UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-50341 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

CHARLES ARTHUR DAUGHENBAUGH, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas

(March 27, 1995)

Before POLITZ, Chief Judge, KING and STEWART, Circuit Judges.

POLITZ, Chief Judge:

Charles Arthur Daughenbaugh appeals his conviction of mailing

threatening communications in violation of

and his

sentence of 240 months imprisonment. Finding no reversible error,

we affirm.

Background

Between 1991 and 1993 Daughenbaugh, an inmate at the Clements

Unit of the Texas Department of Criminal Justice, sent letters to

three Texas state court judges and a United States bankruptcy judge

through the United States mails. His first letter to Judge John R. Carter stated:

Now comes the Aryan warrior to bring you warning of your coming death when the new socialist government comes into power. When the new government comes into power, all races other than the Aryan race will be deported or executed, all white judges will be checked out and will be asked to leave the country or be executed.

This is your last warning to change your ways or die! The Aryan warrior has spoken.

An identical letter was sent to Judge Robert E. Raesz. A

substantially similar letter to Judge Lee S. Green threatened to

"execute all judges at once," admonishing: "Get right with your

maker, because your time is at hand because the Aryan warrior shall

sweep the earth." Daughenbaugh also wrote to United States

Bankruptcy Judge Larry E. Kelly:

Now comes the Aryan shadow of death to let you know that your death is at hand. I, the Aryan shadow of death, shall execute you in the very most painful way. As the Lord said, every hair on your head is numbered. You will never again prosecute an Aryan.

In a second letter to Judge Carter which bore swastikas,

Daughenbaugh stated:

Now comes the "Lone Aryan warrior" with the Message of Death to all U.S. Zog (Zionist Occupational Government) American Government officials. The Aryan Nationalist Socialist Movement brings forth an all Aryan Government to take the place of the U.S. Zog American Government! It will be done by force if necessary, but it will be done! You are hereby given this Aryan Order of our movement to resign your Government office now, if you do not wish to face treason charges & death for serving this U.S. Zog American Government! You are given this chance now, to save yourself by obeying this direct Aryan order! You have been warned; do what you are told!

"Hail, Victory!"

Daughenbaugh was indicted on five counts of violating

, which prohibits use of the mails to transmit a

2 communication containing a threat of injury, and was convicted

after a jury trial. Departing upwards from the Sentencing

Guidelines the district court imposed a sentence of 240 months.

This appeal timely followed.

Analysis

Daughenbaugh challenges the sufficiency of the evidence,

contending that the letters were not threats but, rather, were

political speech protected by the first amendment. He seeks a de

novo review of this evidentiary issue because of its constitutional

implications. In United States v. Turner we noted that "whether or

not the language contained in [the defendant's] letters constitutes

a `threat' is an issue of fact for the jury."1 Guided by

instructions, such as given herein, removing protected speech from

the definition of "threat,"2 the jury is to determine the nature of

the subject communication.3 Appellate review is limited to

ascertaining whether a rational jury could have found the essential

1

, 465 n.4 (5th Cir. 1992). 2 In Turner we approved the following charge which was given herein to the jury:

A "threat" is a serious statement expressing an intention to inflict bodily injury or death upon someone, which under the circumstances would cause apprehension in a reasonable person, as distinguished from political argument, idle or careless talk, exaggeration or something said in a joking manner. It is not necessary to prove that the defendant actually intended or was able to carry out the threat made. 3 United States v. Malik,

(2d Cir.), cert. denied,

(1994).

3 elements of the offense, including the threat, proven beyond a

reasonable doubt.

Our review of the record leads inexorably to the conclusion

that the evidence amply supports the verdict. The plain language

of the letters was sufficient to place a reasonable recipient in

apprehension. The mode of communication -- private letter -- is

the typical means for delivery of threats. In advancing his

appellate challenge Daughenbaugh cites United States v. Watts.4 We

find Watts inapposite for it involved a public rally, not a private

letter.5 The political rhetoric accompanying the threats furnishes

no consitutional shield. Rather, the violent tone of the rhetoric

amplifies the threats. The reaction of the recipients is probative

-- the three judges who testified took extra security measures.6

A rational jury was entitled to find that the essential elements of

the offenses were proven beyond a reasonable doubt.

Daughenbaugh next contests the refusal to suppress

incriminating statements made to Scott Hendricks, an agent with the

Federal Bureau of Investigation. When agent Hendricks inquired

about the letters Daughenbaugh invoked his Miranda7 rights and

demanded counsel. One year later Hendricks met Daughenbaugh for

routine questioning about a written statement he had given

4

(1969). 5 See United States v. Bellrichard,

(8th Cir.), cert. denied,

(1993). 6 Malik. 7 Miranda v. Arizona,

(1966).

4 supporting another inmate's charge of a civil rights violation by

a guard.8 Hendricks also sought a handwriting exemplar. Hendricks

testified that Daughenbaugh refused, exclaiming that if he were

forced to furnish a sample of his handwriting he would merely

disguise it, as he often does "and has other people write things

for him." This statement was admitted into evidence over objection

to corroborate the testimony of an inmate who attested to writing

certain of the subject letters at Daughenbaugh's direction.

Daughenbaugh contends that the admission of the statement

violated Miranda and its progeny. He maintains that Arizona v.

Roberson9 proscribed questioning about the civil rights charge and

Edwards v. Arizona10 prohibited Hendricks' request for the

handwriting exemplar. We are not persuaded. Roberson, which

forbids subsequent custodial interrogations about unrelated

criminal offenses after the invocation of the fifth amendment right

to counsel, is inapplicable because there was no threat of

involuntary self-incrimination. The investigation of the civil

rights charge was noncriminal in nature and the target was not

Daughenbaugh but the guard. Edwards, which precludes the

reinitiation of custodial interrogation after a request for

counsel, applies only to conduct "that the authorities should know

8 The inmate claimed the guard assaulted him after the inmate doused him with urine. 9

(1988). 10

(1981).

5 [is] reasonably likely to elicit an incriminating response."11 A

handwriting sample is nontestimonial evidence beyond the scope of

the right against self-incrimination.12 The bare request for a

sample therefore does not implicate Edwards.

Finally, Daughenbaugh challenges the district court's

departure from the Sentencing Guidelines range of 57 to 71 months

to a sentence of 240 months. After an evidentiary hearing, the

court found that Daughenbaugh's criminal history category of VI did

not adequately reflect the seriousness of his past conduct.

Daughenbaugh's criminal history score was 24, nearly twice the 13

points required for category VI. Even that score did not fully

take into account Daughenbaugh's conduct in prison, including the

repeated discovery of weapons in his possession and evidence of

escape plans that included the taking of hostages or the killing of

guards. The court concluded:

I can't find anything in the record that establishes any likelihood that you're not going to continue to commit criminal offenses. You continue in prison and you continue here [in the county jails where Daughenbaugh was held during trial] at least in possession of weapons that can be concluded that you're attempting to escape once more. In fact, your whole record shows that you seem to have a propensity to engage in criminal conduct at all times and perpetuate criminal acts.

In arriving at the sentence imposed, the district court scaled

the criminal offense levels from 18 to 32, explaining, "I have

considered all of the other offense levels up to a leval 35. . . .

11 United States v. Dougall,

(5th Cir. 1990), cert. denied,

(1991). 12 Id.

6 I considered the information in the presentence investigation and

for the reasons I've stated, [selected] the level of sentencing I

believe is appropriate in your case. . . ."

Daughenbaugh maintains that the district court did not comply

with the proper methodology for departures under U.S.S.G. § 4A1.3,

as articulated by our en banc decision in United States v.

Lambert.13 We do not agree. Lambert requires only that the

district court consider each intermediate adjustment and state that

it has done so, and explain why the guideline category is

inappropriate and why the category chosen is appropriate.14

Ordinarily such explanation will make clear, either implicitly or

explicitly, why the intermediate adjustments are inadequate.15 Such

is the situation at bar. The district court complied with the

Lambert teaching and struck a satisfactory balance between

ritualistic formalism and arbitrariness.

Daughenbaugh also maintains that the departure was excessive.

We are not persuaded. The departure was extensive but Daughenbaugh

displayed unusually violent propensities. The sentence was below

the statutory maximum and passes muster.

AFFIRMED.

13

(5th Cir. 1993) (en banc). 14 See also United States v. Ashburn,

(5th Cir. 1994) (en banc), petition for cert. filed (Feb. 13, 1995) (No. 94-8084). 15 Lambert.

7