MOHAMMED FARHAD KHORRAMI, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5546

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A2-A12) is reported
at 895 F.2d 1216.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 12,
1990.  A petition for rehearing was denied on May 11, 1990.  Pet. App.
A13.  The petition for a writ of certiorari was filed on July 20,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's written threats to kill two Israeli public
officials were constitutionally protected speech.

   2. Whether certain tape recordings of petitioner's threatening
telephone calls were properly admitted as evidence of similar acts
under Fed. R. Evid. 404(b).

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Indiana, petitioner was convicted of mailing a threat to
kill two individuals, in violation of 18 U.S.C. 876, and of placing
harassing telephone calls, in violation of 47 U.S.C. 223(a)(1)(B).
His sentence of three years' imprisonment was suspended and he was
placed on probation for three years.  The court of appeals affirmed.
Pet. App. A2-A12.

   1. The evidence at trial showed that petitioner directed a series
of threats against a number of individuals to the New York
headquarters of the Jewish National Fund (JNF), a non-profit
organization that raises funds for Israel.  The threats started on
January 11, 1988, when two JNF employees listened to a telephone
answering tape on which petitioner made threatening and profane
statements about the JNF, Israelis, and Jews.  The JNF then began to
record incoming calls, and it received and taped threatening calls
from petitioner on January 12 and 13.  On Friday, January 15, 1988,
the JNF received a number of similar phone calls.  The calls were
lengthy and consisted of statements calling for "death to" Jews,
various individuals, and the JNF.  The caller also stated "long live"
Palestine and Hitler, and said that "Jews are scum" and "fuck all
Jews." Petitioner's convictions for placing harassing telephone calls
related to the calls that he made on January 15.  The JNF received
similar calls on February 20, March 4, and April 23 or 24, 1988.  Pet.
App. A4.

   On February 12, 1988, the JNF received through the mails a poster
that contained pictures of Israeli and JNF officials taken from
materials published by the JNF.  The poster stated at the top "Wanted
for crimes against humanity and Palestinians for fifty years."
Swastikas and epithets were drawn over the pictures together with
mustaches and other disfigurements.  Under a picture of Israeli Prime
Minister Yitzhak Shamir, petitioner had written "execute now!" Under a
picture of Israeli Foreign Minister Shimon Peres, he had written "his
blood need." Other pictures were labeled "must be killed" and "death
to Jews." The poster also contained a picture of United States Senator
Edward Kennedy accompanied by the expression "long live Sarhan Sarhan"
(sic).  Pet. App. A1, A5.  Petitioner's conviction for mailing a
threatening communication was based on the "wanted" poster.  The
indictment charged that it threatened Shamir and Peres.

   On the same day that it received the poster, the JNF also received
a copy of its calendar on which petitioner had drawn swastikas.
Vulgar language similar to the statements made in the phone calls was
typewritten on the calendar.  Each of the mailings was postmarked
"Bloomington, Indiana, February 9, 1988." The JNF determined that, in
response to a request from a "David Stein," it had mailed some of its
material to Bloomington.  A JNF official, Jaime Negroni, telephoned
the number listed on the request and heard an individual answer the
phone by stating "Financial Services of America." Negroni, who had
heard some of the threatening phone calls, immediately recognized the
voice of the individual who had answered the phone as the same person
who had made the series of threatening calls to the JNF.  Negroni
asked to speak to David Stein, whereupon the person who had answered
the phone hung up.  Negroni called the same number two minutes later,
but he heard a recording for Financial Services of America.  Pet. App.
A5-A6.

   Telephone records showed that the Bloomington number called by
Negroni was petitioner's and that numerous calls had been placed from
petitioner's number to the JNF in January 1988.  Petitioner's
fingerprints were found on the defaced JNF calendar that was sent from
Bloomington to the JNF.  A government documents examiner testified
that petitioner had probably written the letters to the JNF and that
the typed matter on the JNF calendar came from petitioner's word
processor.  Pet. App. A4, A6.

   In support of the charges that petitioner had committed multiple
offenses involving a telephone on January 15, 1988, the government
offered into evidence tape recordings of petitioner's telephone calls
to the JNF on January 12, January 13, February 20, March 4, and April
23-24, 1988, as evidence of similar acts under Fed. R. Evid. 404(b).
Petitioner objected to the tapes on the ground that the prejudicial
effect of the evidence outweighed its probative value.  The district
court conditionally admitted the tapes, but stated that if the
government did not show that petitioner had made the calls, the tapes
would be stricken from the record.  Portions of each of the five tapes
were played for the jury.  After the government introduced the
telephone records showing that multiple phone calls were made from
petitioner's telephone number in Bloomington to the JNF in January
1988, /1/ four of the tapes were admitted into evidence based on those
records and the similarity between the caller's voice and
petitioner's.  In admitting the evidence, the district court did not
specifically state that the probative value of the tapes outweighed
their prejudicial effect.  The April 23-24 tape was never admitted
into evidence, but petitioner made no further objection to that tape,
nor did he move to strike it from the record.  Pet. App. A9-A11.

   2. The court of appeals affirmed.  Pet. App. A2-A12.  The court
first held that the evidence was sufficient to support petitioner's
conviction for mailing a threatening communication.  The court
concluded that petitioner's "wanted" poster constituted a true threat
rather than political hyperbole protected by the First Amendment.  The
court observed that petitioner's mailing of the poster was part of a
lengthy campaign of harassment;  he sent the poster at the same time
that he sent another threatening letter to the JNF;  by using JNF
materials, he demonstrated that JNF officials were dealing with an
individual with whom they had come into contact;  and he included
threats to JNF officials on the same poster that contained threats to
Peres and Shamir.  Furthermore, several JNF employees testified at
trial that they felt threatened by petitioner's telephone calls.  Pet.
App. A4, A9.

   The court also upheld the admission of the tape recordings of
petitioner's harassing telephone calls as evidence of similar acts
under Fed. R. Evid. 404(b).  The court concluded that the government
had proven by telephone records that petitioner made the first three
calls and that the tapes were properly admitted to show petitioner's
identity and intent.  The court acknowledged that the March 4 call was
not reflected in the records for petitioner's telephone, but it
concluded that the jury could have concluded that petitioner had made
that call from the similarities in voice pattern and subject matter
between that call and the previous calls.  Pet. App. A9-A11.

   The court also ruled that the playing of a portion of the April
23-24 tape was not unduly prejudicial to petitioner even though the
district court did not formally admit that tape into evidence.  The
court reasoned that the evidence was sufficient to demonstrate that
petitioner made that telephone call to the JNF and, furthermore, the
playing of that tape was merely cumulative to the playing of the other
tapes.  The court stated that petitioner was partially responsible for
the court's failure to make a final ruling on the tape's admissibility
because petitioner made no request for a final ruling and did not ask
the court to strike the tape from evidence.  Pet. App. A11-A12.
Finally, the court concluded, in light of the overwhelming evidence
against petitioner, that any error in the admission of the tapes was
harmless.  Id. at A12.

                               ARGUMENT

   1. Petitioner contends (Pet. 4-12) that his conviction for mailing
a threatening communication is void because the statements on his
"wanted" poster were not "true threats" but protected speech under the
First Amendment.  The court of appeals correctly decided this
fact-bound claim and its decision does not conflict with any decision
of this Court or with the decision of any other court of appeals.
Accordingly, further review is not warranted.

   Whether a communication is a "true threat" or speech protected by
the First Amendment depends on whether, in context, a reasonable
person would have interpreted the communication as a threat of injury.
 See, e.g., United States v. Roberts, No. 89-5224 (4th Cir. Sept. 12,
1990), slip op. 4-5;  United States v. Davis, 876 F.2d 71, 73 (9th
Cir.), cert. denied, 110 S.Ct. 188 (1989) (communication "could
reasonably be read as containing a threat of injury");  United States
v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986), cert. denied, 481 U.S.
1005 (1987);  United States v. Callahan, 702 F.2d 964, 965 (11th
Cir.), cert. denied, 464 U.S. 840 (1983).  /2/ This Court has held
that mere hyperbole is protected.  Thus, in United States v. Watts,
394 U.S. 705 (1969), this Court reversed a conviction based on the
defendant's statement, made during a rally protesting the Vietnam War,
that if he were drafted and forced to carry a rifle "the first man I
want to get in my sights is L.B.J." The Court concluded that, in
context, petitioner's statement merely expressed, in a crude manner,
political opposition to the President's policies.  Id. at 708.  But
direct threats consistently have been held unlawful.  See e.g., United
States v. Hoffman, 806 F.2d at 704 (letter told President Reagan that
he would "get (his) brains blown out");  United States v. Merrill, 746
F.2d 458, 461-462 (9th Cir. 1984) (letter contained a picture of
President Reagan's head on a stake with the words "kill Reagan"),
cert. denied, 469 U.S. 1165 (1985);  United States v. Callahan, 702
F.2d at 965 (letter stated that President Reagan and Vice-President
Bush must be assassinated and that the sender was willing to accept
the responsibility);  see Rankin v. McPherson, 483 U.S. 378, 387
(1987) ("a statement that amounted to a threat to kill the President
would not be protected by the First Amendment").

   The court of appeals correctly determined that the evidence was
more than sufficient to show that petitioner's actions constituted a
threat rather than hyperbole.  /3/ Writing "execute now" and "his
blood need" under the pictures of Shamir and Peres surely amounts to a
threat against those two individuals.  If that were not clear enough,
the other statements on the mailing -- including "death to Jews,"
"must be killed," and "long live Sarhan Sarhan" -- make petitioner's
meaning plain.  Moreover, petitioner sent the "wanted" poster to the
JNF as part of a lengthy campaign of harassment that included vicious
and profane telephone calls, and he sent the poster at the same time
that he sent another threatening letter to the JNF.  Petitioner
drafted all of his threatening correspondence from JNF materials,
which communicated to the JNF that they were dealing with someone who
had contact with the organization, and petitioner included threats
against JNF officers on the same poster that contained threats to
Shamir and Peres.  Petitioner's systematic crusade against the JNF was
of a very different character than the hyperbolic remark in Watts.
/4/

   2. Petitioner also challenges the district court's admission of the
tape recordings of his telephone calls to the JNF.  Specifically,
petitioner contends (Pet. 12-14) that the district court erred in
admitting the March 4 recording because the evidence did not establish
that petitioner made that call.  He also maintains (Pet. 14-18) that
the jury improperly heard the April 23 or 24 tape recording because it
was not formally admitted into evidence.  In addition, he argues (Pet.
18-19) that none of the tapes admitted as evidence of similar acts
should have been admitted because the district court did not state
that their probative value outweighed their prejudicial effect.  None
of these fact-bound issues merits further review.

   First, the district court properly admitted the March 4 tape into
evidence.  In Huddleston v. United States, 485 U.S. 681 (1988), this
Court held that similar act evidence is admissible under Fed. R. Evid.
404(b) if the jury can reasonably conclude that the act occurred and
that the defendant was the actor.  In making that determination, the
trial court considers all of the other evidence, direct and
circumstantial, presented to the jury, including any other similar
acts evidence that has been admitted in the case.  485 U.S. at
690-691.  In this case, the evidence sufficiently demonstrated that
petitioner made the March 4 call.  That call, which was made a short
time after the other threatening calls, contained the same voice
pattern as the calls that were indisputably made from petitioner's
telephone, and the March 4 call contained similar threatening remarks
as well.  Under these circumstances, the district court did not abuse
its discretion in admitting the evidence.  See United States v.
Williams, 900 F.2d 823, 826 n.3 (5th Cir. 1990) (defendant's
involvement in similar acts established by circumstantial evidence).

   The playing of the tape of the April 23-24 call did not prejudice
petitioner even though that tape recording was not formally admitted
into evidence.  As an initial matter, petitioner bears some of the
responsibility for the district court's failure to make a final ruling
as to that tape's admissibility because he did not ask the court for a
final ruling after it had conditionally admitted the tape.  Cf. United
States v. Thirteen Thousand Dollars in U.S. Currency, 733 F.2d 581,
585 (8th Cir. 1984) (defendant did not press for final ruling on
admissibility of evidence).  In addition, the other telephone calls
were sufficiently similar in voice pattern and subject matter to the
April 23-24 call to justify the inference that petitioner also made
the April 23-24 call.  Indeed, the playing of the April 23-24 call was
merely cumulative.  Finally, any error was harmless beyond a
reasonable doubt in light of what the court of appeals recognized as
(Pet. App. A12) the government's "overwhelming" case against
petitioner.

   Finally, there is no merit to the contention that the court of
appeals erred by upholding the admission of the tapes because the
district court did not specifically state that the probative value of
the evidence outweighed its prejudicial impact.  Fed. R. Evid. 404(b)
does not by its terms require a trial court to make specific findings
before admitting evidence of similar acts.  In any event, even though
some courts of appeals require district courts to make specific
findings regarding probative value and prejudicial impact before
admitting similar acts evidence under Fed. R. Evid. 404(b), reversal
for failure to make those findings is required only if the defendant
specifically requested such findings and a reason for admitting the
evidence does not readily appear from the record.  See, e.g., United
States v. Manner, 887 F.2d 317, 322 (D.C. Cir. 1989), cert. denied,
110 S.Ct. 879 (1990);  United States v. Zabaneh, 837 F.2d 1249, 1262
(5th Cir. 1988).  Although petitioner objected to the similar acts
evidence on the ground that its admission would be overly prejudicial,
he did not specifically request the court to make findings before
admitting the evidence.  In any event, the reason for admitting the
evidence readily appears from the record.  Because the other evidence
in the case against petitioner was primarily circumstantial, the
telephone calls helped to establish petitioner's identity and
demonstrated petitioner's intent to communicate a true threat.
Accordingly, the court of appeals properly upheld the district court's
ruling.  Cf. Arizona v. Washington, 434 U.S. 497, 516-517 (1978)
(record supported trial court's declaration of mistrial despite lack
of specific findings).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   THOMAS E. BOOTH

      Attorney

   OCTOBER 1990

   /1/ Telephone records did not link petitioner to the March 4 and
April 23-24 calls, which were made after Negroni's call to "David
Stein."

   /2/ The government is not required to prove that the defendant
intended to carry out the threat.  See United States v. Hoffman, 806
F.2d at 703;  United States v. Kelner, 534 F.2d 1020, 1025 (2d Cir.),
cert. denied, 429 U.S. 1022 (1976).

   /3/ Contrary to petitioner's contention (Pet. 7-8), the court of
appeals did not leave the issue of whether petitioner's communication
was protected by the First Amendment to the jury.  The court of
appeals examined the context in which petitioner sent his "wanted"
poster to the JNF to determine whether a reasonable man would consider
the communication to be a true threat.  See Pet. App. A8-A9.  The
court's statement that there was more than sufficient evidence to
support the jury's verdict merely recognized that the jury had the
initial duty to determine whether petitioner's speech was protected by
the First Amendment.  The court's acknowledgment of the jury's
responsibility does not imply that the court abdicted its own
responsibility.  See Hamling v. United States, 418 U.S. 87, 100 (1974)
(noting that jury's determination that material was obscene and not
protected by the First Amendment was supported by the evidence).

   /4/ The other decisions of this Court on which petitioner relies,
none of which involved a prosecution under a statute prohibiting
threats, are quite different from this case.  Rankin v. McPherson,
supra, did not involve a threat at all.  Rather, in that case, which
arose out of the discharge of a state employee, the employee told her
boyfriend, after hearing of the assassination attempt on President
Reagan, that if "they go for him again, I hope they get him." 483 U.S.
at 380.  In Hess v. Indiana, 414 U.S. 105, 107 (1973), a disorderly
conduct prosecution, the defendant did not threaten anyone in
particular, but instead said "We'll take the fucking street."
Likewise, in Brandenburg v. Ohio, 395 U.S. 444 (1973), which involved
the prosecution of a Ku Klux Klan leader under a state criminal
syndicalism statute, the defendant's offending statement -- "it's
possible there might have to be some revengence taken" (395 U.S. at
446) -- was not directed at anyone in particular.  It stands in sharp
contrast to petitioner's statements, which were directed at specific
individuals and were not stated conditionally.