This post examines an opinion from the U.S. Court of Appeals for the Seventh Circuit: U.S. v. Dutcher,
2017 WL 1075048. The court begins the opinion by explaining that
[o]n June 30, 2015, Brian Dutcher
announced on Facebook that
he planned to assassinate President Obama. He then drove to La Crosse,
Wisconsin, where the President was scheduled to speak on July 2. Once in La
Crosse, Dutcher repeated his plan to several people: a security guard, the
police, the Secret Service, a nurse, a doctor, and (again) the police and
Secret Service together. No one was amused: Dutcher was charged with and convicted of two counts of
threatening the President in violation of 18 U.S. Code § 871(a). On
appeal, Dutcher complains about the sufficiency of the evidence and certain
instructions the district court gave to the jury. We find no error, and so we
affirm.
U.S. v. Dutcher,
supra.
The Court of Appeals began its analysis of the argument
Dutcher made on appeal by explaining that
[w]e evaluate a challenge to the
sufficiency of the evidence de novo, construing the evidence `in
the light most favorable to the government and ask[ing] whether any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ United States v. Love, 706 F.3d 832, 837 (7th
Cir. 2013). We also take a fresh look at the question whether a disputed jury
instruction fairly and accurately states the law; we will `reverse only if the
instructions, taken as a whole, misled the jury.’ United States v.
Lawrence, 788 F.3d 234, 245 (7th Cir. 2015).
President Obama was scheduled to give a
speech at the University of Wisconsin–La Crosse on Thursday, July 2, 2015. On
Tuesday, Dutcher posted this on his Facebook page: `thats [sic] it! Thursday
I will be in La Crosse. hopefully I will get a clear shot at the pretend
president. killing him is our CONSTITUTIONAL DUTY!’ Later posts reprised the
theme. In one, Dutcher added that `I have been praying on [sic] going to
D.C. for 3 months and now the usurper is coming HERE. . . . pray for me to
succeed in my mission.’ The next morning (Wednesday) Dutcher carried out the
first part of his plan—he drove the 45 miles from Tomah, where he lived, to La
Crosse.
Things went downhill from there.
Dutcher stopped by the La Crosse Public Library, where his acquaintance Travis
Good worked as a security guard. Dutcher greeted Good and told him `I'm here to
kill the President, the usurper, tomorrow at his speech.’ When Good replied
that such statements were illegal, Dutcher simply said `[w]atch me’ and walked
off. Good alerted his supervisor, who passed the word along to the police, who
dispatched two investigators. The investigators found Dutcher nearby in his van
and, after he confirmed his threat, they asked him to come to the station for
Secret Service questioning. Dutcher agreed, exhibiting a demeanor one of the
investigators would later recall as `mellow.’
U.S. v. Dutcher,
supra.
The court goes on to explain what happened next:
[t]he description was apt. During his
two-hour interview with the Secret Service, a remarkably candid Dutcher claimed
that it was his biblical and constitutional duty to assassinate the President,
boasted that he could kill a person with a slingshot (one was later found in
his van, though Dutcher had no other weapons), informed the agents that he had
also made threats on Facebook, and consented to a search of his account. After
the interview Dutcher was detained overnight at a hospital for a mental health
evaluation. See Wis. Stat. § 51.15. There he reiterated his violent
intentions to both a nurse and a doctor. And he was not done yet. Dutcher was
arrested the next day and repeated his threats during the ensuing interview.
Despite all this, he was found competent for pretrial release—a finding he does
not challenge on appeal.
U.S. v. Dutcher,
supra.
The Court of Appeals concluded this section of its opinion
by noting that
[b]ased on the initial Facebook post and the statement
to Good, a grand jury indicted Dutcher
on two counts of knowingly and willfully threatening the President in violation
of 18 U.S. Code § 871(a). After a two-day trial, the district court
instructed the jury, in relevant part, that it could find willfulness if the
government proved Dutcher `either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement
as a true threat but he made the statement anyway.’ The jury found Dutcher guilty of both counts, and the
district judge sentenced him to 36 months' imprisonment and three years of
supervised release.
U.S. v. Dutcher,
supra.
The court then took up the legal issue in the case,
explaining, initially, that
section 871(a) criminalizes
`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.’ The charged
statement must be a `true threat,’ which has been defined for First Amendment
purposes as `a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.’ Virginiav. Black, 538 U.S. 343, 359 (2003). In United States v. Fuller,
387 F.3d 643, 646 (7th Cir. 2004), we held that a `true threat’ for purposes
of section 871(a) is defined objectively. A communication, we wrote,
`is a true threat if 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.’ Id. (internal quotation marks
omitted). Addressing a different statute, 18 U.S. Code § 875(c), which
criminalized the transmission of any threat to kidnap or injure another, the
Supreme Court held that the speaker must know that his communication contains a
threat. Elonis v. United States, ––– U.S. ––––, 135 S.Ct. 2001,2009–11, 192 L.Ed.2d 1 (2015).
A true threat does not require that the
speaker intend to carry it out, or even that she have the capacity to do
so. Black, 538 U.S. at 360, 123 S.Ct. 1536 (First Amendment); United
States v. Parr, 545 F.3d 491, 498 (7th Cir. 2008) (18 U.S.C. § 2332a,
prohibiting a threat to use a weapon of mass destruction against a federal
government building). The prohibition against threats protects against the fear
they engender as well as the risk that they may be carried out. Black,
538 U.S. at 360, 123 S.Ct. 1536. Still, the scope of a true threat is
ultimately quite circumscribed. Section 871(a) does not criminalize
offensive jokes or political hyperbole—bad taste, in other words, is not a
crime. Watts v. United States, 394 U.S. 705, 707–08, 89 S.Ct. 1399,22 L.Ed.2d 664 (1969); Fuller, 387 F.3d at 647.
U.S. v. Dutcher,
supra.
The Court of Appeals then began its analysis of the issues and
arguments in this case, explaining, initially, that
Dutcher insists that he was obviously
unable to carry out his threats, and so they could have been nothing more than
overheated rhetoric. He was certainly not trying to hide anything, and it is
also undisputed that he had no ticket to the President's speech and was armed
only with a slingshot (albeit a high-powered Wrist Rocket). But the
significance of these facts was for the jury, not appellate review. More
broadly, Dutcher is missing the point. He was charged with threatening the
President under § 871(a), not with the separate crime of attempting to
assassinate him under 18 U.S. Code. § 1751. His lack of capacity is relevant
only insofar as it suggests that his threats were not genuine. Dutcher's
emphasis on his chance of success also overlooks the fact that § 871(a) permits
conviction for threats to `inflict bodily harm upon the President.’ Dutcher
told investigators that he used his slingshot to hunt small animals, and
(actually comparing himself to David) that he could kill a man with it. The
jury was entitled, based on this evidence, to find that Dutcher was capable of
injuring the President with his slingshot, and it could have convicted him on
that basis.
Dutcher also suggests that no one took
his statements seriously, and that this indicates that he did not intend them
to be true threats. Security camera footage of Good's unruffled response to
Dutcher's remarks supports this view—Good remains calm throughout the
interaction and even wraps up a bit of computer work before heading off to
report the incident. Yet the operative word in that sentence is `report.’ Calm
or otherwise, Good took Dutcher seriously enough that he reported him around 30
seconds after their interaction. Moreover, his description was evidently
alarming enough to cause his supervisor to contact the police. A reasonable
juror could conclude Dutcher knowingly and willfully made a true threat.
Dutcher's contention that his Facebook
post was not taken seriously since nobody who saw it informed the police (in
fact, he got two `likes’) also falls short of undermining the jury's
conclusion. Granted, his case is a bit different from Elonis, the
Supreme Court's most recent word on true threats. Elonis's Facebook posts
frightened their targets enough to prompt them to contact the
authorities. Elonis, 135 S.Ct. at 2005–06. Nothing in Elonis,
however, excludes the possibility of an unreported true threat. Other evidence
indicates that some of Dutcher's readers took him seriously. Gregory Remen, for
one, responded to the charged post by encouraging Dutcher to `[t]ry voting’ and
asked `how will killing the pres change anything then? ?’ The apprehensive
response to Dutcher's follow-up posts underscores the point—one reader urged
him to `Stay calm my friend. Please!’ The jury was entitled to rely on these
responses, along with Dutcher's later behavior, to find that the threats were
genuine.
U.S. v. Dutcher, supra
(emphasis in the original).
Since Dutcher was tried by a jury, the Court of Appeals went
on to examine the instructions that were given to the jury, noting, initially,
that the
jury instructions said that Dutcher
acted `willfully’ if he `either actually intended his statement to be a true
threat, or that he knew that other people reasonably would view his statement
as a true threat but he made the statement anyway.’ Dutcher reads the latter
clause to allow the jury to find willfulness so long as he made a statement `that
other people reasonably would view . . . as a true threat’—that is, if it found
only objective willfulness, without the subjective willfulness required by the
statute under consideration in Elonis. But this argument overlooks
the fact that the language he highlights was prefaced with the words `that he
knew.’ The instructions did not permit the jury to find willful behavior simply
because a listener `reasonably would view’ Dutcher's statement as a threat.
Instead, it had to find that he made the statement despite knowing,
subjectively, that the listener would see it that way. This is consistent
with Elonis.
The worst we can say about the
instruction is that the court might have given Dutcher an unwarranted break
when it used the term `reasonably.’ As worded, the instruction indicated that
Dutcher not only had to know that his listener would take his statement as a
true threat, but also that the listener's understanding was reasonable.
Consequently, if Dutcher knew that a hypersensitive listener would unreasonably
see his statement as a threat, there could be no willfulness. In any event, we
review jury instructions as a whole; so long as `the instructions treat the
issues fairly and accurately, they will not be disturbed upon appeal.’ United
States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007) (citation omitted).
Dutcher's defense at trial was that his statements were political hyperbole,
not credible threats. The instructions fully conveyed that point to the jury.
Elsewhere, in language Dutcher does not challenge, they defined a `true threat’
as `a serious expression of an intent to commit an act of unlawful violence,’
and they distinguished such statements from `[i]dle or careless talk, political
hyperbole or something said in a careless or joking manner. . . .’ This was
more than enough to present Dutcher's theory of defense to the jury.
U.S. v. Dutcher,
supra.
The court went on to explain that
Dutcher urges in the alternate
that § 871(a)'s mens rea of `knowingly and willfully’
requires a defendant to know that her conduct is illegal. There is force to the
argument that when a statute uses both terms, it is asking for
something more than either term would require on its own. Thus, in United
States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996), aff'd on other
grounds, 522 U.S. 23, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997), we read
the same phrase in a student loan fraud statute to require proof of a
defendant's knowledge that her intentional conduct was unlawful. See also United
States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008) (expressing
sympathy for the argument in dicta).
This type of heightened proof
requirement, however, is typically limited to a narrow group of `highly
technical [criminal] statutes that present [ ] the danger of ensnaring
individuals engaged in apparently innocent conduct.’ Bryan v. United
States, 524 U.S. 184, 194 (1998) (citing taxes and financial transactions
as examples). Bates, which concerned the arcana of federal student
loans, falls in that category. A statute prohibiting serious threats to the
President does not. Elonis itself highlights the distinction.
It expressly rejected the notion that the threat statute there, 18 U.S.
Code § 875(c), required the government to show that the defendant knew that his
conduct was illegal. Elonis, 135 S.Ct. at 2009. Instead, the Court
followed `[t]he familiar maxim ‘ignorance of the law is no excuse’. . . .’ Id. The
same approach is proper here. The President's safety does not turn on a
defendant's familiarity with the United States Code.
U.S. v. Dutcher,
supra.
The Court of Appeals ended its opinion with the following:
The evidence before the jury was
sufficient to support both of Dutcher's convictions, and the jury instructions
fairly presented the relevant issues. We therefore AFFIRM the judgment of the
district court.
U.S. v. Dutcher,
supra.
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