Unpublished Disposition, 935 F.2d 276 (9th Cir. 1987)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1987)

No. 89-30061.

United States Court of Appeals, Ninth Circuit.

Before WALLACE, Chief Judge, O'SCANNLAIN, Circuit Judge, and BURNS,**  District Judge.

MEMORANDUM*** 

Michael Howard Hunter appeals pro se from his conviction following a jury trial on two counts of threatening federal officials, viz., the President of the United States (Count I--18 U.S.C. § 871) and federal judges (Count IV--18 U.S.C. § 115). We reject each of his numerous claims of error and affirm both his conviction and the sentence imposed.

* Hunter first contends that the district court erred by admitting into evidence incriminating statements he made to an investigator after having purportedly asserted his Miranda right to counsel. We disagree. The statements at issue clearly bore no relationship to Count I, and the other evidence produced as to Hunter's guilt on Count IV was both overwhelming and unrelated to the purported error. Accordingly, any alleged error which might be deemed to have resulted from the admission of the statements into evidence was harmless beyond a reasonable doubt. See Arizona v. Fulminante, 111 S. Ct. 1246, 1263-66 (1991) (Rehnquist, C.J., for five justices) (introduction of an involuntary confession not reversible error if harmless beyond a reasonable doubt).

II

Hunter next argues that the district court erred by admitting a letter sent to a United States Attorney and testimony concerning a telephone call made to a United States District Court Clerk's office as evidence of uncharged acts. The record shows that the district court properly weighed the relative probative value and prejudicial effect of the evidence per Fed.R.Evid. 403, admitted it pursuant to Fed.R.Evid. 404(b), see United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987), and gave an appropriate limiting instruction to the jury. There was no abuse of discretion.

III

Hunter's third contention is that the evidence was insufficient to show that his threat to "the President" was directed against the President of the United States. Viewed in a light most favorable to the government, Agent Boyle's testimony and the evidence of the recruiters' actions and their understandings of the threats constitute more than sufficient evidence from which a jury could reasonably have found Hunter guilty as charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

IV

Hunter next argues that the indictment described with insufficient particularity the offenses with which he had been charged. On the contrary, the offenses were charged in the relevant statutory language, all essential elements of the offenses were listed, the manner in which the threats were made (i.e., by telephone and in writing) and the identities of the victims, all appear in the charging instrument. The indictment was sufficient. See United States v. Scott, 884 F.2d 1163, 1166 (9th Cir. 1989) (per curiam).

V

Hunter's fifth contention is that 18 U.S.C. § 115 is an unconstitutional infringement on his first amendment right to freedom of speech. The law does not provide first amendment protection to threats. Watts v. United States, 394 U.S. 705, 707-08 (1969) (per curiam) (construing 18 U.S.C. § 871); United States v. Gilbert, 884 F.2d 454, 457 (9th Cir. 1989) (construing 18 U.S.C. § 3631), cert. denied, 110 S. Ct. 1140 (1990). Hunter's "speech" was not constitutionally protected.

VI

With respect to Hunter's sixth argument, we note that, aside from his failure to present this issue to the trial court, see Fed. R. Crim. P. 12(b), (f), any possible error in the grand jury proceedings was cured by the petit jury's verdict. See United States v. Mechanik, 475 U.S. 66, 70, 73 (1986).

VII

Hunter's next two claims of error involve 18 U.S.C. § 4244. First he argues that the evidence was insufficient to show that he had been properly evaluated as one in need of care and treatment under the statute. On the contrary, the evidence with respect to this issue (e.g., the evaluation report, the uncontroverted showing of his recent suicide attempt, the lengthy and documented history of his mental illness) reveals that the district court did not err. Cf. Gregory K. v. Longview School Dist., 811 F.2d 1307, 1311-12 (9th Cir. 1987) (reviewing district court's findings with respect to child's mental abilities).

Second, Hunter argues that the provisional maximum sentence imposed under 18 U.S.C. § 4244 should be the maximum authorized under the Sentencing Guidelines for the crimes of which he was convicted. This is incorrect. A defendant who is found to be suffering from a mental disease or defect may be provisionally sentenced under section 4244 to a facility for care and treatment in lieu of imprisonment. United States v. Buker, 902 F.2d 769, 770 (9th Cir. 1990). A provisional sentence under section 4244 in lieu of imprisonment takes the matter outside the scope of coverage provided by the Sentencing Guidelines. United States v. Roberts, 915 F.2d 889, 891-92 (4th Cir. 1990) (defendant convicted under 18 U.S.C. § 115 of threatening Supreme Court Justice and sentenced under 18 U.S.C. § 4244; held, provisional sentence maximum and not Guideline Sentence range maximum governs), cert. denied, 111 S. Ct. 1079 (1991). There was no error on this point, either.

VIII

Hunter's three arguments concerning his right to counsel are all meritless. With respect to his allegedly invalid waiver of the right to appointed counsel, the record shows that Hunter was warned both by the magistrate and the district judge about the dangers and consequences of self-representation, and that he unequivocally insisted on that right. See McKaskle v. Wiggins, 465 U.S. 168, 173 (1984) (knowing and intelligent waiver). As for the contention that the magistrate violated his right to self-representation by appointing counsel during the pretrial phase of the proceedings, our examination of the pleadings and orders involved shows that no violation of Hunter's self-representation right occurred thereby. See generally Locks v. Sumner, 703 F.2d 403, 407 & n. 3 (9th Cir.) (discussing use of and distinctions between standby, advisory, and co-counsel), cert. denied, 464 U.S. 933 (1983). Finally, Hunter's complaint about the inadequacies of the legal research and related facilities and accommodations afforded him by the court is belied by the fact that he was provided standby counsel at his request, funds for an investigator and an expert witness, and otherwise given "adequate, effective, and meaningful" access to the court. See Bounds v. Smith, 430 U.S. 817, 822 (1977); Savage v. Estelle, 924 F.2d 1459, 1464 n. 11 (9th Cir. 1991) (as amended).

IX

Hunter next contends that the district court erred by denying him the opportunity to submit evidence relevant to his claim of vindictive prosecution. Hunter's opportunity to proffer such evidence effectively occurred prior to trial, when he moved to dismiss for vindictive prosecution, the government responded to the motion, and the court denied it. In light of the fact that Hunter does not appeal from that decision, but argues instead that he should have been allowed to offer such evidence at trial when the question of vindictive prosecution was no longer at issue, we conclude that the district court did not err in denying his request. See United States v. Davis, 876 F.2d 71, 73 (9th Cir. 1988) (per curiam) (district court does not err by excluding evidence irrelevant to defense presented), cert. denied, 110 S. Ct. 188 (1989).

X

Hunter's challenge to the prosecutor's closing argument as constituting a denial of his right to a fair trial must also fail. The prosecutor's reference to the testimony of Agent Boyle, even if deemed improper, most certainly did not rise to a degree of prejudice that would have denied Hunter a fair trial. See United States v. Endicott, 803 F.2d 506, 513-14 (9th Cir. 1986) (prosecutor's reference in closing argument to facts and inflammatory items not presented at trial, while improper, did not deny defendant fair trial).

XI

Hunter next argues that it was not a violation of 18 U.S.C. § 115 to threaten federal judges on the date in question, i.e., December 29, 1987. This is incorrect. Subparagraph (1) (B) was added to section 115(a) of Title 18 of the United States Code on November 10, 1986, to extend to federal judges, inter alios, the protection originally provided only to their families. See Pub. L. No. 99-646, Sec. 60 at 30, 100 Stat. 3592, 3613 (1986); 1986 U.S.Code Cong. & Admin.News 6138, 6153.

XII

Hunter's last claim of error is that a portion of his testimony is missing from the trial transcript, and this omission requires either a reversal or at least a remand for a determination as to what happened with the transcript. We disagree. First, the portion in question has been transcribed twice, and there is nothing to support Hunter's allegation that some of his testimony was not recorded. Second, there is nothing in this record showing any prejudice to Hunter's defense resulting from the alleged inaccuracy, even if the omission did occur. Accordingly, we reject this contention. See United States v. Anzalone, 886 F.2d 229, 232 (9th Cir. 1989).

In addition to the claims of error discussed above, Hunter has also asked this court to remand his appeal so that the district court can rule on, inter alia, Hunter's request for release on bail, and to appoint "counsel of choice" for the handling of that remand. These motions are hereby DENIED.

The judgment of conviction and the sentence imposed are AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Honorable James M. Burns, Senior United Stated District Judge for the District of Oregon, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3