Two hours after retiring for deliberation in petitioner's trial
for having allegedly violated 18 U.S.C. § 871(a) by threatening the
life of the President, the jury by note asked the trial judge
whether he would accept a verdict of "Guilty as charged with
extreme mercy of the Court." The judge through the marshal answered
affirmatively without notifying petitioner or his counsel. Five
minutes later, the jury returned a verdict of guilty with the
indicated recommendation, which was upheld on appeal.
Held:
"[T]he orderly conduct of a trial by jury, essential to the
proper protection of the right to be heard, entitles the parties .
. . to be present in person or by counsel at all proceedings from
the time the jury is impaneled until it is discharged after
rendering the verdict,"
Fillippon v. Albion Vein Slate Co., 250 U. S.
76,
250 U. S. 81,
and, as
Shields v. United States, 273 U.
S. 583, and Fed.Rule Crim.Proc. 43 make clear, a
criminal defendant has the right to be present "at every stage of
the trial including the impaneling of the jury and the return of
the verdict." Although a violation of Rule 43 may in some
circumstances be harmless error, that conclusion cannot be reached
in this case. At the very least, the trial court should have
reminded the jury that its recommendation would not in any way be
binding, and should have admonished the jury to reach its verdict
without regard to what sentence might be imposed. In the
circumstances of this case, the trial court's errors were such as
to warrant this Court's taking cognizance of them regardless of
petitioner's failure to raise the issue in the Court of Appeals or
in this Court. Pp.
422 U. S.
38-41.
488 F.2d 512, reversed and remanded.
BURGER, C.J., delivered the opinion for a unanimous Court.
MARSHALL, J., filed a concurring opinion, in which DOUGLAS, J.,
joined,
post, p.
422 U. S.
41.
Page 422 U. S. 36
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Petitioner was convicted by a jury on five counts of an
indictment charging him with knowingly and willfully making oral
threats "to take the life of or to inflict bodily harm upon the
President of the United States," in violation of 18 U.S.C. §
871(a). The Court of Appeals affirmed, 488 F.2d 512 (CA5 1974), and
we granted certiorari to resolve an apparent conflict among the
Courts of Appeals concerning the elements of the offense proscribed
by § 871(a). 419 U.S. 824 (1974). After full briefing and argument,
however, we find it unnecessary to reach that question, since
certain circumstances of petitioner's trial satisfy us that the
conviction must be reversed.
The record reveals that the jury retired for deliberation at 3
p.m. on the second day of petitioner's trial. Approximately two
hours later, at 4:55 p.m., the jury sent a note, signed by the
foreman, to the trial judge, inquiring whether the court would
"accept the Verdict --
Guilty as charged with extreme mercy of
the Court.'" Without notifying petitioner or his counsel, the court
instructed the marshal who delivered the note "to advise the jury
that the Court's answer was in the affirmative."
Page 422 U. S.
37
Five minutes later, at 5 p.m., the jury returned, and the
record contains the following account of the acceptance of its
verdict:
"THE COURT: We understand from a note you sent to the Court the
verdict finds him guilty on all five counts, but that you wish to
recommend extreme mercy; is that correct?"
"THE FOREMAN: Yes, Your Honor."
"THE COURT: Will you please poll the jury. (Whereupon the jury
was polled and all jurors answered in the affirmative.)"
"THE COURT: Let the verdict be entered as the judgment of the
Court. Certainly the Court will take into consideration your
recommendation of mercy, but before we can act upon the case, we
will have the Probation Officer make a pre-sentence investigation
report. We do not know whether the man has a prior criminal record
or not, and we will certainly take into account what you have
recommended."
2 Tr.192-193. [
Footnote
1]
Page 422 U. S. 38
Generally,. a recommendation of leniency made by a jury without
statutory authorization does not affect the validity of the
verdict, and may be disregarded by the sentencing judge.
See
Cook v. United States, 379 F.2d 966, 970 (CA5 1967), and cases
cited. However, in
Cook, the Court of Appeals held that an
exception to this general rule, requiring further inquiry by the
trial court, arises where the circumstances of the recommendation
cast doubt upon the unqualified nature of the verdict. Assuming the
validity of the exception, we need not decide whether either the
factual differences between the recommendation in
Cook and
that in the instant case, or petitioner's failure to request
further inquiry prior to the recording of the verdict,
see
Fed.Rule Crim.Proc. 31(d), would suffice to distinguish the cases
for purposes of appropriate appellate relief.
See 8 J.
Moore, Federal Practice 11 31.07 (2d ed 1975). We deal here not
merely with a potential defect in the verdict.
In
Fillippon v. Albion Vein Slate Co., 250 U. S.
76 (1919), the Court observed
"that the orderly conduct of a trial by jury, essential to the
proper protection of the right to be heard, entitles the parties
who attend for the purpose to be present in person or by counsel at
all proceedings from the time the jury is impaneled until it is
discharged after rendering the verdict."
Id. at
250 U. S. 81. In
applying that principle, the Court held that the trial judge in a
civil case had
"erred in giving a supplementary instruction to the jury in the
absence of the parties and without affording them an opportunity
either to be present or to make timely objection to the
instruction."
Ibid.
Page 422 U. S. 39
In
Shields v. United States, 273 U.
S. 583 (1927), the Court had occasion to consider the
implications of the "orderly conduct of a trial by jury" in a
criminal case. The trial judge had replied to a written
communication from the jury, indicating its inability to agree as
to the guilt or innocence of the defendant, by sending a written
direction that it must find the defendant "guilty or not guilty."
The communications were not made in open court while the defendant
and his counsel were present, nor were they advised of them. The
jury thereupon found Shields guilty of one count with a
recommendation of mercy. This Court held that a previous request by
counsel for Shields and the Government that the trial judge hold
the jury in deliberation until they had agreed upon a verdict
"did not justify exception to the rule of orderly conduct of
jury trial entitling the defendant, especially in a criminal case,
to be present from the time the jury is impaneled until its
discharge after rendering the verdict."
Id. at
273 U. S.
588-589.
As in
Shields, the communication from the jury in this
case was tantamount to a request for further instructions. However,
we need not look solely to our prior decisions for guidance as to
the appropriate procedure in such a situation. Federal Rule
Crim.Proc. 43 guarantees to a defendant in a criminal trial the
right to be present "at every stage of the trial including the
impaneling of the jury and the return of the verdict." Cases
interpreting the Rule make it clear, if our decisions prior to the
promulgation of the Rule left any doubt, that the jury's message
should have been answered in open court and that petitioner's
counsel should have been given an opportunity to be heard before
the trial judge responded.
See, e.g., United States v.
Schor, 418 F.2d 26, 290 (CA2 1969);
United States v.
Glick, 463 F.2d 491, 493 (CA2 1972).
Page 422 U. S. 40
Although a violation of Rule 43 may in some circumstances be
harmless error,
see Fed.Rule Crim.Proc. 52(a);
United
States v. Schor, supra, the nature of the information conveyed
to the jury, in addition to the manner in which it was conveyed,
does not permit that conclusion in this case. The trial judge
should not have confined his response to the jury's inquiry to an
indication of willingness to accept a verdict with a recommendation
of "extreme mercy." At the very least, the court should have
reminded the jury that the recommendation would not be binding in
any way.
But see United States v. Davidson, 367 F.2d 60
(CA6 1966). [
Footnote 2] In
addition, the response should have included the admonition that the
jury had no sentencing function, and should reach its verdict
without regard to what sentence might be imposed.
See United
States v. Louie Gim Hall, 245 F.2d 338 (CA2 1957);
United
States v. Glick, supra at 404.
Cf. United States v.
Patrick, 161 U.S.App.D.C. 231, 494 F.2d 1150 (1974).
The fact that the jury, which had been deliberating for almost
two hours without reaching a verdict, returned a verdict of "guilty
with extreme mercy" within five minutes "after being told
unconditionally and unequivocally that it could recommend
leniency,"
United States v. Glick, supra at 495, strongly
suggests that the trial judge's response may have induced unanimity
by giving members of the jury who had previously hesitated about
reaching a guilty verdict the impression that the recommendation
might be an acceptable compromise. We acknowledge that the comments
of the trial judge
Page 422 U. S. 41
upon receiving the verdict may be said to have put petitioner's
counsel on notice that the jury had communicated with the court,
but the only indication that the court had unilaterally
communicated with the jury comes from the note itself, which the
court correctly ordered to be filed in the record, with a notation
as to the time of receipt and the court's response. It appears,
however, that petitioner's counsel was not aware of the court's
communication until after we granted the petition for certiorari.
In such circumstances, and particularly in light of the difficult
task of the factfinder in a prosecution under § 871(a),
see
Watts v. United States, 394 U. S. 705
(1969), we conclude that the combined effect of the District
Court's errors was so fraught with potential prejudice as to
require us to notice them notwithstanding petitioner's failure to
raise the issue in the Court of Appeals or in this Court.
Silber v. United States, 370 U. S. 717
(1962);
Brotherhood of Carpenters v. United States,
330 U. S. 395,
330 U. S.
411-412 (1947).
Cf. United States v. Davidson,
367 F.2d at 63.
The judgment of the Court of Appeals is accordingly reversed,
and the case is remanded for further proceedings consistent with
this opinion.
Reversed and remanded.
[
Footnote 1]
Petitioner was originally sentenced to five years' imprisonment
on each count, subject to the early parole eligibility provisions
of 18 U.S.C. § 4208(a)(2), to be followed by five years' supervised
probation on the condition that he join Alcoholics Anonymous. The
sentence on the last four counts was to run concurrently and to be
suspended during good behavior.
Cf. United States v.
Davidson, 367 F.2d 60, 63 (CA6 1966). It appears from the
record that the District Judge sought to use the confinement to
afford petitioner an opportunity to be cured of his alcoholism.
At the suggestion of the Court of Appeals, petitioner moved for,
and the Government did not oppose, "a reduction of the stringent
sentences imposed in the District Court" under Fed.Rule Crim.Proc.
35. The motion was granted, and petitioner's sentence was reduced
to three years' imprisonment on each count. Petitioner was released
from confinement on December 24, 1974. He remains subject to five
years' supervised probation. After argument, we were advised by the
Solicitor General that, on April 7, 1975, petitioner was arrested
on a mandatory release violation warrant (18 U.S.C. § 4164) and was
incarcerated pending a revocation hearing.
[
Footnote 2]
As in
Davidson, 367 F.2d at 63, the trial court's
response was inconsistent with the instruction in the general
charge that
"punishment . . . is a matter exclusively within the province of
the Court, and is not to be considered by the jury in arriving at
an impartial verdict. . . ."
2 Tr.190.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS joins,
concurring.
George Rogers, a 34-year-old unemployed carpenter with a 10-year
history of alcoholism, wandered into the coffee shop of a Holiday
Inn in Shreveport, La., early one morning, behaving in a loud and
obstreperous manner. He accosted several customers and waitreses,
telling them, among other things, that he was Jesus Christ and that
he was opposed to President Nixon's visiting China because the
Chinese had a bomb that only
Page 422 U. S. 42
he knew about, which might be used against the people of this
country. In the course of his various outbursts, Rogers announced
that he was going to go to Washington to "whip Nixon's ass," or to
"kill him in order to save the United States."
The local police were soon called to remove Rogers from the
Holiday Inn. When the arresting officer arrived, he asked Rogers
whether he had threatened the President. Rogers replied that he
didn't like the idea of the President's going to China and making
friends with the Chinese, our enemies. He told the officer, "I'm
going to Washington and I'm going to beat his ass off. Better yet,
I will go kill him." Rogers added that he intended to "walk" to
Washington because he didn't like cars. Rogers was not charged with
any state law crimes, but the police reported the incident to a
local Secret Service agent, who subsequently had petitioner
arrested on a federal warrant.
This sad set of circumstances resulted in a five-count
indictment under the "threats against the President" statute, 18
U.S.C. § 871(a). After a jury trial, petitioner was convicted under
that statute and sentenced to five years' imprisonment, to be
followed by five years of supervised probation. The Court of
Appeals for the Fifth Circuit affirmed petitioner's conviction in a
brief per curiam opinion, holding that the District Court had
properly instructed the jury under § 871, and that the evidence
against petitioner was sufficient to sustain a conviction under
that statute as properly construed.
After we granted certiorari, and after the petitioner's brief
was filed here, the Solicitor General confessed error, but on a
point that had not been raised either here, in the Court of
Appeals, or at trial. The Court today seizes on that point to
reverse the conviction, leaving unresolved the issue that we
granted certiorari to consider. Although
Page 422 U. S. 43
I do not disagree with the Court's treatment of the question on
which it bases its reversal today, I would reach the merits and
reverse petitioner's conviction on the grounds pressed in the Court
of Appeals and in the petition for certiorari.
I
The District Court and the Court of Appeals adopted what has
been termed the "objective" construction of the statute. This
interpretation of § 871 originated with the early case of
Ragansky v. United States, 253 F. 643 (CA7 1918), and it
has been adopted by a majority of the Courts of Appeals, [
Footnote 2/1] even though this Court has
expressed "grave doubts" as to its correctness.
Watts v. United
States, 394 U. S. 705,
394 U. S. 707
(1969). As applied in
Ragansky and later cases, this
construction would support the conviction of anyone making a
statement that would reasonably be understood as a threat,
see
Roy v. United States, 416 F.2d 874, 877 (CA9 1969), as long as
the defendant intended to make the statement and knew the meaning
of the words used,
see Ragansky v. United States, supra at
645.
The District Court charged the jury in accordance with the
"objective construction." The jury was instructed, in effect, that
it was not required to find that the petitioner actually intended
to kill or injure the President, or even that he made a statement
that he thought might be taken as a serious threat. Instead, the
jury was permitted to convict on a showing merely that
Page 422 U. S. 44
a reasonable man in petitioner's place would have foreseen that
the statements he made would be understood as indicating a serious
intention to commit the act. [
Footnote
2/2] In addition, the court charged that the jury could find
petitioner guilty if his statements evinced "an apparent
determination to carry out the threat." [
Footnote 2/3] Tr. 177. In my view, this construction of
§ 871 is too broad.
In
Watts, we observed that giving § 871 an expansive
construction would create a substantial risk that crude, but
constitutionally protected, speech might be criminalized. The
petitioner there had been convicted for telling a small group at a
political rally: "If they ever make me carry a rifle, the first man
I want to get in my sights is L.B.J." We held that the statement,
even if "willfully and knowingly" made, was not a true "threat,"
but merely a form of political hyperbole. Applying the statute with
an eye to the danger of encroaching on constitutionally protected
speech, we held that the comment in
Watts fell outside the
reach of the statute as a matter of law. Although the petitioner in
the present case was not at a political rally or engaged in formal
political discussion, the same concern counsels against permitting
the statute such a broad construction that there is a substantial
risk of conviction for a merely crude or careless expression of
political emnity.
II
Both the legislative history and the purposes of the statute are
inconsistent with the "objective" construction of § 871, and
suggest that a narrower view of the statute is proper.
Page 422 U. S. 45
A
The statute was enacted in 1917 without extensive discussion.
Only in the House debates is there any hint of the scope that the
sponsors intended for the Act. When it was suggested that the word
"willfully" be removed from the bill, Representative Volstead
objected, stating that, in his view,
"[t]he word 'willfully' adds an intention to threaten, and
distinguishes a case [in which the defendant does not intend to
convey any threat]."
Without the requirement of willfulness, he said,
"a person might send innocently, without any intention to convey
a threat at all, an instrument to a friend that contained a threat,
and he would be guilty. . . ."
53 Cong.Rec. 9378 (1916). Arguing -- successfully, as, it turned
out -- that the word "willfully" should be left in the statute, the
Congressman emphasized the importance of the subjective intention
to threaten:
"[I]f this statute is to be saved at all, it seems to me it must
be upon the theory that the act is willful. There is not anything
in the language outside of that word to convey the idea that a
threat must be an intentional threat against the President. The
word 'willful' conveys, as ordinarily used, the idea of wrongful as
well as intentional. That idea ought to be preserved, so as not to
make innocent acts punishable."
Id. at 9379.
Representative Webb, the only other Congressman to comment about
this issue on the House floor, also understood it to require
specific intent. He read it at least as restrictively as did
Representative Volstead:
"If you make it a mere technical offense, you do not give him
much of a chance when he comes to answer before a court and jury. I
do not think we ought to be too anxious to convict a man who
does
Page 422 U. S. 46
a thing thoughtlessly. I think it ought to be a willful
expression of an intent to carry out a threat against the
Executive. . . ."
Id. at 9378.3 The sponsors thus rather plainly intended
the bill to require a showing that the defendant appreciated the
threatening nature of his statement and intended at least to convey
the impression that the threat was a serious one. The danger of
making § 871 a mere "technical offense" or making "innocent acts
punishable" was clear to the sponsors of the Act; their concerns
should continue to inform the application of the statute today.
B
The Government argues that only the objective construction of §
871 is consistent with the purposes the statute was intended to
serve. In
Watts, the Government notes, we identified the
interests advanced by the statute as being both
"protecting the safety of [the] Chief Executive and . . .
allowing him to perform his duties without interference from
threats of physical violence."
394 U.S. at
394 U. S. 707.
I adhere to that statement of the purpose of the statute; I simply
do not agree that the objective construction is the necessary or
even the natural means of achieving that purpose.
Plainly, threats may be costly and dangerous to society in a
variety of ways, even when their authors have no
Page 422 U. S. 47
intention whatever of carrying them out. Like a threat to blow
up a building, a serious threat on the President's life is
enormously disruptive, and involves substantial costs to the
Government. A threat made with no present intention of carrying it
out may still restrict the President's movements and require a
reaction from those charged with protecting the President. Because
§ 871 was intended to prevent not simply attempts on the
President's life, but also 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. This
construction requires proof that the defendant intended to make a
threatening statement, and that the statement he made was, in fact,
threatening in nature. Under the objective construction, by
contrast, the defendant is subject to prosecution for any statement
that might reasonably be interpreted as a threat, regardless of the
speaker's intention. In essence, the objective interpretation
embodies a negligence standard, charging the defendant with
responsibility for the effect of his statements on his listeners.
We have long been reluctant to infer that a negligence standard was
intended in criminal statutes,
see Morissette v. United
States, 342 U. S. 246
(1952); we should be particularly wary of adopting such a standard
for a statute that regulates pure speech.
See Abrams v. United
States, 250 U. S. 616,
250 U. S.
626-627 (1919) (Holmes, J., dissenting).
If § 871 has any deterrent effect, that effect is likely to work
only as to statements intended to convey a threat. Statements
deemed threatening in nature only upon "objective" consideration
will be deterred only if persons criticizing the President are
careful to give a wide berth to any comment that might be construed
as threatening in nature. And that degree of deterrence
Page 422 U. S. 48
would have substantial costs in discouraging the "uninhibited,
robust, and wide-open" debate that the First Amendment is intended
to protect.
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 270
(1964).
I would therefore interpret § 871 to require proof that the
speaker intended his statement to be taken as a threat, even if he
had no intention of actually carrying it out. The proof of
intention would, of course, almost certainly turn on the
circumstances under which the statement was made: if a call were
made to the White House threatening an attempt on the President's
life within an hour, for example, the caller might well be subject
to punishment under the statute even though he was calling from Los
Angeles at the time and had neither the purpose nor the means to
carry out the threat. But to permit the jury to convict on no more
than a showing that a reasonably prudent man would expect his
hearers to take his threat seriously is to impose an unduly
stringent standard in this sensitive area.
Under the narrower construction of § 871, the jury in this case
might well have acquitted, concluding that it was unlikely that
Rogers actually intended or expected that his listeners would take
his threat as a serious one. Because I think that the District
Court's misconstruction of the statute prejudiced petitioner in
this case and may continue to do mischief in future prosecutions
brought under § 871, I would reverse on this ground, rather than on
the Solicitor General's confession of error.
[
Footnote 2/1]
See United States v. Lincoln, 462 F.2d 1368 (CA6),
cert. denied, 409 U.S. 952 (1972);
United States v.
Hart, 457 F.2d 1087 (CA10),
cert. denied, 409 U.S.
861 (1972);
United States v. Compton, 428 F.2d 18 (CA2
1970),
cert. denied, 401 U.S. 1014 (1971);
Roy v.
United States, 416 F.2d 874 (CA9 1969);
Watts v. United
states, 131 U.S.App.D.C. 125, 402 F.2d 676 (1968),
rev'd
on other grounds, 394 U. S. 705
(1969).
Contra: United States v. Patillo, 438 F.2d 13 (CA4
1971) (en banc).
[
Footnote 2/2]
The District Court drew its definitions of "knowingly," and
"willfully" from
Ragansky v. United States, 253 F. 643
(CA7 1918), and supplemented that definition with language taken
directly from
Roy v. United States, supra.
[
Footnote 2/3]
Representative Webb may have intended an even narrower
construction of the statute, as he began his remarks by commenting,
"I think it must be a willful intent to do serious injury to the
President." 53 Cong.Rec. at 9378. His subsequent comments made it
somewhat unclear whether he meant that the threat must be
accompanied by a present intention to injure the President, or
simply that the threat must be intended to convey an apparent
intention to do so. In any event, he clearly agreed with
Representative Volstead that the statute was not to reach
statements not intended to be threatening in character.