                 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
     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


     1
          Judge    Larry Baraka, Judge Carolyn Wright, and
Judge Berlaind L. Brashear.


                                  2
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:

     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
          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

                                    4
        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


    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
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


                                       6
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

                                   7
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




   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
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.




     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.


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