United States v. Richard Crowder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4520

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RICHARD WAYNE CROWDER,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:11-cr-70014-JPJ-PMS-1)

Submitted: April 26, 2013 Decided: May 2, 2013

Before WILKINSON, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Joseph W. H. Mott,
Assistant United States Attorney, Jonathan Peak, Third Year Law
Intern, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Richard Wayne Crowder was convicted of two counts of

mailing threatening communications, 18 U.S.C. § 876(c) (2006)

(Counts One, Three), and two counts of threatening the

President, 18 U.S.C. § 871 (2006) (Counts Two, Four). He was

sentenced to 125 months in prison. Crowder now appeals,

claiming that the instruction on the § 871 offenses was

erroneous. We affirm.

Because Crowder did not object to the instruction, our

review is for plain error. See Fed. R. Crim. P. 30(d); United

States v. Robinson, 527 F.3d 941, 953 (4th Cir. 2010); United

States v. Nikolaou, 180 F.3d 565, 569 (4th Cir. 1999). To

establish plain error, a defendant must show: (1) there was

error; (2) the error was plain; and (3) the error affected his

substantial rights. United States v. Olano, 507 U. S. 728, 732

(1993). We will exercise our discretion and correct plain error

only if we are convinced that the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks omitted).

Crowder contends that the instruction at issue could

have resulted in a guilty verdict based on the jury’s finding

that he merely wrote threatening words without intending those

threats to be communicated to another. We disagree.

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 It is well established that “we review instructions in

their entirety to determine whether the instructions accurately

and fairly state the controlling law.” United States v.

Sarwari, 669 F.3d 401, 411 (4th Cir. 2012). Here, the court

instructed:

For you to find the defendant guilty of the crimes
charged in counts two and four, you must be convinced
that the Government has proved each of the following
beyond a reasonable doubt as to each count: First,
that the defendant wrote or mailed the words alleged
to be the threat against the President; second, that
the defendant knowingly and willfully mailed or wrote
the words. . . .

It is not necessary to prove that the defendant
actually wrote the communication or that it was
received or read by the President so long as it was
knowingly mailed or caused to be mailed by the
defendant.

Because the court instructed that, in order to convict Crowder,

the jury had to find that he “knowingly mailed [the threat] or

caused [it] to be mailed,” the jury could not have convicted

Crowder simply on a finding that he wrote threatening words.

We accordingly affirm. 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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