decided: April 9, 1976; As Amended May 11, 1976.
Appeal from a judgment of conviction after a jury trial in the United States District Court for the Southern District of New York before Richard Owen, Judge, for causing to be transmitted in interstate commerce a communication containing a threat to injure the person of another, 18 U.S.C. § 875(c).
Mulligan, Oakes and Meskill, Circuit Judges. Mulligan, Circuit Judge (concurring). Meskill, Circuit Judge (concurring).
This appeal is from a conviction for causing to be transmitted in interstate commerce a communication containing a "threat to injure the person of another," 18 U.S.C. §§ 2, 875(c).*fn1 The offense charged in the indictment was that Russell Kelner, a member of the Jewish Defense League (JDL), caused to be transmitted in interstate commerce a threat to assassinate Yasser Arafat. Kelner was convicted after a jury trial in the United States District Court for the Southern District of New York, before Richard Owen, Judge. He was sentenced to imprisonment for one year with execution suspended, placed on probation for four years and given a $1,000 committed fine. We affirm.
The objective facts are not seriously disputed. On November 11, 1974, Yasser Arafat, leader of the Palestine Liberation Organization (PLO), was to be in New York to attend a session of the United Nations General Assembly which he had been invited to address. Both his presence in New York and his invitation to appear before the United Nations had aroused resentment among American Jews, particularly in New York City. About 5:30 p.m. on that day United Press International (UPI) received notification from the JDL of a news conference to be held later that evening at JDL headquarters. UPI thereupon notified its assorted radio, television and newspaper customers of the upcoming news event. One of those notified was WPIX-TV (Channel 11), a licensed television station in New York City with a telecast range of 50 miles extending into Connecticut and New Jersey. The station had previously dispatched WPIX reporter John Miller to cover a JDL demonstration in front of the Waldorf-Astoria Hotel in Manhattan where Arafat and a PLO delegation were expected to stay.*fn2
After attending the demonstration, Miller was assigned to cover the JDL press conference. When he and his film crew arrived at the JDL headquarters the conference had already started. Appellant, Kelner, was seated in military fatigues behind a desk with a.38 caliber "police special" in front of him. To Kelner's right another man was dressed in military fatigues. Miller heard one of the several reporters at the conference ask Kelner whether he was talking about an assassination plot and heard Kelner answer in the affirmative. The WPIX crew quickly filmed general shots of the press conference without sound for use as a "lead-in" on the news and then began filming an actual interview of Kelner by Miller. The reporter, holding a microphone with the WPIX channel number in large numerals on it, asked Kelner to go ahead and the following exchange took place:
Kelner: We have people who have been trained and who are out now and who intend to make sure that Arafat and his lieutenants do not leave this country alive.
Miller: How do you plan to do that? You're going to kill him?
Kelner: I'm talking about justice. I'm talking about equal rights under the law, a law that may not exist, but should exist.
Miller: Are you saying that you plan to kill them?
Kelner: We are planning to assassinate Mr. Arafat. Just as if any other mur -- just the way any other murderer is treated.
Miller: Do you have the people picked out for this? Have you planned it out? Have you started this operation?
Kelner: Everything is planned in detail.
Miller: Do you think it will ...