UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 97-4092
THOMAS FLOYD LITTLEJOHN, a/k/a
Thomas Floyd Green,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-115)

Submitted: December 16, 1997

Decided: January 15, 1998

Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David Grant Belser, BELSER & PARKE, P.A., Asheville, North
Carolina, for Appellant. Mark T. Calloway, United States Attorney,
Deborah A. Ausburn, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Thomas Floyd Littlejohn was convicted for causing a written com-
munication containing a threat to injure to be delivered by United
States Postal Service in violation of 18 U.S.C.§ 876 (1994). He
appeals both his conviction and sentence. For the reasons stated
below, we affirm.

Littlejohn first contends that the district court erred by denying his
motion for judgment of acquittal. We review a denial of a motion for
judgment of acquittal under a sufficiency of the evidence standard.
See United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). To
sustain a conviction, the evidence viewed in the light most favorable
to the government must be sufficient for a rational jury to find the
essential elements of the crime beyond a reasonable doubt. See United
States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). To be convicted
under section 876 a defendant must knowingly deposit a threatening
communication in the mail. United States v. Maxton, 940 F.2d 103,
106 (4th Cir. 1991). Whether a letter actually contains a threat is a
question for the jury. See United States v. Malik, 16 F.3d 45, 49 (2d
Cir. 1994). "`If there is substantial evidence that tends to show
beyond a reasonable doubt that an ordinary, reasonable recipient who
is familiar with the context of the letter would interpret it as a threat
of injury, the court should submit the case to the jury.'" Maxton, 940
F.2d at 106 (quoting United States v. Maisonet , 484 F.2d 1356, 1358
(4th Cir. 1973)). At trial the United States introduced as evidence the
following letter that Littlejohn sent his attorney, Thomas Lindsay.
The letter states in part:

          After not hearing from you in 11 months I've come to the
          conclusion that you've sold me out just like that other sorry
          ass lawyer that I went to trial with. I had a feeling after talk-
          ing to you last August that you were going to purposely sell

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          me out, because you didn't argue more of the issues I asked
          you to.

          And the only reason I didn't kick your red neck ass was
          because I was handcuffed remember. So consider yourself
          lucky for now. . . .

          I could easily have you disbared [sic] boy. I know a lot of
          dirt on you believe it or not, and I got witnesses to prove it
          to [sic].

          I don't have a life sentence so I will get out. You will proba-
          bly die of some incurable disease before I'm released if your
          [sic] lucky and thats [sic] to [sic] good for you! When I'm
          released I'll find your kids or whoever survives you and
          make sure they know what you purposely did to me for rac-
          ist reasons. You know what else I'll do ha ha.

Because a rational jury could find that an ordinary, reasonable recipi-
ent of such a letter would interpret it as a threat of injury, we find that
the district court properly denied Littlejohn's motion for judgment of
acquittal.

Littlejohn also alleges that the district court erred by excluding evi-
dence that he was facing a thirty year sentence at the time he sent the
above quoted letter. A district court's evidentiary rulings are entitled
to substantial deference and will not be reversed absent a clear abuse
of discretion. Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996).
Because the length of Littlejohn's impending sentence is not relevant
to whether he acted in violation of 18 U.S.C. § 876 by knowingly
depositing a threatening communication in the mail, we find that the
district court did not abuse its discretion by excluding such evidence.
See United States v. Chatman, 584 F.2d 1358, 1361 (4th Cir. 1978)
(section 876 does not require that defendant "intended or was able to
carry out the threat").

Littlejohn next contends that the district court improperly limited
his cross-examination of Lindsay concerning Lindsay's ethical obli-
gations to communicate with Littlejohn and to return his legal files.

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A district court's restrictions on cross-examination are reviewed for
abuse of discretion. See United States v. Piche , 981 F.2d 706, 716
(4th Cir. 1992). The record reveals that the trial judge afforded Little-
john ample opportunity to examine Lindsay about his ethical obliga-
tions to communicate with Littlejohn. Further, Lindsay's failure to
return Littlejohn's legal files occurred after Littlejohn mailed the
communication giving rise to his conviction. Accordingly, the failure
to return such files is not relevant to any issue the jury had to decide
and the district court properly restricted cross-examination on this
subject.

This court considers de novo whether a district court has properly
instructed a jury on the statutory elements of an offense. United States
v. Rahman, 83 F.3d 89, 92 (4th Cir.), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3369 (U.S. Nov. 18, 1996) (No. 96-6343). However, "the
decision of whether to give a jury instruction and the content of an
instruction are reviewed for an abuse of discretion." United States v.
Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Furthermore, even where
use or denial of a jury instruction is in error, reversal is warranted
only when the error is prejudicial based on a review of the record as
a whole. Ross v. Saint Augustine's College, 103 F.3d 338, 344 (4th
Cir. 1996).

Littlejohn claims that the district court improperly refused to
instruct the jury that the United States had to prove (1) that Littlejohn
acted with knowledge that his actions were illegal and were not the
result of accident or mistake, and (2) that Littlejohn intended at the
time he mailed the letter to carry out the threatened harm. However,
to sustain a conviction under 18 U.S.C. § 876, the United States need
only prove that a defendant knowingly deposited a threatening letter
in the mail and that he had the intent to threaten the recipient at the
time of the mailing. See Maxton, 940 F.2d at 106. Because the jury
charge clearly included those elements, the district court properly
exercised its discretion in refusing to make Littlejohn's suggested
additions.

The district court also properly exercised its discretion to reject Lit-
tlejohn's requested First Amendment instruction. A trial court need
not give a specifically requested instruction so long as the instruction
the court gives covers a theory the defense offers. United States v.

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Smith, 44 F.3d 1259, 1270-71 (4th Cir. 1995). Littlejohn's position at
trial was that his letter did not constitute a threat. The district court
adequately instructed the jury that to find Littlejohn guilty of violating
18 U.S.C. § 876 it must find that the Government proved beyond a
reasonable doubt that Littlejohn's letter contained a threat. Because
this instruction adequately covered Littlejohn's defense theory, the
district court acted within its discretion by declining to issue a First
Amendment jury instruction. We find that the district court also prop-
erly refused to instruct the jury about Lindsay's ethical obligations as
an attorney because these obligations were not relevant to the jury's
determination of whether Littlejohn acted in violation of 18 U.S.C.
§ 876.

This court reviews a district court's decision to deny an acceptance
of responsibility adjustment for clear error. See United States v. Holt,
79 F.3d 14, 17 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3260 (U.S. Oct. 7, 1996) (No. 95-9448). To receive a reduction under
United States Sentencing Guidelines ("U.S.S.G.") § 3E1.1 for accep-
tance of responsibility a defendant must prove "by a preponderance
of the evidence that he has clearly recognized and affirmatively
accepted personal responsibility for his criminal conduct." United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). Although Little-
john admitted sending the letter, he denied that he intended to threaten
Lindsay. We find that Lindsay's refusal to admit that his letter consti-
tuted a threat provided adequate justification for the district court to
deny him an adjustment for acceptance of responsibility. See United
States v. Whitfield, 31 F.3d 747, 750 (8th Cir. 1994).

Littlejohn's final claim is that his violation of 18 U.S.C. § 876
should not have been classified as a crime of violence within the
meaning of U.S.S.G. § 4B1.2(1). This court reviews de novo a district
court's legal interpretation of the Guidelines. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Under § 4B1.2(1), a
crime of violence means "any offense . . . that has as an element the
use, attempted use, or threatened use of physical force against the per-
son of another." U.S.S.G. § 4B1.2(1). An essential element of 18
U.S.C. § 876 is that the defendant communicate a threat to injure the
person of the addressee or of another. A defendant's capacity to fol-
low through on a threat is not determinative of whether threatening
conduct is a crime of violence. See United States v. Poff, 926 F.2d

                     5
588, 589-90 (7th Cir. 1991). Considering that threats themselves are
a form of violence, see Rogers v. United States , 422 U.S. 35, 46-47
(1975) (Marshall, J., concurring), and that Littlejohn's ability or
intention to follow through on his threat is not relevant to determining
whether his criminal activity constituted a crime of violence, we find
that district court properly classified Littlejohn's violation of 18
U.S.C. § 876 as a crime of violence. See also United States v. Weddle,
30 F.3d 532, 538 & n.1 (4th Cir. 1994) (section 876 is "crime of vio-
lence" under U.S.S.G. § 4B1.2(1) (dicta)).

Accordingly, we affirm Littlejohn's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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