U.S. v. Malik

• Decision Date: 07 February 1994
• Docket Number: D,No. 4,4
• Citation: 16 F.3d 45
• Parties: UNITED STATES of America, Appellee Cross-Appellant, v. Abdel-Jabbor MALIK, Defendant-Appellant Cross-Appellee. ocket 92-1391, 92-1477.
• Court: U.S. Court of Appeals — Second Circuit

Page 45

16 F.3d 45

UNITED STATES of America, Appellee Cross-Appellant, v. Abdel-Jabbor MALIK, Defendant-Appellant Cross-Appellee.

No. 4, Docket 92-1391, 92-1477.

United States Court of Appeals, Second Circuit.

Argued Oct. 5, 1993.

Decided Feb. 7, 1994.

Roger S. Hayes, New York, NY, U.S. Attorney, Southern District of New York (Kerry A. Lawrence and Deirdre M. Daly, Asst. U.S. Attorneys), for Appellee, Cross-Appellant.

Abdel-Jabbor Malik, Pro Se, Wallkill, NY, Defendant-Appellant, Cross-Appellee.

Before: MINER, ALTIMARI, Circuit Judges, and ELFVIN, ^* Senior District Judge.

ELFVIN, Senior District Judge:

Defendant Abdel-Jabbor Malik appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Goettel, J.), after a jury trial convicting him of two counts of mailing a threatening communication, in violation of 18 U.S.C. Sec. 876, and one count of threatening to assault a United States Judge with intent to impede, intimidate or interfere with such judge while engaged in the performance of official duties, in violation of 18 U.S.C. Sec. 115(a)(1)(B). Among the numerous challenges raised by Malik, only two merit discussion--namely, (1) his insufficiency-of-the-evidence claim that the letters did not contain punishable threats and (2) his Fourth Amendment claim premised on an illegal seizure of papers from his prison cell. His remaining claims are patently meritless. In response, the prosecution cross-appeals from the sentence imposed upon Malik, challenging the district judge's granting of a downward departure and his refusal to make a multiple-count adjustment. For the reasons stated below, Malik's appeal will be denied, the prosecution's cross-appeal will be granted and the case will be remanded for resentencing in accordance with this opinion.

The criminal charges against Malik arise out of two letters. The first, dated December 21, 1989, was received in the chambers of Hon. Thomas P. Griesa, United States District Judge for the Southern District of New York, on December 26, 1989. ¹ It was signed in the defendant's name. After complaining that the Clerk's Office of the court had been intentionally delaying the handling of cases brought by Malik, the enclosed document continued:

The Plaintiff move this here Court to cause an investigation with this Courthouse Clerks Office on why is they unjustifiably obstructing with the Plaintiff cases communicating with this Courts Judges unless this Court promptly intervene and insure these cases being processed in this Court then What the Court is telling the Plaintiff in his eyes is to deal with each of these defendants family and them physically upon his soon prison discharge than handle things by legal rules and guidelines which is know problem to the Plaintiff to handle with his Foe's of Jewish americans but the Plaintiff per fer to handle things legally than for the Court to push thoughts as physical personal revenge as a way to deal with the above defendants by injuring them or family members well if the Court is not suggest ing that means to the Plaintiff than the Plaintiff urge the Court to urge that the cases in the caption become Clerk Office Court processed.

Judge Griesa regarded the letter as a threat to the adversaries in Malik's lawsuits and their families and referred it to the United States Marshal's Service. For this letter, Malik was charged with and convicted of one count of mailing a threatening communication.

The second letter, dated September 3, 1990, was filed in the United States Court of Appeals for the Second Circuit on September 27, 1990. Testimony established that the letter was in Malik's handwriting. The letter requested the Clerk of the Court to submit the letter to the three Circuit Judges--namely, Judges George C. Pratt, J. Daniel Mahoney and John M. Walker, Jr.--who had recently dismissed civil appeals filed by Malik. It read, in pertinent part,

I do not know what this Court deem it is but unless this Case reverse it self as is justl due than a White Folks favor to my person upon my prison soon release two White American richly having jews money of 20 thousand dollars will become taken from them for you Jewish Judges action of unfairness in this Court My criminal rap sheet is no joke I'm know in prison for a store holdup on blacks or a black and if you White American Jewish Judges wanna act racially motivated with justice in a double sided way dropping the "I"; "C" and "E" of the Word Justice apparently raising the word "Just" well then so become it Ii'll play likewise with you judges from a Koranic and Torooh perspective thats an eye for an eye and life for a life which means if just treatment is not actioned in this case if I can arranged sooner than upon soon prison discharge two-American Jewish rich person will become armed robbed of 20 thousand cash dollars in replace for my case. Right Courts rob me I rob Court citizen sounds reasonable to me and just as wrong as Court in handling this case at issue wrongly.

If my case had no merit I'ed have know objection to its dismissal treatment.

My case has merit so unless a just treatment is done by this Court with it in the name of principal of the case at issue two White American Jewish folks will become dealt with now take me lightly if the Court will an see won't justice become done even if you Judges never here of it. And in the next two weeks my person is gonna submit 5 lawsuits in the Northern District Court although legitimate I really do not have'ta do so but I will.

Call the Prison, F.B.I. Inspector General; Governor; Police Whoever my will shall become done whether this Court believe it or not thats up to Judges.

The letter continued to another page in large, stylized letters:

Pharoah and his clique

Were intoxicated with pride of

race and pride of material civilization

and grievously oppressed the israelities

What Pharoah Wished Was To Crush

Them

Is That What You Folks

Trying to Do Me As And

My Cases

Beware Of All Actions

South Africanner Europeans

Judge Mahoney interpreted the letter to be a threat to the members of the panel and, after consulting with Judge Pratt, the presiding judge of the panel, referred the letter to James Fox, the Director of the New York Office of the Federal Bureau of Investigation. For this second letter, the defendant was charged with and convicted of one count of mailing a threatening communication and one count of threatening to assault a United States judge with intent to impede, intimidate or interfere with such judge while engaged in the performance of official duties.

In addition to the above, another and earlier letter has been attributed to Malik. The letter, signed in the defendant's name and dated December 4, 1989, was addressed to and received by Richard Wilson, the Supervisor of the Pro Se Litigation Unit for the United States District Court for the Southern District of New York, on December 13, 1989. The letter stated, in part, as follows:

[R]echeck you current records because I'm gonna return to society soon an if my cases is not strainght then a lot of Jewish people will become dealt with in the district Court so I demand that you officials straight out any bull with my cases ...

* * * * * *

What I ask of you is to promptly reply to those motion requests on what the Court plans to do in sofar as case service so I won't have to unessary threaten the Court judges and execute my threat when I return to society soon very soon so try to rectify my case situation so all can stay handled humanely than other which is not my desired way at this time to handle things and people i.e. brutely.

Based on this letter, Malik was charged with one count of mailing a threatening communication but was acquitted thereof by the jury.

Malik challenges the sufficiency of the evidence to convict him of having mailed threatening letters in violation of 18 U.S.C. Sec. 876, claiming principally that the letters did not contain threats within the meaning of the statute. Whether a given writing constitutes a threat is an issue of fact for the trial jury. United States v. Lincoln, 589 F.2d 379, 381-82 (8th Cir.1979). An absence of explicitly threatening language does not preclude the finding of a threat under section 876, see United States v. Prochaska, 222 F.2d 1 (7th Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746 (1955), and, of course, a conditional threat--e.g., "your money or your life"--is nonetheless a threat, United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.1990). The test is an objective one--namely, whether "an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury." United States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir.1973), cert. denied, 415 U.S. 933, 94 S.Ct. 1447, 39 L.Ed.2d 491 (1974). In making this determination, proof of the effect of the alleged threat upon the addressee is highly relevant. United States v. Davis, 876 F.2d 71, 73 (9th Cir.) (per curiam), cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 143 (1989).

Viewing the evidence herein in the light most favorable to the prosecution and crediting every inference that could have been drawn in its favor, as we must, we cannot say that no rational trier of fact could have found beyond a reasonable doubt a threat in the respective letters. In the first letter Malik made explicit references to violence against his adversaries in lawsuits and their family members--i.e., "deal with each of these defendants family and them physically," "physical personal revenge" and "injuring them or family members"--and to the impending nature of such violence--to wit, "upon his soon prison discharge." Added to those references were the enigmatic overtone of the letter--viz., "his Foe's of Jewish americans"--and, importantly, the fact that the recipient of the letter was sufficiently alarmed by the letter to construe and treat it as a threat. In...