U.S. v. Turner ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-1745
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD POLLARD TURNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
April 30, 1992
Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit
Judges.
POLITZ, Chief Judge:
Clifford Pollard Turner appeals his conviction upon jury
verdict of three counts of causing to be delivered by the United
States Postal Service a written communication containing a threat
in violation of 18 U.S.C. § 876. For the reasons assigned, we
affirm.
Background
On October 2, 1990 three Black Texas state judges1received
letters from Turner as follows:
To the Honorable Judge, 10-01-90
[Name of State Judge:] Monday
"TO WHOM IT MAY CONCERN"
Now, Comes Again the "Lone Aryan Warrior" With the
Message of Death to all Nigger's And Jew's who do not
Submit to our Aryan Supreme Race!
All lower Race's Must Submit to our Aryan Race and
Ready theirself's to Except our Nationalist Socialist
Government, which will Come to Power Over this Zog
(Zionist Occupational Government)-United States of
America Government that Is In Power At this time, And/or
they will be Executed!
All found to Be Member's And/or Associates of Any
Racial Organization's Such as the NAACP, ANC (African
National Congress)-And, Any Jewish Foundation's Will Be
Executed Without Question! You have been Warned to
disassociate With Any Such, Now!
"Beware You Were told!'
"For Race and Nation"
Heil Hitler!
[swastika symbol] Clifford P. Turner
Turner is currently incarcerated in the Clemens Unit of the
Texas Department of Corrections, serving two concurrent 30-year
terms for aggravated sexual abuse and burglary of a habitation. He
also stands convicted of the possession in a penal institution of
a deadly weapon. Turner is a member of the SS Action Group and
subscribes to the beliefs of white supremacy and national socialist
government. All three of the handwritten letters were identical
with the exception of the name of the judge to whom the letter was
1
Judge Larry Baraka, Judge Carolyn Wright, and
Judge Berlaind L. Brashear.
2
addressed.
Upon closure of the government's case Turner moved for a
judgment of acquittal. The motion was denied. After the jury
returned verdicts of guilty Turner renewed his motion for judgment
of acquittal and it was again denied. He was sentenced to 46
months imprisonment and timely appealed, assigning as error the
refusal to give requested jury charges on the definition of a
threat, allowing use of his prior conviction for impeachment, and
the disallowance of his motions for acquittal.
Analysis
I. Jury Instructions
Turner argues that the trial court abused its discretion by
not allowing two of his proposed jury instructions defining threat
under 18 U.S.C. § 876.2
The trial court charged the jury as follows:
2
A person violates 18 U.S.C. § 876 by writing a
threatening letter and knowingly causing it to be deposited in the
United States mails. United States v. DeShazo, 565 F.2d 893 (5th
Cir.), cert. denied, 435 U.S. 953 (1975); United States v. Lincoln,
589 F.2d 379 (8th Cir. 1979). 18 U.S.C. § 876 states in pertinent
part:
Whoever knowingly so deposits or causes to be
delivered as aforesaid, any communication with or without
a name or designating mark subscribed thereto, addressed
to any other person and containing any threat to kidnap
any person or any threat to injure the person of the
addressee or of another, shall be fined not more than
$1,000 or imprisoned not more than five years, or both.
3
A "threat" is a serious statement expressing an
intention to inflict bodily injury upon someone, which
under the circumstances would cause apprehension in a
reasonable person, as distinguished from words used as
mere political argument, idle or careless talk,
exaggeration, or something said in a joking manner. It
is not necessary to prove that the Defendant actually
intended or was able to carry out the threat made.
It is not necessary to prove that the Defendant
actually wrote the communication. What the government
must prove beyond a reasonable doubt is that the
Defendant knowingly caused to be delivered by the United
States Postal Service a written communication containing
a "threat" as defined in these instructions.
Turner's attorney had proposed two different instructions
regarding the definition of "threat." The first declined
instruction stated:
A "threat" must be distinguished from
constitutionally protected speech. Because the alleged
crime here rests solely on the basis of a written
communication, it must be interpreted against the
background of a profound national commitment to the
principle that debate on public issues should be
uninhibited, robust and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly
sharp attacks upon government and public officials. If
the Defendant's only offense here is a crude offensive
method of making a political statement, then his
communication is not a "threat" prohibited by 18 USC
§876.
The second declined instruction stated:
The jury should remember in deciding whether the
letters at issue contain a "threat" or constitutionally
protected speech, that the mere advocacy of the use of
force or of law violations, without more, does not remove
a statement from the bounds of constitutionally protected
speech. The constitutional guarantees of free speech and
free press do not permit the government to forbid or
proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to
inciting or producing imminent lawless action and is
likely to incite or produce such action. The mere
abstract teaching of the moral propriety or even moral
necessity for a resort to force and violence is not the
same as preparing a group for violent action and steeling
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it to such action. Therefore, even if the letters at
issue advocate a use of force, unless they express an
imminent intent to inflict injury to the person of the
addressee or another, they do not contain a "threat"
prohibited by l8 USC §876.
We review the decision to refuse the requested jury
instructions under the abuse of discretion standard, affording the
trial judge substantial latitude in tailoring her instructions.
United States v. Rochester, 898 F.2d 971 (5th Cir. 1990). The
refusal to deliver a requested instruction will constitute
reversible error only if the instruction requested:
(1) is substantively correct; (2) was not substantially
covered in the charge actually delivered to the jury; and
(3) concerns an important point in the trial so that the
failure to give it seriously impaired the defendant's
ability to effectively present a given defense.
United States v. Mollier, 853 F.2d 1169, 1174 (5th Cir. 1988).
The instruction given to the jury by the trial judge was
modeled closely after the Fifth Circuit's Pattern Jury Instructions
for criminal cases3 and is a correct statement of the law. See
DeShazo at 894; Lincoln at 381; and United States v. Carvin, 555
3
The Fifth Circuit Pattern Jury Instructions for criminal
cases involving 18 U.S.C. § 876 states in pertinent part:
A "threat" is a serious statement expressing an
intention to . . . inflict bodily injury upon someone,
which under the circumstances would cause apprehension in
a reasonable person, as distinguished from idle or
careless talk, exaggeration, or something said in a
joking manner . . .
It is not necessary to prove that the defendant
actually wrote the communication. What the government
must prove beyond a reasonable doubt is that the
defendant mailed or caused to be mailed a communication
containing a "threat" as defined in these instructions.
5
F.2d 1303 (5th Cir.), cert. denied, 434 U.S. 971 (1977). It
adequately and fairly covered the issues presented in the case.
The charges requested by the defendant appear to be more a
statement of the case than an accurate definition of threat.
Mollier at 1175. We therefore conclude that the trial court did
not abuse its broad discretion in refusing defendant's proposed
jury instructions.
II. Prior Felony Convictions
Turner moved in limine to prevent the government from using
prior felony convictions for impeachment purposes under Federal
Rule of Evidence 609(a) absent prior approval of the court. The
trial judge granted this unopposed motion. During the trial,
immediately after the direct examination of Turner, the government
informed the court and defense counsel, out of the jury's presence,
that it intended to establish on cross-examination that Turner had
been convicted of three felony offenses: aggravated sexual abuse,
burglary of a habitation, and possession of a deadly weapon in a
penal institution. The trial court ruled, over the objection of
Turner's attorney, that the prejudice of the evidence did not
outweigh the probative value as it related to the issue of Turner's
credibility. The government was allowed to cross-examine Turner
regarding these prior felony convictions. Turner contends that
this was error. We do not agree.
Federal Rule of Civil Procedure 609(a) permits the impeachment
of a testifying defendant with evidence of prior convictions
6
punishable by death or imprisonment in excess of one year, provided
the court first determines that the probative value of admitting
the evidence outweighs its prejudicial effect. United States v.
Melton, 883 F.2d 336 (5th Cir. 1989). The trial court is extended
broad discretion in its application of this test, United States v.
Martinez, 555 F.2d 1273 (5th Cir. 1977). The weighing must be a
matter of record. United States v. Preston, 608 F.2d 626 (5th Cir.
1979), cert. denied, 446 U.S. 940 (1980).
The trial court made an on-the-record finding and concluded
that the prejudice of Turner's former convictions did not outweigh
their probative value. Of particular importance, the trial judge
gave an explicit limiting instruction to the jury, restricting the
prior convictions to impeachment and distinguishing this evidence
from substantive evidence of guilt. We find no abuse of discretion
on the part of the trial court regarding the use of Turner's prior
felony convictions.
III. Motion for Acquittal-Renewed Motion for Acquittal After Jury
Verdict.
After the close of the government case, Turner moved for a
judgment of acquittal on all counts, pursuant to Federal Rule of
Criminal Procedure 29, arguing that the language contained in the
three letters were not "threats" under 18 U.S.C. § 876 but,
instead, were political statements protected from prosecution by
the first amendment of the constitution. The trial court denied
this motion. After being properly instructed by the trial court
the jury deliberated, found that threats had been made, and
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returned a verdict of guilty on all three counts. Turner filed a
Renewed Motion for a Judgment of Acquittal After Jury Verdict which
repeated the arguments contained in his earlier motion. This
motion was also denied. Turner argues that the trial court erred
in these rulings. We are not persuaded.
In reviewing a motion for judgment of acquittal, we "consider
the evidence as a whole taken in the light most favorable to the
Government, together with all legitimate inferences to be drawn
therefrom to determine whether a rational trier of fact4 could have
found guilt beyond a reasonable doubt." United States v. Geer, 923
F.2d 892, 894 (1st Cir. 1991); see also United States v. Calkins,
906 F.2d 1240 (8th Cir. 1990); United States v. Valles-Valencia,
811 F.2d 1232 (9th Cir. 1987).
Turner specifically targeted his "Message of Death" to three
Black judges, threatening that "Niggers and Jews" and those
associated with them face execution at the hands of the "Lone Aryan
Warrior" and other members of the "Aryan Supreme Race." The plain
language of the letters was sufficient to cause "a reasonable
recipient, familiar with the context of the communication, [to]
interpret it as a threat." Martin v. United States, 691 F.2d 1235,
1240 (8th Cir. 1982), cert. denied, 459 U.S. 1211 (1983); Carvin at
4
Whether or not the language contained in Turner's letters
constitutes a "threat" is an issue of fact for the jury. Lincoln
at 381; United States v. Maisonet, 484 F.2d 1356 (4th Cir. 1973),
cert. denied, 415 U.S. 933 (1974).
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1305.5
Upon completion of an independent examination of the entire
record, viewing the evidence, as required, in the light most
favorable to the verdict, we conclude that the essential elements
of the crime could have been found proven beyond a reasonable doubt
by a rational trier of fact. See Lincoln at 382; Carvin at 1305.
Thus, the verdict and the trial court's denial of Turner's Motion
for Acquittal and Renewed Motion for a Judgment of Acquittal After
Jury Verdict were proper.
AFFIRMED.
5
The reactions of the recipients of the letters lends
weight to the jury's conclusion that the letters contained
"threats." Judge Baraka purchased a Beretta 9mm. semi-automatic
pistol and enrolled in a program with the Sheriff's office to learn
how to use the weapon. Judge Brashear bought a .38 caliber pistol
and a burglar alarm. Judge Sanders varied her residence, the
automobile she drove, began carrying a phone with her, and
discontinued working late night hours. Two of the three judges
sealed the envelopes in plastic to preserve fingerprints, and all
three reported the letters to the police. See Lincoln.
9