Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
Appellant was convicted by a jury on two counts of "knowingly and willfully" threatening the life of the President of the United States. *fn1 The charges stemmed from a series of five successive calls appellant admittedly made to the White House on the evening of July 23, 1966, from a public telephone in the lobby of the apartment building in which he resided. The White House operator directed the calls to Secret Service agents who taped them, and at appellant's trial the tape was admitted into evidence and played to the jury.
The calls, excluding interruptions, consumed a total of about 50 minutes, and were interspersed profusely with discussions of "the War in Viet Nam," the "Russians," and other topics of a controversial political nature. They also embraced what were described as "approximately six statements of a threatening nature," and these became the basis of the prosecution. At the agents' request, appellant provided his name, address and telephone number, and agreed to await the arrival of other agents. More than an hour after the first call was placed, the latter agents found appellant still in the telephone booth talking to their colleagues.
The sole defense offered at trial was that appellant was too intoxicated to form the specific intent which is an essential element of the offense charged, and the evidence made it clear that appellant had been drinking heavily during the day. Witnesses for the Government admitted that they detected the odor of alcohol when appellant was arrested, but concluded, on the basis of his manner of speech and action, that he was in control of himself by the time he initiated the calls to the White House.
Appellant brought this litigation here by separate appeals from the conviction and the denial of his motion for a new trial. *fn2 As matters turn out, it is unnecessary for us to consider the points upon which he originally relied for reversal. While these appeals were pending, the Supreme Court, in another case, gave the statute upon which this prosecution was laid a construction materially at variance with the law by which the jury measured appellant's guilt. With prejudice to appellant's substantial rights flowing therefrom, we set his conviction aside and remand the case to the District Court for a new trial. I
Shortly after oral argument before us, Watts v. United States, *fn3 involving a conviction under the same statute, was decided by another division of this court, and a review was sought in the Supreme Court. Because contentions were pressed in Watts which, if accepted, would substantially affect appellant's case, we issued an order deferring our disposition pending the Supreme Court's action. What eventuated in Watts was an interpretation of the statute requiring the proof of a "true 'threat,'" *fn4 and a direction of Watts' acquittal because the statements he made, partly in consequence of their conditional character, were a "'kind of very crude offensive method of stating a political opposition to the President'" which did not amount to a "threat." *fn5
Watts represented the Supreme Court's first construction of the statute, an endeavor in which various other federal courts had engaged. *fn6 Some of these courts, *fn7 on whose holdings the majority of our Watts panel relied, *fn8 had expanded the concept of a "threat" so broadly as to include utterances employing violent words intended and understood as mere jokes or political hyperbole. The Supreme Court, however, admonished that "we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'" *fn9 Thus, ruled the Court, to support a conviction under the statute, "the Government [must] prove a true 'threat.'" *fn10
At appellant's trial, the court quite understandably adopting pre-Watts doctrine, charged the jury that a "threat" was a "declaration of intention to injure another by the commission of an unlawful act," but that the offense could be committed by "merely idle talk or jests" and that it was not a defense "that the alleged threats were uttered conditionally." The court also charged that appellant's intoxication was of moment only if it attained such a degree as to negate his capacity to entertain specific intent. By reflecting these now rejected characteristics of a "threat," the charge thus gave the jury erroneous instructions on a vital element of the offense. Neither "idle talk" nor mere "jest" is a "true 'threat,'" and the conditional nature of a statement, whether or not a complete defense, is certainly a factor bearing on the question whether the statement is an exaggerated expression rather than a "threat." *fn11 We note, too, that the charge did not mention the necessity, in determining whether a threat was made, of examining the statement in its full context. *fn12 A jury properly instructed on this score might have found that appellant's undisputed consumption of a large quantity of alcohol was also relevant to that question and not, as the trial judge charged, a circumstance probative only in relation to specific intent.
These are flaws in appellant's trial of a type we cannot ignore. True it is that in the absence of objection before the jury retires to deliberate, we normally do not notice errors in the charge. *fn13 But in resolving appeals we are "bound to consider any change, either in fact or in law, which has supervened since judgment was entered." *fn14 Where the trial court has followed case law then but no longer prevailing, "our disposition is uninhibited by the requirement that issues proffered on appeal must normally be raised and decided initially in the trial court." *fn15 Thus we are brought to the remaining question whether the errors in the charge necessitate reversal. II
Appellant was entitled to have the issue as to whether his statements constituted a "threat" properly submitted to the jury. *fn16 It follows that if the evidence suggested inquiries for the jury on that issue which the charge erroneously foreclosed, appellant must have a new trial. Our examination of the record reveals a close correspondence between the errors and logical questions imbedded in the evidence.
In his telephone conversations, appellant discussed the war in Vietnam, "Russia," crime, and "Washington politicians," and as well voiced concern for his daughter and wife. During 50 minutes of dialogue, he made, as we have stated, approximately six statements that Secret Service agents characterized from the witness stand as threatening. The record on appeal does not contain the tape itself or a transcription thereof, but the testimony uniformly indicates that most if not all of these statements were patently conditional. *fn17
All circumstances considered, a jury conceivably could have deemed appellant's statements hyperbole, expressing strong disagreement with the President and his policies, rather than as threats upon his life. *fn18 While evening telephone calls to the White House are an offensive, bizarre medium for communication -- and this might well have led the jury to accept the utterances as threats -- appellant's third-grade education and excessive drinking increased the probability of expression in an unaccustomed way. These factors do not outlaw the possibility that the calls were threats, but they do tend to weaken any inference to be derived from their timing and destination. *fn19 Moreover, appellant's ...