Lumbard, Chief Judge, Waterman, Circuit Judge, and Jameson, District Judge.*fn*
This is an appeal from a conviction for threatening the life of the President in violation of 18 U.S.C. § 871.*fn1 Appellant was given a three-year suspended sentence and placed on probation. Subsequently probation was revoked. Following a psychiatric study appellant was sentenced to serve the full three year term.*fn2
About 7:10 P.M. on April 14, 1969, appellant called the New York Police Department emergency number and said he was calling "about the assassination of President Nixon." In response to questions he stated that the assassination would take place at Fifth Avenue and 61st Street toward the end of April or beginning of May, and that he was going to do it himself. Asked why he intended to assassinate the President, appellant replied, "Because I can't stand him." He said that "God told" him to carry out the mission and that he intended to use a ".38 automatic Smith & Western, Service Revolver," which he had "hidden until the assassination." In this conversation he refused to give his name, but said that he had been living in Greenwich Village at Bleecher and Thompson.
A few minutes later appellant called again. He gave his name and stated that he was calling from a public phone booth in the Greenwich Hotel, where he had registered that day. In response to questions he gave information regarding his personal and family background.He said that he could not find the gun in the "secret hiding place" where "God had told" him to hide it. In response to further questions he said that he was going to kill the President with a "knife or a gun or a shotgun," because he didn't like the President or the Republicans; that the President was "destroying the nation" and him, and that "God told me to kill him."
In response to the police officer's suggestion that appellant come to the police station, appellant said that he couldn't walk; that he had been "taking pills" and had been drinking. He agreed to meet the officer in front of the Greenwich Hotel and gave a description of his physical appearance and apparel.*fn3
About 7:30 P.M. appellant was taken into custody and handcuffed in front of the Greenwich Hotel. A police officer testified that appellant talked a lot, was able to walk unaided, and that his speech was clear. Appellant asked why he was handcuffed, and the officer told him that it was to keep him from hurting himself "or somebody else." To this appellant responded: "Don't get mad at me, I don't intend to hurt you guys, I just want to kill President Nixon."*fn4
In addition to the tape recordings of the telephone conversations and the testimony of the officer concerning the conversation when appellant was taken into custody, the Government introduced evidence of an incident which occurred during the night following election day, November 5, 1968. A Secret Service agent testified that about 4:30 A.M. on November 6, appellant was found by special agents of the United States Secret Service on the 34th floor of the Waldorf-Astoria Hotel, one floor below a suite occupied by President-elect Nixon. In a conversation with the agent, appellant said that Nixon "would never become President." According to the agent, appellant was intoxicated and was talking very loudly. He was removed by the special agents to the Waldorf garage, where he threatened to kill Mr. Nixon.
Appellant was taken into custody by the Secret Service agents and taken to Bellevue Hospital. Prosecution for this incident was declined "due to the fact that Compton was intoxicated at the time he made the threatening statement against President Elect Nixon, and also because he is now at Bellevue Hospital for an indefinite period undergoing psychiatric observation."*fn5
Testifying in his own behalf, appellant admitted that he was in the Waldorf-Astoria Hotel in the early morning hours of November 6, 1968. He testified that he went from party to party in the hotel, drinking, and that he was apprehended as he alighted from an elevator on the 34th floor, intending to stop at a party he had heard was being given by one of Mr. Nixon's daughters. He denied that he threatened the life of President-elect Nixon and said that he meant Mr. Nixon would not be President because Mr. Humphrey was going to win the election.
Appellant testified further that prior to April 14, 1969, he had been undergoing treatment for alcoholism at Central Islip State Hospital. He was released that day and after his release begain drinking. By evening he decided he needed help for his alcoholism. He admitted making the two calls recorded on the tapes. He claimed that he was drunk when he made the calls and that the only reason he spoke of killing the President and of receiving instructions from God was to appear psychotic and gain readmittance to the hospital. The defense of insanity was not raised.*fn6
Appellant contends that (1) his speech was protected by the First Amendment and the district court erred in refusing to charge the jury that the Government must prove intent to carry out the threat; (2) the Government failed to carry its burden in showing that the threat was uttered with apparent determination to carry it out; (3) the statute required proof of intent to carry out the threatened words; and (4) the court erred in admitting the statement made by appellant when he was in custody.
The first three grounds of error are related and present the question of whether under 18 U.S.C. § 871 it is sufficient for the Government to establish an intent to make a true threat, as appellee contends, or necessary to establish also an intent to carry out the threat, as appellant contends. This question has been determined adversely to appellant's contention in two cases, Watts v. United States, 131 U.S.App.D.C. 125, 402 F.2d 676 (1968), rev. 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969)*fn7 and Roy v. United States, 416 F.2d 874 (9th Cir. 1969).
In Roy v. United States, supra,*fn8 decided subsequent to the reversal in Watts, the Court of Appeals for the Ninth Circuit adopted the reasoning of the majority opinion ...