                         IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT

                                            __________________

                                               No. 01-10036
                                            __________________


UNITED STATES OF AMERICA,

                                                                                        Plaintiff-Appellee,

                                                     versus


JOSE R. FLORES, JR.,

                                                                                        Defendant-Appellant.

                           __________________________________________

                              Appeal from the United States District Court
                                   for the Northern District of Texas
                                         3:99-CR-189-ALL-H
                           __________________________________________
                                           February 28, 2002


Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

         Jose R. Flores, Jr. (“Flores”) appeals his conviction for mailing threatening communications

with the intent to extort money. For the following reasons, we AFFIRM.

                               FACTUAL AND PROCEDURAL HISTORY

        Flores was an inmate of a state correctional institution in Texas. In 1998, he began writing

threatening letters to state and federal judges and other judicial personnel. The letters contained

demands for money or property and threatened acts of violence if the demands were not met.

Thereafter, Flores was indicted and convicted of several offenses including mailing threatening

communications with the intent to extort money in violation of 18 U.S.C. § 876 and 2. The district

court imposed a combined term of imprisonment of 365 months and concurrent three-year terms of

        *
          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 R. 47.5, the court has determined that this opinion should not be published and is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.
supervised release. Flores now appeals.

                                            DISCUSSION

I.     Admission of Evidence

       We review a district court’s decisio n on the admission of evidence for abuse of discretion.

United States v. Phillips, 219 F.3d 404, 409 (5th Cir. 2000).

       A.      Letter

       At trial, Flores objected to the admission of Government’s Exhibit 21 asserting that the

evidence was irrelevant. The exhibit was a letter from an individual named Dominic McConnell

(“McConnell”) to Judge Maloney, one of the judges who received a threatening letter from Flores.

Because the Government stated that it would establish that the letter was relevant, the district court

permitted the letter to be entered into evidence. The document was introduced on redirect of Judge

Maloney’s secretary, who testified that the return address and handwriting was different than the

letters received from Flores. McConnell later testified that he wrote the letter. Flores contends that

the district court should not have admitted this exhibit into evidence because it involved an extraneous

offense of another person, McConnell. Thus, he maintains that the document was not relevant and

was unfairly prejudicial.

       Evidence is “relevant” when it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” FED. R. EVID. 401. Relevant evidence is generally admissible, however, “it

may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

FED. R. EVID. 403. Here, the exhibit was relevant to the question of whether Flores was the source

of the letters at issue in the indictment.1 Further, because it was clear that McConnell was the source

of the exhibit, Flores was no t unfairly prejudiced by introduction of the document into evidence.

Accordingly, we find that the district court did not abuse its discretion.


       1
        During opening argument, Flores suggested that McConnell may have been responsible
for sending the letters.
                                                   2
        B.      Statement Made During Interrogation

        Flores also alleges that the district court improperly admitted evidence of statements made by

him during an in-custody interview. Flores asserts that his mental condition prevented him from

making a voluntary, knowing, and intelligent decision to waive his rights to counsel and to remain

silent. “The issue of voluntariness . . . is a legal question subject to de novo review.” United States

v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993). A defendant's mental condition alone will not render

a confession involuntary in the absence of governmental overreaching, i.e., use of coercion or

psychological persuasion. United States v. Raymer, 876 F.2d 383, 386-87 (5th Cir. 1989). In the

present case, there is no evidence that the Government used coercion or other improper tactics to

obtain Flores’s statement and he does not assert that such misconduct took place. Thus, he has failed

to establish that the district court’s admission of the evidence was improper.

II.     Lesser-Included Offense

        Flores argues that the jury could have concluded that he did not intend to extort money or

some other thing of value from his victims, and thus, the district court erred in failing to instruct the

jury that it could convict him for the lesser-included offense of mailing a "threatening" communication.

A lesser-included offense instruction is appropriate if: "(1) the elements of the offense are a subset of

the elements of the charged offense, and (2) the evidence at trial permits a jury to rationally find the

defendant guilty of the lesser offense yet acquit him of the greater." United States v. Estrada-

Fernandez, 150 F.3d 491, 494 (5th Cir. 1998) (internal quotation marks omitted). As to the first

prong, we review the district court’s decision de novo. United States v. Harrison, 55 F.3d 163, 167

(5th Cir. 1995). However, with regard to the second prong, concerning whether the evidence at trial

supports a lesser-included offense instruction, this court reviews t he district court’s ruling only for

abuse of discretion. Id. Because the second prong of the test is at issue, we review the district court's

ruling for an abuse of discretion.

        Flores avers that there was evidence from which the jury could have determined that his

demands were the product of a delusional belief system. Accordingly, he contends that the jury could

                                                   3
have determined that he did not intend to extort money from the recipients of the letters but had

merely intended to threaten them. This contention is without merit. Each of the letters contained

explicit extortionate demands and threats. Further, Flores testified repeatedly that he hoped to receive

money and intended to keep any money he received. Thus, it was not an abuse of discretion for the

district court to determine that a jury co uld not reasonably have convicted Flores for mailing these

threatening communications while also finding that he did not intend to extort money or some other

thing of value from the recipients of his communications.

                                           CONCLUSION

       For the reasons stated herein, we AFFIRM Flores’s conviction.

AFFIRMED.




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