filed: December 13, 1991; As Amended December 20, 1991.
On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 89-00474-01)
Before: Sloviter, Chief Judge, Cowen and Weis, Circuit Judges
Louis A. Kosma appeals his conviction under 18 U.S.C. § 871 (1988) for making threats against then-President Ronald Reagan. His appeal alleges that the district court erred in: 1) finding that Kosma's letters to Reagan were "true threats" under section 871 and, therefore, constitutionally unprotected speech, and; 2) construing section 871 under an objective "reasonable person" standard. We agree with the determination of the district court and will affirm.
In 1988, Louis Kosma mailed a series of written communications to President Reagan and presidential assistant Marlin Fitzwater. All of these letters were of a threatening nature, some quite graphic and explicit. Although the opinion of the district court provided a thorough description of the facts, United States v. Kosma, 749 F. Supp. 1392 (E.D. Pa. 1990), the content of Kosma's rather bizarre communications to the President are worth repeating in order to evaluate their effect on the intended audience.
Kosma's first communication with President Reagan was in a postcard postmarked March 2, 1988, which was addressed to President Reagan, "C/O Ye Ol Whitehouse." The postcard states in full:
Mr. Reagan: You are hereby invited to PHILADELPHIA. We are going to give you a 21 Gun-Salute. 21 guns are going to put bullets thru your heart & brains. You are a Disgrace to the Air-Force. You are a Disgrace to Teddy Roosevelt. You are a Disgrace to John F.Kennedy. You a Disgrace to Nancy Reagan. You have insulted her intelligence, and dignity, and honor, and integrity, and I resent this very much.!! You are In Contempt of EVERYTHING that I represent, and standby, and believe. Officially: an Act of Contempt of Court. Your name is going to be removed from ALL documents, and books. OFFICIALLY: you were NEVER the "president" of anything.!!
App. at 21-2. The return address of the postcard is "Louis A.Kosma (acting Director. FBI)."
On April 6, 1988, Kosma sent mailgrams to President Reagan, Secret Service Agent Kevin White, and Postal Service attorney Randy Levin notifying them that they were "suspended without pay . . . pending a special grand jury indictment." App. at 21-5.
A document postmarked April 20, 1988 was sent to the U.S. Marshal's office in Baltimore. The document which seems to be a cut-and-paste of several other documents has the heading "IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA" and purports to be an "Official Court Order," "Official Proclamation" and "Motion to Proceed in Forma." The text of the document states:
WHEREBY; You criminals have caused many Crimes against Humanity, and it would be Futile for you to seek Justice. YOU CAN ONLY SEEK MERCY.!! "Give me Liberty or give me Death." WE can NOT give you Liberty, but we can give you Death, to end your Mental Anguish.!!
You should choose an Honorable Death. You are hereby ORDERED to Philadelphia, Penna. We are going to give you a 21 Gun-Salute. Twenty-one guns are going to put bullets thru your heart & brains. Place: FEDERAL COURTHOUSE. 601 Market street. Time: 6:O'clock am. Date: June 14th. 1988. Flag Day.
App. at 21-4 (emphasis in original). The document claims to be from the "Senior Commander. REGIONAL TASK FORCE" and the "U.S. MARINES," but is signed by Kosma.
Four letters, all postmarked July 4, 1988, were sent separately to presidential assistant Marlin Fitzwater. The first letter states:
Stevan P. White (Henchman) ...