UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4319

NORMAN HAYES, a/k/a Norman

James Hayes, a/k/a Shadreck

Travond Khayatuthelezi,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CR-95-376)

Submitted: December 10, 1996

Decided: December 30, 1996

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Parks N. Small, Federal Public Defender, Columbia, South Carolina,

for Appellant. J. Rene Josey, United States Attorney, Dean A. Eichelberger, Assistant United States Attorney, Columbia, South Carolina,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Norman Hayes was convicted of four counts of knowingly causing

the United States Postal Service to deliver threatening letters in violation of 18 U.S.C. § 876 (1994). In 1988, Hayes was convicted in a

South Carolina state court for burglary and sentenced to fifteen years,

to run consecutively to some other state convictions. Mary Gordon

Baker represented Hayes during his burglary trial; David Clay Robinson represented Hayes during his post-conviction proceedings, which

were resolved against Hayes.

Beginning in 1994, Hayes began writing a series of letters to Baker

expressing his displeasure with her representation. 1 These letters

accused Baker of hiding exculpatory evidence and conspiring against

Hayes to put him in prison; the letters also blamed her for his incarceration and contained Biblical passages and references to the movie

Cape Fear. Baker turned the letters over to the FBI, which began an

investigation. Hayes also wrote a letter to Robinson which made

many of the same allegations. In order to help the jury understand the

basis for Baker's fears, the Government showed the movie Cape Fear

to the jury over defense objection.2

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1 By this time, Baker had left private practice and was serving as a

prosecutor with the United States Attorney's Office for the District of

South Carolina.

2 The Government laid a foundation which showed that the movie was

broadcast on television on the date Hayes wrote the March 1995 letter

to Baker and that Hayes was watching television during the hours the

movie was broadcast. The Government also established that the television version of the movie was substantially similar to the videocassette

version shown in court. In the movie, a convict who is released from

prison, tracks down his former defense attorney and accuses him of hiding exculpatory evidence. The convict then harasses, stalks, terrorizes,

and eventually attempts to kill the attorney and the attorney's family.

 2
Hayes's counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), challenging whether the district court erred in

denying Hayes's motion to disqualify the United States Attorney's

Office for the District of South Carolina, whether the court abused its

discretion in allowing the Government to show Cape Fear to the jury,

whether the evidence was sufficient to support the finding that the

language in Hayes's letters constituted a threat, and whether the court

erred by failing to group Hayes's offenses for sentencing. Hayes has

filed a pro se supplemental brief asserting that he was denied effective

assistance of counsel, that the trial court erroneously considered prior,

uncounseled convictions in arriving at a sentence, that the court gave

an erroneous instruction, that the court erroneously admitted the testimony of a FBI agent, and that the court failed to allow Hayes to

waive his right to counsel and proceed pro se. Finding no error, we

affirm.

I

Defense counsel filed a pre-trial motion to disqualify the United

States Attorney's Office for the District of South Carolina on the

ground that Baker worked for that office and that this created an

appearance of impropriety. The trial judge did not abuse his discretion

in denying Hayes's motion. Hayes never alleged that there was any

actual impropriety or that Baker attempted to influence the case. The

Government, on the other hand, presented evidence that the United

States Attorney's Office followed proper internal procedures and that

the only relationship between Baker and the prosecutor was the fact

that they worked for the same office.3 Moreover, even if the trial

judge erred in denying the motion, appellate defense counsel properly

concedes that Hayes fails to show any prejudice.

II

A trial judge's evidentiary decisions are reviewed for abuse of discretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993),

cert. denied, ___ U.S. ___, 62 U.S.L.W. 3640 (U.S. Mar. 28, 1994)

(No. 93-7067). In the present case, the district judge did not abuse his

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3 Baker, however, worked in the Charleston office and the prosecutor

worked in the Columbia office.

 3
discretion in allowing the jury to see Cape Fear . Hayes made references to the book and the movie in two letters. In one of the letters,

Hayes specifically advised Baker to view the movie. We find that the

showing of the movie was probative to the issue of whether the language in the letters constituted a threat.

III

On direct appeal of a criminal conviction, the "verdict of a jury

must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it." Glasser v. United

States, 315 U.S. 60, 80 (1942). With respect to the particular offense

with which Hayes was charged, this court has held that: "If there is

substantial evidence that tends to show beyond a reasonable doubt

that an ordinary, reasonable recipient who is familiar with the context

of the letter would interpret it as a threat of injury, the court should

submit the case to the jury." United States v. Maxton, 940 F.2d 103,

106 (4th Cir.), cert. denied, 502 U.S. 949 (1991).

We find the evidence sufficient to sustain Hayes's convictions

under these standards. Both attorney-victims testified that they were

put in fear by the letters. In addition, the movie Cape Fear put

Hayes's comments in perspective. Although Hayes denied any intent

to threaten, the context of the letters clearly established that Hayes

blamed his former attorneys for his incarceration, and a reasonable

juror could conclude from the language in the letters that Hayes

intended to threaten the attorneys with the type of terrorism found in

the movie.

IV

Hayes argues that the counts related to the letters sent to Baker

should have been grouped together for sentencing pursuant to USSG

§ 3D1.2(b).4 This court reviews "a question involving the legal interpretation of Guidelines terminology and the application of that termi-

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4 United States Sentencing Commission, Guidelines Manual (Nov.

1995). This section allows for the grouping of offenses when the counts

involve substantially the same harm to the same victim and when all of

the counts are connected as part of a common scheme.

 4
nology to a particular set of facts de novo," United States v. Wessells,

936 F.2d 165, 168 (4th Cir. 1991), but the determination as to the

underlying facts is reviewed for clear error. United States v.

Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

The Second and Eleventh Circuits have recently addressed this

issue in cases which are factually similar to Hayes's. See United

States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993) (defendant sent several threatening letters to his landlords); United States v. Bonner, 85

F.3d 522, 524-26 (11th Cir. 1996) (defendant made over twenty

threatening telephone calls to the Assistant United States Attorney

who prosecuted him in an earlier case). The Miller and Bonner courts

held that while the letters and telephone calls were arguably part of

a common scheme of harassment, each one inflicted a separate psychological harm, citing USSG § 3D1.2, comment. n. 4.5

We are inclined to adopt the approach used by the Second and

Eleventh Circuits in resolving this issue. Baker testified that she experienced increasing levels of fear with each letter. Moreover, as in

Bonner, the fact that Hayes continued to send threats after his initial

letter suggests that he intended to inflict new harm with each letter.

Since the record supports the district court's factual finding that each

of Hayes's letters caused a distinct harm, we hold that the trial judge

did not err by refusing to group Hayes's offenses under USSG

§ 3D1.2(b).

V

Hayes personally asserts that his defense counsel was ineffective

for failing to raise an insanity defense. Specifically, Hayes contends

that at the time he wrote the letters he was taking a prescribed medication that has been shown to have psychiatric side effects.

A claim of ineffective assistance of counsel is not cognizable on

direct appeal unless counsel's deficiency clearly appears on the face

of the record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th

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5 This Application Note states that grouping is only proper when the

counts "represent essentially one composite harm to the same victim."

 5
Cir. 1991), cert. denied, 503 U.S. 997 (1992). There is no such showing in this record.

VI

Hayes, citing United States v. Tucker, 404 U.S. 443 (1972), argues

that the trial court impermissibly considered prior convictions where

Hayes was not represented by counsel in arriving at Hayes's sentence.

The record does not support this conclusory claim.

VII

Hayes asserts that the trial court erred "in instructing [the] jury that

[the] Government was required to show that Defendant caused a communication to be delivered by the Postal Service." While this is not

the exact language used by the district court, we find no error in the

trial judge's instructions on the elements of proof.

VIII

During the investigation into the letters, FBI Agent Taylor went to

the jail in which Hayes was incarcerated to obtain handwriting and

latent fingerprint samples pursuant to a court-ordered subpoena. During the course of this "interview" Hayes admitted to Taylor that he

wrote and mailed the letters in question. We find that the trial judge

did not abuse his discretion in allowing Taylor's testimony. Taylor

did not ask Hayes any questions which would require a Miranda

warning.6

IX

Hayes claims that the trial court erred by not allowing him to waive

his right to court-appointed counsel and proceed pro se. While it is

true that a defendant has the right to waive counsel, such waiver must

be knowing and intelligent. Faretta v. California, 422 U.S. 806, 814

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6 Miranda v. Arizona, 384 U.S. 436 (1966). Taylor testified that he only

identified himself to Hayes and explained what he (Taylor) was there for.

Taylor testified that he probably asked Hayes his name, but that is all he

could remember asking Hayes.

 6
(1975). Moreover, the trial judge is required to discuss the request

with the defendant and to advise him of the consequences of the

request. See Townes v. United States, 371 F.2d 930 (4th Cir. 1966),

cert. denied, 387 U.S. 947 (1967); Aiken v. United States, 296 F.2d

604 (4th Cir. 1961).

In the present case, the trial judge properly questioned and advised

Hayes. Hayes's failure to press the issue could be construed as a

waiver and acceptance of the judge's advice. In addition, even if the

judge erred by not granting the request, the error was harmless. The

trial judge liberally allowed Hayes to make comments, to crossexamine witnesses, to give a closing argument, and to raise defenses

during the trial.

X

We have examined the entire record in this case in accordance with

the requirements of Anders, and find no meritorious issues for appeal.

The court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.

We affirm the district court's judgment order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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