F I L E D

United States Court of Appeals

Tenth Circuit

FEB 16 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

JAMES DODSON VIEFHAUS, JR.,

also known as Thorsson,

Defendant-Appellant.

No. 97-5207

Appeal from United States District Court

for the Northern District of Oklahoma

(D.C. No. 97-CR-5-BU)

Stephen J. Greubel, of Ungerman & Iola, Tulsa, Oklahoma, for the appellant.

John Russell, Assistant United States Attorney, (Stephen C. Lewis, United States

Attorney, and Neal B. Kirkpatrick, Assistant United States Attorney, on the brief),

Tulsa, Oklahoma, for the appellee.

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.
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Defendant James Dodson Viefhaus, Jr., appeals his convictions for

conspiracy to use and use of a telephone to transmit a bomb threat. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Viefhaus and his fiancee, Carol Howe, formed a white supremacy

organization in Tulsa, Oklahoma, known as the National Socialist Alliance of

Oklahoma, of which they were the only members. The organization promoted

white racial superiority and advocated destruction of, inter alia , blacks, Jews,

homosexuals, and federal law enforcement officials. One of the primary methods

used to disseminate its messages was a telephone “hotline” under the listing

“Aryan Intelligence Network.” The hotline was an answering machine on which

Viefhaus recorded commentary reflecting the organization’s viewpoints.

On December 8, 1996, Viefhaus recorded a lengthy message that formed

the basis for his subsequent criminal prosecution. The message stated in part:

It is time for all white people to realize that the current system of

government is beyond repair. Our revolution is not about fixing this

system, but to absolutely destroy it, by any means necessary. Only

then can we build an Aryan society for our children and

grandchildren. The first major step in solidifying the revolutionary

mentality is to understand that there are only two classes in life,

those who support our cause and the enemy. As in the case of the

bombing of the Murrah Federal Building, the revolutionary

understands and accepts no matter how painful that innocent people

must be considered expendable if necessary, in order to successfully

complete any action. . . . This is a war . . . racial . . . holy war. As

an added ultimatum to those of you who are still unwilling to pick up
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a sword, a letter from a high ranking revolutionary commander has

been written and received demanding that action be taken against the

government by all white warriors by December 15th and if this

action is not taken, bombs will be activated in 15 pre-selected major

U.S. cities. That means December 15, 1996, one week from today. 

In [other] words, this war is going to start with or without you . For

all of you out there that have been bragging about being ready and

willing to jump in when the time comes, well you better lace up your

jump boots.

Appellant’s Br. at 5 (emphasis added). Journalist William Morlin telephoned the

hotline. Morlin’s reporting had been dedicated to coverage of white supremacy

groups and the militia movement for the previous eighteen years. He believed the

recorded comments were “particularly ominous,” most notably the threat of the

imminent bombing of fifteen cities. Morlin contacted Special Agent Kenneth

Pernick, chief of the FBI Domestic Terrorism Unit. Agent Pernick called the

hotline and then asked colleagues to call the hotline. After listening to the

message, the agents decided to contact the local FBI office in Oklahoma City.

FBI agents executed a search warrant at Viefhaus’ house in Tulsa,

Oklahoma, on December 13, 1996. Agents seized literature espousing hate and

violence, Nazi propaganda, a cache of weapons, books on making bombs,

chemicals and other materials that could easily be converted into high-powered

pipe bombs, and a list of facilities in the Tulsa area occupied by Jewish, Muslim,

and Native American groups, as well as various federal agencies.

Viefhaus was indicted on one count of using a telephone to transmit a bomb
1

 18 U.S.C. § 844(e) provides:

Whoever, through the use of the mail, telephone, telegraph, or other

instrument of interstate or foreign commerce, or in or affecting interstate or

foreign commerce, willfully makes any threat, or maliciously conveys false

information knowing the same to be false, concerning an attempt or alleged

attempt being made, or to be made, to kill, injure, or intimidate any

individual or unlawfully to damage or destroy any building, vehicle, or

other real or personal property by means of fire or an explosive shall be

imprisoned for not more than 10 years or fined under this title, or both.

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threat, in violation of 18 U.S.C. § 844(e), 1 and one count of possession of an

unregistered explosive device, in violation of 26 U.S.C. § 5861(d). A superseding

indictment charged Viefhaus and his fiancee with the original two counts as well

as one count of conspiracy, in violation of 18 U.S.C. § 371. Viefhaus filed a

pretrial motion to dismiss the original two counts, claiming the hotline message

did not represent a “true threat,” and the message was protected speech. The

motion was denied.

At trial, over Viefhaus’ objection, the court permitted the government to

introduce into evidence the items seized at Viefhaus’ home pursuant to the search

warrant. Viefhaus moved for judgment of acquittal under Fed. R. Crim. P. 29(a)

after the government completed its case and again at the close of all evidence, and

the motions were denied. A jury found Viefhaus guilty of the three counts and he

was sentenced to thirty-eight months’ imprisonment. Viefhaus does not appeal

his conviction for possession of an unregistered firearm or that portion of the

conspiracy conviction relating to that charge.
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II.

On appeal, Viefhaus contends (1) the message on the answering machine

represented constitutionally protected speech; (2) the district court erred in

submitting this ostensibly pure legal issue to the jury; and (3) the court

improperly admitted evidence of previous statements by Viefhaus disparaging

minorities and law enforcement officials, as well as inflammatory materials seized

from his house.

First Amendment issues

Viefhaus argues his comments amounted only to “vulgar political speech”

within the context of a “political agenda.” Appellant’s Br. at 22. He relies

primarily on Watts v. United States , 394 U.S. 705 (1969) (per curiam). In Watts,

an eighteen-year-old Vietnam draftee, in discussing police brutality at a public

rally, remarked, “If they ever make me carry a rifle the first man I want to get in

my sights is L.B.J.” Id. at 708. Watts was convicted of making a threat against

the President, in violation of 18 U.S.C. § 871(a) (a statute employing language

very similar in all relevant respects to that in § 844(e)). The Supreme Court

reversed the conviction, holding the government must prove the defendant made a

“true threat” to establish a violation of the statute. “Political hyperbole” will not

suffice. Id.
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A “true threat” means “a serious threat as distinguished from words as mere

political argument, idle talk or jest.” United States v. Leaverton , 835 F.2d 254,

257 (10th Cir. 1987). We have previously defined “threat” by referencing the

language of Black’s Law Dictionary. See id. at 256-57. We again rely on that

definition, but elaborate on the meaning of “intent” as it is used in that definition. 

Thus, we define “threat” as a declaration of intention, purpose, design, goal, or

determination to inflict punishment, loss, or pain on another, or to injure another

or his property by the commission of some unlawful act. See Black’s Law

Dictionary 1480 (6th ed. 1990); Webster’s Third New Int’l Dictionary

(unabridged) 1176 (1993). It is not necessary to show that defendant intended to

carry out the threat, nor is it necessary to prove he had the apparent ability to

carry out the threat. The question is whether those who hear or read the threat

reasonably consider that an actual threat has been made . It is the making of the

threat and not the intention to carry out the threat that violates the law. 

Leaverton , 835 F.2d at 257.

Although the bulk of the recorded message at issue is comprised of crude

political rhetoric, Viefhaus crossed the threshold from political rhetoric to

criminal threat when he stated unequivocally that fifteen cities would be bombed. 

The fact that a specific threat accompanies pure political speech does not shield a

defendant from culpability. United States v. Crews , 781 F.2d 826, 832 (10th Cir.
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1986) (per curiam); United States v. Welch , 745 F.2d 614, 618 n.3 (10th Cir.

1984).

Viefhaus further suggests his actions are beyond the purview of § 844(e)

because (1) he did not directly communicate with anyone; (2) the warning in the

message was conditional in that no bombing would commence if action was

“taken against the government by all white warriors”; and (3) the message merely

related a threat leveled by a third party. As the district court correctly held, §

844(e) does not mandate that a defendant initiate the call. In addition, we have

held that a “statement may constitute a threat even though it is subject to a

possible contingency in the maker’s control.” Leaverton , 835 F.2d at 256.

While we have found no cases squarely addressing the issue in the context

of § 844(e) or any statute criminalizing the “making” of threats, it is logical that a

defendant who repeats a third party’s threat may be subjected to criminal liability. 

In determining the existence of a threat under similar statutes, we have adopted an

objective test focusing on how a “reasonable person would foresee . . . the

statement [being] interpreted by persons hearing or reading it.” Welch , 745 F.2d

at 619-20. If a defendant’s repetition of a third party’s threat is reasonably

interpreted as a simple disclosure of the existence of the threat for informational

purposes, no illegality has occurred. If, on the other hand, a defendant’s

repetition of a third party’s threat is reasonably interpreted as communicating the
2

 If no “high ranking revolutionary commander” actually made such a

threat, Viefhaus would be guilty under § 844(e) of “maliciously convey[ing] false

information knowing the same to be false.”

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defendant’s own intent, purpose, or goal to “kill, injure, or intimidate any

individual or unlawfully to damage or destroy any building, vehicle, or other real

or personal property by means of fire or an explosive,” the defendant has violated

18 U.S.C. § 844(e). In the latter scenario, the defendant has effectively adopted

the third party’s threat as his own. There is no requirement that the defendant

convey an intent to carry out the threatened conduct himself. See United States v.

Dinwiddie , 76 F.3d 913, 925 n.9 (8th Cir. 1996) (citing United States v.

Bellrichard , 994 F.2d 1318, 1319-24 (8th Cir. 1993)).

Viefhaus’ actions here clearly implicate § 844(e). In the recorded message,

Viefhaus stated he was repeating the threat of a “high ranking revolutionary

commander” as “an added ultimatum to those . . . who are still unwilling to pick

up a sword.” 2 The message further stated “innocent people must be considered

expendable if necessary,” specifically referencing the bombing of the Murrah

Federal Building. Viefhaus’ statement regarding the imminent bombing of fifteen

cities reasonably may be construed as a “true threat.” Therefore, Viefhaus’

prosecution and conviction did not violate his First Amendment rights.

Citing Dennis v. United States , 341 U.S. 494 (1951), Viefhaus also argues

the district court should have resolved his First Amendment defense as a matter of
3

 The “clear and present danger” test, first articulated in Schenck v. United

States , 249 U.S. 47 (1919), has been replaced by the “incitement” test developed

in Brandenburg v. Ohio , 395 U.S. 444 (1969). See Denver Area Educ. Telecomm.

Consortium, Inc. v. FCC , 518 U.S. 727, 775 (1996) (Souter, J., concurring).

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law rather than submit the matter to the jury . In Dennis , defendants were charged

with conspiracy to organize an American communist party for the purpose of

overthrowing the United States government, in violation of the Smith Act, 18

U.S.C. §§ 10-11 (1946). Defendants maintained the statute was unconstitutional

as it deprived individuals of protections afforded by the First Amendment. The

trial court denied defendants’ motion to dismiss, which was based on their

assertion that the statute was unconstitutional. Later, the court instructed the

jurors that if they found defendants were in violation of the statute, the court

would, as a matter of law, conclude that defendants’ First Amendment rights were

not violated. The Supreme Court invoked the historical “clear and present

danger” 3 test and held the trial court had properly characterized defendant’s

constitutional challenge to the statute as an issue of law and thus did not err in

ruling on the question. Id. at 513.

Dennis is readily distinguishable. Here, Viefhaus is not contesting the

constitutionality of § 844(e). Rather, he asserts only that his particular speech

was political in nature. We consistently have held that whether a defendant’s

statement is a true threat or mere political speech is a question for the jury. See
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Leaverton , 835 F.2d at 257; Crews, 781 F.2d at 832. If there is no question that a

defendant’s speech is protected by the First Amendment, the court may dismiss

the charge as a matter of law. See United States v. Malik , 16 F.3d 45, 51 (2d Cir.

1994). Such a scenario, however, is not present here.

Rule 404(b) evidence

Viefhaus contends the district court erred in admitting the racially

inflammatory items seized in the search of his home.

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

Fed. R. Evid. 404(b). A district court’s decision to admit evidence of prior bad

acts under 404(b) is reviewed for an abuse of discretion. United States v.

Hardwell , 80 F.3d 1471, 1488 (10th Cir. 1996).

There are four requirements for admissibility under Rule 404(b): (1)

evidence of other crimes, wrongs, or acts must be introduced for a proper

purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403

determination whether the probative value of the similar acts is substantially

outweighed by its potential for unfair prejudice; and (4) the court, upon request,

must instruct the jury that the evidence of similar acts is to be considered only for
4

 Both parties agree the court gave a limiting instruction to that effect.

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the limited purpose for which it was admitted. Huddleston v. United States , 485

U.S. 681, 691-92 (1988); United States v. Fitzherbert , 13 F.3d 340, 343 (10th Cir.

1993).

The district court permitted the government to introduce the objectionable

materials for the purpose of showing Viefhaus’ motive, intent, and state of mind. 4

Viefhaus argues that, because he admitted intentionally recording the controverted

message, the jury had no reason to hear evidence regarding his motivation or

intent. We disagree. Viefhaus’ primary defense was that his comments did not

constitute a “true threat.” As noted, the test for evaluating whether a message

amounts to a “true threat” focuses on how a “reasonable person would foresee . . .

the statement [being] interpreted by persons hearing or reading it.” Welch , 745

F.2d at 619-20. Context is critical. See Watts, 394 U.S. at 708; Leaverton , 835

F.2d at 256-57.

When the defendant offers lack of intent as a defense, even though

the government does not have to prove subjective intent as an

element of the offense, the circumstances surrounding the making of

the calls becomes relevant. The evidence offered clearly was

probative of defendant’s state of mind and tends to counter his

allegation of benign purpose.

United States v. Cox , 957 F.2d 264, 267 (6th Cir. 1992) (per curiam) (sustaining

conviction under 18 U.S.C. § 875(c)); accord United States v. Morrison , 153 F.3d
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34, 57 (2d Cir. 1998) (same); United States v. Fulmer , 108 F.3d 1486, 1501-02

(1st Cir. 1997) (sustaining conviction under 18 U.S.C. § 115(a)(1)(B)). 

Moreover, the need to demonstrate the context in which Viefhaus uttered his

remarks rendered much of the evidence of Viefhaus’ racial hostility intrinsic to

the crime charged in the indictment. See United States v. O’Brien , 131 F.3d

1428, 1432 (10th Cir. 1997) (“It is well settled that Rule 404(b) does not apply to

other act evidence that is intrinsic to the crime charged, and that other act

evidence is intrinsic when the evidence of the other act and the evidence of the

crime charged are inextricably intertwined.”) (quotations and alternations

omitted).

In attempting to demonstrate that Viefhaus’ message regarding the

imminent bombing of fifteen cities was a “true threat,” the government sought to

show such violence represented the culmination of considerable planning for a

racial holy war. The escalating rhetoric of the hotline messages, along with the

racist and inflammatory literature and materials found in the house, helped

establish that Viefhaus believed a “racial conflagration” was on the horizon. The

only way a jury could properly assess the sincerity of Viefhaus’ beliefs, as well as

the likely effect Viefhaus’ message would have on an objective listener, was to

examine the circumstances in which the comments were made. Although

admission of this evidence was harmful to Viefhaus, its probative value
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outweighed any prejudicial effect. See Fed. R. Evid. 403 (“evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice”). The district court did not abuse its discretion in its evidentiary

rulings. Further, even if some of the evidence was not admissible under 404(b),

its introduction was harmless in light of the overwhelming evidence of Viefhaus’

guilt. See United States v. Oberle , 136 F.3d 1414, 1419 (10th Cir.) (district

court’s improper admission of evidence in contravention of Rule 404(b)

constitutes harmless error where record contains “substantial evidence of

defendant’s guilt”), cert. denied , 119 S. Ct. 197 (1998).

AFFIRMED.