                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1469
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of South Dakota.
                                        *
Larry Patzlaff,                         *      [UNPUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: August 22, 2002

                                  Filed: August 27, 2002
                                   ___________

Before HANSEN, Chief Judge, FAGG and BYE, Circuit Judges.
                              ___________

PER CURIAM.

       Larry Patzlaff, an inmate at the South Dakota State Penitentiary (SDSP), sent
threatening letters to the Honorable Charles B. Kornmann, a federal district judge,
and Russell Janklow, an attorney and son of the South Dakota Governor. The letter
to Russell Janklow contained personal information about him, suggested he should
be hung on a “tall tree” with a “short rope,” and said, “Maybe there will be a necktie
party with you as the special guest.” A jury convicted Patzlaff of mailing threatening
communications from prison in violation of 18 U.S.C. § 876, and the district court*
sentenced Patzlaff to thirty-seven months in prison. Patzlaff appeals, and we affirm.

       Patzlaff first contends the government’s failure to turn over the report of a
postal inspector violated Brady v. Maryland, 373 U.S. 83, 87 (1963) (prosecution’s
suppression of evidence favorable to defense violates due process when evidence is
material to guilt or punishment). The postal inspector’s report states the inspector
met with Russell Janklow about the letter Patzlaff sent and Janklow was concerned
about personal and private information contained in the letter and the indirect threat
to him. The report states the inspector also met with SDSP Sergeant Mary Rodasky,
who said, among other things, that Patzlaff has been a difficult inmate who often
engages in letter writing campaigns, that Patzlaff is mentally unstable, that Patzlaff
is not a violent person, and that Patzlaff says he does not intend to contact any of his
victims when he is released. The inspector concluded that, in his opinion, the letter
contained “veiled threats and not any direct threats of physical harm” to Janklow.

       To succeed on his Brady claim, Patzlaff must show the report is material and
favorable to him, the government suppressed the report, and the suppression
prejudiced Patzlaff in that there is a reasonable probability Patzlaff would have been
acquitted if the evidence had een disclosed. United States v. Parker, 267 F.3d 839,
846 (8th Cir. 2001). We conclude the report did not contain any exculpatory or
impeachment information material to Patzlaff’s defense. The report did not contradict
the trial testimony of Russell Janklow or Sergeant Rodasky, who Patzlaff called as
his own witness. Likewise, the opinions of the postal inspector and Sergeant
Rodasky that the threat was indirect and that Patzlaff would probably not act on his
threats were not material. Whether the defendant has the subjective intent to carry
out mailed threats is not relevant in a prosecution under § 876. United States v.


      *
        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.

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Patrick, 117 F.3d 375, 377 (8th Cir. 1997). The jury heard the content of the letter to
Russell Janklow and it was their job to decide whether, under the totality of the
circumstances, a reasonable recipient would interpret the letter as a threat. United
States v. Whitfield, 31 F.3d 747, 749 (8th Cir. 1994). Based on the evidence, the jury
found beyond a reasonable doubt that the letter contained one or more threats. There
is not a reasonable probability that disclosure of the postal inspector’s report to
Patzlaff would have changed the outcome of his trial.

       Patzlaff also contends the district court committed error in admitting six unsent
threatening letters he wrote to Governor Janklow as other bad acts under Federal Rule
of Evidence 404(b). Rule 404(b) is a rule of inclusion that allows a court to admit
evidence of other bad acts unless the evidence tends to prove only the defendant’s
criminal disposition. United States v. Campa-Fabela, 210 F.3d 837, 840 (8th Cir.
2000). The district court has broad discretion to admit evidence under Rule 404(b)
and we will overturn the ruling only if the evidence had no bearing on the case. Id.
Evidence of other bad acts is admissible when the evidence is relevant to a material
issue, proved by a preponderance of the evidence, higher in probative value than in
prejudicial effect, and similar in kind and close in time to the crime charged. United
States v. Loveless, 139 F.3d 587, 592 (8th Cir. 1998).

       Having carefully reviewed the matter, we conclude the district court did not
abuse its discretion in admitting the six unsent letters. The district court concluded
the unsent letters were material to the issues of whether Patzlaff’s letters to Russell
Janklow and Judge Kornmann were threatening and whether Patzlaff acted
knowingly; were proven by a preponderance of the evidence; were more probative
than prejudicial; and were similar in kind and close in time to the crimes charged. Id.
Immediately after the letters were admitted, the district court gave a proper limiting
instruction, telling the jury not to use the evidence as proof of the acts charged in the
indictment. See id. at 593.



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We thus affirm Patzlaff’s conviction.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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