United States v. 2005-04-07 | 04-30040 | USA VLINCOLN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-30040
Plaintiff-Appellee, D.C. No.
v.  CR-02-00208-RE
JONATHAN JOSEPH LINCOLN, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Oregon
James A. Redden, District Judge, Presiding
Argued and Submitted
December 6, 2004—Portland, Oregon
Filed April 8, 2005
Before: Thomas G. Nelson, Johnnie B. Rawlinson,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Rawlinson
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
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COUNSEL
Michael R. Levine, Portland, Oregon, for defendant-appellant
Jonathan Joseph Lincoln.
Frank Noonan, Assistant United States Attorney, Portland,
Oregon, for plaintiff-appellee United States of America.
OPINION
RAWLINSON, Circuit Judge:
Jonathan Joseph Lincoln (Lincoln) was convicted of know-
ingly and willfully threatening the life of the President of the
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United States in violation of 18 U.S.C. § 871. The charge
arose from statements made in a letter dated September 24,
2001 that Lincoln attempted to mail while incarcerated at the
Oregon State Penitentiary. The district court acknowledged
that the letter itself was not a “true threat,” but determined
that a true threat blossomed from the “context” in which the
statements were made. Because we conclude that the contex-
tual background did not transform Lincoln’s letter into a
threat, we reverse Lincoln’s conviction.
I.
BACKGROUND
During his incarceration, Lincoln participated in anger
management classes. The classes included a requirement that
Lincoln write in a workbook. In March of 2001, prison offi-
cials contacted Special Agent Ronald Wampole and informed
him that Lincoln had written statements in the workbook that
threatened the life of President Bush.1 Approximately a month
later, on April 4, 2001, Agent Wampole interviewed Lincoln
at the prison.
Agent Wampole testified that the purpose of the interview
was to assess the degree of threat Lincoln posed to the Presi-
dent. The interview took place in an attorney-client room
within the prison. Lincoln was not compelled to remain in the
room, although he could not leave unless he summoned a
1On page 2 of the workbook, Lincoln wrote: “1. Kill people; 2. Kill
Bush; 3. Kill Bush wife; 4. Kill the FBI.” On page 4, Lincoln wrote:
“Something [sic] you have fun when you kill the President like Bush or
Bill Cliton [sic] or his wife.” On page 5, Lincoln wrote: “Kill Bush, Kill
Bush, Kill Bush” and “President shread [sic] his body up into little pieces
Kill his wife famialy [sic].” On page 9, Lincoln wrote that he is going to
shoot the President with a 30-06 rifle that would put a hole in the President
3-1/2 inches wide. Lincoln was not prosecuted for the statements made in
the workbook.
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guard to let him out. Lincoln was not advised of his Miranda
rights.
Agent Wampole related that Lincoln was cooperative and
spoke freely, explaining to Agent Wampole exactly what he
had done, why he had done it, and what he was planning. Lin-
coln stated that when he got out of prison, he was planning
to get a group of people together from Seattle to travel to
Washington, D.C., stake out the White House and shoot the
President through an open limousine window. Agent Wam-
pole recalled Lincoln stating that he did not really mean the
threats, although, on cross-examination, Agent Wampole tes-
tified to the contrary. Agent Wampole presented these state-
ments to the United States Attorney for possible prosecution,
but no charges were brought.
About six months later, on September 24, 2001, Lincoln
attempted to mail a letter to President Bush. The letter read:
President Goerge [sic] W Bush
you think cause [sic] you go over There and Blow
Them up that The killing will Stop in you [sic]
Dream They got over 275,800 or more since, Never
mind that this is only the Beging [sic] of the Badass
war To come Just think Their army is over here
already hiding They have more Posion gas Then
[sic] you know. ha ha. Too bad you don’t think Like
Them. You will see a good Job Done agin [sic] may
[sic] 2 week’s, [sic] maybe 2 months, 3, who know’s
[sic]. You Will Die too George W Bush real Soon
They Promissed [sic] That you would Long Live
BIN LADEN.
Prison officials forwarded the letter to Agent Wampole.
Agent Wampole in turn transmitted a report to the United
States Attorney. Lincoln was subsequently indicted for one
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count of willfully and knowingly threatening the life of the
President in violation of 18 U.S.C. § 871.2
After a one-day bench trial, the district court issued an
order and opinion finding the defendant guilty of threatening
the life of President George W. Bush, by depositing in the
mail the September 24th letter containing such a threat, in
violation of 18 U.S.C. § 871. During trial, Lincoln sought to
suppress the workbook writings and his statements to Agent
Wampole. He also moved for an acquittal. The district court
ruled that the statements in the workbook fell into the “dan-
gerous patient” exception to the patient-psychotherapist privi-
lege and could be considered as part of the context for
Lincoln’s letter. The district court denied Lincoln’s motion to
suppress the statements made to Agent Wampole because
they constituted a “new crime.” Finally, the court determined
that the letter, when considered in the context of the threats
made in the workbook and the statements to Agent Wampole,
constituted a “true threat.”
Before Lincoln was sentenced, we decided United States v.
Chase, 340 F.3d 978, 979 (9th Cir. 2003) (en banc), holding
that there is no “dangerous patient” exception to the patient-
psychotherapist privilege. As a result, Lincoln renewed his
motion to suppress the workbook statements. The court
granted the motion, concluding that Chase mandated a finding
that the workbook statements were privileged. However, the
court re-affirmed Lincoln’s conviction on the basis that Lin-
coln’s statements to Agent Wampole provided adequate con-
2This section states, in part:
“Whoever knowingly and willfully deposits for conveyance in
the mail or for a delivery from any post office or by any letter
carrier any letter . . . containing any threat to take the life of, . . .
or to inflict bodily harm upon the President of the United States
. . . shall be fined under this title or imprisoned not more than five
years, or both.”
18 U.S.C. § 871(a).
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text to support a conclusion that the letter was a true threat.
Lincoln appealed, claiming that the district court erred in
denying his Rule 29 motion seeking acquittal for lack of suffi-
cient evidence.
II.
STANDARDS OF REVIEW
“The district court’s denial of a motion for a judgment of
acquittal is reviewed de novo.” United States v. Rojas-Flores,
384 F.3d 775, 778 (9th Cir. 2004) (citation omitted).
“[V]iewing the evidence in the light most favorable to the
government, we must determine whether any rational trier of
fact could have found, beyond a reasonable doubt, the requi-
site elements of the offense charged.” United States v. Pear-
son, 391 F.3d 1072, 1075 (9th Cir. 2004) (citation omitted).
In speech cases, we “defer[ ] to the [factfinder’s] findings
on all but the constitutional facts.” United States v. Hanna,
293 F.3d 1080, 1088 (9th Cir. 2002). “Constitutional facts are
facts-such as . . . whether a statement is a true threat-that
determine the core issue of whether the challenged speech is
protected by the First Amendment.” Id.
III.
DISCUSSION
[1] In Watts v. United States, 394 U.S. 705 (1969), the
Supreme Court stated that because 18 U.S.C. § 871 makes
criminal certain forms of pure speech, “[w]hat is a threat must
be distinguished from what is constitutionally protected
speech.” Id. at 707. Thus, “the statute initially requires the
Government to prove a true ‘threat.’ ” Id. at 708. We have
defined a true threat under § 871 as:
a statement, written or oral, [made] in a context or
under such circumstances wherein a reasonable per-
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son would foresee that the statement would be inter-
preted 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.
Hanna, 293 F.3d at 1084 (citation and alteration omitted).
A. The letter itself is not a true threat
[2] The district court acknowledged that the letter, standing
alone, could not support a conviction under § 871. As the dis-
trict court stated:
Defendant’s letter states that President Bush will die
soon because an unidentified “they” promised he
would. The “they” appears from the context of the
letter to refer to Bin Laden followers (the Taliban, Al
Queda [sic], or the like). The letter does not state or
even suggest that the President should be killed.
Rather, the letter expresses the opinion that “they”
will kill him. Further, defendant may have been try-
ing to disassociate himself from any violent action to
which he referred by twice crossing out the words
“us” and “we” and substituting the words “they” and
“them.”
(emphasis in the original). Even considered in the light most
favorable to the government, no reasonable person could fore-
see that this letter would be perceived by its recipient as a
serious threat to the life of the President.
B. The letter is not a true threat even when
considering the context referenced by the district
court
The district court held that Lincoln’s statements to Agent
Wampole were a proper part of the “context” for Lincoln’s
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letter, and in that context, the letter constituted a “true threat.”
Although it was appropriate for the district court to consider
the statements to Agent Wampole as part of the “entire factual
context,” Hanna, 293 F.3d at 1087 (citation omitted), the dis-
trict court nevertheless erred in holding that the letter consti-
tuted a true threat. This case is markedly different from
Planned Parenthood v. American Coalition of Life Activists,
290 F.3d 1058 (9th Cir. 2002) (en banc), on which the district
court relied. In Planned Parenthood, we found that the plac-
ing of pictures of abortion doctors on “wanted” posters consti-
tuted a true threat,3 although the posters themselves were not
threatening. Id. at 1085-86. It was in the context of the “poster
pattern” that the threatening nature of the posters became evi-
dent. Id. Three doctors who appeared on similar posters were
subsequently murdered. Id. In addition, at least some of the
defendants were aware that, because of the previous murders,
the posters invoked fear in the doctors who appeared on them.
Id. at 1065-66. Thus, the posters were true threats because,
“like Ryder trucks4 or burning crosses, they connote some-
thing they do not literally say, yet both the actor and the recip-
ient get the message.” Id. at 1085.
[3] Lincoln’s letter does not connote anything that it does
not literally say. To the contrary, it literally says what it
means, that President Bush will die because “they” said he
will. The fact that Lincoln stated six months earlier that he
planned to shoot the President does not give new meaning to
Lincoln’s statement that Bin Laden or Al Qaeda will kill the
President. Any holding to the contrary conflicts with the dis-
3Although Planned Parenthood was a civil case brought under the Free-
dom of Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248, we
used “true threat” analysis to define a “threat of force” under FACE.
Planned Parenthood, 290 F.3d at 1062-63, 1068.
4This reference is to an Eighth Circuit case holding that the parking of
Ryder trucks in the driveway of an abortion clinic by a known anti-
abortion activist was a true threat because Ryder trucks were used in the
Oklahoma City bombing. Planned Parenthood, 290 F.3d at 1078-79 (cit-
ing United States v. Hart, 212 F.3d 1067 (8th Cir. 2000)).
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trict court’s express finding that Lincoln disassociated himself
from any violent action “by twice crossing out the words ‘us’
and ‘we’ and substituting the words ‘they’ and ‘them.’ ”
Lincoln’s letter differs from the “wanted” posters in
Planned Parenthood because in that case there was a clear
pattern of appearance on a poster followed by murder. It was
this “poster pattern” that gave the otherwise innocuous posters
their threatening portent. Planned Parenthood, 290 F.3d at
1085-86. In this case, there is no pattern of letters written by
Lincoln, followed by murder or any other act. There was only
one letter written by Lincoln. Unlike the single letter in this
case, the “wanted” posters were publicly posted on the inter-
net, and thus could be reasonably interpreted as a signal to
unknown third parties to target those who appeared on the
posters. In contrast, Lincoln’s letter was to be sent only to
President Bush. In no way could the letter be reasonably
viewed as a signal to Al Qaeda or anyone else to carry out an
attack upon President Bush.
[4] Because § 871 criminalizes a form of pure speech, it
“must be interpreted with the commands of the First Amend-
ment clearly in mind.” Watts, 394 U.S. at 707. So interpreted,
the letter in this case was Lincoln’s crude and offensive
method of stating political opposition to the President, and
such political hyperbole does not constitute a “threat” under
§ 871. See id. at 708. Although the language used was disturb-
ing, Lincoln was exercising his constitutional right to endorse
the violent actions of Bin Laden and Al Qaeda, which is pro-
tected speech. See Planned Parenthood, 290 F.3d at 1072 (“If
[defendants] had merely endorsed or encouraged the violent
actions of others, [their] speech would be protected.”). Lin-
coln’s letter was more akin to the protected statement made
by the defendant in Watts5 than to the wanted posters at issue
in Planned Parenthood.
5In Watts, the defendant stated: “If they ever make me carry a rifle the
first man I want to get in my sights is [President] L.B.J.” Watts, 394 U.S.
at 706. The United States Supreme Court reversed Watts’ conviction,
holding that his statement was “a kind of very crude offensive method of
stating a political opposition to the President.” Id. at 708.
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IV.
CONCLUSION
[5] There was insufficient evidence to support Lincoln’s
conviction. The context of Lincoln’s statements did not give
new meaning to what his letter plainly stated. Even viewed in
the light most favorable to the government, the letter did not
constitute a true threat, and cannot support a conviction under
§ 871.
REVERSED.
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