ZACHARY HERMAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5505 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The memorandum opinion of the court of appeals (Pet. App. 1-5) is not reported. JURISDICTION The judgment of the court of appeals was entered on May 15, 1990. The petition for a writ of certiorari was filed on August 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether under 18 U.S.C. 844(e) the government must prove that a defendant intended to carry out his threat to damage property with explosives, or whether it is sufficient to simply show that the threat was serious. STATEMENT After a jury trial in the United States District Court for the District of Nevada, petitioner was convicted of threatening to destroy property by means of explosives, in violation of 18 U.S.C. 844(e). He was sentenced to 10 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed petitioner's conviction but remanded for resentencing (Pet. App. 1-5). The evidence at trial showed that in a telephone conversation with a contract officer at Nellis Air Force Base, Las Vegas, Nevada, in May 1988, petitioner threatened to crash the base's gate the next morning. Petitioner also said, "I'll have enough explosives on me to blow up the Goddamn base." Pet. App. 1. That conversation was the result of a dispute between petitioner and the Air Force over the ownership of several copy machines. Petitioner had had a contract with the Air Force to lease and service some one hundred copy machines at Nellis Air Force Base. However, petitioner chose to terminate the contract, and in May 1988 the Air Force put out a request for bids. Under the terms of the request, the copy machines were to be turned over to the last contractor to hold the contract. Petitioner disputed this provision, claiming instead that the machines belonged to him. When the Air Force contract administrator did not accede to petitioner's position, petitioner made the threat that resulted in his conviction. Pet. 3-4. At trial, the district court instructed the jury that one element of a Section 844(e) offense was that the spoken words be a "true threat." The court defined a "true threat" as "a serious threat as distinguished from words uttered as mere political argument, idle talk, or jest." The court rejected petitioner's claim that the jury should be required to find that he intended to carry out his threat. Pet. 5-6. Petitioner renewed his challenge to the jury instructions on appeal. Relying on its previous decision in United States v. Nusz, 462 F.2d 617 (1972), the court of appeals rejected that claim. The court held that 18 U.S.C. 844(e) does not require an instruction that the defendant actually intended to carry out his threat, or that the defendant intended his statement to constitute a threat. The court also rejected petitioner's argument that, because his case did not involve a threat against the President, the government should bear a greater burden of proof. Pet. App. 2-3. /1/ ARGUMENT Petitioner again contends (Pet. 7-11) that the district court should have instructed the jury that, in order to convict him, it had to find that he intended to carry out his threat. Contrary to petitioner's claim, the decision below is correct and is in accord with the views of the overwhelming majority of the courts of appeals. Only the Fourth Circuit has ruled otherwise, but that decision was rendered in 1970. Every court of appeals facing the issue since has rejected the Fourth Circuit's views, and this Court has denied review of those decisions. There is no reason for a different result here. Section 844(e) prohibits using the mail, telephone, or other means of commerce to "willfully make() any threat, * * * concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive." The language concerning a prohibited threat is closely related to two other statutes: 18 U.S.C. 871, which prohibits threats against the President, and 18 U.S.C. 876, which covers extortionate threats. In its previous decision in United States v. Nusz, 462 F.2d at 618, the Ninth Circuit applied cases interpreting Section 871 in formulating the government's burden of proof under Section 844(e). The Tenth Circuit likewise has followed decisions under Sections 871 and 876 in holding that the government does not have to establish under Section 844(e) that a defendant had the actual capability to carry out a threat. United States v. Leaverton, 835 F.2d 254, 256-257 (10th Cir. 1987). In Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam), the Court held that to establish liability under Section 871, a threat must be shown to be a "true 'threat'", rather than one that simply involved an expression of "political hyperbole." The courts of appeals have applied Watts's "true threat" requirement to all three federal threat statutes. Although Watts did not determine what the "willfullness" element of the statute required, id. at 707-708, with but a single exception, the courts of appeals have uniformly held that none of those statutes requires proof of intent to carry out the threat. E.g., United States v. Glover, 846 F.2d 339, 343-344 (6th Cir.), cert. denied, 109 S.Ct. 533 (1988); United States v. Hoffman, 806 F.2d 703, 707-708 (7th Cir. 1986), cert. denied, 481 U.S. 1005 (1987); United States v. Merrill, 746 F.2d 458, 462 (9th Cir. 1984), cert. denied, 469 U.S. 1165 (1985); United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir.), cert. denied, 464 U.S. 934 (1983); United States v. Callahan, 702 F.2d 964, 965 (11th Cir.), cert. denied, 464 U.S. 840 (1983); United States v. Carrier, 672 F.2d 300, 306 (2d Cir.), cert. denied, 457 U.S. 1139 (1982); United States v. Pilkington, 583 F.2d 746 (5th Cir. 1978), cert. denied, 440 U.S. 948 (1979) (all interpreting Section 871); United States v. Khorrami, 895 F.2d 1186, 1192-1193 (7th Cir. 1990); United States v. Costello, 760 F.2d 1123, 1127-1128 (11th Cir. 1985); Martin v. United States, 691 F.2d 1235, 1240 (8th Cir. 1982), cert. denied, 459 U.S. 1211 (1983); United States v. DeShazo, 565 F.2d 893, 894 (5th Cir.), cert. denied, 435 U.S. 953 (1978) (interpreting Section 876); see also United States v. Velasquez, 772 F.2d 1348, 1357-1358 (7th Cir. 1985), cert. denied, 475 U.S. 1021 (1986), and United States v. Maggitt, 784 F.2d 590, 593-594 (5th Cir. 1986) (similarly construing 18 U.S.C. 1513). The lone exception to that uniformity is the Fourth Circuits decision in United States v. Patillo, 431 F.2d 293 (1970). There, the court of appeals held that under Section 871 a threat that was not actually communicated to the President was criminal only if the speaker made the threat with "a present intention to do injury to the President." Id. at 297-298. Because petitioner did communicate his threat to a contract officer at Nellis Air Force Base, the principle applied in Patillo is not applicable here; thus, this case does not present a square conflict with the decision of the Fourth Circuit. But this Court's review would not be warranted even if such a conflict existed. No other circuit has followed Patillo in the many years since that decision, and this Court has frequently denied certiorari in such instances. See United States v. Glover, supra; United States v. Hoffman, supra; United States v. Merrill, supra; United States v. Dysart, supra; United States v. Callahan, supra; United States v. Carrier, supra; United States v. Pilkington, supra; Martin v. United States, supra; United States v. DeShazo, supra. Petitioner has not demonstrated any reason why there should be a different result here. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General LOUIS M. FISCHER Attorney SEPTEMBER 1990 /1/ The court of appeals accepted petitioner's claim, however, that the district court had erred in failing to state on the record its reasons for not decreasing petitioner's offense level by four levels, pursuant to Sentencing Guidelines Section 2A6.1(b)(2). Accordingly, the court of appeals vacated petitioner's sentence and remanded to the district court with directions that the court make findings on the controverted levels. Pet. App. 4-5.