(dissenting).
This does not seem a very serious letter, and I am not particularly troubled by the result. All of the circumstances known to the recipient must be considered, and possibly it could be ruled as a matter of law that defendant’s remarks were merely forceful adjuration to counsel, combined with letting off steam. But that is not the court’s approach, and I am in disagreement with its reasoning.
18 U.S.C. § 876 makes criminal the sending of threatening letters through the mails. To start with the last paragraph of the court’s opinion, it would seem of marginal significance whether the addressee and the prosecuting attorney were or were not in fact put in fear. A threat is an “expression [which] in its context [has] a reasonable tendency to create apprehension that its originator will act according to its tenor.” Landry v. Daley, N.D.Ill., 1968, 280 F.Supp. 938, 962, rev’d on other grounds sub nom. Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696. The question should be its effect upon an ordinary reasonable man in the position of the recipient, not whether he in fact happens to be chicken- or lion-hearted. United States v. Holder, D.Mont., 1969, 302 F.Supp. 296, 302, aff’d, 9 Cir., 427 F.2d 715. With this caveat, I do not object to the admission of the recipient’s reaction as a possible aid to the jury. My real difficulty is with the court’s taking the case from the jury on the ground that the government failed to meet its burden of proof. Its position seems to be that since the letter can be read two ways, “the government carries the burden of presenting evidence serving to remove that ambiguity,” and its failure to do so is fatal to its case. If the court takes the burden of proof route, and holds that in any case where a letter is capable of two meanings the government must fail, this would seem contrary to the principle that although the government’s burden is to satisfy the jury beyond a reasonable doubt, it may do so by presenting evidence which permits an inference of guilt even though that evidence could also be found to support an inference consistent with innocence. United States v. Moia, 2 Cir., 1958, 251 F.2d 255, 258; Dirring v. United States, 1 Cir., 1964, 328 F.2d *935512, 515, cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052; cf. Holland v. United States, 1954, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150. I will not extend the citations, but no circuit has held otherwise, except possibly the Fifth.
If the court is merely saying that normally a jury may choose between two meanings, but in this particular case both are so equally plausible that it could not, even this would seem to invade the jury’s province. Where a question is a simple one of fact or non-fact, just as evidence may point equally in both directions, so may inferences. But in the area of construing a written instrument such total ambivalence should be rare. See Meyers v. Selznick Co., 2 Cir., 1966, 373 F.2d 218, 222-223. I cannot think that the question whether a letter is reasonably calculated to induce fear or bodily harm is to be resolved in terms of burden of proof, preventing a jury from finding this to be its effect so long as by one interpretation it could be found to have an innocent meaning. A writer of threats may be intentionally indirect — indeed, much criminal argot is not peddler’s French, but is elliptical and euphemistic. I believe that where defendant’s counsel and the U. S. Attorney “will go” should be open to the jury’s determination just as much as it could find the proposed destination if they were promised to be “taken .for a ride.” One need only ask whether an addressee would necessarily be at ease if his lawyer told him, “Yes, that certainly reads like a threat to me, but there is another possible interpretation, so you should forget it.”
It is unfair to a defendant to find him guilty if the evidence presented is not persuasive beyond a reasonable doubt, but when he selects language that may fairly be thought threatening, the choice was his. Under the court’s rule anyone wily enough to leave an ambiguity may write whatever he wants.