that the sender was willing to accept the responsibility); see Rankin v. McPherson, 483 U.S. 378, 387 (1987) ("a statement that amounted to a threat to kill the President would not be protected by the First Amendment"). The court of appeals correctly determined that the evidence was more than sufficient to show that petitioner's actions constituted a threat rather than hyperbole. /3/ Writing "execute now" and "his blood need" under the pictures of Shamir and Peres surely amounts to a threat against those two individuals. If that were not clear enough, the other statements on the mailing -- including "death to Jews," "must be killed," and "long live Sarhan Sarhan" -- make petitioner's meaning plain. Moreover, petitioner sent the "wanted" poster to the JNF as part of a lengthy campaign of harassment that included vicious and profane telephone calls, and he sent the poster at the same time that he sent another threatening letter to the JNF. Petitioner drafted all of his threatening correspondence from JNF materials, which communicated to the JNF that they were dealing with someone who had contact with the organization, and petitioner included threats against JNF officers on the same poster that contained threats to Shamir and Peres. Petitioner's systematic crusade against the JNF was of a very different character than the hyperbolic remark in Watts. /4/ 2. Petitioner also challenges the district court's admission of the tape recordings of his telephone calls to the JNF. Specifically, petitioner contends (Pet. 12-14) that the district court erred in admitting the March 4 recording because the evidence did not establish that petitioner made that call. He also maintains (Pet. 14-18) that the jury improperly heard the April 23 or 24 tape recording because it was not formally admitted into evidence. In addition, he argues (Pet. 18-19) that none of the tapes admitted as evidence of similar acts should have been admitted because the district court did not state that their probative value outweighed their prejudicial effect. None of these fact-bound issues merits further review. First, the district court properly admitted the March 4 tape into evidence. In Huddleston v. United States, 485 U.S. 681 (1988), this Court held that similar act evidence is admissible under Fed. R. Evid. 404(b) if the jury can reasonably conclude that the act occurred and that the defendant was the actor. In making that determination, the trial court considers all of the other evidence, direct and circumstantial, presented to the jury, including any other similar acts evidence that has been admitted in the case. 485 U.S. at 690-691. In this case, the evidence sufficiently demonstrated that petitioner made the March 4 call. That call, which was made a short time after the other threatening calls, contained the same voice pattern as the calls that were indisputably made from petitioner's telephone, and the March 4 call contained similar threatening remarks as well. Under these circumstances, the district court did not abuse its discretion in admitting the evidence. See United States v. Williams, 900 F.2d 823, 826 n.3 (5th Cir. 1990) (defendant's involvement in similar acts established by circumstantial evidence). The playing of the tape of the April 23-24 call did not prejudice petitioner even though that tape recording was not formally admitted into evidence. As an initial matter, petitioner bears some of the responsibility for the district court's failure to make a final ruling as to that tape's admissibility because he did not ask the court for a final ruling after it had conditionally admitted the tape. Cf. United States v. Thirteen Thousand Dollars in U.S. Currency, 733 F.2d 581, 585 (8th Cir. 1984) (defendant did not press for final ruling on admissibility of evidence). In addition, the other telephone calls were sufficiently similar in voice pattern and subject matter to the April 23-24 call to justify the inference that petitioner also made the April 23-24 call. Indeed, the playing of the April 23-24 call was merely cumulative. Finally, any error was harmless beyond a reasonable doubt in light of what the court of appeals recognized as (Pet. App. A12) the government's "overwhelming" case against petitioner. Finally, there is no merit to the contention that the court of appeals erred by upholding the admission of the tapes because the district court did not specifically state that the probative value of the evidence outweighed its prejudicial impact. Fed. R. Evid. 404(b) does not by its terms require a trial court to make specific findings before admitting evidence of similar acts. In any event, even though some courts of appeals require district courts to make specific findings regarding probative value and prejudicial impact before admitting similar acts evidence under Fed. R. Evid. 404(b), reversal for failure to make those findings is required only if the defendant specifically requested such findings and a reason for admitting the evidence does not readily appear from the record. See, e.g., United States v. Manner, 887 F.2d 317, 322 (D.C. Cir. 1989), cert. denied, 110 S.Ct. 879 (1990); United States v. Zabaneh, 837 F.2d 1249, 1262 (5th Cir. 1988). Although petitioner objected to the similar acts evidence on the ground that its admission would be overly prejudicial, he did not specifically request the court to make findings before admitting the evidence. In any event, the reason for admitting the evidence readily appears from the record. Because the other evidence in the case against petitioner was primarily circumstantial, the telephone calls helped to establish petitioner's identity and demonstrated petitioner's intent to communicate a true threat. Accordingly, the court of appeals properly upheld the district court's ruling. Cf. Arizona v. Washington, 434 U.S. 497, 516-517 (1978) (record supported trial court's declaration of mistrial despite lack of specific findings). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney OCTOBER 1990 /1/ Telephone records did not link petitioner to the March 4 and April 23-24 calls, which were made after Negroni's call to "David Stein." /2/ The government is not required to prove that the defendant intended to carry out the threat. See United States v. Hoffman, 806 F.2d at 703; United States v. Kelner, 534 F.2d 1020, 1025 (2d Cir.), cert. denied, 429 U.S. 1022 (1976). /3/ Contrary to petitioner's contention (Pet. 7-8), the court of appeals did not leave the issue of whether petitioner's communication was protected by the First Amendment to the jury. The court of appeals examined the context in which petitioner sent his "wanted" poster to the JNF to determine whether a reasonable man would consider the communication to be a true threat. See Pet. App. A8-A9. The court's statement that there was more than sufficient evidence to support the jury's verdict merely recognized that the jury had the initial duty to determine whether petitioner's speech was protected by the First Amendment. The court's acknowledgment of the jury's responsibility does not imply that the court abdicted its own responsibility. See Hamling v. United States, 418 U.S. 87, 100 (1974) (noting that jury's determination that material was obscene and not protected by the First Amendment was supported by the evidence). /4/ The other decisions of this Court on which petitioner relies, none of which involved a prosecution under a statute prohibiting threats, are quite different from this case. Rankin v. McPherson, supra, did not involve a threat at all. Rather, in that case, which arose out of the discharge of a state employee, the employee told her boyfriend, after hearing of the assassination attempt on President Reagan, that if "they go for him again, I hope they get him." 483 U.S. at 380. In Hess v. Indiana, 414 U.S. 105, 107 (1973), a disorderly conduct prosecution, the defendant did not threaten anyone in particular, but instead said "We'll take the fucking street." Likewise, in Brandenburg v. Ohio, 395 U.S. 444 (1973), which involved the prosecution of a Ku Klux Klan leader under a state criminal syndicalism statute, the defendant's offending statement -- "it's possible there might have to be some revengence taken" (395 U.S. at 446) -- was not directed at anyone in particular. It stands in sharp contrast to petitioner's statements, which were directed at specific individuals and were not stated conditionally.