United States v. Bohanon, Bernard S. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2778
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERNARD S. BOHANON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 747--Charles R. Norgle, Sr., Judge.
Argued April 4, 2002--Decided May 16, 2002
Before RIPPLE, KANNE, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Fair warning: This
is an X-rated decision. The many letters
Bernard Bohanon wrote are extremely vile.
But because he contends that the sentence
he received for sending them (he was
convicted of mailing threatening
communications, in violation of 18 U.S.C.
sec. 876) was too long, we must recount
what he wrote to demonstrate why his 48-
month sentence to a federal prison will
not be disturbed on his appeal.
Bohanon met up with the victims of his
letter-writing frenzy, Joe and Mary
Walker,/1 in 1991 when he contracted to
landscape the lawn of their home south of
Chicago. During work on the project, the
Walkers learned that Bohanon was having
financial difficulties, so they hired him
to do odd jobs, such as cutting the grass
and washing their car.
The Walkers are naturalized citizens of
the United States, having emigrated from
Jamaica in the 1960’s. Joe Walker worked
for United Parcel Service and Mary worked
for several years at a university. Since
1992, Sharon Connor, their niece who was
a nursing student, lived with them.
Thinking Bohanon to be down on his luck,
the Walkers befriended him, taking him to
church functions and introducing him to
their friends. They also shared dinners
with him and took him to restaurants.
Bohanon visited them frequently when he
was living in Gary, Indiana. He spent the
winter months in Texas, where he said he
was working as a roofer.
In 1996 Bohanon asked the Walkers to
store his car in their garage while he
was in Texas. They agreed. Then, while
Bohanon was in Texas, the Walkers started
to receive Bohanon’s mail at their home.
When Bohanon returned to the Chicago area
in the spring of 1997, the Walkers asked
him to remove his car and stop having his
mail sent to their home. At the same
time, Bohanon began to show a romantic
interest in Ms. Connor. Ms. Walker
disapproved and told Bohanon so. She also
told him not to come to the house while
her husband was at work. Bohanon returned
to Texas. But the Walkers’ trouble with
him was just beginning.
They and their niece started to receive
letters, the tone of which,
unfortunately, cannot be conveyed without
direct quotations. So we quote a few of
the letters (all part of the public
record in the district court),
misspellings and all:
From a letter addressed to Mr. Walker
sent from Dallas, Texas, postmarked
November 8, 1998:
I’d cut you and make your fat ass squeel
like a big slimey pig. It’s going to
sound like a car burning rubber off the
line. You are a bunch of bastards from
hell whom all need to burn at the stake
like witches of the old days. Someone
ought to gut your niece and slash her
throat, burn her nappy hair, cut her
titties off, and shoot cement up her dry
ass cock until she can’t even squirt piss
out of that nasty bloody same hole again.
She will then have to wear a piss bag on
the outside and be an embarrassment to
all the human race. She should get her
foot caught between the doors and the bus
should drag that ugly, nasty, madoosa
maggott in the street until the only
thing left is a leg and a bag of piss. .
. . Nobody can help or save you, it is
extermination time.
From a letter addressed to Mr. Walker
sent from Dallas, Texas, postmarked
January 29, 1999:
If I or any of my family members whom
want you dead ever encounter you, you
will die or receive the worst beating any
man could ever imagine. You fucked with
the wrong person. I have people who have
seen you coming in and out of UPS and had
serious guns ready to blow your head
completely off your body before you got
into your automobile. I of course know
your every move so what do you think I’m
going to do for the witchery you were
putting in food I was eating at you
wicked house. . . . I have some serious
lunatics whom want to take your niece
while she is on the bus stop and riddle
her with bulletts. They’ve ridden right
by her and looked her in the face and she
didn’t even know who they were. These
people have killed before and have no
problem with killing again. They are
vicious killers.
From a letter addressed to Mr. Walker
sent from Dallas, Texas, postmarked
February 27, 1999:
Yo mama is the deadest piece of third
world dog sewage nigger in the grave of
Foney ass Jamaica. Worms crawl all over
her rotten carcus and she loves it. . .
. This dead bitches skin has peeled off
and her hair is so dry it feels like
cardboard, I mean this bitch is dead.
Your wife is next and when she hits the
grave she will look like a big tub of
nasty ancient. While doing the autopsy
before her funeral, they are going to cut
her rectum out and those sick doctors are
going to fuck her with a big greasy
louiville slugger until the bottom fall
out of that rotten dead body. They will
be vendictive and fuck her in the ears
and eye sockets[,] piss on her dead
carcus then take that wet greasy bat and
beat her whole body until it sweals and
swealters up like a balloon. . . . They
will then urine on it, ten or fifteen
different people and then prepare that
black pile of shit for the wake. A word
from you mother: Son I feel like a dried
up bitch, I’m wrapped in worms like a
dead mummy, it’s mommy.
From a letter addressed to "Black Goat
Gobblins of the Third World" sent from
Dallas, Texas, postmarked July 15, 1999:
There is no escape your third world
vomit, the time is coming for your
reaping of the sowing of your evil dog
teeth deeds. Hell is but a breath away. .
. . I’m not through with you, I’m going
to continue to attack you until you fall
like a bag of garbage tossed into a
dumpster.
From a letter addressed to "Black Nasty
Ashey Bog of Vomit You Faggott Walker"
sent from Gary, Indiana, postmarked March
11, 2000:
I see Fat Joe Walker lying in a casket
and someone has pissed on him. I see a
mat truck sitting on top of [Mrs.
Walker’s] car and her head has been
ripped from that old ugly gorilla body. I
see Sharon and she has been shot in the
face and they shitted on her dead carcus.
. . . Some vicious thugs are going to
beat and rob [Mrs. Walker] before she has
a bad car accident and dies from the head
decapitation.
From a letter addressed to "Sick Black
Nappy Necked Nigger" sent from Gary,
Indiana, postmarked May 3, 2000:
You Nasty third world vomit. . . . Your
worthless scum life is ending. You are on
your way to the grave. Your casket will
made from some old wood off of a vacant
run down building.
Finally, from a letter addressed to
"Black Scumk trash Maggott Attn: [Mr.
Walker]" sent from Gary, Indiana,
postmarked June 1, 2000:
You filthy fag sick garbage puke slime
vomit mutt sooner mother fucker. . . . I
wishes a vicious death upon your scum of
the earth head. You watch your back you
faggott bastard less you receive five
bulletts in your spine. Your big black
ugly maggott witch wife should be hung or
burned at the stake like witches used to
you Fat Fuck Motherfucker. If I weren’t a
child of God I’d catch you coming out of
UPS and blow your head to dust particles.
Nevertheless your wife is in store for a
very dramatic/harmful incident. Before it
is over that big black scorcerer will pay
a debt to society like no other black
bitch like her on earth.
The vileness was not confined to the
letters themselves. The envelopes often
contained obscenities. Some had notes
written on them. For example, an envelope
was addressed to "Sharon, the ugly
madoosa, Inc." On another envelope was
the note, "I crave your insests."
Envelopes addressed to Mr. Walker
referred to his late mother in derogatory
and obscene terms: "To my son, I have
tapeworm in my rotten body. I feel like
worm food & victim of sexual abuse."
One letter made direct reference to a
violent incident from Bohanon’s past, an
incident he had discussed with Mr.
Walker:
I’ve been through this before you see
with another person, whom tried doing the
same thing and he got shot very bad until
he almost bled to death. I witnessed him
lying in pool of blood and screaming for
his life while the guy that shot him with
the most powerful hand gun in the world
sped away laughing.
Bohanon also sent letters to at least
two of the Walkers’ neighbors. In a
couple of these letters he accused the
Walkers of child molestation. He also
wrote to Mr. Walker’s employer. This
letter purported to be a resignation
letter from Walker himself in which he
acknowledged stealing company property.
Fortunately, Mr. Walker’s employer found
the letter suspect and did not act on it.
Nevertheless, it caused embarrassment.
The letters to the neighbors caused the
Walkers "immeasurable grief." Mrs. Walker
testified at sentencing that their house
was in a predominately white
neighborhood; they and one other black
couple were the "only blacks in the
neighborhood." The neighbors, who showed
her the letter, said "Someone is out to
get you." Mrs. Walker testified that she
looked at the letter and started crying
"because it was so embarrassing, the
things that was said in the letter, you
know, to them, about raping their kids on
the block, taking them in the basement."
Even worse than the embarrassment and
grief, however, the letters also caused
fear. Also at Bohanon’s sentencing, Mr.
Walker testified that he feared for his
life and the lives of his family. He was
afraid that Bohanon would send a letter
bomb. One time when Mr. Walker called
home from work and did not get an answer,
he left work immediately to go home to
check on things. When he arrived, his
garage door was open and he said he
"almost died," thinking that Bohanon had
gotten "someone to kill" his family. As a
result of the letters, the Walkers
altered their lifestyle. They installed
an alarm in their home. They bought their
niece a car so that she would not have to
ride the bus when she traveled to and
from the nursing school. Mr. Walker
started parking his car in a different
place at work. When they returned home
after being out, the Walkers drove by the
house before parking, checking to see
that nothing was amiss. In short, they
were on edge, constantly looking over
their shoulders.
When the Walkers first complained to the
police about the letters, they were told,
we’re shocked to note, that nothing could
be done. They were advised to throw the
letters away. Later, when they complained
to the U.S. Postal Service, they were
again simply advised to throw the letters
away. The Walkers took this advice, and
consequently there is no entirely
accurate count of how many letters were
sent. Estimates range from at least 100
to more than 300. Mrs. Walker stated that
the letters were "just pouring in.
Sometimes six letters for a day."
Bohanon eventually was charged with
multiple counts of mailing threatening
communications. At that time, he was
incarcerated in the Will County,
Illinois, jail, awaiting extradition to
Texas for violating conditions of
probation, which he was serving for a
theft conviction. When he was interviewed
by FBI agents, he admitted writing and
mailing the letters. He claimed that the
Walkers practiced voodoo and witchcraft
and sought to control him by placing
chicken blood and other things in his
food. Eventually, he entered a plea of
guilty to one count of mailing
threatening communications and was
sentenced to 48 months imprisonment.
The sentence was arrived at through a
number of adjustments to the base offense
level and a modest upward departure.
Pursuant to sec.2A6.1(a)(1) of the United
States Sentencing Guidelines, his base
offense level was 12. Under U.S.S.G.
sec.2A6.1, the base offense level was
enhanced by 6 levels because there was
conduct evidencing an intent to carry out
the threats in the letters. Two more
levels were added because the offense
involved more than two threats, resulting
in an adjusted offense level of 20. The
government sought, but was denied, an
enhancement based on the contention that
the conduct constituted a hate crime.
Then Bohanon was granted a 3-level
decrease for acceptance of responsibility
as a reward for his guilty plea, bringing
his total offense level to 17. He had
five prior convictions, which resulted in
the assignment of four criminal history
points. Then because he committed the
present offense while he was on probation
for three 1999 theft convictions, he
received two additional criminal history
points, placing him in criminal history
category III. The sentencing range after
all this gymnastics was only 30 to 37
months.
Both sides moved for departures. Bohanon
contended he was entitled to a downward
departure pursuant to U.S.S.G. sec.5K2.13
for "Diminished Capacity." His request
was denied. The government sought an
upward departure on three bases. The
first was Application Note 2 to U.S.S.G.
sec.2A6.1, which provides that "[i]f the
conduct involved substantially more than
two threatening communications to the
same victim or a prolonged period of
harassing communications to the same
victim, an upward departure may be
warranted." The second was U.S.S.G.
sec.5K2.3, which provides that "[i]f a
victim or victims suffered psychological
injury much more serious than that
normally resulting from commission of the
offense, the court may increase the
sentence above the authorized guideline
range." Third, the government argued that
an upward departure was appropriate under
U.S.S.G. sec.5K2.8, which provides that
"[i]f the defendant’s conduct was
unusually heinous, cruel, brutal, or
degrading to the victim, the court may
increase the sentence above the guideline
range to reflect the nature of the
conduct."
In regard to the government’s motion for
an upward departure, District Judge
Norgle said:
I find that there is a basis under
Guideline 2A6.1 to take this case to the
maximum. And also looking at it from the
government’s perspective under 5K2.8 and
5K2.3, there is enough granting that
upward departure to take the case to the
maximum, which would be 60 months
imprisonment.
After stating that Bohanon was a
"troubled man" and recommending that his
placement be in an institution that would
provide mental health care and treatment,
Judge Norgle also found that the conduct
could not be excused. He said, however,
that even though he had rejected the
request for a downward departure based on
diminished mental capacity, he did not
intend to impose the maximum sentence.
Taking all the factors into
consideration, he settled on an upward
departure of 11 months, imposing a
sentence of 48 months.
Bohanon has appealed both the
enhancement based on U.S.S.G.
sec.2A6.1(b)(1)--that his conduct
evidenced an intent to carry out the
threats--and the upward departure, based
on U.S.S.G. sec.sec.2A6.1, 5K2.3, and
5K2.8. His contentions are that the judge
made findings which contradict the
imposition of the enhancement, failed to
explain clearly his reasons for the
upward departure, and failed to link the
extent of the departure to the structure
of the guidelines. In short, his is the
by-now familiar complaint that the
district judge was not sufficiently
explicit. Ironically, that complaint
often arises in cases in which the basis
for the enhancement or the departure is
virtually self-evident so as to seem to
require little explanation. Here, for
instance, the judge said, "[N]o
reasonable person could look at these
letters and say that these were not
serious threats to these individuals or
to the public." When challenged, the
court said more than once words like the
following:
Do you want me to read the--all of these
letters that are contained in the
government’s submission word-by-word?
Because that’s--if that is what you
would be asking me to do, then I would
hand them over to you and let you read
them into the record.
Or:
And you are not asking to read the
entirety of all these letters into the
record--
. . . .
--from which any reasonable person
could--
. . . .
--infer that there are threats there,
and that there is an inference of an
intent to carry them out, and, based upon
what is said in the record and the
background of the defendant, that there
is the potential for him to carry them
out.
Judge Norgle obviously, and
understandably, found the letters
disturbing: he said he had "labored
through these terrible letters that Mr.
Bohanon wrote."
In addition to finding the letters self-
evidently sufficient to support the
sentence imposed, however, the judge did
not neglect making explicit findings to
support the sentence.
In order to impose the 6-level
adjustment in the offense level under
U.S.S.G. sec.2A6.1(b)(1), which governs
threatening communications, there must be
evidence of Bohanon’s intent to carry out
the threats he made in the letters. The
comment to the guideline instructs the
district court to consider both conduct
which occurred prior to the offense if it
is "substantially and directly connected
to the offense" as well as conduct
occurring during the offense. United
States v. Sullivan, 75 F.3d 297 (7th Cir.
1996). Our review of the court’s factual
determinations is limited; we will
reverse only when the determination is
"so inconsistent with the evidence" as to
constitute clear error. Sullivan, at 302-
03; United States v. Siegler, 272 F.3d
975 (7th Cir. 2001). Furthermore, in
certain cases, the threats themselves can
provide the basis for a conclusion that
the defendant intended to carry out his
threats. United States v. Thomas, 155
F.3d 833 (7th Cir. 1998).
Here, the judge stated that the letters
themselves supported an inference that
Bohanon intended to carry out his
threats. Several went far beyond rambling
ruminations on Bohanon’s hatred for the
Walkers. For instance, in the January 29,
1999, letter, Bohanon references the
location where, and manner in which, he
intended to harm the Walkers and their
niece. The level of detail in this
letter-- referencing, for example, a
place where the niece routinely stood--
provides an indication that Bohanon had
moved beyond mere "talk . . . to talk
which evidences an intent to act." United
States v. Sullivan, 75 F.3d 297, 302 (7th
Cir. 1996). This alone provided a solid
basis for the 6-level adjustment under
U.S.S.G. sec.2A6.1(b)(1).
In addition to the letters themselves,
the judge noted that Bohanon had a prior
conviction for unlawful carrying of a
weapon, and thus another basis for
concluding that he might just resort to
the use of dangerous weapons. The
adjustment is also supported by facts in
the record which the judge did not
explicitly mention: that during the time
the threats were being made, Bohanon
requested information about a 50-caliber
semiautomatic pistol, and that in 1988 he
had been present during the shooting of a
friend. Upon this record, we conclude
that applying the enhancement to
Bohanon’s offense level was not clearly
erroneous.
We turn next to Bohanon’s challenge to
the upward departure, a decision we
review only for an abuse of discretion.
United States v. Jones, 278 F.3d 711 (7th
Cir. 2002).
Looking at any of the three provisions
on which the departure was based, we find
that there was no abuse of discretion.
First, there were at least 100 (and
possibly as many as 300) letters sent. It
is undeniably self-evident that 100 is
"substantially more than two threatening
communications to the same victim," as
required by the application note to
U.S.S.G. sec.2A6.1.
Second, a departure under U.S.S.G.
sec.5K2.3 requires that the victims
suffered psychological injury "much more
serious" than normal from the commission
of the offense. The Walkers testified as
to their fear, humiliation, and
embarrassment. They changed their
behavior, becoming much more cautious
than they had been. An inference that
they suffered psychological injury is
clearly inferable from the record.
Finally, U.S.S.G. sec.5K2.8 authorizes
an upward departure if the defendant’s
conduct was "unusually . . . degrading to
the victim." Over and over, Judge Norgle
noted that the letters were "terrible."
The judge explicitly accepted the factual
findings of the presentence report which
described the embarrassment the Walkers
felt. Both Walkers testified to their
humiliation. The humiliation was
increased because of the messages on the
outside of the envelopes and the letters
sent to the neighbors. Bohanon argues
that this guideline should be limited to
instances in which there was actual
physical or sexual assault on the
victims. The guideline itself, however,
contemplates humiliation as a basis for
the departure, saying that examples of
"extreme conduct include torture of a
victim, gratuitous infliction of injury,
or prolonging of pain or humiliation."
In short, Judge Norgle found that the
letters themselves support the inferences
required for the departure. In addition,
he explicitly accepted the findings set
out in the presentence report, a practice
we have upheld. See United States v.
Parolin, 239 F.3d 922 (7th Cir. 2001).
There is no clear error in departing from
the guidelines.
Next, Bohanon argues that the departure
was not properly linked to the structure
of the guidelines, an argument we also
reject. The departure was sufficiently
based in the structure of the guidelines.
But that aside, our examination of this
record leads us to think that Bohanon
should be happy that the judge was not
more literal or mathematical in anchoring
the departure to the guidelines. Had he
been more literal, the departure would
almost certainly have been greater.
U.S.S.G. sec.2A6.1, which provides the
base offense level in this case, requires
that the offense level be increased by 2
levels if there were more than two
threats. Then the application notes state
that departure is warranted if the
conduct involved "substantially more than
two threatening communications."
Bohanon’s situation would be worse if the
judge had concluded that if two threats
means a 2-level increase, then 100
threats means a 100-fold increase. That
example shows why literal application and
mathematical precision should not be the
goal of guideline sentencing. While
district judges are required to tie
departures to the structure of the
guidelines, they are not required to be
mathematicians. Despite the absurdities
sometimes involved in guideline
sentencing, we have not yet deceived
ourselves into thinking that mathematical
precision is possible. We have said that
the "degree of departure is entirely one
of reasonableness . . . ." United States
v. Peterson, 256 F.3d 612, 615 (7th Cir.
2001). Or, looking again at the fact that
the guidelines call for a 2-level
increase for more than two threats, we
see that the increase, for instance, from
level 12 to level 14 for someone in
criminal history category III is from 15-
21 months to 21-27 months--or about 6
months. Departing upward 11 months for
the number of threats involved here is
well below the range. As an aside, it is
interesting to note that the upward
departure roughly approximates an
additional day for each letter--were we
to credit the estimate that there were,
in fact, over 300 letters, a conclusion
which is not unreasonable. The judgment
of the district court is AFFIRMED.
FOOTNOTE
/1 These are not their real names. We have changed
them (and the name of the niece, who we will soon
get to) to spare the victims further embarrass-
ment.