United States v. Viviano
1986 U.S. Dist. LEXIS 26085, 636 F.Supp. 618 (1986)
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Rule of Law:
A threat against a federal official only constitutes a "forcible" act under 18 U.S.C. § 111 if it involves a display of force coupled with an apparent present ability to inflict injury; threats of indefinite future harm communicated indirectly are insufficient.
Facts:
- Billy Gene Viviano was the plaintiff in a civil trial where a jury returned a substantial verdict in his favor.
- The presiding judge, Honorable Veronica D. Wicker, subsequently granted a new trial, overturning Viviano's favorable verdict.
- Distressed by the judge's decision, Viviano sought professional treatment from a psychiatrist, Dr. Stewart, and a psychologist, Dr. Moan.
- During therapy sessions, Viviano made threats against the lives of Judge Wicker and his former attorney, Mr. Otis Birdsall.
- Believing the threats were serious, Dr. Stewart sent a letter to Judge Wicker to warn her of Viviano's statements.
- Viviano never had any direct, in-person contact with Judge Wicker, nor did he communicate any threats to her directly.
Procedural Posture:
- The United States charged Billy Gene Viviano in a two-count superseding indictment in the U.S. District Court for the Eastern District of Louisiana.
- Count I alleged that Viviano violated 18 U.S.C. § 111 by forcibly assaulting, intimidating, and interfering with a U.S. District Judge.
- The case proceeded to a jury trial.
- At the close of the government's case and again at the close of all evidence, the defendant moved for a judgment of acquittal, on which the court reserved its ruling.
- The jury was unable to reach a verdict, and the court declared a mistrial.
- Following the mistrial, the court took the defendant's Motion for Judgment of Acquittal under submission for a final decision.
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Issue:
Does a threat against a federal official, communicated indirectly through third parties and pertaining to an indefinite future time, constitute a 'forcible' act of assault, resistance, opposition, impediment, intimidation, or interference under 18 U.S.C. § 111?
Opinions:
Majority - Robert F. Collins, District Judge.
No. A threat against a federal official communicated indirectly and relating to an indefinite future time does not constitute a 'forcible' act under 18 U.S.C. § 111. The operative word in the statute is 'forcibly,' which modifies all the prohibited verbs, including 'intimidates' and 'interferes.' The court holds that 'force is a required element' and was not shown in this case, as the defendant had no direct contact with the judge. Citing precedent like United States v. Glover, the court reasons that a 'forcible assault' requires a threat coupled with an 'apparent present ability to do so,' and an 'implied threat of the use of force sometime in the indefinite future' is insufficient. Because criminal statutes must be strictly construed, the statute as written does not protect federal officials from non-forcible threats of future harm.
Analysis:
This decision narrowly construes the term 'forcibly' in 18 U.S.C. § 111, requiring a direct threat coupled with an immediate capacity to act. It establishes that indirect threats of future violence, even if genuinely intimidating to the recipient, do not meet the statutory requirement of force as a matter of law. This interpretation limits the statute's scope, potentially leaving a gap in protection for federal officials who receive credible but non-imminent threats. The opinion suggests that if Congress intends to cover such conduct, it must amend the statute to provide clearer guidance.
