                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2008

USA v. Richards
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1794




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   No: 06-1794

                         UNITED STATES OF AMERICA

                                               v.

                             MAURICE RICHARDS,
                                      Appellant

                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                              (Crim. No. 05-cr-00151)
                      District Judge: Hon. R. Barclay Surrick

                               Argued: June 14, 2007

                 Before: McKEE, Circuit Judge, and STAPLETON
                      and NYGAARD, Senior Circuit Judges

                         (Opinion filed: March 31, 2008 )




MAUREEN KEARNEY ROWLEY, ESQ.
Chief Federal Defender
DAVID L. McCOLGIN, ESQ. (Argued)
Chief Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106
Attorneys for Appellee


                                           1
PATRICK L. MEEHAN, ESQ.
United States Attorney
ROBERT A. ZAUZMER, ESQ.
Assistant United States Attorney
Chief of Appeals
MANISHA M. SHETH, ESQ. (Argued)
616 Chestnut Street
Suite 1250
Philadelphia, PA 19106


                                        OPINION


McKEE, Circuit Judge.

       Maurice Richards appeals his conviction for “knowingly and willfully”

threatening to kill or inflict bodily harm on a member of the immediate family of a

former President, in violation of 18 U.S.C. § 879(a)(1). For the reasons that follow, we

will reverse.

                                             I.

       Inasmuch as we are writing primarily for the parties who are familiar with this

case, we need not set forth the factual or procedural background except insofar as is

helpful to our discussion.1

       After Richards waived his right to a jury trial, both he and the government filed

motions in limine to preclude certain evidence from being admitted based upon



       1
          For a detailed recitation of the factual background of this case see, United
States v. Richards, 415 F. Supp. 2d 547, 549-50 (E.D. Pa. 2005).

                                             2
competing interpretations of the willfulness element of § 879. Richards contended that

the statute requires a showing of subjective intent; i.e. proof that he actually intended his

statements to be perceived as a threat. However, the government argued it need only

establish that a reasonable observer would have perceived the statements as a threat to

satisfy its burden under of § 879. Inasmuch as this was to be a bench trial, the court

decided to reserve ruling on the motions and hear the disputed evidence with the

understanding that it would only consider the relevant evidence after determining

whether § 879 required proof of subjective intent as argued by Richards, or objective

intent as argued by the government.

       The evidence at trial included the conflicting psychiatric testimony of Dr. Robert

Sadoff who testified for Richards, and Dr. Timothy Michals, who testified in rebuttal for

the government. Despite their disagreement on some issues, they agreed that Richards

was psychotic at the time of the incident that lead to his indictment.

       Dr. Sadoff concluded that Richards’ “threats” “were a product of his psychotic

thought disorder [and] were not clearly thought through.” App. 204. In his written report,

Dr. Sadoff had diagnosed Richards with “chronic schizophrenia, with paranoid features.”

App. 353. He opined that Richards’ statements were delusional, not specifically directed

toward anyone, and concluded that Richards did not intend to threaten Mrs. Clinton or

cause concern for her safety. Id.

       Although Dr. Michals agreed that Richards was psychotic and “severely mentally


                                              3
disabled,” he disagreed with the diagnosis of schizophrenia with paranoid features. App.

271-72. Dr. Michals believed that Richards made his statements about Mrs. Clinton

knowingly, and concluded that Richards had “some awareness” of his actions because he

stopped chanting about Hillary Clinton whenever Miller was in his line of sight. App.

250-51.

       The district court convicted Richards of violating 18 U.S.C. § 879(a)(1). The

court reasoned that although some at the shelter were laughing at Richards, staff

members were sufficiently concerned to remove Richards from the shelter. United States

v. Richards, 415 F. Supp. 2d 547, 550-52 (E.D. Pa. 2005). The district court found that

the statements were “knowingly” made insofar as they were made voluntarily and

intentionally, and not as the result of mistake, duress or coercion. Id. at 552-53. It also

concluded that the willfulness element was satisfied. The court believed that the test for

willfulness is an objective one as the government had argued. Thus, the government

only needed to prove that a reasonable person would perceive Richards’ statements as a

threat. Id. at 553-58. Because the district court found that the test for willfulness is an

objective one, it did not consider the psychiatric testimony.2 Id. at 559 n.6. This appeal

followed.

                                     II. DISCUSSION


       2
       Procedurally, because the district court did not consider any psychiatric testimony
based on its holding on the willfullness requirement, the district court granted the
government’s motion to preclude psychiatric testimony.

                                              4
       The district court concluded that the willfulness element of § 879 only requires

objective intent. More specifically, the district court held:

       [T]he phrase “willfully” as used in § 879 requires only that the Government
       demonstrate, beyond a reasonable doubt, that “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 take the life of” Senator Clinton.

415 F. Supp. 2d at 558 (citing United States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991)

(interpreting the term “willfully” in 18 U.S.C. § 871, threats against the President).

       In explaining how the evidence satisfied that standard, the court wrote:

              It is clear that the people at the shelter who heard Defendant’s
              threats perceived them as serious. . . Miller notified the
              shelter security personnel. Miller also remained close at hand
              when Blitman spoke to Defendant in case she needed further
              assistance. The people in the dinner line moved away from
              Defendant as he made these threats. . . and, at one point,
              Miller himself registered fear. All of these reactions are
              evidence that reasonable people perceived Defendant’s
              statements to be serious threats.


              Most significantly, the staff at the shelter decided to remove
              Defendant from the shelter. They did not want to allow
              someone who was talking about shooting Hillary Clinton and
              killing white people to remain at the shelter overnight. They
              were afraid that he might lose control. Defendant was
              involuntarily committed at the Hall Mercer Clinic.


415 F. Supp. 2d at 558-59.

       Although Richards still contends that § 879 requires subjective intent, he assumes

arguendo for purposes of this appeal that the court’s objective test is correct, and he

                                              5
argues that the evidence was insufficient to satisfy even that standard. We agree.3

       The only two people who testified that they heard Richards chanting about putting

“bullets into Hillary Clinton” were case manager Miller and mental health clinician

Blitman. Miller testified that he did not consider Richards’ chanting to be a serious

threat to Hillary Clinton, App. 131, and both testified that they saw no reason to be

concerned for Hillary Clinton’s safety. App. 113, 146. Therefore, their reaction does not

satisfy the objective test. We simply can not agree that the evidence establishes an

objective test for willfulness if the only people who heard Richard’s utterances about

Hillary Clinton did not regard them as serious threats and saw no reason to be concerned

for Hillary Clinton’s safety. The court’s finding that “[i]t is clear that the people at the

shelter who heard Defendant’s threats perceived them as serious,” 415 F. Supp. 2d at

558, is simply not supported by the record and is therefore clearly erroneous.4

       3
        “We apply a particularly deferential standard of review when deciding whether a
[] verdict rests on legally sufficient evidence.” United States v. Dent, 149 F.3d 180, 187
(3d Cir. 1998). “It is not for us to weigh the evidence or to determine the credibility of
the witnesses.” Id. (citation omitted). “Rather, we must view the evidence in the light
most favorable to the government, and will sustain the verdict if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Id.
(citations and internal quotations omitted). “Thus, a claim of insufficiency places a very
heavy burden on an appellant.” Id. (citation and internal quotations omitted).
       4
       In United States v. 15 Bosworth Street, 236 F.3d 50 (1st Cir. 2001), the court of
appeals wrote:

       When a district court conducts a bench trial, its legal determinations
       engender de novo review. This includes its determinations about the
       sufficiency of the evidence. In contrast, the court’s factual findings are
                                                                               (continued...)

                                              6
       The district court ignored testimony that neither Miller nor Blitman saw any

reason to be concerned for Senator Clinton’s safety. Instead of addressing that

testimony, the court relied upon five “facts” that it believed established that the

willfulness element of § 879. First, the district court noted that “Miller notified the

shelter personnel.” 415 F. Supp.2d at 558. However, Miller made it clear that he notified

security pursuant to normal operating procedure, and not because he viewed anything

Richards said as a serious threat to anyone, let alone Hillary Clinton. In fact he

emphasized that he did not regard Richards as a threat. He explained: “I went to tell

security just that here was a potential issue, nothing to be worried about, . . . [T]his

wasn’t all that abnormal up to this point. . . I don’t think I stressed that where was

anything major going on.” App. 79-80. Miller clarified that “similar incidents” requiring

him to alert security “were quite common at the shelter.” App. 80.

       Second, the district court wrote that “Miller also remained close at hand when

Blitman spoke to Defendant in case she needed further assistance.” 415 F. Supp.2d at

558. However, the district court failed to note that Miller was once again simply

following the shelter’s protocol. Miller testified that his reaction was: “[j]ust kind of



       4
        (...continued)
       entitled to considerable deference. . . . Despite the deference due, an
       appellate court will displace factual findings in the aftermath of a bench
       trial if those findings are clearly erroneous.

Id. at 53.

                                              7
standard . . . we just basically back each other up in whatever capacity we can. So, if he

didn’t respond well to her or something like that, I would be right there.”

App. 20. Given Miller’s explanation, we do not believe that his remaining “close at

hand” can support an inference that he took Richards’ chanting as a serious threat to

Hillary Clinton. Rather, as Miller testified, his concern was for Richards’ mental health.

App. 102.

       Third, the district court noted that “[t]he people in the dinner line moved away

from Defendant as he made these threats.” 415 F. Supp.2d at 558. However, that hardly

supports the inference that the district court drew, even given our differential standard of

review. Miller testified: “I think some people sitting close to him were . . . keeping a

little distance from him,” App. 69, and “I think they were moving away from him a little

bit, yes.” App. 129. However, given Richards’ disheveled and malodorous state, it is not

surprising that people moved away from him when he became loud. People normally

keep their distance from a disheveled, homeless person engaging in psychotic behavior.

The fact that some people in the line moved away from Richards does not, without more,

support an inference that a reasonable observer would believe Richards was threatening

Hillary Clinton.. Moreover, any such inference is seriously undermined not only by the

totality of the circumstances including Richards’ disheveled state, but by the testimony of

Blitman and Purdie that some people near Richards were actually laughing at him.

       Fourth, the district court also noted that a “member of the staff was alarmed by the


                                             8
statements and, at one point, Miller himself registered fear.” 415 F. Supp.2d at 558.

However, that was not in response to Richards’ chants about Hillary Clinton. Rather, that

occurred after dinner, when Purdie and Miller spoke with Richards. At that point,

Richards did not make any statements about Hillary Clinton. “He was just ranting about

white people.” App. 162. He started screaming about “cutting heads off” and “hating

white people.” App. 86-87. The alarm that certain people registered was a reaction to

Richards’ racist and psychotic ranting. Richards was no longer talking about shooting

Hillary Clinton, and there was no evidence that Brian heard the earlier statements about

Hillary Clinton.

       Lastly, the district court explained: “Most significantly, the staff at the shelter

decided to remove Defendant from the shelter. They did not want to allow someone who

was talking about shooting Hillary Clinton and killing white people to remain at the

shelter overnight. They were afraid he might lose control.” 415 F. Supp.2d at 558. Far

from being the most significant aspect of the government’s proof, we feel the reasoning

behind removing Richards from the shelter establishes conclusively that objective

observers did not take his ranting about Hillary Clinton seriously. Miller testified that

they removed Richards and had him committed solely based on a concern for Richards’

health and safety, not because of any concern for the safety of Hillary Clinton. App. 102.

The fact that Hillary Clinton is a white woman in no way establishes that Richards’

generalized rants about white women constitute threats to her within the meaning of §


                                              9
879.

       Miller testified, “I would not have felt comfortable, at the end of my shift,

knowing that somebody had just screamed things about, you know, killing people.”

App. 118. Miller immediately clarified that the screaming he was referring to did not

involve the statements about shooting Hillary Clinton. The statements about Clinton

were “the mumbling and chanting to himself; and those were not the subject of the

screaming.” App. 119.

       Furthermore, the fact that the staff would simply have put Richards out on the

street if it had not been too cold to do so clearly establishes that they saw no reason to be

concerned for Hillary Clinton’s safety. Miller testified that they opted for involuntary

commitment because it was cold outside and Miller “didn’t like the chances of

[Richards] finding a heating grate.” App. 90. Had the staff perceived his chanting about

Hillary Clinton to be a serious threat, they certainly would not have put him back on the

street where he would have access to all manner of weapons.

       Interestingly, the government does not directly address the fact that the only

people who heard Richards’ statements about Hillary Clinton were Miller and Blitman

and that they did not consider those statements to be serious. Instead, the government

suggests that Miller’s and Blitman’s testimony is not that reliable because they work in a

homeless shelter and they hear people making threatening statements all the time. In the

government’s view, they are much more tolerant than the average observer in reacting to


                                             10
threats. However, we believe the reverse to be true. Their background puts them in a far

better position to make an objective assessment of Richards’ behavior and utterances

than the average person who is unfamiliar with psychotic behavior.

                                   IV. CONCLUSION

       For the reasons set forth above, we conclude that there is insufficient evidence to

sustain Richard’s conviction for violating 18 U.S.C. § 879(a)(1). Therefore, we will

reverse the judgment of the District Court and remand with instructions to vacate the

judgment of conviction and instruct the district court to enter a judgment of acquittal.5




       5
         Given our holding, we need not address whether Richards’ utterances constituted
“true threats” or protected speech. See Watts v. United States, 394 U.S. 705 (1969).

                                             11
