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
 

1 Judge Larry Baraka, Judge Carolyn Wright, and

Judge Berlaind L. Brashear.

2

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
 

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

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:
4

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
 

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

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
6

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
7

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
 

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).

8

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
 

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

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.