United States v. Ogren , 54 M.J. 481 ( 2001 )

UNITED STATES, Appellee
V.
Robert B. OGREN, Seaman Recruit
U.S. Navy, Appellant
No. 00-0169
Crim. App. No. 99-0041
United States Court of Appeals for the Armed Forces
Argued October 11, 2000
Decided May 2, 2001
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ.,
joined.
Counsel
For Appellant: Major Charles C. Hale, USMC (argued);
Lieutenant Commander L. J. Lofton, JAGC, USN (on brief).
For Appellee: Lieutenant Deborah Sue Mayer, JAGC, USNR
(argued); Colonel Kevin M. Sandkuhler, USMC, Commander
Eugene E. Irvin, JAGC, USN, and Lieutenant Kevin S.
Rosenberg, JAGC, USNR (on brief).
Military Judge: Peter. J. Straub
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Ogren, No. 00-0169/NA
Judge BAKER delivered the opinion of the Court.
A general court-martial composed of a military judge
sitting alone convicted appellant, pursuant to mixed pleas,
of disrespectful language (3 specifications), disobeying a
petty officer, damaging military property, assault and
battery, and communication of a threat (2 specifications),
in violation of Articles 91, 108, 128, and 134, Uniform
Code of Military Justice, 10 USC §§ 891, 908, 928, and 934,
respectively. One specification of communicating a threat
involved a violation of 18 USC § 871, “Threats against
President[.]” Appellant was sentenced to a dishonorable
discharge, confinement for 12 months, and partial
forfeitures. The convening authority approved these
results, and the Court of Criminal Appeals affirmed.
52 M.J. 528 (1999).
On appellant’s petition, we granted review of the
following issue:
WHETHER THE LOWER COURT ERRED IN FINDING APPELLANT’S
CONVICTION OF THREATENING THE PRESIDENT OF THE UNITED
STATES LEGALLY AND FACTUALLY SUFFICIENT AS THERE WAS
NO EVIDENCE OF A “TRUE THREAT.”
Although this Court has addressed the question of
threats, see, e.g., United States v. Phillips, 42 M.J. 127
(1995), this is a case of first impression involving the
interpretation of 18 USC § 871. After adopting the so-
2
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called objective test in our analysis of the willfulness of
the threat and viewing the evidence in the light most
favorable to the prosecution, we conclude that a rational
trier of fact could have reasonably found beyond a
reasonable doubt that appellant knowingly and willfully
uttered a true threat in violation of § 871. We affirm.
I. Facts
The events at issue occurred on July 21 and 22, 1998,
26 and 27 days after appellant was placed in pretrial
confinement awaiting general court-martial on unrelated
charges.
On two separate occasions on July 21, appellant made
statements involving the President. Appellant first told
Petty Officer Lyell: “**** off. And **** the rest of the
staff. **** Admiral Green. Hell, **** the President, too.
. . . [As] a matter of fact, if I could get out of here
right now, I would get a gun and kill that bastard.” Petty
Officer Lyell understood that this latter reference was to
the President of the United States. Appellant did not
indicate that he had a plan or scheme to get a gun and kill
3
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the President. However, Petty officer Lyell took the
statement seriously.1
Appellant’s second statement was to Operations
Specialist Second Class Marnati, recounted by Marnati at
trial as follows:
OSI Marnati: [I asked appellant] why he was beating
on his cell and what’s he yelling for. . . . He told
me, “I can’t wait to get out of here, Man.” I said,
“Why?” He said, “Because I’m going to find the
President, and I’m going to shove a gun up his ***,
and I’m going to blow his ******* brains out.”. . .I
asked him which President he was talking about. . . .
He said, “Clinton, Man. I’m going to find Clinton and
blow his ******* brains out” or similar to that.
Appellant’s statements surprised Marnati.2 He had never
heard anyone threaten the President before.3 Lyell and
Marnati recorded appellant’s statements in the log and
telephoned the Secret Service. There is no indication in
the record that either statement was made for political,
religious, or moral reasons.
The Secret Service responds whenever it receives a
report that someone has threatened the President. On July
22, Special Agent Cohen interviewed appellant. Asked to
1
At trial, Lyell stated: “[T]hat’s a little bit more serious of
anything else that he had done. . . . I took him serious enough, yes.”
2
Marnati testified he was surprised “[n]ot so much [by] the way he said
it; it’s just the fact he actually said it and what he was going to
do.”
3
The record is ambiguous as to whether appellant told one staff member
that he wanted to use a knife to kill the President and another staff
member that he wanted to use a gun to kill the President.
4
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describe what he had said, appellant repeated his
statements with words similar to those described above.
Special Agent Cohen testified: “[H]e did admit to making a
threat -- but he didn’t say again that he would do it, no.”
Significantly, when appellant was asked whether he owned
guns, he responded: “No, but I can get them.” Appellant
also asked Special Agent Cohen “if his other than honorable
discharge would affect his ability to get weapons . . . for
hunting.” At the same time, appellant told the Secret
Service that he was blowing off steam and was expressing
displeasure at his incarceration. In response to a query
by Special Agent Cohen, appellant drafted a sworn statement
of apology to the President.
The record reflects that appellant was a “problem
confinee” with a mixed record. At times, he was respectful
and followed orders. However, he was always making
comments to the staff and other confinees. He would holler
at them from his cell. He would constantly indicate he did
not want to be in the pretrial confinement facility. There
were a couple of times appellant caused problems and was
placed in segregation. However, after his Secret Service
interview, appellant “pretty much quieted down and started
actually becoming a little bit more cooperative and
5
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adherent to rules and regulations.” Appellant did not
subsequently threaten the President.
II. Discussion
Section 871(a) of Title 184 was enacted in 1917 against
a backdrop of three presidential assassinations.5 The
statute is intended to prevent and deter individuals from
attacking the President or inciting others to do so.6 The
statute is also intended to prevent disruptions in the
ability of the President to undertake his responsibilities
caused by confining his activities and movement, including
those activities of a public nature. Rogers v. United
States, 422 U.S. 35, 47 (1975)(Marshall, J., concurring);
4
Section 871(a) provides:
Whoever knowingly and willfully deposits for conveyance in the
mail or for a delivery from any post office of 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, the
President-elect, the Vice President or other officer next in the
order of succession to the office of President of the United
States, or the Vice President-elect, or knowing and willfully
otherwise makes any such threat against the President, President-
elect, Vice President, or Vice President-elect, shall be fined
under this title or imprisoned not more than five years, or both.
As originally enacted, the statute applied only to the President of the
United States.
5
President Lincoln (1865), President Garfield (1881), and President
McKinley (1901). Those purposes remain as valid and needful today as
they were in 1917. Since 1917, there has been one presidential
assassination and at least six attempts to kill the President or
President-elect.
6
See 53 Cong. Rec. 9377-9378 (1916).
6
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Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969);
United States v. Hoffman, 806 F.2d 703, 706 (7th Cir.
1986); see also H.R. Rep. No. 652, 64th Cong., 1st Sess. (May
8, 1916) (“It is the first and highest duty of a Government
to protect its governmental agencies, in the performance of
their public services, from threats of violence which would
tend to coerce them or restrain them in the performance of
their duties.”). Finally, the legislative history
indicates that Congress considered threats against the
President to be of such significance as to warrant a
statutory prohibition different from the statutes
applicable to other officials.7
However, Congress was also mindful of the statute’s
potential to reach protected First Amendment speech and
intended to establish more than a technical offense. As
the Floor Manager for the bill stated:
I think it must be a willful intent to do serious
injury to the President. If you make it a mere
technical offense, you do not give him much of a
chance when he comes to answer before a court and
7
The statement of Representative Mann illustrates these points:
“Assaulting the President of the United States is quite a different
matter from assaulting some private individual. . . .[I]n this bill you
are differentiating the office of President, and the man who fills the
office, from any other citizen of the United States, as ought to be
done.” Representative Webb went further, suggesting that one purpose
of the bill was to protect the President from the “annoyance” of
threatening mail and not only to protect his life. 53 Cong. Rec. 9377.
7
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jury. I do not think we ought to be too anxious to
convict a man who does a thing thoughtlessly.
53 Cong. Rec. 9378.
With this legislative history in mind, courts have
required the Government to prove two elements beyond a
reasonable doubt to convict pursuant to § 871(a). First,
the threat rendered must be a “true” threat. Second, the
threat must be knowing and willful.
A. True Threat
Section 871(a) must be read consistent with the
dictates of the First Amendment.8 Justice Douglas has
observed that criticism of the President and Congress is an
American birthright: “Suppression of speech as an effective
police measure is an old, old device, outlawed by our
Constitution.” Watts v. United States, 394 U.S. 705, 712
(1969) (concurring). Therefore, only “true” threats have
been found to satisfy the statute’s threshold of criminal
conduct; a true threat is not protected First Amendment
8
The First Amendment provides that “Congress shall make no law...
abridging the freedom of speech[.]”
8
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speech.9 United States v. Howell, 719 F.2d 1258, 1260 (5th
Cir. 1984); United States v. Carrier, 672 F.2d 300, 303,
306 (2d Cir. 1982). In addition to political hyperbole,
“true” threats also may not include jests or innocuous
remarks. Watts, 394 U.S. at 707-08.
In Watts, the Supreme Court found § 871(a)
constitutional on its face, but reversed Watts’s conviction
because: (1) the “context"; (2) "the expressly conditional
nature of the statement"; and (3) "the reaction of the
listeners" indicated Watts’s words did not amount to a true
threat but, rather, a “kind of very crude offensive method
of stating a political opposition to the President.” Id.
Applying this three-part language, courts have struggled
with the concept of what constitutes a “true threat.”
In Howell, a patient in a state hospital made
threatening remarks against the President. The FBI was
notified by the hospital, and an agent visited Howell.
Howell proceeded to tell the agent “that he had a .357
caliber pistol and that there were two people he wanted to
9
Justice Holmes’s analogy to shouting “Fire!” in a crowded theater is,
perhaps, the most famous expression of the limitations of the First
Amendment; however, its illustrative instruction only goes so far, as
it is an example free of political content. See generally H. Kalven,
A Worthy Tradition (1988), for discussion of the Court’s First
Amendment jurisprudence and what Kalven describes as “the basic problem
of finding an accommodation between speech too close to action and
censorship too close to criticism.” Id. at 156.
9
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kill—one of them was the President.” Howell was advised of
his constitutional rights and stated: “If released, I would
make my way to Washington and kill him—I will kill the
President.” The FBI agent asked Howell to write down his
statements, and Howell said he wanted a lawyer. The next
day, Howell handed a hospital social worker an envelope for
the FBI agent containing a letter detailing his threats
against the President. 719 F.2d at 1260. The Howell court
found Howell’s threats to be “true” threats, and that,
“[f]ar from attempting to influence others, Howell was
merely stating his own unambiguous and apparently quite
serious intention to take the life of the President.” Id.
at 1260-61.
In United States v. Miller, 115 F.3d 361 (6th Cir.
1997), a prisoner claimed that “a rational person” would
not believe that a letter he wrote to the President
“published a ‘true threat’ to kill or injure the President
or the Vice President because he was incarcerated in a
penal institution at the pertinent time and because the
letter’s content evinced a delusional originator.” Id. at
363.
In deciding that the lower court properly submitted
the “true threat” issue to the jury, the Miller court
found:
10
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The writing menacingly suggested its author’s
motives for inflicting injury upon the President
and the Vice President, pointedly asserted that
his claimed associates outside the prison would
carry out the threatened assassinations, and
confidently proclaimed his perceived immunity
from prosecution by virtue of his incarceration
alibi. The manifest instability and
irrationality of the perpetrator of these menaces
did not objectively diminish the letter’s
credibility but instead predictably heightened
apprehension by its recipients that the author
could be sufficiently imbalanced to seek the
realization of his proclamations.
Id. at 364.
In United States v. Frederickson, 601 F.2d 1358 (8th
Cir. 1979), the court distinguished between statements that
formed the basis of three counts alleging threats against
the President.10 The Frederickson court found that the
statement, “I will have to kill him,” referring to the
President, was properly submitted to the jury for a
determination whether it was a true threat because it was
made seriously and without provocation. On the other hand,
10
Frederickson was arrested for trespass in Iowa. While in custody, he
told the police that he was from California and was on his way to
Washington to sue the President. He then made these three additional
statements to the police for which he was prosecuted: “Sue him? I
probably wouldn’t get any money anyway. I will have to kill him.”
(Count I); “Well, as soon as my toys get here I will eliminate all the
pigs from the President on down.” (Count II); “You know, I have an M-
79 [grenade launcher]. I am going to blow them all up. I start with
the President and go down.” (Count III). 601 F.2d at 1361-62. The
court reversed on Count II and affirmed Frederickson’s convictions on
Counts I and III.
11
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statements that he would blow up “pigs” starting with the
President and going down, made while upset about his
arrest, were distinguished from the same statements made
when he was “outwardly calm” and he
volunteered a scheme of assassination utilizing a
specific weapon and commencing with a particular
individual, the President, who could be found in
the place that was Frederickson’s announced
destination, Washington, D.C.
Id. at 1364. The former were found not to have been
properly submitted to the jury to decide the “true threat”
issue. The latter were found to have been properly
submitted.
B. Willful
The statute also requires that a threat be knowing and
willful. A threat is knowingly made if the speaker
comprehends the meaning of the words uttered by him.
Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918).
However, federal circuits are divided as to whether the
test for willful conduct is objective or subjective, that
is, whether the statement must reflect an apparent intent
to threaten or an actual intent.
1. The Objective Test
A majority of circuits apply an objective test:
United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997);
United States v. Johnson, 14 F.3d 766 (2d Cir. 1994);
12
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Rogers v. United States, 422 U.S. 35; United States v.
Miller, 115 F.3d 361; United States v. Hoffman, 806 F.2d
703; Roy v. United States, 416 F.2d 874; Watts v. United
States, 394 U.S. 705. The objective test requires “only
that the defendant intentionally make a statement, written
or oral, 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.”11 Roy, supra at 877; see also Rogers, supra at
43-44 (Marshall, J., concurring) (“a showing merely that a
reasonable man...would have foreseen that the statements he
made would be understood as indicating a serious intention
to commit the act”). In other words, the willfulness of
the statement is measured by the reasonably foreseeable
consequences of the words uttered. Courts have upheld
convictions where the declarant pleaded impossibility
(United States v. Howell, 719 F.2d 1258) or diminished
capacity (United States v. Johnson, supra), or could not
have acted upon the threat due to incarceration (Miller).
11
In Roy, the Ninth Circuit appears to have considered both
perspectives. 416 F.2d at 877-78.
13
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This court has not had occasion to evaluate the
application of 18 USC § 871 as assimilated through Article
134. In addressing the application of Article 134, this
Court has applied an objective test for willfulness (“The
intent which establishes the offense is that expressed in
the language of the declaration, not the intent locked in
the mind of the declarant.” United States v. Greig, 44 M.J.
356, 357 (1996) (citing United States v. Humphrys, 7 USCMA
306, 307, 22 CMR 96 (1956)). The offense is complete “when
an ‘avowed determination to injure another is announced’”
(Humphrys, supra, citing United States v. Holiday, 4 USCMA
454, 458, 16 CMR 28 (1954)), provided that the language
communicated and all the surrounding circumstances would
lead a reasonable person in the recipient’s place to
perceive a threat. Phillips, 42 M.J. at 129.
2. The Subjective Test
At least one circuit has adopted a subjective test,
holding that a “threat can form a basis for conviction
under the terms of Section 871(a) only if made with a
present intention to do injury to the President....There is
no danger to the President’s safety from one who utters a
threat and has no intent to actually do what he
14
United States v. Ogren, No. 00-0169/NA
threatens.”12 United States v. Patillo, 431 F.2d 293, 297-
98 (4th Cir. 1970). In Frederickson, the Eighth Circuit
applied the subjective test as “the law of this case,”
without necessarily adopting that standard as the law of
the circuit. 601 F.2d at 1363.
3. The Supreme Court
In Watts, the Supreme Court did not reach this element
of the offense and resolve the split between circuits,
finding instead that the threat uttered by Watts13 was not a
true threat. However, the Court expressed “grave doubts
about” an objective test of willfulness based on “an
apparent determination to carry...[a threat] into
execution.” 394 U.S. at 707-08.
In Rogers, the Court again declined to resolve the
split between circuits as to the proper test for
willfulness, ruling on grounds unrelated to the
interpretation of the statute. However, Justice Marshall
12
The court went on to note an exception to its analysis where
“inflammatory statements are made in a ‘full context’ evidencing on the
part of the speaker a reckless disregard for the strong likelihood that
his listeners would be incited to do harm to the President.” 431 F.2d
at 298.
13
During a public rally on the Washington Monument grounds, Watts
engaged in a discussion with a number of the participants. In response
to a statement that he get more education before expressing a view on
the Vietnam War and the draft, Watts responded: “They always holler at
us to get an education. And now I have already received my draft
classification as 1-A and I have got to report for my physical this
Monday coming. I am not going. If they ever make me carry a rifle the
first man I want to get in my sights is L.B.J.” 394 U.S. at 706.
15
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argued that at a minimum, the willful arm of § 871(a)
should require “that the defendant appreciated the
threatening nature of his statement and intended at least
to convey the impression that the threat was a serious
one.” 422 U.S. at 46 (concurring). Consistent with the
Rogers perspective, a majority of courts have concluded
that whether measured by subjective or objective intent,
the defendant need not have intended to carry out the
threat, but only to have made a threat.14 See, e.g., United
States v. Hoffman, 806 F.2d 703.
III. Conclusion
Like other federal courts, we apply the Watts language
for determining a true threat. We also agree with the
majority of federal circuits and adopt the objective
standard for determining whether the communication was
willful. We do so based on the plain language of the
statute, its legislative history, and our review of federal
case law, which is particularly relevant to this court in
interpreting Title 18. The objective test more closely
tracks Congress’s intent in passing § 871 than the
subjective test. Although the protection of the
President’s life is the paramount concern of the statute,
14
See the comments of Rep. Webb and Volstead. 53 Cong. Rec. 9377-79.
16
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the statute is also intended to protect against the harm
associated with the threat itself. 422 U.S. at 47. This
harm may occur at the moment a threat issues, e.g., with a
change in schedule or the dispatch of investigators. Thus,
even if the recipient’s response to a threat is
subsequently found to be unreasonable, one of the harms
Congress sought to avoid will have already occurred.15
In contrast, the subjective test, which seeks to find
the declarant’s actual intent, imposes too high a threshold
to accomplish the purposes for which § 871 was enacted.
While application of a subjective test might deter actual
assaults on the President, it might not deter a
subjectively neutral declarant from inciting others to
action, or from disrupting the President’s activities where
the Secret Service does not have the luxury of knowing
actual intent. For these reasons, § 871(a) does not
require that the trier of fact, or the Secret Service, look
into the mind of the declarant to determine actual intent.
15
Because 18 USC § 871 can be violated by persons not subject to the
UCMJ, our ultimate conclusion as to the sufficiency of the evidence in
this case is not based on the President’s special status as Commander
in Chief or appellant’s status as a member of the armed forces. Our
decision to adopt an objective standard for willfulness, however, is
consistent with the maintenance of good order and discipline in the
armed forces and serves to promote the proper relationship between the
military force and its Commander in Chief. Nor do we rely on United
States v. Stickrath, 242 F. 151 (S.D. Ohio 1917), cited by the lower
court, which offers the Government too pliant a description of the
objective test.
17
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In adopting the objective standard, we are cognizant
of the Supreme Court’s “grave concern” with an “apparent”
rather than actual intent test, as well as the Court’s
corresponding admonition that “we must interpret the
language Congress chose against the background of a
profound national commitment to the principle that debate
on public issues should be uninhibited, robust and wide-
open[.]” 394 U.S. at 708. Congress did not intend to
create a technical offense. For these reasons, application
of 18 USC § 871(a) necessarily encompasses a careful
application of law to facts. This is particularly so given
the importance of distinguishing between a true threat and
protected speech. There is little margin for legal error
where the First Amendment and the safety of the President
are at stake; what comes out of mouths may have grave
consequences for both.
In the case at bar, our duty is to determine whether
“viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Applying that standard to this case, we conclude that a
rational trier of fact could have found that appellant
18
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threatened the life of the President, in violation of 18
USC § 871(a).
First, appellant’s threats were “true” threats. They
were not conditional on the occurrence of an event, such as
induction in the armed forces.16 Moreover, the specific
context and the reaction of the listeners in that context
set these words apart. This is evidenced by the testimony
of Petty Officers Lyell and Marnati. In a context where
appellant frequently hollered from his cell, they took
these threats seriously. They distinguished these words
from appellant’s other words. They logged them in and then
they called the Secret Service.
This specific context and the reaction of the
listeners are also directly relevant to the second
necessary conclusion -- appellant’s threats were knowing
and willful. Appellant should have reasonably foreseen
that his threats would be understood to be more than a
crude method of responding to confinement. Pivotal here
16
In Watts, the Court found that Watts’s threat was conditioned on his
induction into the armed forces: “If they ever make me carry a rifle
the first man I want to get in my sights is L.B.J.” 394 U.S. at 706.
As discussed above, courts have not found release from incarceration or
a mental health facility to be conditional from the perspective of
Watts. See, e.g., United States v. Howell, 719 F.2d 1258 (defendant in
state hospital at time of threat); United States v. Miller, 115 F.3d
361 (defendant in state penitentiary). Similarly, appellant's limited
period of confinement did not make his threat conditional under Watts.
19
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are appellant’s responses to Special Agent Cohen. If we
accept arguendo that there is doubt whether appellant
should have reasonably foreseen that his statements to
Petty Officers Lyell and Marnati were threats on July 21
(given his track record of verbal insult), this doubt does
not carry over to July 22. On July 22, with the benefit of
a night to reflect and aware that his words had resulted in
a Secret Service interview, appellant did not disavow his
threat made the previous day. When asked, he repeated what
he had told Petty Officers Lyell and Marnati. But
appellant went further. Critically, he told Special Agent
Cohen that he could get weapons if he wanted, and he asked
whether his other than honorable discharge would preclude
him from getting weapons. In this sense, the case
parallels Howell, where the defendant was given a night to
reflect and still provided his threatening remarks in
writing the next morning.
The law makes clear that neither Petty Officers Lyell
and Marnati, nor Special Agent Cohen, were required, nor
could they be expected, to divine appellant’s actual and
subjective interest in procuring weapons when released from
confinement. Appellant had said enough to trigger the
policy interests and prohibitions of § 871(a).
20
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Appellant’s threats may have been made in anger and
frustration at being incarcerated, but that does not excuse
their threatening content. In some cases, it may make the
threat more credible, as noted by the Miller court. Nor
were appellant’s words uttered in a political context,
intertwined with the substance of political protest or
criticism, or an effort at sharing ideas.17
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
17
To paraphrase Judge Learned Hand in United States v. Dennis, 183 F.2d
201 (2d Cir. 1950), having not brought himself within the zone of
protected speech, we need not decide how far outside that zone
appellant has landed.
21