UNITED STATES DISTRICT COURT

____________________DISTRICT OF TEXAS

________________ DIVISION

UNITED STATES OF AMERICA	      	§
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V.						§	CAUSE NO.										§
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DEFENDANT’S MOTION TO DISMISS

TO THE HONORABLE _____________________, UNITED STATES DISTRICT JUDGE FOR THE _______________ DISTRICT OF TEXAS:

	Defendant _____________, through her attorney, ________________, respectfully requests that the Court dismiss counts one through three of the indictment pursuant to the Fifth Amendment to the United States Constitution and Federal Rule of Criminal Procedure 12(b)(2), on the ground that the conduct alleged does not constitute an offense against the United States.  Alternatively, if the Court determines that the conduct alleged does constitute an offense under the cited statute, 18 U.S.C. § 871, Pierce requests that the indictment be dismissed pursuant to the First Amendment, based on the unconstitutional application of  § 871.  In support of her motion, ____________________ respectfully shows this Court the following facts and circumstances:

I

 A True “Threat” for Purposes of 18 U.S. C. § 871 Must Unequivocally, Unconditionally and Specifically Express an Intent to Kill or Injure 

	____________________ is charged by indictment with three counts of making a threat against the President of the United States, in violation of 18 U.S.C. § 871.  That section prohibits, in pertinent part, knowingly and willfully making a threat to kill the President.  18 U.S.C. § 871(a).  In order to constitute a true “threat” to kill the President, for purposes of § 871(a), a communication must be a serious statement expressing an intention to kill.  See Fifth Circuit Pattern Jury Instructions, Criminal 2001, § 2.39 (emphasis added).  Only those statements amounting to an “unequivocal, unconditional and specific expressions of intention immediately to inflict injury [or kill]. . . .” will be considered true threats  United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976).  An expressly conditional communication—such as “if they ever make me carry a rifle the first man I want in my sights is L.B.J”—has been held to not constitute a true threat under § 871(a).  See Watts v. United States, 394 U.S. 705, 708 (1969).  Similarly, an expression of a personal desire to see a current president assassinated has been held to not constitute a true threat.  See Rankin v. McPherson, 483 U.S. 378, 380, 387 (1987) (statement made after attempt on President Reagan’s life that “if they go for him again, I hope they get him” was not a threat under § 871).  
II

As a Matter of Law, None of the Alleged Statements Constitute True § 871 Threats

	____________________’s alleged statements cited in the indictment amounted to nothing more than conditional expressions or expressions of a personal desire to see a president assassinated.  None can be considered “unequivocal, unconditional and specific expressions of intention” to kill.   Kelner, 534 F.2d at 102.  As a matter of law, such statements do not constitute threats for the purpose of § 871(a).  See Watts, 394 U.S. at 708; Rankin, 483 U.S. at 380, 387.  
	Count one alleges that ____________________ made the following statement: “I was hoping to see another assassination.” This statement is, in substance, the same as the statement made by Ms. McPherson: that if those who attempted to kill President Reagan tried again, she hoped they would get him. Rankin, 483 U.S. at 380.  This statement was held to be protected speech under the First Amendment, and specifically determined not to constitute a threat that could be properly criminalized under § 871.  Id at 387.  As a matter of law, ____________________’s alleged comments about a desire to see the President assassinated do not constitute a true § 871 threat.1 
	Count one also alleges that ____________________ stated that “President Bush looks like a sitting duck there in Pennsylvania and if I had a gun, I’d shoot his head off.” This alleged expression is an expressly conditional statement that fails to express an intent to kill.  The statement is, in substance, the same as the statement in Watts found not to constitute a § 871 threat.   Watts had warned that if he were drafted and forced to carry a weapon “the first man I want in my sights is L.B.J.”  394 U.S. at 706.  The “expressly conditional” nature of this statement was a factor that convinced the Supreme Court that Watts’s warning was not a threat, but instead political hyperbole protected by the First Amendment.  Id. at 707–08.   
	The Second Circuit Court of Appeals has explained what the Watts Court meant by the “conditional nature” of a statement: the Court was stating that threats punishable consistently with the First Amendment were only those which conveyed “a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected ‘caustic . . . unpleasantly sharp attacks on government and public officials.’” Kelner, 534 F.2d at 1026 (internal quotations omitted).  The purpose and effect of this constitutionally-limited definition of a threat is “to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished . . . .”  Kelner, 534 F.2d at 1027 (emphasis added).   ____________________’s comment, alleged in count one, that “President Bush looks like a sitting duck there in Pennsylvania and if I had a gun, I’d shoot his head off,” did not convey an unconditional and specific expression of intention to immediately inflict injury or to kill.  In fact the comment itself and the use of the conditional terms if and would express to the listener that the speaker lacks the capacity and intention to carry out the referenced act.2  For these reasons, the Court should dismiss count one of the indictment. 
	The statements contained in counts two and three similarly fail to express the unequivocal, unconditional intention to kill required of a § 871 threat.  ____________________ is alleged to have said: “President Bush looked like a sitting duck on television on September 11th and if I had been there, I would have shot him.”  With its backward looking point-of-reference, this statement cannot be construed as an unequivocal, unconditional expression of an intent to kill.  Thus, as a matter of law it cannot be considered a true § 871 threat.  Similarly, ____________________’s alleged comments that “I’ve got a .44 at the house and should do the job myself on the President” (count two),  and “[i]f the President isn’t assassinated I would kill him” (count three) use the conditional terms would and should.  These statements fail to unambiguously express the kind of intention to kill or injure that prior courts have held constitute true § 871 threats.  
	For example, ____________________’s alleged conditional statements are materially distinguishable from the statements reviewed  in United States v. Mitchell, 812 F.2d 1250, 1252 (9th Cir. 1987):“I'm going to kill Reagan and then I'm going to kill all of you ... I'll do what I said I'll do”; or the statement in United States v. Kosmo, 49 F. Supp. 1392, 1397 (E.D.Pa.,1990):“We are going to give you a 21 Gun- Salute. . . .Twenty-one guns are going to put bullets thru your heart & brains”; or in United States v. Carrier, 672 F.2d 300, 302 (2d Cir. 1982):“I am a big game hunter and have owned numerous rifles, shotguns and a 32. . . . the only thing I'll do is blow the head off the President of the United States”; or in United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997):“I’m still talking about body bags because if you do nothing. . . . I am going to get retribution for my and my family's suffering. . . . I'll do what, ah, like we said in Nam, whatever it takes.”3   
	Each of those cited statement were found to constitute true § 871 threat.  Those statements used unambiguous and forward-looking words such as “I’m going to kill,” “I am going to get retribution,” and “I will” blow the head off the President.   Such terms unequivocally and unconditionally expressed an intent to kill or injure.  By contrast, it is clear from the statements ____________________ allegedly made that they do not express an unequivocal and unconditional intent to kill.  Furthermore, as noted above, many of the alleged statements are, in substance, the same as statements previously held to be constitutionally protected speech.  For these reasons, this Court should rule as a matter of law that the alleged statements do not constitute true threats under § 871, and grant ____________________’s motion to dismiss.
  	PRAYER
	WHEREFOR, premises considered, Defendant respectfully requests that this Honorable Court dismiss the indictment, on the ground that the conduct alleged does not constitute an offense against the United States, or alternatively, dismiss the indictment based on the unconstitutional application of 18 U.S.C. § 871, as violative of the First Amendment of the United States Constitution.
						Respectfully submitted.

			
					Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion to Dismiss on Johnny Sutton, United States Attorney for the Western District of Texas (Attn: Assistant U.S. Attorney David Counts), by mailing it to his office at United States Attorney’s Office, 601 N.W. Loop 410, Suite 600, San Antonio, Texas, on April 1, 2003. 			

						______________________________________ 
						Attorney for Defendant

 UNITED STATES DISTRICT COURT

__________________ DISTRICT OF TEXAS

____________ DIVISION

UNITED STATES OF AMERICA		§
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V.						§	CAUSE NO. 
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O R D E R

	On this date came on to be considered Defendant’s Motion to Dismiss.  The Court is of the opinion that the indictment fails to state a charge against the United States, in that the statements alleged do not constitute true threats under 18 U.S.C. § 871(a), and, therefore, the indictment must be dismissed.  Alternatively, the Court finds that, if the statements alleged do constitute threats for purpose of 18 U.S.C. § 871(a), then the indictment must be dismissed because the statute, as applied, is violative of the First Amendment of the United States Constitution. It is therefore
	ORDERED that Defendant’s Motion to Dismiss the Indictment is hereby GRANTED.  It is ORDERED that the indictment in this case is DISMISSED.
	SIGNED and ENTERED this___day of ________________, 20__.
							                                                           
							United States District Judge