UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60590
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
FREDERICK STEVENSON
a/k/a
FREDRICK STEVENSON
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
October 17, 1997
Before REYNALDO G. GARZA, SMITH, and WIENER, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
This is an appeal from the United States District Court for
the Southern District of Mississippi, Chief Judge William H.
Barbour, Jr., presiding. The Defendant-Appellant, Frederick
Stevenson (“Stevenson”), was found guilty in June of 1996 on a one-
count indictment in which he was charged with threatening to
assault a federal probation officer while she was engaged in her
official duties, in violation of Title 18, U.S.C. §115(a)(1)(B).
Judge Barbour sentenced Stevenson to 36 months imprisonment, a $50
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special assessment, and a one year term of supervised release, upon
completion of the jail sentence. Stevenson now appeals. Based on
our analysis of the pleadings, briefs, and record on file, we
AFFIRM the decision of the district court.
Background
Frederick Stevenson was placed under the supervision of a
United States Probation Officer named Rebecca Hart Gormley
(“Gormley”) in November of 1994. In January of 1995, Stevenson was
taken into custody, a fact Gormley says she learned of on January
30, 1995. According to the Appellant’s Brief, Stevenson tried to
contact Gormley on several occasions during his custody for the
purpose of finding out how his incarceration would affect his
federal probation. Stevenson claims that he wrote Gormley four or
five letters attempting to contact her. The Plaintiff-Appellee’s
brief states that Gormley received only one letter (other than the
one which caused this controversy), and Gormley never visited
Stevenson in jail.
In March of 1995, Gormley received the following letter from
Stevenson:
Dear Rebecca,
This is Frederick. Say why the fuck you
won’t do your job, bitch. You need to
get your ass over here to see me before I
beat the shit out of you. If you don’t
comply I will go through the motions of
what I just wrote.
This letter frightened and alarmed Gormley. In April of 1995,
Stevenson acknowledged that the letter was his creation to FBI
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agent Floyd Plummer (“Plummer”), and stated that he was sorry for
writing the letter. He further stated that he had no intention of
carrying out his threat, and that he wrote the letter because he
wanted to get a response from Gormley. In June of 1995, Stevenson
sent a letter to Assistant U.S. Attorney Dolan Self (“Self”)
apologizing for the letter. These actions on the part of Stevenson
did not change Gormley’s feelings of fear and alarm.
On September 7, 1995, Stevenson was indicted and charged with
threatening to assault a federal probation officer. At Stevenson’s
trial, agent Plummer testified that he acquired fingerprint and
handwriting samples from Stevenson. An FBI fingerprint specialist
identified a latent fingerprint on the letter as matching
Stevenson’s prints, and an FBI document examiner testified that the
contents of the letter and its envelope were written by Stevenson.
Plummer also testified that Stevenson admitted writing the letter.
Stevenson was subsequently found guilty by the jury on June 6,
1996, and Judge Barbour handed down the sentence previously listed.
Stevenson timely filed for an appeal, and the case now stands
before this Circuit.
Standard of Review
The standard of review we apply is whether a rational trier of
fact could have found that the evidence established guilt beyond a
reasonable doubt. United States v. Ivey, 949 F.2d 759, 766 (5th
Cir. 1991), cert. denied, 506 U.S. 819 (1992). All evidence and
inferences from the evidence are to be viewed in the light most
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favorable to the government. Id.; United States v. Maseratti, 1
F.3d 330, 337 (5th Cir. 1993), cert. denied, 510 U.S. 1129 (1994).
The evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
that of guilt, and this court will accept all credibility choices
that tend to support the verdict. United States v. Pofahl, 990
F.2d 1456, 1467 (5th Cir. 1993), cert. denied, 510 U.S. 898 (1993).
In regard to sentencing, the standard of review for the
district court’s application of the sentencing guidelines is de
novo and the district court’s findings of fact are reviewed for
clear error. United States v. Wimbish, 980 F.2d 312, 313 (5th Cir.
1992), cert. denied, 508 U.S. 919 (1993). The district court’s
factual findings are not clearly erroneous if they are plausible in
light of the record read as a whole. United States v. Watson, 966
F.2d 161, 162 (5th Cir. 1992). The district court’s findings will
be deemed clearly erroneous only if the appellate court is left
with the definite and firm conviction that an error has been made.
Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993).
Discussion and Analysis
1. The evidence supports the conviction.
Stevenson claims that the government failed to prove he had
the necessary intent to be convicted under that statute. He
argues that his letter was merely one written out of frustration,
and that he intended that Gormley carry out her duties (as he saw
them) rather than impede the performance of her duties. He also
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states that his incarceration made it impossible for him to carry
out his threats toward Gormley. He states that these facts,
coupled with the fact that Gormley was an armed law enforcement
officer, showed a lack of necessary intent, and hence, his
conviction should be overturned.
Stevenson did not cite a single case in his brief which
would support his arguments, and his arguments fail on their own.
First of all, it is certainly reasonable to believe that a person
who received a letter such as that which was sent to Gormley
would be frightened and intimidated from performing his or her
tasks, and that such fear and intimidation would be the goal of
the person who wrote the letter. Under 18 U.S.C. § 115(a)(1)(B),
the key point is whether the defendant intentionally communicated
the threat. The Ninth Circuit has stated that the “only intent
requirement is that the defendant intentionally or knowingly
communicates his threat, not that he intended or was able to
carry out his threat.” United States v. Orozco-Santillan, 903
F.2d 1262, 1265 (9th Cir. 1990); see also United States v.
Roberts, 915 F.2d 889, 890 (4th Cir. 1990), cert. denied, 498
U.S. 1122 (1991). This Circuit stated a similar standard
regarding intent in the context of 18 U.S.C. §871, criminalizing
threats to the President. United States v. Pilkington, 583 F.2d
746, 747 (5th Cir. 1978), cert. denied, 440 U.S. 948 (1979)
All the government had to show was that this threat was
intentionally communicated, not that the threat was credible or
could be immediately carried out. This intent can be proven by
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direct or circumstantial evidence which allows for an inference
of criminal intent. United States v. Aggarwal, 17 F.3d 737, 740
(5th Cir. 1994). The content, tone, and language of the letter
could certainly lead a reasonable jury to infer that a threat was
intentionally made, and the fact that it was deliberately written
by Stevenson and mailed to Gormley’s courthouse office only
serves to support the jury’s verdict.
Also, the fact that Stevenson was in jail at the time is
irrelevant, especially given that a reasonable person could fear
that the threatened violence would occur upon Stevenson’s
release. Indeed, one could argue that the fact he was in jail
made the letter all the more frightening, with Gormley living in
fear that Stevenson was simmering in his rage and hatred during
the long hours of bad food, cold showers, and weight-lifting that
make up a prisoner’s day, and that the rage he felt would explode
on her the second he was released from jail. Therefore, his
incarceration does not destroy a possibility of criminal intent
under the statute.
Stevenson also argues that he was only acting to implore
Gormley to do her job rather than impede her, and that Gormley’s
status as an armed and trained law enforcement officer should
have led her not to take the threat seriously. These arguments
are, respectively, silly and irrelevant, and have been disposed
of in the previous analysis.
2. The sentence was appropriate.
Section 2A6.1(b)(2) of the statute states that if the
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defendant’s actions were “a single instance evidencing little or
no deliberation,” his sentence should be adjusted downward four
levels, and the Background to the Application Note provides that
the likelihood that the defendant could carry out the threat can
be used to distinguish among cases. U.S.S.G. §2A6.1(b)(2). In
Stevenson’s case, this would yield a sentence of 27-33 months,
less than the maximum term to which he was sentenced. Stevenson
argues (once again, without a single case cited to support his
point) that his action was an example of the single, spontaneous,
non-deliberated act that is supposed to yield a lower sentence.
We believe that the district court committed no reversible
error in denying a reduction in sentencing. The facts argue
strongly against Stevenson. His actions involved the deliberate
securing of stationary and postage, the composition of a letter,
the search for an address, and the act of taking the letter to be
mailed. It was not a spontaneous, momentary action done out of
opportunity or impulse. There were many steps along the way in
which he could have stopped himself, but he didn’t. The fact
that this is only one letter does not win the day for Stevenson,
because the statute does not state that the fact an act is a
single instance in itself lowers the penalty. Further, his
subsequent apologies, even if they are sincere, do not change the
nature of what he did, and therefore should not enter into the
sentencing analysis. The findings of the district court are
plausible, and do not rise to the level of clear error.
In a similar case, the United States District Court in
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Minnesota refused to downwardly adjust the sentence of a man
(under §2A6.1(b)(2)) who sent threatening letters, on the ground
that
[T]he process of obtaining an address,
conveying his thoughts onto paper, taking
that paper to a mailbox, and mailing the
letter shows the deliberation that was
involved. This process is different than
making a single oral threat on the spur of
the moment, or other conduct which might
warrant the reduction.
United States v. Bellrichard, 801 F.Supp. 263, 265 (D.Minn.
1992), aff’d 994 F.2d 1318 (8th Cir. 1993), cert. denied, 510
U.S. 928 (1993). Similarly, the Ninth Circuit held that a man
who, while drunk, sent several threatening, racist, and anti-
Semitic letters to various people had sufficient deliberation to
preclude reduction in sentencing. As that court stated, writing
such letters “does not require intelligent thought, it [does
require] some time and attention,” and accordingly, the sentence
was not reduced. United States v. Sanders, 41 F.3d 480, 485 (9th
Cir. 1994), cert. denied, 514 U.S. 1132 (1995); see also United
States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996), cert.
denied, 1175 S.Ct. 714 (1997).
A noteworthy case regarding the issue of a defendant’s
degree of deliberation is United States v. Horton, 98 F.3d 313
(7th Cir. 1996), cert. denied, 1175 S.Ct. 714 (1997). In this
case, a conviction for making a bomb threat in a federal building
was vacated by the Seventh Circuit. We believe Horton is
distinguishable on this point because the Seventh Circuit was
troubled by the fact this seemed to be a spontaneous statement by
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a man who was upset at having to wait in line to get into the a
federal building (the Oklahoma City Bombing occurred the previous
day, and security had been tightened), and the court remanded for
further analysis. Id. at 320. The case at bar differs from
Horton in that, as stated, Stevenson went through various steps
at which he could have stopped, and his actions were not the
impulsive act of someone momentarily losing their temper.
Conclusion
The prosecution met its evidentiary burden in this case, and
the sentence handed down was appropriate. Stevenson’s actions
were, by his own admission, intended to get a response from
Gormley, and his actions were not so spontaneous or lacking in
deliberation as to warrant a lower sentence. A rational trier of
fact certainly could have (and did) find Stevenson guilty beyond
a reasonable doubt. Further, the district court’s decision on
sentencing was not clearly erroneous.* Therefore, the decision
of the district court is AFFIRMED.
AFFIRMED.
*
Our holding should not be read to preclude the possibility
that a written communication, standing alone, could be sufficiently
lacking in deliberation to entitle its author to a four-level
reduction under §2A6.1(b)(2).
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