U.S. v. Davis

• Decision Date: 22 February 1991
• Docket Number: No. 90-6135,90-6135
• Citation: 926 F.2d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lin Edward DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 969

926 F.2d 969

UNITED STATES of America, Plaintiff-Appellee, v. Lin Edward DAVIS, Defendant-Appellant.

No. 90-6135.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 1991.

Susan M. Otto, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

John E. Green, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., and Teresa Black, Asst. U.S. Atty., on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before LOGAN, McWILLIAMS and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Lin Edward Davis was convicted following a jury trial of four counts of knowingly causing threatening communications to be delivered by the Postal Service, in violation of 18 U.S.C. Sec. 876, and two counts of tampering with a witness, in violation of 18 U.S.C. Sec. 1512(b)(3). On appeal, Davis argues that there was insufficient evidence presented at trial to support the jury's verdict. Specifically, Davis contends that the government failed to prove authorship of two threatening letters delivered to two federal judges and asserts that the communications directed at his ex-wife and other parties were devoid of "the essential ingredient of coercion by threat of force or intimidation," Appellant's Brief at 10, or do not constitute "true threat[s]." Id. at 12.

Davis' first argument concerns his conviction for threatening two federal judges through the mail. Davis contends that his conviction must be vacated because the government failed to prove he authored the letters, which he asserts is an essential element of this crime. Davis relies upon several circuit court cases which list "that the defendant wrote a threatening letter" as an element of the crime. See, e.g., United States v. Lincoln, 589 F.2d 379, 381 (8th Cir.1979); United States v. DeShazo, 565 F.2d 893, 894-95 (5th Cir.), cert. denied, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978); United States v. Reynolds, 532 F.2d 1150, 1155 (7th Cir.1976); United States v. Sirhan, 504 F.2d 818, 819 (9th Cir.1974); Petschl v. United States, 369 F.2d 769, 770 (8th Cir.1966). In none of these cases was authorship an issue. In the only cases in which authorship as an element of the crime has been raised as an issue the courts have held that the government need not prove that the defendant wrote the threat. See United States v. Blankenship, 870 F.2d 326, 330-31 (6th Cir.1988), cert. denied, 489 U.S. 1068, 109 S.Ct. 1347, 103 L.Ed.2d 815 (1989); United States v. Bloom, 834 F.2d 16, 19 (1st Cir.1987); United States v. Stotts, 792 F.2d 1318, 1323-24 (5th Cir.1986).

Davis was convicted pursuant to 18 U.S.C. Sec. 876, which states in pertinent part:

"Whoever knowingly [deposits in any post office or authorized depository for mail matter] or causes to be delivered [by the Postal Service] any communication ... 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 not more than $1,000 or imprisoned not more than five years, or both."

Section 876 on its face does not require proof that the defendant authored the threatening communications, only that he "knowingly deposits" or "knowingly causes" the Postal Service to deliver the threat. We agree with the Blankenship, Bloom, and Stotts courts that the government need only show that the defendant authorized or knowingly caused the threatening material to be delivered. Requiring proof of authorship would allow an individual to avoid prosecution under the statute simply by having someone else write the letter. Accordingly, under the standard stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the issue becomes whether there was sufficient evidence presented at trial to allow a trier of fact to find beyond a reasonable doubt that Davis authorized or knowingly caused the threatening letters to be delivered to the judges.

The evidence in the record easily supports the...