JOHN WESLEY MANNING, PETITIONER V. UNITED STATES OF AMERICA No. 90-7562 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-4) is reported at 923 F.2d 83. JURISDICTION The judgment of the court of appeals was entered on January 8, 1991. The petition for a writ of certiorari was filed on April 1, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in this prosecution under 18 U.S.C. 871 and 876, the government was required to prove that petitioner actually intended to carry out his threats to harm the President and a United States District Judge. STATEMENT Following a jury trial in the United States District Court for the Western District of Missouri, petitioner was convicted of mailing a letter containing a threat to the life of the President of the United States, in violation of 18 U.S.C. 871(a), and mailing a letter containing a threat to injure a United States District Judge, in violation of 18 U.S.C. 876. Petitioner was sentenced to concurrent terms of 60 months' imprisonment and three years' supervised release, to be served consecutively to a term petitioner was serving on a prior conviction for threatening the life of the President. Pet. App. 2, 6. The court of appeals affirmed. Id. at 1-4. 1. The evidence at trial showed that petitioner mailed a letter, postmarked March 24, 1989, to United States District Judge David Hittner of the Southern District of Texas. The letter read as follows (Pet. App. 2): Honorable David Hittner I am writing you this letter to tell you that you will die within the next six months. I hope you fall dead one day giving someone some time. I want you to know to just fuck you and the horse you rode in on. You can't keep me from killing George Bush; One day I will have my chance, just watch and see. Judge Hittner recognized petitioner, whose name appeared in both the signature and return address, as a man he had sentenced to a five-year term of imprisonment in November 1988 for threatening President Reagan and Vice President Bush, and he regarded the letter as a death threat against both the President and himself. Petitioner had previously been convicted of mailing a letter containing a threat to the life of President Reagan in March 1985. Pet. App. 2. 2. On appeal, petitioner contended that the district court had erroneously declined to give an instruction that would have required the jury, in order to return a verdict of guilty, to find that petitioner "voluntarily and intelligently wrote the words with the actual and present intention to carry out the threat." Pet. App. 3. The district court instead had charged the jury that petitioner was guilty if he "voluntarily and intentionally wrote the words as a declaration of apparent determination to carry out the threat." Ibid. The court found petitioner's objection to be without merit, explaining (id. at 4): The sections of the Code on which these two counts were based, 18 U.S.C. Sections 871 and 876, recognize in their terminology that it is the making of the threat that is prohibited without regard to the maker's subjective intention to carry out the threat. The threat alone is disruptive of the recipient's personal safety and wellbeing and is the true gravamen of the offense. /(1)/ ARGUMENT Petitioner renews his claim (Pet. 5-11) that he could be found to have acted "willfully," and therefore to have violated 18 U.S.C. 871(a) and 876, only if he actually had the subjective intention of carrying out his threats. The court of appeals correctly rejected that contention, holding that a person is guilty of violating those Sections if he wrote the words as a declaration of an apparent determination to carry out the threats. 1.a. The text of the relevant statutory provisions does not support petitioner's position. Section 871(a) states that "(w)hoever knowingly and willfully deposits for conveyance in the mail * * * any letter * * * containing any threat to take the life of * * * the President of the United States" is guilty of an offense. This language requires that the person act knowingly and willfully in depositing the letter and that the letter be one "containing" a threat. But it does not suggest that the person who deposits the letter must actually intend to carry out the threat; in fact, it does not even require tha the person who deposits the letter be the person making the threat. Accordingly, a person would violate Section 871(a) if he knowingly deposited in the mail a letter that contained a threat by a third party to harm the President. The statutory text therefore strongly supports the court of appeals' holding that the import of the letter must be viewed from the standpoint of the reader, and that the appropriate test is whether the letter expresses an apparent determination to carry out the threat. /2/ Section 876 furnishes even less support for petitioner's position, because it does not contain the word "willfully," on which petitioner relies. The relevant paragraph of Section 876 provides that "(w)hoever knowingly so deposits (in any authorized depository for mail matter) * * * any communication containing * * * any threat to injure the person of the addressee or another" shall be guilty of an offense. This language requires only that a person act "knowingly" in depositing a letter "containing" a threat. Accordingly, although the government must show that the defendant knew that the letter contained a threat, it need not show that he intended to carry it out. In fact, as under Section 871(a), a person violates Section 876 if he knowingly mails a letter containing a threat by a third party to injure the addressee or another. See United States v. Davis, 926 F.2d 969, 970-971 (10th Cir. 1991). b. The interpretation indicated by the text of Sections 871(a) and 876 also comports with the purpose of those provisions. As the court of appeals explained, if a letter conveys an apparent determination to carry out a threat, the threat alone is disruptive of the recipient's sense of personal safety and well-being. Pet. App. 4. It is little comfort to the recipient or other target of the threat if the sender harbors a subjective (but secret) intention not to carry out the threat he deliberately conveyed. This reasoning applies a fortiori to a threat against the President of the United States, because the security of the President is important to the security of the Nation, and beause those responsible for protecting the President must treat with grave seriousness any threat made with the apparent determination to kill or injure the President. Justice Marshall recognized these purposes underlying Section 871(a) in his concurring opinion in Rogers v. United States, 422 U.S. 35, 41-48 (1975). Accordingly, although Justice Marshall rejected the "objective" standard adopted by the court of appeals in that case, under which a person violates Section 871(a) if he makes a statement that would reasonably be understood as a threat, he likewise rejected the view, urged by petitioner herein, that a person violates that Section only if he actually intends to carry out the threat. /3/ Justice Marshall took an intermediate position, under which a person violates Section 871(a) if he intends his statement to be taken as a threat, even if he has no intention of carrying it out. 422 U.S. at 46-48. The jury in this case was instructed in accordance with Justice Marshall's view in Rogers v. United States. It was told that one of the elements of an offense under both Section 871(a) and Section 876 is that "the defendant understood and meant the words he used as a true threat," which the court defined to mean "a serious threat as distinguished from words used as mere political argument, idle or careless talk, or something said in a joking manner." Instruction Nos. 16 and 17 (C.A. App. 32, 33). Thus, petitioner's conduct was not assessed under a purely "objective" standard. 2. Consistent with the text and purposes of Sections 871 and 876, all but one of the courts of appeals have held that neither Section requires proof of actual intent to carry out the prohibited threat. See, e.g., United States v. McCaleb, 908 F.2d 176, 178 (7th Cir. 1990); United States v. Glover, 846 F.2d 339, 343-344 (6th Cir.), cert. denied, 488 U.S. 982 (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, 747 & n.1 (5th Cir. 1978), cert. denied, 440 U.S. 948 (1979) (all interpreting Section 871); United States v. Schneider, 910 F.2d 1569, 1570-1571 (7th Cir. 1990); United States v. Khorrami, 895 F.2d 1186, 1192-1193 (7th Cir. 1990), cert. denied, 111 S. Ct. 522 (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, 894-895 (5th Cir.), cert. denied, 435 U.S. 953 (1978) (all interpreting Section 876). The lone exception to this uniformity is the Fourth Circuit's decision in United States v. Patillo, 431 F.2d 293 (1970), to which that court adhered on rehearing en banc, 438 F.2d 13 (1971). There, the Fourth Circuit held that an oral threat that is not actually communicated to the President or his advisers violates Section 871 only if the speaker makes the threat with the intent to carry it out. Id. at 297-298. No other court of appeals has followed Patillo in the two decades since it was decided, and, as the citations above show, this Court has repeatedly declined to review the decisions of other court of appeals that have reached a contrary conlcusion. /4/ There is no reason for a different disposition of this case, which in any event arises under a different clause of Section 871(a) than that involved in Patillo. See not 2, supra. Review would be especially unwarranted here because the jury was instructed that petitioner violated Sections 871(a) and 876 only if he meant the words in the letter to constitute a "true" and "serious" threat, as distinguished from political argument, careless talk, or a joke. See page 6, supra. It therefore could not plausibily be argued in this case, as it has been in other cases arising under Section 871(a), that petitioner might have been convicted on the basis of political or careless statements that were not intended to be taken literally or seriously. Compare Watts v. United States, 394 U.S. 705, 706, 708 (1969), and Rogers v. United States, 422 U.S. at 44, 48 (Marshall, J., concurring). /5/ Moreover, whatever the merit of the Patillo analysis under Section 871(a), petitioner also was convicted (and received a concurrent sentence) under Section 876, the text of which lends no support whatever to his position. See page 4-5, supra. 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 ANDREW LEVCHUK Attorney MAY 1991 /1/ The court of appeals also rejected petitioner's factbound contentions that there was insufficient evidence of mailing and that the language of the letter did not constitute a threat against the district judge. Pet. App. 3. Petitioner does not challenge those holdings here. /2/ By contrast, in Watts v. United States, 394 U.S. 705 (1969); Rogers v. United States, 422 U.S. 35 (1975); and United States v. Patillo, 438 F.2d 13 (4th Cir. 1971) (en banc), discussed at pages 6 and 8-9, infra, the defendant allegedly made an oral threat against the President. Such threats are covered not by the clause of Section 871(a) at issue in this case, which prohibits the depositing of threatening letters in the mail, but by a succeeding clause, which applies to a person who "knowingly and wilfully otherwise makes any such threat against the President." That clause does require proof that the defendant made the threat. /3/ The majority in Rogers disposed of the case on other grounds and did not reach the question of what intent must be shown. 422 U.S. at 36-41. /4/ The difference between the view of the Fourth Circuit and that of other courts of appeals may not, in any event, be as substantial as petitioner suggests. In Patillo, the Fourth Circuit agreed that Section 871 "was designed to prevent a secondary evil other than actual assaults upon the President or incitement to assault the President, and that it is a legitimate area of congressional concern to prevent and make criminal disruption of presidential activity and movement that may result simply from an apparent threat upon the President's life." 438 F.2d at 15. And it further observed that a present intention to restrict the President's movements could be inferred "from the nature of the publication of the threat, i.e., whether the person making the threat might reasonably anticipate that it would be transmitted to law enforcement officers and others charged with the secuirty of the President." Id. at 16. Here, petitioner virtually ensured the transmission of his threats to law enforcement officers, because he sent the letter to a United States District Judge -- specifically, to the judge who had sentenced him on a prior conviction for threatening the President. In addition, the Fourth Circuit recently construed the comparable provision in 18 U.S.C. 115(a)(1)(B), which makes it a crime to threaten harm against a federal district judge, not to require an intention or present ability actually to carry out the threat. See United States v. Roberts, 915 F.2d 889, 890 (1990), cert. denied, 111 S. Ct. 1079 (1991). /5/ Because this case, unlike Watts, Rogers, and Patillo, involves a threat contained in a letter that was deliberately mailed to a federal judge (not an oral statement), there is particular assurance that petitioner intended the communication to be understood by persons in authority as a threat.