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United States v. Dutcher

United States Court of Appeals, Seventh Circuit

March 22, 2017

United States of America, Plaintiff-Appellee,
Brian Dutcher, Defendant-Appellant.

          Argued September 29, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cr-00096-wmc - William M. Conley, Chief Judge.

          Before Wood, Chief Judge, and Ripple and Williams, Circuit Judges.

          WOOD, Chief Judge.

         On June 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.


         We 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).

         President 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.

         Things 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."

         The 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 appeal.

         Based 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.


         Section 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 (2015).

         A true 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 ...

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