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July 7, 1981

UNITED STATES of America, Plaintiff,
Mary Frances CARRIER, Defendant

The opinion of the court was delivered by: MUNSON


Presently before the Court is a motion by the defendant Mary Frances Carrier to dismiss an indictment charging her on two counts with violating 18 U.S.C. § 871. In brief, this provision makes it a crime to threaten the life of the President of the United States, or the successors to that Office. The indictment in question, which was returned by a Grand Jury sitting in the Northern District of New York on July 1, 1981, charged the defendant with making two separate verbal threats on April 7th and 9th, 1981 against the President. More specifically, both counts of the indictment were prefaced by the following language: "in the presence of Kevin M. Mitchell and John LaVergne (the defendant) willfully and knowingly did make an oral threat to take the life of, and to inflict bodily harm upon, the President of the United States, in the verbal use of threatening language, substantially as follows ...." After stating these prefatory remarks, each count of the indictment quoted the words that were allegedly used by the defendant in accomplishing the threats. In the first count, the defendant is supposed to have said "I know why you're here. The President should be murdered. Yeah, I threatened the President." The second count states that the defendant also said: "It's too bad that Hinckley wasn't successful in killing that son of a bitch... The only thing I will do is blow the head off the President of the United States." Before the Court considers the merits of the defendant's motion, the legal principles applicable to the matter at hand will first be addressed.

 Pursuant to Rule 7(c)(1) of the Federal Rules of Criminal Procedure, "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.... It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement." The Supreme Court has interpreted this provision in the following manner:

Our prior cases indicate than an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427 (52 S. Ct. 417, 76 L. Ed. 861) (1932); United States v. Debrow, 346 U.S. 374 (74 S. Ct. 113, 98 L. Ed. 92) (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as "those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." United States v. Carll, 105 U.S. 611, 612 (26 L. Ed. 1135) (1882). "Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." United States v. Hess, 124 U.S. 483, 487, 8 S. Ct. 571, 573, 31 L. Ed. 516 (1888).

 Hamling v. United States, 418 U.S. 87, 117-18, 94 S. Ct. 2887, 2907-08, 41 L. Ed. 2d 590 (1974); accord United States v. Bailey, 444 U.S. 394, 414, 100 S. Ct. 624, 636, 62 L. Ed. 2d 575 (1980); see also Russell v. United States, 369 U.S. 749, 764-66, 82 S. Ct. 1038, 1047-48, 8 L. Ed. 2d 240 (1962). The "corollary purpose" served by requiring that indictments be reasonably specific in stating the offense charged a purpose that is often overlooked is " "to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.' " Russell v. United States, 369 U.S. 749, 768, 8 L. Ed. 2d 240, 82 S. Ct. 1038 and n. 15, 369 U.S. 749, 82 S. Ct. 1038, 1049, 8 L. Ed. 2d 240 (1962). Citing United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588 (1875).

 In Russell v. United States the Supreme Court expanded upon the "essential elements" test. The facts in Russell involved six separate indictments under 2 U.S.C. § 192, which makes it a crime to refuse to answer certain questions when summoned before a congressional committee. Each of the defendants had moved to dismiss their indictments before trial on the ground that the indictment failed to state the subject under investigation by the committee when it interrogated the defendant. The subject matter of the congressional inquiry was a factor that was not reflected in the language of Section 192. Nevertheless, the Court concluded that the subject matter element of Section 192 was an essential element of the criminal charge, and that it must be included in an indictment under that statutory provision. In examining the terms of Section 192, the Court held that "there can be criminality under the statute only if the question which the witness refused to answer pertained to a subject then under investigation by the congressional body which summoned him." 369 U.S. at 755, 82 S. Ct. at 1041, citing Sinclair v. United States, 279 U.S. 263, 292, 49 S. Ct. 268, 271, 73 L. Ed. 692 (1929).

 As a second factor militating in favor of requiring the subject matter element to be pleaded by the government, the Court observed that the government was required to prove up this element as part of its burden of proof under Section 192. Id. In addition, the Supreme Court found that the subject matter should be included in the indictment because the "pertinency" of the congressional inquiry was to be determined by a court as a matter of law. Id. 369 U.S. at 755-56, 82 S. Ct. at 1041-42. The Court noted that the legislative history of Section 192 supported these conclusions, as did an analysis of the constitutional purpose of a grand jury indictment, which, inter alia, is to ensure that "the accused shall enjoy the right .... to be informed of the nature and cause of the accusation; ...." U.S.Const. amend. VI. Id. at 756-61, 82 S. Ct. at 1043-45. And finally, the Court held that basic principles of fairness and a proper reading of Rule 7(c) compelled the conclusion that subject matter was an essential element of an indictment under Section 192. Id. at 762-66, 82 S. Ct. at 1046-48. Citing United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588 (1875) ("It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms in the definition; but it must state the species it must descend to particulars.' ").

 The statute in question in the instant inquiry is 18 U.S.C. § 871, which states in pertinent 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, paper, writing, print, missive, or document containing any threat to take the life of 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 knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $ 1000 or imprisoned not more than five years, or both.

 While the Supreme Court has yet to rule on the precise meanings of the terms "knowingly and willfully," in Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (per curiam), the Court defined the outer bounds of a "threat" for purposes of Section 871. In Watts the petitioner had been convicted under Section 871 for statements he had made during a discussion session held at a public rally against policy brutality. After one member of the discussion group mentioned that the young people present should be better educated before expressing their views, the petitioner 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." "They are not going to make me kill my black brothers."

 394 U.S. at 706, 89 S. Ct. at 1400.

 The Court held that "a statute such as (Section 871), which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech." Id. at p. 707, 89 S. Ct. at p. 1401. In the Court's view, petitioner Watt's statement was nothing more than "political hyperbole." Id. at p. 708, 89 S. Ct. at p. 1401. The Court continued as follows:

For 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, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (84 S. Ct. 710, 720, 11 L. Ed. 2d 686) (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58 (86 S. Ct. 657, 660, 15 L. Ed. 2d 582) (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political ...

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