* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 18 U.S.C. § 876(c) provides in pertinent part: “Whoever knowingly so deposits or

causes to be delivered [by the United States Postal Service] . . . any communication . . .

addressed to any other person and containing any threat to . . . injure the person of the

addressee or of another, shall be fined under this title or imprisoned not more than five years,

or both.” 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60458

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LESTER LIVINGSTON

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:06-CR-203-1

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Lester Livingston was found guilty of mailing threatening

communications in violation of 18 U.S.C. § 876.1 On appeal, Appellant argues

thatthe district courtimproperly admitted into evidence a letter from him to his

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-60458

2

then-wife, Sharon Drewery, in violation of the marital communications privilege.

Accordingly, Appellant argues, the charge against him must be dismissed. In

the alternative, Appellant argues that the district court erred by failing to

exclude evidence under Federal Rule of Evidence 404(b) and a new trial is

warranted. We AFFIRM. 

I. Background 

Appellant and Sharon Drewery were married for fifteen years. During

that time, Appellant also had an intimate relationship with Drewery’s sister,

Cynthia Coleman. In June 2005, Appellant was incarcerated at the Federal

Correctional Institution in Yazoo City, Mississippi. On or about June 30,

2005, Appellant sent a letter (“the letter”) to Drewery, addressed to her

parents’ house in McCool, Mississippi, where Drewery continued to receive

mail. In eight different sentences of the letter, Appellant asked Drewery to

speak with Coleman in order to mend his relationship with Coleman. The

letter contained alleged threats that formed the basis of Appellant’s charge

under 18 U.S.C. § 876. Specifically, Appellant wrote: 

[I]f I have to come looking for [Coleman], me and her both are going

to die on the same day, because, I’m not living without her, because,

she is my life, and, I’m not about to let another mother fucker take

my place, and, I will make sure that I’ll die in her arms . . . we’ll die

in eachothers [sic] arms . . . if I have to come looking for her, and, I

will find her, you are going to lose us both in the same day, because,

we will die in eachothers [sic] arms, and, that’s a promise, because,

I’m tired of her fucking around on me. . . . Sharon, I don’t want to

come looking for her, because, it will be our last day on earth, and,

I can promise you that.

Drewery, Coleman, and Coleman’s husband (then boyfriend), Donald

Coleman, traveled to McCool to read the letter. Subsequently, Donald

Coleman contacted the Federal Bureau of Investigations (“FBI”) to complain

about the letter. Appellant voluntarily agreed to speak with two FBI agents. 
No. 07-60458

3

He admitted writing the letter, but stated that “it was just talk and he would

never hurt his family.” 

The FBI also interviewed Drewery and Coleman. The women stated

that Appellant had a history of abusing them. The transcripts of these

interviews were not provided to Appellant’s counsel prior to trial. When the

government mentioned Appellant’s alleged history of abuse during its opening

statement and when Drewery and Coleman testified to the same, Appellant’s

counsel objected and moved for mistrial. The district court denied both

motions for mistrial. The jury found Appellant guilty, and judgment was

entered against him on May 21, 2007. 

II. Standard of Review

We review a district court’s determinations regarding the admissibility

of evidence for abuse of discretion. United States v. Pace, 10 F.3d 1106, 1115

(5th Cir. 1993). 

III. Analysis

A. Marital Communications Privilege

Appellant argues that the district court violated his marital

communications privilege when it admitted the letter into evidence. Marital

communications “are presumptively confidential.” Blau v. United States, 340

U.S. 332, 333 (1951). There is no dispute that the letter was written while

Appellant and Drewery were still married. However, “wherever a

communication, because of its nature or the circumstances under which it

was made, was obviously not intended to be confidential, it is not a privileged

communication.” Wolfle v. United States, 291 U.S. 7, 14 (1934). The

presumption of confidentiality “may be overcome by proof of facts showing

that they were not intended to be private,” such as “[t]he presence of a third

party . . . [or] the intention that the information conveyed be transmitted to a

third person.” Pereira v. United States, 347 U.S. 1, 6 (1954) (citations
No. 07-60458

2 Federal Rule of Evidence 404(b) provides that: “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,

4

omitted); see also United States v. Archer, 733 F.2d 354, 359 (5th Cir. 1984). 

The government bears the burden of showing that the communication was

not intended to be confidential. Blau, 340 U.S. at 332.

Here, Appellant argues that the letter is protected under the marital

communications privilege because the sentences expressing his desire for

Drewery to talk to Coleman do not contain the threats against Coleman. 

Thus, Appellant argues, the threats that are necessary for a § 876 conviction

were not intended to be conveyed to Coleman, a third party. 

Appellant’s argument requires this Court to parse the letter sentence

by sentence to determine which phrases were intended to be conveyed to

Coleman and which were intended to remain confidential between him and

Drewery. Under the circumstances of this case, we reject Appellant’s

argument. Nothing in the letter suggests that Appellant intended for

Drewery to only relay certain statements to Coleman. The threats were

interwoven with the pleas to talk to Coleman, and the nature of the letter, as

a whole, evidences Appellant’s intent that the content be transmitted via

Drewery to Coleman. This is in fact what happened: Drewery testified that

after reading the letter she passed it to Coleman “because it was about her.” 

Therefore, we find that the district court properly admitted the letter, and

Appellant’s marital communications privilege was not violated. 

B. Evidence of Prior Bad Acts

In the alternative, Appellant argues that reference to his alleged abuse

of Drewery and Coleman via testimony and the government’s opening

statement was improper under Federal Rule of Evidence 404(b) because the

government did not disclose this evidence prior to trial.2In response, the
No. 07-60458

provided that upon request by the accused, the prosecution in a criminal case shall provide

reasonable notice in advance oftrial, or during trial if the court excuses pretrial notice on good

cause shown, of the general nature of any such evidence it intends to introduce at trial.”

5

government argues that the evidence was intrinsic to the crime charged and,

therefore, Rule 404(b) is inapplicable. See United States v. Coleman, 78 F.3d

154, 156 (5th Cir. 1996) (“Intrinsic evidence does not implicate Rule 404(b),

and consideration of its admissibility pursuant to Rule 404(b) is

unnecessary.”).

We do not reach the issue of whether the evidence of alleged abuse was

intrinsic because we find, even assuming such evidence was not intrinsic and

subject to Rule 404(b), any error was harmless. An error is harmless if it did

not cause “substantial prejudice.” Guidry v. Dretke, 397 F.3d 306, 331 (5th

Cir. 2005). Evidence regarding the alleged abuse was not substantially

prejudicial to Appellant because the other evidence presented at trial

overwhelmingly supported a conviction under 18 U.S.C. § 876. A violation of

§ 876 occurs where the government “prove[s] that the defendant wrote a

letter containing a threat and knowingly caused it to be mailed.” United

States v. Raymer, 876 F.2d 383, 391 (5th Cir. 1989); see also United States v.

DeShazo, 565 F.2d 893, 894-95 (5th Cir. 1978) (per curiam) (finding violation

of § 876 where defendant admitted he wrote a letter containing threats to

Senators Dole and Mondale and caused it to be placed in the mail, despite

defendant’s claim that he did not intend to harm anyone). It is undisputed in

this case that Appellant wrote the letter and knowingly caused it to be

mailed. Thus, assuming arguendo that the alleged abuse was improperly

admitted under Rule 404(b), such error was harmless and Appellant is not

entitled to a new trial. Therefore, the judgment is

AFFIRMED.