NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10061

Plaintiff-Appellee, D.C. No. 3:16-cr-00016-HDM-WGC-1 v.

STEVEN EUGENE FORD, AKA Job Ford, MEMORANDUM* AKA Eleazar Melchizedek,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding

Submitted March 12, 2018** San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. Defendant-appellant Steven Eugene Ford appeals his conviction for making

a threat to take the life of the President of the United States in violation of 18

U.S.C. § 871(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

In reviewing a challenge to the sufficiency of the evidence supporting a

conviction for making a verbal threat, where there is substantial evidence to

support the verdict, as is the case here, we “[d]efer[] to the jury’s findings on

historical facts, credibility determinations, and elements of statutory liability,” and

we then independently examine the record de novo “to determine whether the facts

as found by the jury establish” a constitutional “true threat.” United States v.

Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). To be deemed a “true threat,” for

constitutional purposes, the speaker must have communicated the threatening

words with a subjective and objective intent to threaten. United States v.

Bagdasarian, 652 F.3d 1113, 1117-18 (9th Cir. 2011).

The record leaves no doubt that Ford telephoned the White House in the

middle of the night and said to the White House telephone operator “I’m going to

kill that president.” The thrust of Ford’s defense was that, because of mental

illness and the influence of alcohol, he could not, and did not, have the intent

necessary to make a “true threat.”

We conclude that Ford possessed the constitutionally required subjective

intent “to communicate a serious expression of an intent to commit” the threatened

2 act. Virginia v. Black, 538 U.S. 343, 359 (2003). While there is evidence in the

record that Ford was diagnosed as psychotic at the Veterans Administration

hospital two days after he made the call, there is no evidence that he was suffering

from any such condition or episode when he made the call. Similarly, although

Ford’s residence was messy and littered with alcohol bottles, there was only scant

evidence that Ford had been drinking prior to calling the White House. As to the

call itself, the phone operator who received the call testified that Ford “was rather

clear, angry” and while he “spoke rapidly,” he was not “rambling.” See United

States v. Christian, 749 F.3d 806, 815 (9th Cir. 2014).

Furthermore, Ford’s statement was objectively a threat under the

circumstances. Despite his, at times, nonsensical ranting, a person listening to his

phone call could reasonably have interpreted his statement, “I’m going to kill that

president,” to mean exactly what the words say, as a threat to kill the President.

See Bagdasarian, 652 F.3d at 1119. The phone operator testified that she recorded

Ford’s words on a threat form, and, although she described the communication as

irrational, she still treated it as serious enough to merit careful notetaking and

transfer to the Secret Service. See United States v. Mitchell, 812 F.2d 1250, 1256

(9th Cir. 1987), overruled on other grounds by Planned Parenthood of the

Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1068-

70 (9th Cir. 2002) (en banc). In addition, notwithstanding that Ford was in Reno

3 when he made the threats, a reasonable person could still have perceived them to

be real because Ford did not say that he would kill the President that night, nor did

he provide any details that would render the threat objectively impossible. Finally,

the record evidence does not suggest that there was any political speech or purpose

other than to threaten the life of President Obama. Upon de novo review, we

conclude that the verdict is not out of harmony with the First Amendment. See

Watts v. United States, 394 U.S. 705, 707-08 (1969) (per curiam).

AFFIRMED.

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