     Case: 10-60537 Document: 00511498866 Page: 1 Date Filed: 06/06/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 6, 2011
                                     No. 10-60537
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DON RAY SALTOU,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:09-CR-108-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Don Ray Saltou appeals his conviction and sentence for knowingly and
willfully using a telephone to threaten to damage or destroy the VA Medical
Center in Jackson, Mississippi. He asserts that the evidence is insufficient to
support his conviction because the Government did not establish that Saltou
made a true or serious threat, given that he was merely attempting to advise
medical staff of his psychological issues and need for treatment. Additionally,
he maintains that the Government did not prove that he acted willfully. We

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
      Case: 10-60537 Document: 00511498866 Page: 2 Date Filed: 06/06/2011

                                  No. 10-60537

“review[] the evidence in the light most favorable to the government with all
reasonable inferences and credibility choices made in support of a conviction.”
United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009). After reviewing
the trial testimony and exhibits, we conclude that a reasonable juror could have
found that Saltou’s threat, when reviewed in context, “would have a reasonable
tendency to create apprehension that its originator will act according to its
tenor.” United States v. Morales, 272 F.3d 284, 287 (5th Cir. 2001) (internal
quotation marks and citation omitted). Moreover, a reasonable juror could find
that Saltou “voluntarily and intelligently utter[ed] the words as a declaration of
an apparent determination to carry out the threat,” establishing willfulness. See
id.
       Additionally, Saltou argues that the district court abused its discretion in
refusing to permit him to admit exhibits at trial. He argues that the evidence,
consisting of notes taken by a VA nurse in May and July 2009, were relevant to
show that he was encouraged to express his concerns and his psychological state
openly, thus establishing a context for the charged threat occurring in October
2009. Contrary to Saltou’s assertion, the proffered evidence does not make it
less probable that the jury would find Saltou’s October 2009 threat was a serious
one or that he was acting willfully when he made the threat. See F ED. R. E VID.
401. As a result, the district court did not abuse its discretion in refusing to
admit the exhibits at trial and in denying Saltou’s motion for a new trial on this
ground. See United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011); United
States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997). Consequently, the judgment
of the district court is AFFIRMED.




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