                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-1026
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Marlys Floyd,                          *
                                       *
            Appellant.                 *

      ___________                          Appeals from the United States
                                           District Court for the Northern
      No. 06-1028                          District of Iowa.
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Rebecca Pippert,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: May 17, 2006
                                Filed: August 21, 2006
                                 ___________
Before MURPHY, BEAM, and SMITH, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

     In these consolidated criminal appeals, Pippert and Floyd (collectively,
"Defendants") appeal their convictions and sentences for mailing threatening
communications, 18 U.S.C. § 876. We affirm both the convictions and sentences.

I.    BACKGROUND

       Floyd and Pippert, who is Floyd's daughter, admit that they sent a copy of an
article about United States District Court Judge Joan Lefkow's murdered family to a
lawyer, two judges, and the district court connected to various litigation previously
involving the Floyd family in the Iowa state court system. The handwritten words "Be
Aware Be Fair" appeared on the article. Defendants did not sign their names or
include a return address on the envelopes. They were caught due to good detective
work by the recipients of the letters, and the fact that the Floyds were known as
prolific letter writers in connection with their litigation. When confronted by
authorities, both Pippert and Floyd admitted to sending the letters, but denied that they
intended to threaten or intimidate the recipients. However, at trial, Defendants were
not allowed to present evidence of their actual intent in sending the letters. The district
court ruled, in limine, that because intent to threaten was not an element of the
offense, such evidence was not relevant and therefore inadmissible. The district court1
also refused to instruct the jury that intent to threaten was an element of the offense.

      Upon conviction, the district court sentenced Floyd to 33-months'
imprisonment, and Pippert to 36-months' imprisonment. Both sentences are within


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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the guidelines range, but Pippert was given a two-level increase for obstruction of
justice. In this regard, the district court found that Pippert gave perjured testimony at
trial.

       Defendants challenge the district court's decision that the government was not
required to prove that they intended to threaten the recipients with the mailing. They
also allege there was insufficient evidence that the communication was a threat, and
that the district court should have granted their motion for judgment of acquittal on
this issue rather than submitting it to the jury. Finally, Defendants assert that their
sentences should be vacated.

II.   DISCUSSION

      We review the district court's jury instructions and evidentiary rulings for an
abuse of discretion. United States v. Florez, 368 F.3d 1042, 1044 (8th Cir. 2004);
United States v. Carr, 67 F.3d 171, 175 (8th Cir. 1995). We review the district court's
denial of a motion for judgment of acquittal in the light most favorable to the
government, reversing only if no reasonable jury could have concluded beyond a
reasonable doubt that defendants were guilty of the charged offense. United States v.
Whitfield, 31 F.3d 747, 749 (8th Cir. 1994).

      A.     Intent

        Defendants contend that the district court erred in refusing to instruct the jury
that intent to threaten the recipients was an element of an 18 U.S.C. § 876 offense.
Section 876(c) makes it unlawful for anyone to "knowingly" use the United States
mail service to send a communication "containing . . . any threat to injure the person
of the addressee or of another." Our circuit precedent requires that the government
prove two things in a section 876 case: "(1) that the defendant wrote a threatening
letter and (2) that the defendant knowingly caused the letter to be forwarded by the

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United States mail." United States v. Lincoln, 589 F.2d 379, 381 (8th Cir. 1979). The
statute requires only that the sender intended to mail the letter containing a threat, not
that the sender intended to threaten the recipient. See United States v. Koski, 424 F.3d
812, 817 (8th Cir. 2005) ("The intent of the sender is not an element of the offense.");
United States v. Patrick, 117 F.3d 375, 377 (8th Cir. 1997) (rejecting the defendant's
argument that he could not have intended the letters to be a threat of injury by noting
that "Patrick's subjective intent is irrelevant"); Whitfield, 31 F.3d at 749 n.4 ("[T]he
gravamen of a § 876 violation is the making of the threat; the maker's subjective
intentions are irrelevant.").

       Notwithstanding this precedent, Defendants argue, based on Virginia v. Black,
538 U.S. 343 (2003), that the district court erroneously did not require the government
to prove that they intended to threaten the recipients of the communications. In Black,
the Court examined a Virginia statute criminalizing cross-burning with the intent to
intimidate. At the criminal trial, the jury had been allowed to infer the defendants had
the requisite intent to intimidate by virtue of the fact that they had burned the cross.
The Court held that the act of burning the cross, by itself, could not be considered
prima facie evidence of intent to intimidate. Id. at 364-65. In walking the fine line
between the First Amendment right to express oneself by burning a cross, and the
commonwealth's right to prohibit threatening and intimidating activity, the Court
found that the government must prove that the activity was a "true threat" to prove
intent. Id. at 359. The Court defined "true threat" as one in which "the speaker means
to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals," whether or not the speaker
actually intended to carry out the threat. Id. at 359-60.

      The statute at issue in Black explicitly required proof of intent to intimidate.
The Court found that the statute was constitutional, so long as the government was not
allowed to use the cross-burning act itself as prima facie evidence that the actor



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intended to intimidate or threaten. Instead, the government was required to prove that
the actor actually so intended. Id. at 359-63.

       There has been no First Amendment challenge in this case,2 and on that basis
alone, Black is distinguishable. And, our panel is bound by Koski, decided two years
after Black, which specifically noted that the intent of the sender is not an element of
a section 876(c) offense. 424 F.3d at 817. If the reasoning in Koski is faulty in light
of Black, our panel cannot address it–only the en banc court can do so.3

       So, based on existing Eighth Circuit precedent, the district court did not err in
refusing to instruct the jury that the government must prove Defendants intended to

       2
       We rejected a First Amendment challenge to a section 876 conviction in United
States v. Bellrichard, 994 F.2d 1318, 1321 (8th Cir. 1993). In effect, perhaps
Defendants, by their arguments and citation to Black, mean to make a First
Amendment argument here. However, they do not couch their arguments as a First
Amendment challenge in briefing, nor did they do so to the district court. For this
reason we are also unpersuaded by Defendants' citation to United States v. Cassel, 408
F.3d 622 (9th Cir. 2005), wherein the Ninth Circuit upheld the defendant's First
Amendment challenge to a statute prohibiting interference with a federal land sale by
intimidation, 18 U.S.C. § 1860. The Cassel court held that Black required the
government to prove that the defendant had intended to intimidate potential land
buyers. 408 F.3d at 633.
       3
        The statute is somewhat ambiguous with regard to what the word "knowingly"
modifies. Section 876 provides criminal penalties for "whoever knowingly so
deposits or causes to be delivered . . . any communication . . . containing . . . any threat
to injure the person of the addressee or of another." 18 U.S.C. § 876(c). Arguably, the
"knowingly" language could modify all the elements of the statute–requiring that the
sender not only "knowingly" used the mails to send the letter, but also that the sender
"knew" that the letter contained threatening language. See, e.g., Liparota v. United
States, 471 U.S. 419, 424-25 (1985) (holding that the rule of lenity required the Court
to construe ambiguous statute so that the word "knowingly" modified both the
prohibition against the "transfer" of food stamps, and the "violation of the law"
elements).

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threaten the recipients, and the government met its burden of proving that Defendants
intended to send the letters. In fact they admit doing so. The core issue for
Defendants is whether the letters were, in fact, threatening.4

      B.     True Threat

        Defendants argue there was insufficient evidence that the letters were truly
threatening, and as such, the district court should have granted the motion for
judgment of acquittal and not sent the issue to the jury. In evaluating threats under 18
U.S.C. § 876, a district court should submit the issue for jury determination "'[i]f a
reasonable recipient, familiar with the context of the communication, would interpret
it as a threat.'" Whitfield, 31 F.3d at 749, (quoting United States v. Bellrichard, 994
F.2d 1318, 1323 (8th Cir. 1993)) (alteration in original). The district court's duty in
this kind of case is to be the evidentiary gatekeeper, the same as in every other
criminal case where there is a motion for judgment of acquittal. The district court
does not decide that a particular communication is a threat as a matter of law, but
whether there is sufficient evidence for a jury to decide that a reasonable recipient
would interpret it as a threat. Bellrichard, 994 F.2d at 1323. If, at that point, the
evidence is sufficient, it is up to the jury to decide whether the language in the
communication at issue was a threat. Martin v. United States, 691 F.2d 1235, 1240
(8th Cir. 1982).

       In order to decide that issue, in Bellrichard, we noted that the communication
must be viewed in "textual context and also in the context of the totality of the
circumstances in which the communication was made." 994 F.2d at 1323. In this
case, the totality of the circumstances were these: Judge Lefkow's family had very

      4
       Defendants also challenge the district court's ruling in limine that they could
not present evidence regarding what their subjective intent was in mailing the articles.
However, because such evidence is not relevant for conviction of the offense, see
Koski, 424 F.3d at 817, the district court correctly excluded such evidence.

                                          -6-
recently been murdered when the article was written and subsequently mailed, and all
of the recipients were either judges or worked closely with judges in the Iowa state
legal system. The article itself, sent in an envelope with no return address, probably
would have been enough evidence of a threat to send the issue to the jury. But when
the words "Be Aware Be Fair" are added to the equation, the question is not so
difficult.

        Defendants argue that the communication is ambiguous, and therefore they
should have prevailed on their motion for judgment of acquittal, citing United States
v. Barcley, 452 F.2d 930 (8th Cir. 1971). In Barcley, a disgruntled prison litigant sent
a letter to his attorney. In the letter, the client noted his dissatisfaction with counsel's
services in perfecting an appeal, and stated that "as soon as I can get this case situated
around in the position I want you are the first S.O.B. that will go." Id. at 932. We
held that because the letter was equally susceptible of both a threatening and non-
threatening interpretation, the government must present additional evidence to remove
the ambiguity before the question could go to the jury. Id. at 933.

        The Bellrichard defendant made a similar "ambiguity" argument based on
Barcley. In rejecting this claim, we noted that the issue before us on appeal was
"whether the government made a submissible case" that the vitriolic letters sent by
Bellrichard could be objectively viewed as threatening. Bellrichard, 994 F.2d at 1323.
Bellrichard was a prolific letter writer, directing his wrath toward government officials
such as the county attorney, the police, and various judges. The text of many of these
letters is recounted in Bellrichard, 994 F.2d 1318, but a representative sample includes
the following: "All I can say is that God will strike all of you dead while I'm in jail.
Shitheads like you-all God eventually destroys! God bless you. Don't ever fuck with
me again and God will let you live." Id. at 1321 n.7. Because there were material
differences between the circumstances in each case, and in the content of the letters
Bellrichard sent and the one that Barcley sent to his attorney, we found that the district
court correctly submitted the issue to the jury. Id. at 1323.

                                            -7-
      We reject Defendants' ambiguity arguments on a similar basis (though we do
not suggest that the communications at issue here compare favorably with the letters
in Bellrichard). The Barcley letter was written, signed, and sent by a prisoner
unhappy with his appointed appellate counsel. The anonymous, photocopied
newspaper articles, about a judge's murdered family, with the aforementioned phrase
written on top and sent to judicial officers, are quite different in both content and
context. The district court did not err in finding that the government made a
submissible case on whether the communications contained a threat. Accordingly, we
affirm Defendants' convictions.

      C.      Sentencing

       Pippert and Floyd both concede that the district court correctly calculated their
guidelines sentence ranges, and sentenced them within those ranges. Pippert
challenges her two-level enhancement for obstruction of justice and also challenges
the district court's refusal to give her a reduction for acceptance of responsibility or
aberrant behavior. Both Pippert and Floyd challenge their sentences as unreasonable.

Obstruction

       In determining whether an obstruction enhancement should be applied, the
district court must review the evidence and find, by a preponderance of the evidence,
that the defendant gave "false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory." United States v. Ziesman, 409 F.3d 941, 956 (8th Cir.), cert. denied,
126 S. Ct. 579 (2005) (internal quotation omitted).

       The district court added the obstruction enhancement because Pippert told
police, and testified, that she only sent the article to the attorney and judges because
she wanted them to know what had happened to Judge Lefkow's family, and she was

                                          -8-
not sure they would have read the paper. She also said that her failure to put a return
address on the envelope was not to conceal her identity. At sentencing, the district
court found that both of those statements were perjured statements, about a material
issue, and not as a result of confusion, mistake, or faulty memory.

        The district court's credibility determination on this matter can be reversed only
upon a showing of clear error. United States v. Galaviz-Luna, 416 F.3d 796, 800 (8th
Cir.), cert. denied, 126 S. Ct. 814 (2005). A defendant who testifies in her own behalf,
and then gets convicted, is obviously not automatically subject to the obstruction
enhancement. United States v. Holt, 969 F.2d 685, 688 (8th Cir. 1992). Rather, the
district court must independently find that the defendant has committed perjury by
intentionally giving false testimony about a material issue. Galaviz-Luna, 416 F.3d
at 800. It is a close question here, but the district court clearly felt that Pippert crossed
a line. Based on our standard of review, we cannot say that the district court clearly
erred in so deciding.

Acceptance of responsibility

       Because we find that the obstruction enhancement was proper, we likewise
cannot reverse the district court's refusal to grant the acceptance adjustment, absent
extraordinary circumstances. United States v. Campos, 362 F.3d 1013, 1016 (8th Cir.
2004). Pippert put the government to its burden at trial, and went to trial to contest
her guilt, not just to raise the legal issue about when the government has to prove
intent. See United States v. Smith, 40 F.3d 933, 935-36 (8th Cir. 1994) (holding that
acceptance reduction should not apply to a defendant who puts the government to its
burden at trial by denying the factual elements of guilt). No extraordinary
circumstances warrant the acceptance reduction. We affirm the district court's refusal
to grant Pippert an adjustment for acceptance of responsibility.




                                            -9-
Aberrant behavior

       Pippert alleges that she was entitled to a departure for aberrant behavior because
she is a law-abiding and God-fearing citizen. However, these are characteristics the
guidelines already take into account (lack of criminal history), United States v. Wind,
128 F.3d 1276, 1278 (8th Cir. 1997), or cannot be taken into account (religion),
United States v. DeShon, 183 F.3d 888, 890 (8th Cir. 1999). Accordingly, we affirm
the district court's refusal to depart on these bases.

Reasonableness

        Finally, Floyd and Pippert argue that their sentences are unreasonable. A
sentence is unreasonable when the district court has relied significantly on
impermissible factors, failed to account for permissible factors, or otherwise
committed a clear error of judgment. United States v. Haack, 403 F.3d 997, 1004 (8th
Cir.), cert. denied, 126 S. Ct. 276 (2005). Both defendants concede that their sentence
was within the guidelines range, which makes the sentences presumptively reasonable.
United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006). At sentencing, the
district court went through the section 3553(a) factors and determined that a variance
from the advisory guidelines range was not warranted. We agree with this analysis,
and find that their respective sentences are reasonable.

III.   CONCLUSION

       We affirm the district court.
                       ______________________________




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