UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5953

HAROLD MICHAEL MCTEER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CR-95-23)

Argued: September 26, 1996

Decided: November 22, 1996

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Peter Alan Katt, LAW OFFICES OF DANIEL L. CRAN-
DALL & ASSOCIATES, P.C., Roanoke, Virginia, for Appellant. Jeb
T. Terrien, Third Year Law Intern, Roanoke, Virginia, for Appellee.
ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Julie C.
Dudley, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Harold Michael McTeer appeals his conviction for eight counts of
violating 18 U.S.C. § 876 (1994)1 by using interstate mail to threaten
his former wife, Tina Walton. We affirm.

I.

McTeer and Walton were divorced in May 1980 after a four-year
marriage. They had two children; McTeer paid regular child support
to Walton while he served in the Army. When McTeer was dis-
charged the support ceased. The Social Services Office Division of
Child Support Enforcement ("DCSE") then assisted Walton in obtain-
ing child support from McTeer.

After the divorce, McTeer sent numerous letters to his ex-wife. In
1994, after the DCSE assisted her in obtaining arrearages in child sup-
port from McTeer, his letters became even more frequent. In that year
alone, his mailings -- some including photographs-- numbered over
one hundred and fifty. In a number of these 1994 letters, McTeer
expressed hostility toward his ex-wife, presumably due to her at-
tempts to obtain past-due child support. He suggested possible retalia-
tory steps he might take against her. McTeer also sent a letter to the
district manager of the DCSE in Roanoke, Virginia. Walton contacted
the police, and both Walton and the DCSE district manager contacted
the FBI.

McTeer was arrested in March 1995. A superseding indictment
_________________________________________________________________
1 This statute was amended in 1994. See Act of Sept. 13, 1994, Pub. L.
No. 103-322, 108 Stat. 2147, 2150. Although some of McTeer's conduct
occurred prior to the enactment of this amendment, the changes in the
statute have no bearing on the issues before this Court.

                    2
charged him with twenty counts of violating 18 U.S.C. § 876. That
statute provides in relevant part:

          Whoever knowingly deposits in any post office or autho-
          rized depository for mail matter, to be sent or delivered by
          the Postal Service or knowingly causes to be delivered by
          the Postal Service according to the direction thereon, 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 . . . or imprisoned not more than two years, or both.

18 U.S.C. § 876 (1994) and 18 U.S.C. § 876 (1988).

McTeer's criminal trial commenced in September 1995. After the
prosecution rested, McTeer moved for judgment of acquittal on all
counts on grounds of insufficiency of evidence. The district court
granted McTeer's motion with regard to five counts but allowed the
remaining fifteen to go to the jury. The jury acquitted McTeer on
seven counts and convicted him on the remaining eight. The court
sentenced McTeer to eighteen months in jail for each count, to run
concurrently, and three years of supervised release thereafter.

II.

McTeer maintains that the government presented insufficient evi-
dence to convict him of any crime. Specifically, he argues that four
letters, providing the basis for counts 11, 14, 15, and 17, are "ambigu-
ous on their face, and therefore do not contain a threat within the
meaning of 18 U.S.C. § [876]." He further contends that four mailings
with altered photographs were also too ambiguous to meet the suffi-
ciency threshold; these mailings provide the basis for counts 5, 6, 7,
and 8.

To determine if the prosecution has met its burden in this direct
criminal appeal, we apply a well recognized standard of review,
examining whether "there is substantial evidence, taking the view
most favorable to the Government," to support the conviction.

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Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Sherman, 421 F.2d 198, 199 (4th Cir.) (per curiam), cert. denied, 398
U.S. 914 (1970). For statutes that prohibit threatening communica-
tion, we have employed an objective, "reasonable person's standard,"
to determine whether the defendant communicated a true threat. See,
e.g., United States v. Darby, 37 F.3d 1059, 1064-65 (4th Cir. 1994)
(prosecuting under 18 U.S.C. § 875(c)), cert. denied, 115 S. Ct. 1826
(1995).

A judge should submit the case to the jury if "there is substantial
evidence that tends to show beyond a reasonable doubt that an ordi-
nary, reasonable recipient who is familiar with the context of the letter
would interpret it as a threat of injury . . . ." United States v. Maisonet,
484 F.2d 1356, 1358 (4th Cir. 1973), cert. denied, 415 U.S. 933
(1974); accord United States v. Roberts, 915 F.2d 889, 891 (4th Cir.
1990) (prosecuting under 18 U.S.C. § 115(a)(1)(B)), cert. denied, 498
U.S. 1122 (1991).2 To prove interstate communication threats, "the
government must establish that the defendant intended to transmit the
interstate communication and that the communication contained a true
threat." Darby, 37 F.3d at 1066 (referring to § 18 U.S.C. 875(c)).
Generally what is or is not a true threat is a jury question. Roberts,
915 F.2d at 891 (citing Maisonet, 484 F.2d at 1358).

Maisonet provides guidance here. In Maisonet, a defendant was
convicted of sending threatening mail to a judge in violation of § 876.
In his letter, he wrote that "if I ever get out of here and nothing hap-
pen[s] to me while I am in here, you will never be able to be preju-
dice[d] and racist against another Puerto Rican like me." 484 F.2d at
1357. Maisonet argued that he did not mean to physically threaten the
judge, but only to seek the judge's removal from office. On appeal,
we held: "Whether a letter that is susceptible of more than one mean-
ing -- one of which is a threat of physical injury-- constitutes a
threat must be determined in the light of the context in which it was
written." Id. at 1358. The context in which Maisonet was writing was
as follows: the judge he was threatening had sentenced him to prison;
he considered that sentence illegal; he felt the judge was motivated by
_________________________________________________________________
2 Although Roberts involved a threat to a judge, which was prosecuted
under § 115(a)(1)(B) rather than § 876, we apply the same standard
under § 876. Roberts, 915 F.2d at 891.

                     4
prejudice and racism; and Maisonet sent the threatening letter to the
judge's home address. Id. We found that the letter and surrounding
facts were sufficient to support the jury's verdict that the communica-
tion constituted a threat. Id.

Here, as in Maisonet, we believe that McTeer's letters, when
viewed "in the light of the context in which[they were] written,"
could be interpreted as threats. Id. First, the letters, standing alone,
contain alarming passages. The letter dated October 10, 1994 includes
language that could be construed as a threat of rape. ("I will [ ] you.
I will [ ] you. Because you will let me."). The October 22, 1994 letter
states:

          You think you are owed something? Be careful because you
          could get what you deserve. That thought alone should make
          you "very afraid." If we had remained married there is little
          doubt in my mind that one of us would be dead. That is the
          relationship you wished continued? They say I am"crazy."
          . . . If we are both "destroyed" in the process and crissy to
          boot, that's just the way it will be . . . .

In the October 29, 1994 letter, McTeer again includes threatening
words: "You have had your `party' at my expense. Are you ready for
the pay back?" The November 2, 1994 letter contains this menacing
language:

          Tina, I went to JAIL. I could go to prison, Tina. You did it.
          You caused it. You asked for it. You got it. Where is the
          "line," deary? Where is the point of no return? When does
          it become a battle to the death without regard to anything or
          anyone?

The surrounding facts confirm that a reasonable recipient familiar
with the context would view these letters as threats. Among these
facts are Walton's efforts to seek child support from McTeer even
after McTeer's parental rights over their children were terminated.
These efforts obviously upset McTeer. We also consider Walton's
testimony regarding McTeer's violent behavior towards her during
their marriage. Finally, Walton herself testified that she did indeed
interpret the letters as threats. See Roberts , 915 F.2d at 891 (consider-

                     5
ing the recipient's interpretation of phone calls or letters); Darby, 37
F.3d at 1067 (same). In light of this context, a jury could have con-
cluded that a reasonable recipient of these letters would have viewed
them as threats.

McTeer also argues that the photographs sent to Walton were
ambiguous. We again reject his argument. The jury had sufficient
grounds to find that, in light of the context received, photographs
painted red with slash marks cut through them could be reasonably
interpreted as threats to physical safety.

We note that the jury carefully considered this case, deliberating
for several hours and acquitting McTeer on seven of the fifteen
counts. Viewed in the light most favorable to the Government, we can
only conclude that the evidence was sufficient to support the jury's
verdict of guilty on the eight remaining counts.

III.

McTeer next asserts that the prosecutor's reference to physical
abuse during their marriage constituted reversible error requiring a
new trial. Specifically, McTeer objects to the prosecutor's statement
in argument that, "There was lots of physical abuse during the mar-
riage."

The prosecutor, as much as any other official in the judicial system,
has a duty to protect the right to trial by an impartial jury. United
States v. Harrison, 716 F.2d 1050, 1051 (4th Cir. 1983), cert. denied,
466 U.S. 972 (1984). With any such allegation, we must determine if
a prosecutor's conduct "so infected the trial with unfairness as to
make the resulting conviction a denial of due process." Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)) (internal quotations omit-
ted).

In order to demonstrate prosecutorial misconduct a defendant must
show: (1) the prosecutor's remarks were in fact improper, and (2)
these remarks "prejudicially affected the defendant's substantial rights
so as to deprive the defendant of a fair trial." United States v.

                     6
Brockington, 849 F.2d 872, 875 (4th Cir. 1988). See also Holdren v.
Legursky, 16 F.3d 57, 62 (4th Cir. 1994) (rejecting contention of pro-
secutorial misconduct under Brockington test), cert. denied, 115 S. Ct.
106 (1994).

In the instant case, it is not at all clear that the prosecutor's refer-
ence in closing argument to physical abuse during the marriage was
improper. At trial, the prosecutor queried Walton as to why in 1981
she did not permit McTeer to enter her house until her husband, Chris
Walton, returned; Walton responded:

          Walton: When we were married he [McTeer] was violent,
          and I didn't --

          Q: To you? He was violent towards you?

          Walton: Yes ma'am.

          Q: How so?

          Walton: When I moved there in May 7, '76--

          Defense Counsel: Your Honor, I'm going to enter an
          objection at this time as to relevancy, anything going on in
          the marriage.

The district court sustained the objection, ruling:

          I think this is awful remote, Ms. Campbell, and I think, you
          know, she said that they had an unhappy marriage, and
          that's about the extent of it.

          I'll sustain the objection.

The prosecutor did not pursue the question as to the nature of the
violence. Defense counsel did not request that the reference to
McTeer's violence be stricken from the record. Arguably, therefore,
evidence of McTeer's violence during the marriage was properly
admitted at trial and so could be referred to in closing argument.

                     7
Assuming, however, that Walton's testimony as to McTeer's vio-
lence was improperly admitted into evidence and so the prosecutor's
reference to it in closing argument was error, the prosecutor's remark
still does not require reversal. To find reversible error, we would have
to determine that the remark deprived defendant of a fair trial.
Brockington, 849 F.2d 872.

Factors to be considered under this prong of the analysis include:

          (1) the degree to which the prosecutor's remarks have a
          tendency to mislead the jury and to prejudice the accused;

          (2) whether the remarks were isolated or extensive;

          (3) absent the remarks, the strength of competent proof
          introduced to establish the guilt of the accused; and

          (4) whether the comments were deliberately placed before
          the jury to divert attention to extraneous matters.

United States v. Morsley, 64 F.3d 907, 913 (1995), cert. denied, 116
S. Ct. 749 (1996) (quoting Harrison, 716 F.2d 1050, 1052). We do
not believe that the prosecutor's brief reference to abuse meets any of
the criteria set forth above. The remark was isolated. Further, as noted
above, the evidence against McTeer was more than sufficient to sus-
tain the conviction. Proof of guilt would not be diminished by remov-
ing this comment: McTeer's own letters convicted him.

We therefore reject the claim of prosecutorial misconduct, and find
that the district judge did not abuse its discretion in rejecting
McTeer's motion for a mistrial.

IV.

McTeer's remaining three arguments are equally meritless.

He first asserts that his counsel was constitutionally ineffective
because counsel failed to object to the prosecution's remark regarding
McTeer's violent behavior towards his ex-wife. A claim of ineffective

                    8
assistance of counsel should be raised by motion under 28 U.S.C.
§ 2255 and not on direct appeal, unless it"conclusively appears" in
the trial record that counsel did not provide effective representation.
United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973). Clearly,
the trial record does not even suggest that defense counsel's perfor-
mance was ineffective.

Next, McTeer contends that the judge erred in not granting him a
new trial given the court's refusal to allow him to subpoena court per-
sonnel in California and introduce a transcript of a hearing in which
such personnel participated. We apply an abuse of discretion standard
to this evidentiary ruling. United States v. Gravely, 840 F.2d 1156,
1162 (4th Cir. 1988) ("The standard of review for evidentiary rulings
is the narrow abuse of discretion standard."). McTeer fails to demon-
strate any abuse of discretion; he does not state how this material
would have altered the outcome of the trial. Rather, he merely states
that "[t]he relevance of the testimony related to showing the context
necessary to determine whether a threat existed." As he provides no
support for this statement, we reject it.

Finally, McTeer asserts the district court erred in allowing the testi-
mony of Nellie LeMaster. Again, we are unpersuaded. Assuming that
McTeer has preserved this argument for appellate review, the court
permitted LeMaster to testify both as to the fact of the receipt of the
letters and to her own reaction to the letters when received. This evi-
dence was relevant and its admission was well within the district
court's discretion. Accordingly, there was no error in its admission.

V.

For the reasons set forth above, the convictions are

AFFIRMED.

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