08-3845-cr (L); 08-4526-cr(Con); 08-4787(Con)
United States v. Li

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM MARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 18 th day of June, two
thousand and ten.

PRESENT:
            RALPH K. WINTER,
            PETER W. HALL,
                   Circuit Judges,
            MIRIAM GOLDMAN CEDARBAUM,*
                   District Judge.
_______________________________________________

United States,

                                 Appellee,
                 v.                                                     08-3845-cr (L);
                                                                        08-4526-cr (Con);
                                                                        08-4787-cr (Con)

Xiang Li,
                        Defendant-Appellant.
______________________________________________

For Appellant:                                  Xiang Li, pro se, White Deer, PA

For Appellee:                                   Richard S. Hartunian, United States Attorney
                                                for the Northern District of New York, John
                                                G. Duncan, Assistant United States Attorney
                                                Of Counsel, Syracuse, N.Y.


        *
         Miriam Goldman Cedarbaum, of the United States District Court for the Southern
District of New York, sitting by designation.
          Appeal from a judgment of the United States District Court for the Northern District of New

York (Hurd, J.).

          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court be AFFIRMED.

          Appellant Xiang Li, pro se, appeals from his judgment of conviction on eleven counts of

transmitting threats in interstate commerce, in violation of 18 U.S.C. § 875(c). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          Li raises three main arguments on appeal: (1) § 875(c) is unconstitutional; (2) there was

insufficient evidence that the statements upon which the charges were based constituted “true

threats”; and (3) the evidence and testimony submitted at trial was forged, tampered with, and/or

perjurious.

          With respect to his challenge to the constitutionality of § 875(c), we are bound by our prior

decisions holding that provision constitutional, as it criminalizes only true threats. See United States

v. Francis, 164 F.3d 120, 122-23 (2d Cir. 1999); United States v. Kelner, 534 F.2d 1020, 1028 (2d

Cir. 1976). Similarly, our precedent provides that the statute is constitutional even though there is

no requirement that the Government prove that the defendant intended to carry out his threats. See

Francis, 164 F.3d at 122-23.

          In addition to reiterating that the statute of conviction is constitutional, we hold that the

conviction is supported by sufficient evidence. A conviction for violation of § 875(c) is supported

by sufficient evidence where a jury may find that “an ordinary, reasonable recipient who is familiar

with the context of the [threat] would interpret it as a threat of injury.” United States v. Sovie, 122


                                                   2
F.3d 122, 125 (2d Cir. 1997) (internal quotation and citation omitted) (upholding conviction where

statements were telephonic threats such as “You ain’t on the bus, I'm gonna kill you, got it?”). The

recipients testified to the statements they received. All of the statements upon which Li was

convicted included references to the recipients’ death. This evidence was sufficient for the jury to

find that a reasonable person would have perceived the statements as threats. Id. Moreover, the

verdict also was supported by the evidence of prior interactions between Li and the recipients of the

threats as well as testimony regarding the security measures taken as a result of the threats. See

United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994) (“proof of the effect of the alleged threat upon

the addressee is highly relevant” to a determination of whether a statement is a threat within the

meaning of § 875(c)).

        We now turn to Li’s assertions that the evidence and testimony at trial were forged, tampered

with, or perjurious—assertions he advances in various forms multiple times throughout his appellate

briefs. Although we generally review evidentiary rulings under an abuse of discretion standard, see

United States v. Bell, 584 F.3d 478, 486 (2d Cir. 2009), because the admission of the various

evidence in question was not contested below, we review these claims only for plain error, see

United States v. Garcia, 413 F.3d 201, 219 (2d Cir. 2005). Under this standard, relief is available

only where there is an “(1) error, (2) that is plain, and (3) affects substantial rights, and (4) the error

‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’” Bell, 584 F.3d

at 484 (quoting United States v. Weintraub, 273 F.3d 139, 145 (2d Cir. 2001)). Li’s claims of

forgery and tampering are unsupported and conclusory and mainly constitute a challenge to the

credibility of the witnesses. Such allegations are insufficient to form a basis for reversal. See United




                                                    3
States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995) (holding that allegations of perjury require a

demonstration that the witnesses actually committed perjury).

       Finally, with the exception of Li’s claim of ineffective assistance of counsel, we have

considered Li’s remaining claims of error and determine them to be without merit. As to the

ineffective assistance of counsel claim, we decline to address that claim at this time, as it is more

appropriately raised in a 28 U.S.C. § 2255 proceeding. See United States v. Khedr, 343 F.3d 96, 99

(2d Cir. 2003) (noting this Court has “baseline aversion to resolving ineffectiveness claims on direct

review” (internal quotations omitted)); Massaro v. United States, 538 U.S. 500, 504-05 (2003)

(expressing preference that an ineffective counsel claim be evaluated pursuant to a 28 U.S.C. § 2255

motion).

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                                      FOR THE COURT:

                                                      Catherine O’Hagan Wolfe, Clerk




                                                  4
