UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4905

THOMAS HOWARD PRICE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-96-31)

Argued: April 10, 1998

Decided: June 26, 1998

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and WILLIAMS, Senior United States District Judge
for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Kevin Lee Barnett, LAW OFFICE OF HAROLD J.
BENDER, Charlotte, North Carolina, for Appellant. Brian Lee Whis-
ler, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,
David C. Keesler, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

INTRODUCTION

Thomas Howard Price appeals his conviction and sentence for
causing a threatening communication to be sent by the United States
Postal Service pursuant to 18 U.S.C. § 876. A jury found Price guilty
and the district court imposed a sixty (60) month sentence upon him.

In this appeal, Price first assigns error to the district court's admis-
sion into evidence of certain government evidence pursuant to Rules
404(b) and 403 of the Federal Rules of Evidence. In suggesting that
the district court abused its discretion in admitting the evidence, Price
contends that it was inadmissible evidence of prior bad acts under
Fed. R. Evid. 404(b) and that it was more prejudicial than probative
under Fed. R. Evid. 403. Price also contends that the district court
erred in denying his Fed. R. Crim. P. 29 motion for acquittal because
the government failed to produce sufficient evidence to support a con-
viction. Price argues further that the district court erred by compelling
the testimony of a hostile government witness, Janice Snead Watkins,
and by allowing the government to examine her pursuant to Rule 611
of the Federal Rules of Evidence. Finally, Price suggests that the dis-
trict court's classification of Price as a "Career Offender" under the
United States Sentencing Guidelines was a significant overstatement
of his prior criminal history and furthermore, that the district court
erred by relying on that classification to deny Price a downward
departure from the Guidelines. Because we find no merit to these con-
tentions, we affirm the conviction and sentence.

FACTUAL BACKGROUND

Thomas Howard Price was convicted in 1994 of serious state fel-
ony charges arising from his severe assault on his wife, Heather Price.

                     2
Following his conviction on those charges, Thomas Price was sen-
tenced to 24 years of imprisonment. While in prison, Price befriended
a female prisoner who ultimately assisted him in sending a threaten-
ing letter to his wife. That female prisoner, Janice Snead Watkins,
copied over the language provided to her by Price and mailed it to
Heather Price for him. The letter read as follows:

          Dear Slut, you better enjoy life while you still can. God for-
          gives, I don't. Paybacks are hell and you have hell to pay.
          There will come a day when I dance on your grave. If
          unable to dance, I will crawl across it. If unable to dance,
          I will draw. I will be the one who puts you there and throws
          dirt on your body. I dream about it every night. One day you
          will turn around and there I'll be, and I can't wait to see the
          fear in your eyes before I kill you. All three of you will die
          by my hands.

At trial, Heather Price testified that on July 19, 1995 she received
in her mailbox a letter containing the language quoted above. The
return address contained the name of Lori Fowler, and the envelope
containing the letter bore the stamp and return address of the
Women's Correctional Institute in Raleigh, North Carolina. Heather
Price testified that she never knew anyone by the name of Lori Fow-
ler. Heather Price testified that reading the letter made her "very
upset" and "angry." She stated that even though the letter itself was
written on purple lined paper in a woman's handwriting, she recog-
nized within the letter several expressions that Thomas Price had
often used when they were married. Among these expressions were
"Dear Slut"; "God forgives, I don't"; and "Paybacks are hell, and you
have hell to pay." Heather Price also testified that she recognized the
unusual quotation mark symbol that appeared at the bottom of the let-
ter as one that Thomas Price had used in previous letters.

Subject to the district court's cautionary instruction, Heather Price
testified about other incidents that had occurred during her relation-
ship with Thomas Price. In 1992 Thomas Price pointed a gun directly
at Ms. Price's head and threatened to kill her in front of their children.
In September 1994 Thomas Price beat Ms. Price so severely that she
had to be hospitalized. This was the incident that ultimately led to
Thomas Price's state conviction and 24 year sentence. Ms. Price testi-

                     3
fied about threatening phone calls she received from Thomas Price.
On one occasion, he called her from a county jail while he was await-
ing trial for the September 1994 incident, and according to Ms. Price,
"he told me that . . . I could run to my dad's, who lives in Texas, that
it didn't matter how far I went, he was going to find me, and that he
knew where my mother and my sisters lived and he wasn't finished
with what he had started."

Heather Price's best friend Ramona Taylor testified that she took
Ms. Price to the hospital after the September 1994 assault by Thomas
Price. She testified that the injuries which Thomas Price inflicted on
Ms. Price made Ms. Price look "like a monster." She also testified
that she was present when Ms. Price opened the threatening letter and
described Ms. Price as being "very scared" and feeling like "she had
to look over her shoulder."

Janice Snead Watkins ("Snead") initially refused to testify but ulti-
mately did answer the government's questions. She became
acquainted with Thomas Price while they were both being held at the
Union County Jail. The two of them talked to one another through a
wall at the jail and corresponded by writing letters back and forth to
each other. Correspondence between Price and Snead continued after
Snead was transferred to the Women's Correctional Institute in
Raleigh. Snead testified that in one of the letters which she received
from Price, he asked her to copy, in her handwriting, some threaten-
ing language and then to mail the message to Heather Price. Snead
followed this request and informed Thomas Price that she had done
so by using the words "it is done" in a subsequent letter to him.

Other witnesses at trial corroborated the testimony of Heather
Price, Ramona Taylor and Janice Snead Watkins. Deputy Scott Bass
confirmed that Thomas Price and Snead had been in the Union
County Jail together and that they had developed a relationship during
that time. Bass also produced a mail log which evidenced frequent
correspondences between Price and Snead. Peggy Bryant testified
about the mail system at the correctional institute where Snead was
ultimately housed, and identified several exhibits as mail that origi-
nated from that facility, including the threatening letter to Heather
Price. She also confirmed that Snead was an inmate at the facility at
the time the letter was sent, and that there has never been a Lori Fow-

                    4
ler at the facility. Finally, J.C. Wilson provided testimony about the
similarity that exists between the mail systems in the men's and
women's prison system.

The government's final witness at trial was Kim Teeter. Teeter tes-
tified that she had known both Heather Price and Thomas Price for
about 12 years. Teeter testified that since Thomas Price had been
incarcerated in the Department of Corrections, Price has mailed letters
to her. In two of the letters, Price referred to his wife Heather Price
as "that redheaded slut" and "that slut." In another letter, Price used
the expression "God forgives, Tommy don't." Finally, Teeter testified
that Price signed a letter using the same unusual quotation marks that
appear at the bottom of the July 1995 threatening letter to Heather
Price.

Lisa Deese testified on behalf of Thomas Price. She testified that
she was in the Union County Jail with Price and Snead and that she
has corresponded over time with Price. Deese also testified that on
one occasion Snead said that she would like to write a letter to
Heather Price.

ANALYSIS

          1. The District Court Properly Admitted with Cautionary
          Instructions Certain "Other Act" Evidence under Rules
          404(b) and 403.

Consistent with Rules 404(b) and 403 of the Federal Rules of Evi-
dence, the "other act" evidence showing Price's propensity to abuse
his wife and children was admissible as intrinsic to the crime itself,
or in the alternative, as evidence of the defendant's motive, identity,
or state of mind. Price contends, however, that this evidence failed to
pass the balancing test of rule 403 because it was unfairly prejudicial,
confusing, and misleading to the jury. We disagree. It is within the
sound discretion of the district court to admit Rule 404(b) evidence
and Price has failed to show that an "arbitrary" or "irrational" abuse
of that discretion has occurred. United States v. Rawle, 845 F.2d 1244
(4th Cir. 1988). Moreover, even if Price could show that the trial
court erred in admitting the Rule 404(b) evidence, Price cannot show
that the cautionary instructions given by the district court to the jury

                    5
did not obviate any unfair prejudice that may have existed or elimi-
nate the possibility that the district court's rulings could rise to the
level of an "abuse of discretion." United States v. Mark, 943 F.2d 444,
447 (4th Cir. 1991).

This Court held recently that Rule 404(b), entitled"Other Crimes,
Wrongs, or Acts," applies only to admission of evidence of other acts
that are extrinsic to the crime charged. United States v. Chin, 83 F.3d
83 (4th Cir. 1996). Accordingly, acts intrinsic to the alleged crime do
not fall under Rule 404(b)'s limitations on the admissibility of evi-
dence. Id. at 88; United States v. Barnes, 49 F.3d 1114, 1149 (6th Cir.
1995). Rule 404(b) is not applicable, therefore, to evidence of crimes
or acts which arose out of the same series of transactions as the
charged offense or that are necessary to complete the story of the
charged crime.

When the offered evidence is of extrinsic acts covered by Rule
404(b), it is well established in this Circuit that the district court's
decision to admit evidence under Rule 404(b) will not be overturned
on an appeal absent an "arbitrary or irrational" abuse of discretion.
United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988). In the
case at hand this Court can make no such finding.

Threatening telephone calls from Thomas Price to Heather Price:
After severely beating his wife in September 1994 but before the
resulting state court trial had been finalized, Thomas Price called Ms.
Price and threatened to find her wherever she went and to kill her --
to "finish what he had started." Contrary to Thomas Price's position,
evidence of this phone call is admissible under Rule 404(b) because
it is proof of an act which is "extrinsic" to the crime charged. By
showing Price's propensity for threatening and abusing his wife, evi-
dence of this import directly contravenes Price's theory at trial which
was that Snead mailed the letter to Heather Price on her own volition.
This evidence establishes congruity of both conduct and motive as it
existed between Thomas Price and various members of his family.
For this reason it is not possible to construe the district court's admis-
sion of this evidence as an exercise in irrational or arbitrary adjudica-
tion. Rather, this evidence was admissible under Rule 404(b) and
cured of any potential Rule 403 prejudice by the district court's care-

                     6
fully tailored jury instructions. United States v. Mark, 943 F.2d 444,
448 (4th Cir. 1991).

Threatening Heather Price with a Gun: Thomas Price claims that
the district court improperly admitted evidence of a 1992 incident in
which the defendant pointed a gun at the victim's head and threatened
to kill her. Again, this evidence is clearly "extrinsic" under Rule
404(b) and is admissible because the district court acted neither irra-
tionally nor arbitrarily when admitting it. In regards to holding this
evidence to a Rule 403 balancing test, any prejudice against Thomas
Price which may have flowed from this evidence was obviated by the
trial court's careful instruction to the jury concerning the limited
proper use of this evidence. United States v. Mark, 943 F.2d 444, 448
(4th Cir. 1991).

Prior Assault, Trial, and Sentencing: Thomas Price asserts that the
trial court should have refrained from admitting evidence of his Sep-
tember 1994 assault on Heather Price. He also suggests that the trial
court should not have admitted evidence of his conviction on charges
stemming from that assault and his subsequent sentencing to 24 years
of imprisonment. At trial Heather Price described for the jury the
severe assault and the trial and sentence which followed it. Through-
out her testimony and that of other witnesses, the trial court properly
cautioned the jury about the limited use of the evidence and therefore
obviated any undue prejudice which may have otherwise resulted
therefrom.

Evidence of Thomas Price's brutal assault on Heather Price is not
extrinsic and therefore does not fall within the scope of Rule 404(b).
Rather, by virtue of it arising out of the same series of transactions
as the charged offense, evidence of the brutal attack on Heather Price
is intrinsic in nature. Moreover, admission of this evidence is abso-
lutely necessary in order to give the jury the complete story surround-
ing the charged offense. United States v. Chin , 83 F.3d at 88; United
States v. Kennedy, 32 F.3d 876 (4th Cir. 1994), cert. denied, 130
L.Ed.2d 883 (1995). For these reasons, the district court properly
admitted this evidence.

Even if this Court were to subscribe to Thomas Price's assertions
that this evidence should be subjected to the limitations of Rule

                    7
404(b), this evidence remains admissible because it speaks to the
motive, state of mind, and identity of Heather Price's attacker.
Because the district court cured all potential Rule 403 issues with pru-
dent cautionary instructions to the jury throughout the proceedings,
admitting this evidence was neither irrational nor arbitrary.

Thomas Price's Letters: Price asserts that the trial court should not
have admitted the letters he wrote to Janice Snead Watkins and to
Kim Teeter. However, these letters qualify as legitimate "other act"
evidence under Rule 404(b) and are therefore admissible. Letters con-
taining "it is done" language qualify as "intrinsic" evidence under the
law and are also admissible. United States v. Chin, 83 F.3d at 88;
United States v. Kennedy, 32 F.3d at 876. Other letters containing
"redheaded slut" language or the unusual question mark "signature"
symbol were admissible as identity evidence. Still other letters con-
tained language which revealed Price's continuing anger at Heather
Price and thereby showed his motive for committing the offense for
which he was charged.

In sum, all of the "other act" evidence complained of by Thomas
Price was properly admitted at trial by the district court. Each item
contested by Price was either "intrinsic" to the crime charged or prop-
erly covered as "extrinsic" evidence under Rule 404(b). Any prejudice
to Price that may have otherwise occurred as a result of the district
court's admission of this evidence was obviated by the district court's
repeated cautionary instructions concerning its limited use. Thus, any
error was therefore harmless beyond a reasonable doubt and in no
way warrants a reversal. See United States v. Kenny, 973 F.2d 339,
344 (4th Cir. 1992).

          2. Evidence at Trial Supporting the Guilt of Thomas Price
          Was Overwhelming and the Trial Court Properly
          Denied the Defendant's Rule 29 Motion for a Judgment
          of Acquittal.

The standard for determining a Rule 29 motion is established in
Jackson v. Virginia, 443 U.S. 307 (1970). In that case, the Supreme
Court stated that the question to be asked is whether "any rational
trier of fact could have found the essential elements of the crime
[charged] beyond a reasonable doubt." Id. at 307. In order to prevail,

                    8
the defendant must show that even when viewed in a light most favor-
able to the government, that NO rational juror could have found the
defendant guilty beyond a reasonable doubt on his evidence. United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Additional
elements to the analysis include a requirement that the court "must
consider circumstantial as well as direct evidence, and allow the gov-
ernment the benefit of all reasonable inferences from the facts proven
to those sought to be established." Id. at 1021; see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Glasser v. United States, 315
U.S. 60, 80 (1942); United States v. Campbell , 977 F.2d 854 (4th Cir.
1992).

It is also well established that the uncorroborated testimony of a
single witness may be sufficient to survive a Rule 29 motion. United
States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983), cert. denied,
465 U.S. 1028 (1984). This is true even when the single witness hap-
pens to have been the defendant's former accomplice in crime. United
States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).

The evidence before the trial court clearly meets the standard artic-
ulated above. The government alleged a violation of Title 18 United
States Code Section 876, the "threat by mail" statute. The elements
of the offense are: (1) the defendant caused a letter to be written con-
taining a threat; (2) an ordinary, reasonable recipient who is familiar
with the context would interpret it as a threat; (3) at the time the
defendant caused the letter to be mailed, he had the intent to threaten
the recipient; (4) the defendant caused the letter to be forwarded by
United States mail; and (5) the defendant acted willfully and know-
ingly.

The previously articulated evidence underlying the present charge
was substantial. Heather Price testified that Thomas Price had
severely beaten her in September 1994 and that he was ultimately
convicted on several serious state offenses and sentenced to 24 years
of imprisonment. Heather Price also testified to Thomas Price's predi-
lection for violence and abuse against her, as evidenced by him point-
ing a gun to her head and threatening to kill her; by his numerous
threats to her over the telephone; and by the language imbedded in
several letters he had sent to various persons including Janice Snead
Watkins and by Kim Teeter.

                     9
Heather Price also testified to the jury about the particulars of the
letter which is the origin of this case. Behind the sheen of a woman's
handwriting Heather Price recognized in the letter the handiwork of
Thomas Price. She recognized Thomas Price through the use of the
word "slut"; the uniqueness of the expressions"God forgives, I don't"
and "God forgives, Tommy don't"; "Paybacks are hell, and you have
hell to pay"; and the unusual quotation-like symbols that acted as a
signature at the end of the letter. Heather Price testified that upon
reading the letter one single time, she knew it was from Thomas
Price. Given the dark history of violence, abuse, and continued threats
which has plagued the relationship between Thomas Price and
Heather Price, it requires neither imagination nor foresight to under-
stand that any reasonable recipient in Heather Price's shoes would
have indeed felt threatened by the letter.

The testimony of Janice Snead Watkins was equally as powerful as
that of Heather Price. Her hostility to the government and her unwill-
ingness to testify initially made her testimony even more compelling.
Snead told the jury about meeting Thomas Price and developing a
relationship with him. She also told the jury about how they continued
their relationship through correspondence after they were separated
within the North Carolina Department of Correction system. Perhaps
most tellingly, Snead told the jury how Thomas Price provided the
language that was to be used in the letter and directed her to copy it
over and mail it to Heather Price. Finally, Snead told the jury that she
followed these instructions and apprised Thomas Price that she had
done so by using the language "it is done" in a subsequent letter to
him.

It is important to point out that the testimony of Heather Price and
Janice Snead Watkins was not free-standing. Rather, it was conclu-
sively corroborated by the testimony of other witnesses, including
Deputy Scott Bass, Ramona Taylor and Kim Teeter.

In short, the evidence presented against Thomas Price was compel-
ling and overwhelming. The jury, which deliberated only a short time,
also thought so. It is self evident, therefore, that a rational trier of fact
could find proof of Thomas Price's guilt beyond a reasonable doubt
from this evidence. Accordingly, Price falls far short of meeting the

                      10
standard governing review under Rule 29 and the Court finds that the
district court properly denied the defendant's Rule 29 motion at trial.

          3. The Trial Court Properly Compelled the Testimony of
          an Immunized Witness and Then in Light of Her Con-
          tinuing Hostility, Properly Allowed the Government to
          Question Her Pursuant to Rule 611(c).

Thomas Price contends that the government's questioning of Janice
Snead Watkins was improper because the court compelled her to tes-
tify and permitted the government to ask her leading questions pursu-
ant to Rule 611(c). The standard governing review of trial court
rulings under the Federal Rules of Evidence is the`abuse of discre-
tion' standard. United States v. Nutter, 412 F.2d 178 (9th Cir.), cert.
denied, 397 U.S. 927 (1969). In order to prevail on this issue, there-
fore, Price must show that the district court committed an abuse of its
discretion in its handling of this feature of the trial.

Among the arguments offered by Thomas Price the Court is unable
to find a single shred of reasoning which could show in any way that
the district court's handling of Snead comprised an abuse of discre-
tion. In regards to the compulsion of Snead's testimony, the trial court
acted properly. Snead announced early in her testimony that she
would not testify against Price. Outside the presence of the jury, the
government formally extended immunity to Snead and moved on that
basis that her testimony be compelled. The Supreme Court has held
that the government can compel testimony from an unwilling witness
who invokes the Fifth Amendment privilege by conferring immunity.
Kastigar v. United States, 406 U.S. 441 (1972).

In regards to defendant's objections to the leading questions put to
Snead under Rule 611(c), the district court properly allowed this type
of questioning because Snead repeatedly gave answers which turned
out to be untrue, and whenever possible, gave answers designed to be
deceptive. Rule 611(c) states that "when a party calls a hostile wit-
ness, an adverse party, or a witness identified with and adverse party,
interrogation may be by leading questions." Fed. R. Evid. 611(c). The
record supports no finding whatsoever of "abuse of discretion" and
accordingly, the district court's rulings are correct.

                    11
          4. The Trial Court Correctly Sentenced the Defendant as
          a "Career Offender" under Guidelines Section 4B1.1.

The final contention raised by Thomas Price is that he was improp-
erly sentenced as a "Career Offender" for the purposes of sentencing
under the United States Sentencing Guidelines. Price argues (1) that
his prior conviction for attempted kidnaping should not be counted
because at age 17 he was sentenced as a Committed Youthful
Offender; (2) that this underlying conviction for causing the mailing
of a threatening communication is not a crime of violence; and
(3) that even if he did qualify as a Career Offender, the trial court
should have departed downward because "Career Offender" status
overstates his criminal history.

Each of these arguments lacks merit. The amount of deference due
a sentencing judge's application of the Guidelines depends on the
case: if the issue is a factual one, this Court should apply the "clearly
erroneous" standard; if the issue is one regarding a legal interpretation
of the Guidelines, the standard is akin to de novo review. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The Court
lacks jurisdiction to consider defendant's claim that the trial court
failed to depart downward. United States v. Bayerle, 898 F.2d 28,
30-31 (4th Cir.), cert. denied, 498 U.S. 819 (1990).

"Career Offender" is defined in Section 4B.1. of the Guidelines as
follows:

          A defendant is a career offender if (1) the defendant is at
          least eighteen years old at the time of the instant offense,
          (2) the instant offense of conviction is a felony that is either
          a crime of violence or a controlled substance offense, and
          (3) the defendant has at least two prior felony convictions
          of either a crime of violence or a controlled substance
          offense.

Thomas Price fits this definition in three principal ways. First, he
was more than eighteen years of age when he committed the instant
offense; second, the instant conviction is for a crime of violence
because it involved "the use, attempted use, or threatened use" of vio-
lence; and third, the two prior felonies on the Price's record -- the

                     12
1987 attempted kidnaping and the 1995 assault with a deadly weapon
-- constitute felony crimes of violence.

The fact that Price was sentenced as a Committed Youthful
Offender has no bearing at all on his status as a Career Offender
under the Guidelines. The Guidelines require that a qualifying convic-
tion be an "adult . . . conviction." The Guidelines also state, however,
that "a conviction for an offense committed prior to the age of eigh-
teen is an adult conviction if it is classified as an adult conviction
under the laws of the jurisdiction in which the defendant was
convicted. U.S.S.G. 4B1.2, Application Note 3. Under North Carolina
law, an adult for purposes of the criminal justice system is a person
who is 16 or older at the time of the offense -- thereby qualifying
Price as an adult for purposes of the Guidelines.

Price also asserts that the instant offense is not a felony crime of
violence. The statute under which the prosecution was brought, how-
ever, (18 U.S.C. § 876) reads as follows:

          Whoever knowingly so deposits or causes to be delivered as
          aforesaid, any communication with or without a name or
          designating mark subscribed thereto, addressed to any other
          person and containing any threat to injure the person of the
          addressee or of another, shall be fined under this title or
          imprisoned not more than five years, or both. (Emphasis
          added).

The facts and circumstances of this case unequivocally prove that
this letter was indeed a threat of violence, cast upon an individual
who had suffered years of grotesque abuse by its author, and created
for the sole purpose of inciting fear and distress in its recipient. The
facts show further that the mailing of this letter was met by the very
reactions that it sought; by her own testimony, Heather Price became
"very scared" and apprehensive when she read the letter. For these
reasons, the mailing of this letter constitutes a felony crime of vio-
lence.

Finally, it is well established that the district court's decision not
to depart downward is not appealable. United States v. Dorsey, 61
F.3d 260, 263 (4th Cir.), cert. denied, 133 L.Ed.2d 682 (1995); United

                     13
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S.
819 (1990). The district court's refusal to exercise its discretion to
depart downward, therefore, is not reviewable.

CONCLUSION

For the reasons provided above, this Court affirms the conviction
and sentence imposed upon the defendant in all respects.

AFFIRMED

                    14
