UNITED STATES of America v. Eugene ROBINSON, Appellant, 188 F. App'x 97

OPINION OF THE COURT RENDELL, Circuit Judge. Eugene Robinson appeals his conviction under 18 U.S.C. § 876(

c) for mailing threatening communications. Robinson wrote three letters to a federal district court judge from state prison while serving a life sentence without parole and was convicted on three criminal counts, one per letter. His appeal is limited to Count II, involving the second of three letters he wrote, and does not concern either of the other counts. On November 16, 2001, the judge received the second letter from Robinson. The letter was actually mailed to the judge “care of’ the clerk of the court, who opened the letter and found a handwritten letter and a white powdery substance.

During the trial in which Robinson waived his right to a jury, he explained that he intentionally wrote all three letters so that he would be indicted on a federal crime and would be transferred from state prison to federal prison because he said that he was being abused in state prison. On appeal, Robinson argues that the evidence, with respect to Count II, was insufficient because it failed to establish the “threat to injure” element of the statute.

He contends that the white powder included in his second letter to the judge does not constitute a threat of future injury, but rather, an attempt to scare the recipient by making the recipient think that they have been poisoned. Robinson acknowledges that this court already addressed his specific argument under the same statutory provision, 18 U.S.C. § 876(c), in United States v. Zavrel, 384 F.3d 130 (3d Cir.2004), and that he raises the issue only in order to preserve it if Zavrel is overturned.

In Zavrel, we stated that, “[a] reasonable person opening an envelope containing a white powdery substance, during the height of the anthrax crisis in this country, would doubtless fear immediate and future injury.” United States v. Zavrel, 384 F.3d 130, 136 (3d Cir.2004). We held that the mailing of such a substance constituted a threat to injure within the meaning of the statute. Id. at 137. Accordingly, we will affirm the order of the District Court.