September 29, 2016
from the United States District Court for the Western
District of Wisconsin. No. 3:15-cr-00096-wmc - William M.
Conley, Chief Judge.
Wood, Chief Judge, and Ripple and Williams, Circuit Judges.
30, 2015, Brian Dutcher announced on Facebook that he planned
to assassinate President Obama. He then drove to La Crosse,
Wisconsin, where the President was scheduled to speak on July
2. Once in La Crosse, Dutcher repeated his plan to several
people: a security guard, the police, the Secret Service, a
nurse, a doctor, and (again) the police and Secret Service
together. No one was amused: Dutcher was charged with and
convicted of two counts of threatening the President in
violation of 18 U.S.C. § 871(a). On appeal, Dutcher
complains about the sufficiency of the evidence and certain
instructions the district court gave to the jury. We find no
error, and so we affirm.
evaluate a challenge to the sufficiency of the evidence
de novo, construing the evidence "in the light
most favorable to the government and ask[ing] whether any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
United States v. Love, 706 F.3d 832, 837 (7th Cir.
2013). We also take a fresh look at the question whether a
disputed jury instruction fairly and accurately states the
law; we will "reverse only if the instructions, taken as
a whole, misled the jury" United States v.
Lawrence, 788 F.3d 234, 245 (7th Cir. 2015).
Obama was scheduled to give a speech at the University of
Wisconsin-La Crosse on Thursday, July 2, 2015. On Tuesday,
Dutcher posted this on his Facebook page: "thats
[sic] it! Thursday I will be in La Crosse, hopefully
I will get a clear shot at the pretend president, killing him
is our CONSTITUTIONAL DUTY!" Later posts reprised the
theme. In one, Dutcher added that "I have been praying
on [sic] going to D.C. for 3 months and now the
usurper is coming HERE. ... pray for me to succeed in my
mission." The next morning (Wednesday) Dutcher carried
out the first part of his plan- he drove the 45 miles from
Tomah, where he lived, to La Crosse.
went downhill from there. Dutcher stopped by the La Crosse
Public Library, where his acquaintance Travis Good worked as
a security guard. Dutcher greeted Good and told him
"I'm here to kill the President, the usurper,
tomorrow at his speech." When Good replied that such
statements were illegal, Dutcher simply said "[w]atch
me" and walked off. Good alerted his supervisor, who
passed the word along to the police, who dispatched two
investigators. The investigators found Dutcher nearby in his
van and, after he confirmed his threat, they asked him to
come to the station for Secret Service questioning. Dutcher
agreed, exhibiting a demeanor one of the investigators would
later recall as "mellow."
description was apt. During his two-hour interview with the
Secret Service, a remarkably candid Dutcher claimed that it
was his biblical and constitutional duty to assassinate the
President, boasted that he could kill a person with a
slingshot (one was later found in his van, though Dutcher had
no other weapons), informed the agents that he had also made
threats on Facebook, and consented to a search of his
account. After the interview Dutcher was detained overnight
at a hospital for a mental health evaluation. See Wis.Stat.
§ 51.15. There he reiterated his violent intentions to
both a nurse and a doctor. And he was not done yet. Dutcher
was arrested the next day and repeated his threats during the
ensuing interview. Despite all this, he was found competent
for pretrial release-a finding he does not challenge on
on the initial Facebook post and the statement to Good, a
grand jury indicted Dutcher on two counts of knowingly and
willfully threatening the President in violation of 18 U.S.C.
§ 871(a). After a two-day trial, the district court
instructed the jury in relevant part, that it could find
willfulness if the government proved Dutcher "either
actually intended his statement to be a true threat, or that
he knew that other people reasonably would view his statement
as a true threat but he made the statement anyway." The
jury found Dutcher guilty of both counts, and the district
judge sentenced him to 36 months' imprisonment and three
years of supervised release.
871(a) criminalizes "knowingly and willfully"
making "any threat to take the life of, to kidnap, or to
inflict bodily harm upon the President of the United
States." The charged statement must be a "true
threat, " which has been defined for First Amendment
purposes as "a serious expression of an intent to commit
an act of unlawful violence to a particular individual or
group of individuals." Virginia v. Black, 538
U.S. 343, 359 (2003). In United States v. Fuller,
387 F.3d 643, 646 (7th Cir. 2004), we held that a "true
threat" for purposes of section 871(a) is defined
objectively A communication, we wrote, "is a 'true
threat' if a reasonable person would foresee that the
statement would be interpreted by those to whom the maker
communicates the statement as a serious expression of an
intention to inflict bodily harm upon or to take the life of
the President." Id. (internal quotation marks
omitted). Addressing a different statute, 18 U.S.C. §
875(c), which criminalized the transmission of any threat to
kidnap or injure another, the Supreme Court held that the
speaker must know that his communication contains a threat.
Elonis v. United States, 135 S.Ct. 2001, 2009-11
threat does not require that the speaker intend to carry it
out, or even that she have the capacity to do so.
Black, 538 U.S. at 360 (First Amendment); United
States v. Parr,545 F.3d 491, 498 (7th Cir. 2008) (18
U.S.C. § 2332a, prohibiting a threat to use a weapon of
mass destruction against a federal government building). The
prohibition against threats protects against the fear they
engender as well as the risk that they may be carried out.
Black, 538 U.S. at 360. Still, the scope of a true
threat is ultimately quite circumscribed. Section 871(a) does
not criminalize ...