In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4081
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES E. FULLER,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Southern District of Indiana, Terre Haute Division.
No. 02 CR 36—Larry J. McKinney, Chief Judge.
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ARGUED SEPTEMBER 15, 2004—DECIDED OCTOBER 27, 2004
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Before FLAUM, Chief Judge, and COFFEY and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Charles E. Fuller pled guilty to
one count of threatening to kill President George W. Bush
in violation of 18 U.S.C. § 871. He now appeals his convic-
tion on grounds preserved in the plea agreement. For the
reasons stated herein, we affirm.
I. History
Fuller, an inmate at the federal penitentiary in Terre
Haute, Indiana, sent a handwritten letter to the FBI head-
2 No. 03-4081
quarters in Washington, D.C. The letter was signed “Tyro”
and dated “February 18th, 02.” In addition to expressions of
anger toward U.S. government leaders, the letter contained
references to five bombs at five separate locations and a
canister of sarin nerve gas. It concluded with the following:
“I will be released soon! Me and my friends are going after
all of Americas [sic] rulers! They will pay! Bush is first! He
will die first! I will not have a president that is criminal in
office! I will kill him myself!”
Pursuant to prison rules, Fuller’s name and inmate num-
ber were written along with his return address on the en-
velope. The envelope was marked “Special Mail,” a designa-
tion normally used for privileged communications so that
prison officials do not read their contents. The letter was
processed by facilities in New Jersey and Maryland and
eventually turned over to the Secret Service.
Fuller has been incarcerated for most of his adult life.
Since the age of seventeen he has been in and out of jail due
to convictions for robbery, burglary, and theft. At the time
Fuller sent the February 2002 letter, he was serving a 46-
month sentence for sending three letters threatening
President Clinton in 1998.
Fuller argues that his February 2002 letter was not a
“true threat” punishable under § 871. He urges the court to
adopt a subjective standard, under which only threats that
are actually intended to be carried out are punishable. He
claims that he did not actually mean to carry out his threat
to the President, but that he suffered from a mental disorder
known as “institutionalization,” which made him fear free-
dom and engage in conduct designed to avoid release from
prison. The district court did not allow Fuller’s medical
expert to testify regarding his institutionalization, stating
that it would be irrelevant under an objective standard for
§ 871. We agree that this objective standard is proper, and
that it was therefore not an abuse of discretion to prohibit
Fuller’s psychological expert from testifying.
No. 03-4081 3
II. Analysis
A. The Objective, Reasonable Person Standard for § 871
We review a district court’s interpretation of a statute
de novo. United States v. Williams, 68 F.3d 168, 169 (7th
Cir. 1995).
Section 871 provides fines or imprisonment or both for
“[w]hoever knowingly and willfully deposits for conveyance
in the mail . . . any threat to take the life of, to kidnap, or to
inflict bodily harm upon the President of the United
States . . . .” 18 U.S.C. § 871. To sustain a conviction, the
government must prove beyond a reasonable doubt that the
threat was made knowingly and willfully and that it was a
“true threat.” See United States v. Hoffman, 806 F.2d 703,
706-07 (7th Cir. 1986).
Fuller points out a circuit split regarding whether the
government must show subjective intent to prove a “true
threat.” In United States v. Patillo, the Fourth Circuit held
that “an essential element of guilt [under § 871] is a present
intention either to injure the President, or incite others to
injure him, or to restrict his movements . . . .” 438 F.2d 13,
16 (4th Cir. 1971) (en banc). While not explicitly overruling
Patillo, the Fourth Circuit has recently narrowed the chasm
between itself and the other circuits by stating that there
are only two essential elements of the offense under § 871: the
existence of a true threat and the threat being made
knowingly and willfully. United States v. Lockhart, 382 F.3d
447, 450 (4th Cir. 2004). The court further clarified that the
subjective intent discussed in Patillo is simply one way of
proving the “knowingly or willfully” element of the offense.
Id.
We choose not to follow Patillo and instead adhere to the
objective standard for a “true threat” consistently employed
by the court. Under this standard, a communication is a
“true threat” if “a reasonable person would foresee that the
statement would be interpreted by those to whom the maker
4 No. 03-4081
communicates the statement as a serious expression of an
intention to inflict bodily harm upon or to take the life of
the President.” Hoffman, 806 F.2d at 707 (quoting Roy v.
United States, 416 F.2d 874, 877 (9th Cir. 1969)). The ad-
vantages of this objective, reasonable person standard are
many, and have been validated by the fact that nearly all of
the other circuits have incorporated it.
The First, Second, Third, Sixth, Eighth, Ninth, Tenth, and
Eleventh Circuits have explicitly adopted the reasonable per-
son, objective standard discussed in Hoffman. See United
States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997); United
States v. Johnson, 14 F.3d 766, 768 (2d Cir. 1994); United
States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991); United
States v. Manning, 923 F.2d 83, 85 (8th Cir. 1991); United
States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983); United
States v. Vincent, 681 F.2d 462, 464 (6th Cir. 1982); United
States v. Hart, 457 F.2d 1087, 1090-91 (10th Cir. 1972); Roy
v. United States, 416 F.2d 874, 877-78 (9th Cir. 1969). The
Fifth Circuit, while not explicitly using the reasonable per-
son test, has also employed an objective standard. See United
States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983) (“A
true threat is a serious one, not uttered in jest, idle talk, or
political argument. Whether a statement is a true threat is
to be decided by the trier of fact. A threat is knowingly
made if the maker comprehends the meaning of the words
uttered, it is willfully made if the maker voluntarily and
intelligently utters the words in an apparent determination
to carry out the threat.”) (citations omitted).
We believe our approach best protects the safety of the
President. As noted by the Third Circuit, a subjective test
would hinder the government’s ability to prosecute threats
against the President, seriously compromising his safety.
United States v. Kosma, 951 F.2d 549, 556-57 (3d Cir. 1991).
Protecting the President’s safety was Congress’s primary goal
in enacting § 871. See 53 Cong. Rec. 9378 (1916) (statement
of Rep. Webb) (“the Chief Executive of a great Nation like
No. 03-4081 5
ours ought to be protected in every way possible, especially
in view of the sad experience we have had in losing by
assassination three of our beloved Presidents.”).
Even setting aside concerns for the President’s life, a
threat disrupts the activities of the President, his advisors,
and his security providers. Preventing these inconveniences
and the costs associated with them was another reason for
enacting § 871. H.R. Rep. No. 652, 64th Cong., 1st Sess. 1
(1916) (stating that it is the duty of a government to protect
its agencies from threats “which would tend to coerce them
or restrain them in the performance of their duties”).
Disruptions, inconveniences, and substantial costs occur
regardless of whether a threat was subjectively intended to
be carried out. To require subjective intent for conviction,
then, thwarts this goal of the statute. See Rogers v. United
States, 422 U.S. 35, 47-48 (1975) (Marshall, J., concurring)
(“Because [§] 871 was intended to prevent . . . the harm
associated with the threat itself, I believe that the statute
should be construed to proscribe all threats that the speaker
intends to be interpreted as expressions of an intent to kill
or injure the President.”); see also United States v. Kelner,
534 F.2d 1020, 1025 (2d Cir. 1976) (“it is the utterance
which the statute makes criminal, not the specific intent to
carry out the threat”).
Finally, the objective, reasonable person standard does
not tread on free speech. Under it, the First Amendment’s
protection of political hyperbole, jokes, and other constitu-
tionally allowed speech is not diminished. See Watts v. United
States, 394 U.S. 705, 707-08 (1969) (holding that the fol-
lowing statement, conditional in nature and made at a pol-
itical rally, was not a true threat: “If they ever make me carry
a rifle the first man I want to get in my sights is L.B.J.”).
Requiring the government to establish that the communica-
tor knowingly and willfully made a threat—intending it to
be received as a serious threat, regardless of whether he
intended to carry it out—ensures that § 871 does not become
6 No. 03-4081
technical in nature or lead to punishment for innocent acts.
See Rogers, 422 U.S. at 47 (Marshall, J., concurring).
Under this standard, the jury instructions approved by
the district court in Fuller’s case were proper. They differed
from those given in Hoffman only in that they did not in-
clude the following: “And you must be further convinced be-
yond a reasonable doubt that the statement was not the
result of mistake, duress, or coercion.” (R. at 52.) Fuller con-
tends that failing to include this sentence lessens the burden
of proof on the government and eliminates an element of
§ 871. We disagree.
As discussed above, the only two essential elements for
this crime are the existence of a true threat to the President
and that the threat was made knowingly and willfully. The
government does not have the burden to prove that the
threat in question was not a product of mistake, duress, or
coercion. See United States v. Aman, 31 F.3d 550, 553-56
(7th Cir. 1994) (citing Hoffman for the definition of a “true
threat” but not requiring the government to show the ab-
sence of mistake, duress, or coercion); see also United States
v. Khorrami, 895 F.2d 1186, 1192-94 (7th Cir. 1990) (same).
Mistake, duress, and coercion are affirmative defenses and
are only required in jury instructions if raised by defendant.
These defenses were not raised by Fuller, and it is difficult
to see from the record before us how they could be sup-
ported.
In the alternative to requiring a subjective intent to carry
out the threat, Fuller urges us to require a showing of
apparent present ability to carry it out. Fuller points to no
authority for this proposition. As far as we can tell, it has
never been an element of § 871. See, e.g., United States v.
Miller, 115 F.3d 361, 363 (6th Cir. 1997); Hoffman, 806 F.2d
at 707-08; Kelner, 534 F.2d at 1023. Mandating such a
showing would thwart the efficiency purpose of § 871 just as
a subjective intent requirement would; a threat causes
No. 03-4081 7
disruptions, inconveniences, and costs even if its maker is
unable to carry through with it. In any case, the fact that
Fuller was incarcerated at the time he made the threat does
not mean that he would automatically be found incapable
of carrying it out. See Miller, 115 F.3d at 363. As noted by
the Sixth Circuit, an incarcerated person could feasibly
direct or inspire “a radical political organization, a lunatic
fringe element, or any other criminally inclined gang” with
which he has ties to carry out his threat from outside
prison. Id.
B. Exclusion of Dr. Murphy’s Testimony
We review a district court’s ruling to exclude expert tes-
timony for abuse of discretion. United States v. Davis, 772
F.2d 1339, 1344 (7th Cir. 1985).
Fuller requested permission to have Dr. Murphy testify
regarding his psychological condition and history. Fuller
claims that Dr. Murphy would have testified that he made
the threat because of his desire to stay in prison and had no
intention of carrying out the threat. Dr. Murphy would then
opine that the February 2002 letter was not a “true threat”
in violation of § 871. In light of the objective standard laid
out above, Fuller’s subjective intent to carry out the threat
is not relevant to the question of whether the letter consti-
tuted a “true threat.” The jury’s opinion as to whether a
reasonable person would foresee that the statement would be
interpreted as a serious expression of intention to kill the
President is the only opinion that matters.
Burdening the jury with testimony about why Fuller might
have sent the letter, when such information is not relevant
to the question of legal guilt, would merely have been con-
fusing to the jury. The testimony was properly excluded un-
der Federal Rule of Evidence 403. Lack of subjective intent
is not a defense to § 871, so prohibiting Dr. Murphy from
8 No. 03-4081
testifying did not deprive Fuller of any constitutional right
to present his defense and was well within the court’s
discretion.
III. Conclusion
Even if Fuller threatened President Bush because he suf-
fered from “institutionalization” and desired to stay in prison
(which very well could be true), his letter constituted no less
a violation of § 871. We adhere to the objective, reasonable
person standard for § 871 and AFFIRM the conviction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-27-04