UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 96-4319
NORMAN HAYES, a/k/a Norman
James Hayes, a/k/a Shadreck
Travond Khayatuthelezi,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-376)

Submitted: December 10, 1996

Decided: December 30, 1996

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Dean A. Eichel-
berger, Assistant United States Attorney, Columbia, South Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Norman Hayes was convicted of four counts of knowingly causing
the United States Postal Service to deliver threatening letters in viola-
tion of 18 U.S.C. § 876 (1994). In 1988, Hayes was convicted in a
South Carolina state court for burglary and sentenced to fifteen years,
to run consecutively to some other state convictions. Mary Gordon
Baker represented Hayes during his burglary trial; David Clay Robin-
son represented Hayes during his post-conviction proceedings, which
were resolved against Hayes.

Beginning in 1994, Hayes began writing a series of letters to Baker
expressing his displeasure with her representation. 1 These letters
accused Baker of hiding exculpatory evidence and conspiring against
Hayes to put him in prison; the letters also blamed her for his incar-
ceration and contained Biblical passages and references to the movie
Cape Fear. Baker turned the letters over to the FBI, which began an
investigation. Hayes also wrote a letter to Robinson which made
many of the same allegations. In order to help the jury understand the
basis for Baker's fears, the Government showed the movie Cape Fear
to the jury over defense objection.2
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1 By this time, Baker had left private practice and was serving as a
prosecutor with the United States Attorney's Office for the District of
South Carolina.
2 The Government laid a foundation which showed that the movie was
broadcast on television on the date Hayes wrote the March 1995 letter
to Baker and that Hayes was watching television during the hours the
movie was broadcast. The Government also established that the televi-
sion version of the movie was substantially similar to the videocassette
version shown in court. In the movie, a convict who is released from
prison, tracks down his former defense attorney and accuses him of hid-
ing exculpatory evidence. The convict then harasses, stalks, terrorizes,
and eventually attempts to kill the attorney and the attorney's family.

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Hayes's counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), challenging whether the district court erred in
denying Hayes's motion to disqualify the United States Attorney's
Office for the District of South Carolina, whether the court abused its
discretion in allowing the Government to show Cape Fear to the jury,
whether the evidence was sufficient to support the finding that the
language in Hayes's letters constituted a threat, and whether the court
erred by failing to group Hayes's offenses for sentencing. Hayes has
filed a pro se supplemental brief asserting that he was denied effective
assistance of counsel, that the trial court erroneously considered prior,
uncounseled convictions in arriving at a sentence, that the court gave
an erroneous instruction, that the court erroneously admitted the testi-
mony of a FBI agent, and that the court failed to allow Hayes to
waive his right to counsel and proceed pro se. Finding no error, we
affirm.

I

Defense counsel filed a pre-trial motion to disqualify the United
States Attorney's Office for the District of South Carolina on the
ground that Baker worked for that office and that this created an
appearance of impropriety. The trial judge did not abuse his discretion
in denying Hayes's motion. Hayes never alleged that there was any
actual impropriety or that Baker attempted to influence the case. The
Government, on the other hand, presented evidence that the United
States Attorney's Office followed proper internal procedures and that
the only relationship between Baker and the prosecutor was the fact
that they worked for the same office.3 Moreover, even if the trial
judge erred in denying the motion, appellate defense counsel properly
concedes that Hayes fails to show any prejudice.

II

A trial judge's evidentiary decisions are reviewed for abuse of dis-
cretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993),
cert. denied, ___ U.S. ___, 62 U.S.L.W. 3640 (U.S. Mar. 28, 1994)
(No. 93-7067). In the present case, the district judge did not abuse his
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3 Baker, however, worked in the Charleston office and the prosecutor
worked in the Columbia office.

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discretion in allowing the jury to see Cape Fear . Hayes made refer-
ences to the book and the movie in two letters. In one of the letters,
Hayes specifically advised Baker to view the movie. We find that the
showing of the movie was probative to the issue of whether the lan-
guage in the letters constituted a threat.

III

On direct appeal of a criminal conviction, the "verdict of a jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it." Glasser v. United
States, 315 U.S. 60, 80 (1942). With respect to the particular offense
with which Hayes was charged, this court has held that: "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." United States v. Maxton, 940 F.2d 103,
106 (4th Cir.), cert. denied, 502 U.S. 949 (1991).

We find the evidence sufficient to sustain Hayes's convictions
under these standards. Both attorney-victims testified that they were
put in fear by the letters. In addition, the movie Cape Fear put
Hayes's comments in perspective. Although Hayes denied any intent
to threaten, the context of the letters clearly established that Hayes
blamed his former attorneys for his incarceration, and a reasonable
juror could conclude from the language in the letters that Hayes
intended to threaten the attorneys with the type of terrorism found in
the movie.

IV

Hayes argues that the counts related to the letters sent to Baker
should have been grouped together for sentencing pursuant to USSG
§ 3D1.2(b).4 This court reviews "a question involving the legal inter-
pretation of Guidelines terminology and the application of that termi-
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4 United States Sentencing Commission, Guidelines Manual (Nov.
1995). This section allows for the grouping of offenses when the counts
involve substantially the same harm to the same victim and when all of
the counts are connected as part of a common scheme.

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nology to a particular set of facts de novo," United States v. Wessells,
936 F.2d 165, 168 (4th Cir. 1991), but the determination as to the
underlying facts is reviewed for clear error. United States v.
Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

The Second and Eleventh Circuits have recently addressed this
issue in cases which are factually similar to Hayes's. See United
States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993) (defendant sent sev-
eral threatening letters to his landlords); United States v. Bonner, 85
F.3d 522, 524-26 (11th Cir. 1996) (defendant made over twenty
threatening telephone calls to the Assistant United States Attorney
who prosecuted him in an earlier case). The Miller and Bonner courts
held that while the letters and telephone calls were arguably part of
a common scheme of harassment, each one inflicted a separate psy-
chological harm, citing USSG § 3D1.2, comment. n. 4.5

We are inclined to adopt the approach used by the Second and
Eleventh Circuits in resolving this issue. Baker testified that she expe-
rienced increasing levels of fear with each letter. Moreover, as in
Bonner, the fact that Hayes continued to send threats after his initial
letter suggests that he intended to inflict new harm with each letter.
Since the record supports the district court's factual finding that each
of Hayes's letters caused a distinct harm, we hold that the trial judge
did not err by refusing to group Hayes's offenses under USSG
§ 3D1.2(b).

V

Hayes personally asserts that his defense counsel was ineffective
for failing to raise an insanity defense. Specifically, Hayes contends
that at the time he wrote the letters he was taking a prescribed medi-
cation that has been shown to have psychiatric side effects.

A claim of ineffective assistance of counsel is not cognizable on
direct appeal unless counsel's deficiency clearly appears on the face
of the record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th
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5 This Application Note states that grouping is only proper when the
counts "represent essentially one composite harm to the same victim."

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Cir. 1991), cert. denied, 503 U.S. 997 (1992). There is no such show-
ing in this record.

VI

Hayes, citing United States v. Tucker, 404 U.S. 443 (1972), argues
that the trial court impermissibly considered prior convictions where
Hayes was not represented by counsel in arriving at Hayes's sentence.
The record does not support this conclusory claim.

VII

Hayes asserts that the trial court erred "in instructing [the] jury that
[the] Government was required to show that Defendant caused a com-
munication to be delivered by the Postal Service." While this is not
the exact language used by the district court, we find no error in the
trial judge's instructions on the elements of proof.

VIII

During the investigation into the letters, FBI Agent Taylor went to
the jail in which Hayes was incarcerated to obtain handwriting and
latent fingerprint samples pursuant to a court-ordered subpoena. Dur-
ing the course of this "interview" Hayes admitted to Taylor that he
wrote and mailed the letters in question. We find that the trial judge
did not abuse his discretion in allowing Taylor's testimony. Taylor
did not ask Hayes any questions which would require a Miranda
warning.6

IX

Hayes claims that the trial court erred by not allowing him to waive
his right to court-appointed counsel and proceed pro se. While it is
true that a defendant has the right to waive counsel, such waiver must
be knowing and intelligent. Faretta v. California, 422 U.S. 806, 814
_________________________________________________________________
6 Miranda v. Arizona, 384 U.S. 436 (1966). Taylor testified that he only
identified himself to Hayes and explained what he (Taylor) was there for.
Taylor testified that he probably asked Hayes his name, but that is all he
could remember asking Hayes.

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(1975). Moreover, the trial judge is required to discuss the request
with the defendant and to advise him of the consequences of the
request. See Townes v. United States, 371 F.2d 930 (4th Cir. 1966),
cert. denied, 387 U.S. 947 (1967); Aiken v. United States, 296 F.2d
604 (4th Cir. 1961).

In the present case, the trial judge properly questioned and advised
Hayes. Hayes's failure to press the issue could be construed as a
waiver and acceptance of the judge's advice. In addition, even if the
judge erred by not granting the request, the error was harmless. The
trial judge liberally allowed Hayes to make comments, to cross-
examine witnesses, to give a closing argument, and to raise defenses
during the trial.

X

We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
The court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.

We affirm the district court's judgment order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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