Appeal from an order entered July 7, 1981 in the United States District Court for the Northern District of New York (Howard G. Munson, Chief Judge ) which granted a motion to dismiss an indictment charging appellee with making a threat to take the life of or inflict bodily harm upon the President of the United States in violation of 18 U.S.C. § 871(a). Reversed and remanded.
Before Timbers, Kearse and Cardamone, Circuit Judges.
An indictment was dismissed which without embellishment simply tracked the language of 18 U.S.C. § 871(a) that makes it a crime "knowingly and willfully" to make "any threat to take the life of or to inflict bodily harm upon the President of the United States."*fn1 The district court found this indictment insufficient on its face because it failed to allege the factual context in which the actions of the defendant occurred. In dismissing it as a matter of law, the lower court concluded that the alleged threatening words could not under any circumstances constitute "threats" within the proscription of the statute. We reverse and remand this case for the reasons which follow.
The facts in this case may be briefly stated. Kevin Mitchell, a Special Agent with the United States Secret Service, submitted an affidavit to the District Court for the Northern District of New York to obtain a warrant to search a 1974 Ford Pinto with a Vermont license plate and to seize deadly weapons and various books, papers and letters containing threats to the life of the President. The basis for Mitchell's application was information he received on April 6, 1981 from the Binghamton, New York, Police Department concerning the arrest five days earlier of Mary F. Carrier. Appellee, age 43, and with no fixed address, was arrested by the Binghamton police for an unlawful attempt to retrieve her Ford Pinto from Star Auto Parts. The Vermont license plate on the vehicle revealed that it was registered to Mary Carrier, Hotel Coolidge, White River Junction, Vermont. Following her arrest Carrier was placed in custody in the Broome County (New York) Jail and was discovered to have in her possession an envelope which contained a threat to the life of the President of the United States.
The following day, April 7, Agent Mitchell went to Binghamton and examined the envelope, then in the possession of the local police, and found the following inscriptions: "impeach the President," "murder the President" and "kill". He interviewed Carrier in the Broome County Jail and she stated to him "yeah, I know why you're here. I threatened the President. The President should be murdered." In addition Mitchell observed written various inscriptions on the wall of Carrier's jail cell, including "shoot the Governor of the State of New York."
The agent arrested Carrier on April 8 for a violation of 18 U.S.C. § 871(a). The following day Carrier stated in substance to Agent Mitchell, "I am a big game hunter and have owned numerous rifles, shotguns and a 32." She also remarked "the only thing I'll do is blow the head off the President of the United States."
As a result of Mitchell's affidavit a warrant was signed by the district court which authorized a search of the Ford Pinto. The inventory of the property seized revealed only notebooks and miscellaneous papers; no firearms were discovered. There was, however, a written slip in the car listing the cost of a .44 magnum and a .32 special.
At a hearing before the district court the United States Attorney advised it that Carrier had a lengthy "rap" sheet including convictions for assault and other crimes committed in New York and New Hampshire. On April 17 the government moved and was granted an order directing a psychiatric examination of the defendant pursuant to 18 U.S.C. § 4244.*fn2 As a result of that examination appellee was found competent to stand trial.
A two-count indictment returned in the United States District Court for the Northern District of New York charged defendant, Mary Frances Carrier, with threatening to take the life of or inflict bodily harm on the President of the United States. At arraignment on July 1, 1981 defendant orally moved to dismiss the indictment on the ground that it was insufficient on its face. This motion was granted on July 7, 1981. The district court ruled that the indictment was insufficient because it failed to state the factual context in which the actions of the defendant occurred. The Court also ruled that, as a matter of law, the words used would not, under any circumstances, constitute threats within the proscription of the statute. The United States appeals the dismissal of Count II*fn3 of the two-count indictment. It does not appeal the dismissal of Count I.
I. Validity of the Indictment
The indictment is valid on its face. Rule 7(c)(1)*fn4 of the Federal Rules of Criminal Procedure neither requires nor permits that a different rule-one engrafted by judicial construction-should apply where "free speech" considerations may constitute a defense to the crime charged.
Under Rule 7(c)(1) an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.... It need not contain ... any other matter not necessary to such statement." Fed.R.Crim.P. 7(c)(1). This rule is designed to eliminate prolix indictments and "to secure simplicity in procedure." United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 114, 98 L. Ed. 92 (1953). The facts alleged must be adequate to permit a defendant to plead former jeopardy upon prosecution. The ...