An inmate incarcerated at Red Onion State Prison, a maximum-security facility on top of a mountain in Virginia, violated federal law by mailing threatening letters to two federal judges in the Virgin Islands, a federal appeals court has ruled.

Mitchell Norbert Nicholas is serving a life sentence for first-degree murder imposed by a superior court in the Virgin Islands. He sent letters in November 2018 stating that he would murder two judges who had denied him habeas corpus relief in a later proceeding. Habeas corpus refers to a legal action in which an inmate contends that his constitutional rights were violated in his trial or direct appeal. 

Authorities charged Nicholas with two counts of knowingly mailing a threatening communication to a federal judge and two counts of threatening a federal judge in retaliation for performance of official duties. A jury convicted Nicholas and a federal district court imposed a sentence of six years for these offenses.

Nicholas appealed to the 4th U.S. Circuit Court of Appeals. A three-judge panel unanimously upheld the convictions in its Feb. 4, 2021, opinion in United States v. Nicholas

Nicholas argued that he did not utter true threats – communications not protected by the First Amendment – because he did not actually intend to harm the judges and, as an inmate locked up in Virginia, he could not attack judges located in the Virgin Islands. Federal inmates can be transferred anywhere in the federal system.

The appeals court was not persuaded. “We conclude that there is sufficient evidence supporting the jury’s verdict,” the 4th Circuit panel wrote in its per curiam opinion. “Nicholas admitted to Deputy Marshall Satterwhite that he believed that the judges deserved a threat because he believed that they were wrong to deny him habeas relief.”

The 4th Circuit rejected Nicholas’ argument that he did not have the requisite intent to harm the judges, noting: “The fact that Nicholas did not intend to actually murder the victims does not lessen the effect that the letters had on the judges.”

As to Nicholas’ argument that he could not harm anyone in the Virgin Islands from his incarcerated position in Virginia, the appeals court also found fault. “Nicholas’ status as an inmate held in a remote prison on the mainland does not provide him a free pass to send threatening letters; if this were the case, no inmate without accomplices on the outside to act on the threat could be convicted of sending a threatening communication,” the court wrote. 

The 4th Circuit added that “the rule of law is threatened if a government official can be targeted for performing his or her official tasks, and Nicholas targeted the judges specifically because they denied him habeas relief.”

David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).