United States of America, Plaintiff-appellee, v. John Wesley Deshazo, Defendant-appellant, 565 F.2d 893 (5th Cir. 1976)

John Wesley DeShazo was convicted on a one count indictment charging him with violation of 18 U.S.C. § 876¹  for knowingly and intentionally causing to be delivered by the United States Postal Service a communication containing a threat to injure then Senator Walter Mondale. The district court imposed the maximum sentence of five years' imprisonment. DeShazo maintains that the district court erred in refusing to instruct the jury that it was necessary to find that the threat had been made with a "present intention" to do injury to the person threatened. We affirm.

On November 16, 1976, the Honorable Frank J. Barkin, United States Magistrate for the Western District of Texas, sitting in San Antonio, Texas, received a letter addressed to him from DeShazo. The letter, dated November 1, 1976, contained threats to kill Senator Robert Dole and then Senator, currently Vice-President of the United States, Walter Mondale.

DeShazo was subsequently located and placed under arrest by Special Agent Beatty of United States Secret Service. DeShazo admitted to Agent Beatty that he had written the letter, and that he had caused it to be placed in the mail. DeShazo stated, however, that he had no intention of harming anyone, and had written the letter because he wanted psychiatric help. Handwriting exemplars were also obtained from DeShazo at that time.

At trial, DeShazo elected to testify in his own behalf. He maintained that he did not then, or in the past, harbor any desire to harm or kill either Senator Robert Dole or then Senator Walter Mondale. He did admit that he had intended to communicate the threat, that he had written the letter, and that he caused it to be placed in the mail. The defense also presented the testimony of Stuart King, a house manager at the San Antonio Halfway House where DeShazo had lived for some six months in 1975, in an effort to establish that the defendant was a meek and nonviolent person.

In addition to the statements made by DeShazo at the time of his arrest, the Government presented the testimony of a handwriting expert that the exemplars obtained from DeShazo and the letter containing the threats had been prepared by the same person. It was also stipulated, for use solely as to the question of intent, that the defendant had been convicted on two prior occasions, March 14, 1968, and September 14, 1972, of the offense of threatening the President of the United States in violation of 18 U.S.C. § 871.

There are two essential elements necessary to prove a violation of 18 U.S.C. § 876: (1) that the defendant wrote a letter addressed to a certain person containing a threat to injure the person of the addressee or another; and (2) that the defendant knowingly caused the letter to be forwarded by the United States mail. United States v. Reynolds, 532 F.2d 1150 (7th Cir. 1976); Petschl v. United States, 369 F.2d 769 (8th Cir. 1966). See United States v. Lance, 536 F.2d 1065 (5th Cir. 1976). The defendant requested the district court to instruct the jury that it was also necessary to find that the threat had been made with the "present intention" to do injury to the person threatened.²  The district court, however, refused to so instruct the jury.

DeShazo maintains that 18 U.S.C. § 871,³  dealing with threats against the President or Vice-President of the United States, and 18 U.S.C. § 876 "are virtually identical and should, therefore, require the same standard of proof regarding the element of intent." It is DeShazo's contention that the holding of Fourth Circuit in United States v. Patillo, 438 F.2d 13 (4th Cir. 1971), that an essential element of guilt under 18 U.S.C. § 871 is "a present intention to do injury to the President," requires a finding of similar intent in prosecutions under 18 U.S.C. § 876. We have consistently declined to adopt the test used by the Fourth Circuit in cases arising under 18 U.S.C. § 871. United States v. Kirk, 528 F.2d 1057 (5th Cir. 1976); United States v. Hall, 493 F.2d 904 (5th Cir. 1974).

In view of the similarity between the two statutes, it would be incongruous to require the specific intent enunciated by the Patillo decision for a conviction under § 876, but not for a conviction under § 871. The evidence at DeShazo's trial established proof of the requisite elements of an offense under 18 U.S.C. § 876. Accordingly, the conviction is affirmed.