United States v. Maass ( 1997 )


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  •                                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    DEC 22 1997
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                        No. 97-2118
    (No. CR-96-193-BB)
    ROBERT MAASS,                                              (D. N.M.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.
    Robert J. Maass appeals his conviction of threatening a federal official, in
    violation of 
    18 U.S.C. § 115
    . We exercise jurisdiction under 
    28 U.S.C. § 1291
    ,
    and affirm.
    I.
    This case arises from an argument between Maass and Richard Skrondahl, a
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    mail carrier. While Skrondahl was putting mail in the mailboxes at Maass’
    apartment complex on March 8, 1996, Maass verbally accosted him, calling him a
    “woman” and stating, “Let’s go outside.” R. II at 138. Skrondahl testified it was
    distracting and it slowed his job performance. When he had finished, Skrondahl
    walked to his postal vehicle. Maass followed him and told Skrondahl he was
    going to kill him or have him killed. Skrondahl got into the vehicle and shut the
    door, and Maass struck the window of the vehicle with his arm, “like in rage.” 
    Id. at 140
    .
    After Skrondahl left, Maass called Mary Brosnan at postal inspection
    service to complain about Skrondahl. Maass told her Skrondahl had insulted him
    and he expressed his general distaste for Skrondahl. Maass repeatedly stated he
    would “take down” Skrondahl if he saw him again. He explained to Brosnan this
    meant he was going to “knock [Skrondahl] down and beat the shit out of him as
    opposed to what people nowadays [think] it mean[s] to be blown away.” R. III at
    241. However, Brosnan’s further questioning resulted in Maass denying
    threatening Skrondahl. Maass then wrote a letter to the Albuquerque Postmaster
    complaining about Skrondahl and asking that Skrondahl be tested for drugs and
    reassigned to a different postal route. Postal Inspector Oscar Villanueva
    conducted a taped interview with Maass on March 13, 1996. Maass denied
    threatening Skrondahl or striking the postal vehicle. He acknowledged that he
    -2-
    wrote to the postmaster and called the postal inspection office, but denied telling
    Brosnan he would “take down” Skrondahl.
    Skrondahl continued to deliver mail to Maass’ complex until his route was
    changed for other reasons. For a few days after the incident, Skrondahl requested
    that an unarmed escort accompany him to the complex. After he learned Maass
    was prohibited from speaking to him, Skrondahl stopped requesting an escort, but
    he testified that he continued to feel nervous when he made deliveries to Maass’
    complex.
    II.
    Prior Bad Act Evidence
    Maass contends his conviction should be reversed because the district court
    erred in admitting prior bad act evidence. Maass was charged in 1992 with
    mailing threatening communications and in 1994 with making a threat, and he
    entered into pretrial diversion agreements in both cases. The agreements required
    him to accept responsibility for his conduct but did not require that he formally
    plead guilty to the offenses. Maass complied with the agreements, and both
    charges were dismissed. Maass filed a motion in limine in the present case to
    prevent the government from admitting the diversion agreements into evidence,
    and the court reserved ruling until trial. At trial, the agreements were admitted
    into evidence and defense counsel did not object. The agreements were discussed
    -3-
    during cross-examination of Maass’ three character witnesses and during the
    government’s closing argument. The court gave a limiting instruction when the
    agreements were admitted into evidence and in its final jury instructions.
    Although Maass filed a motion in limine to exclude evidence of prior
    charges, the district court did not issue a definitive ruling regarding admissibility.
    Therefore, to preserve the issue for appeal, Maass was required to object when the
    agreements were offered into evidence at trial. See United States v. Sinclair, 
    109 F.3d 1527
    , 1536 (10th Cir. 1997). Since Maass did not object at trial, we review
    this issue for plain error only. See United States v. Wilson, 
    107 F.3d 774
    , 782
    (10th Cir. 1997). 1 Plain error exists when an error has seriously affected the
    fairness, integrity, or public reputation of judicial proceedings. Johnson v. United
    States, 
    117 S. Ct. 1544
    , 1549 (1997). “In order to determine whether a trial court
    has committed plain error, the entire record must be reviewed.” United States v.
    Culpepper, 
    834 F.2d 879
    , 883 (10th Cir. 1987).
    Federal Rule of Evidence 404 prevents introduction of character evidence
    to prove an individual has acted in conformity with that character trait on a
    particular occasion. However, it permits admission of “[e]vidence of other
    crimes, wrongs, or acts . . . for other purposes, such as proof of motive,
    1
    The government argues Maass has waived plain error review of this alleged
    error. This contention is without merit. See McEwen v. City of Norman, Oklahoma, 
    926 F.2d 1539
    , 1544-45 (10th Cir. 1991).
    -4-
    opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
    or accident.” Fed. R. Evid. 404(b). In reviewing whether the district court
    properly admitted 404(b) evidence, this court applies a four-part test to determine
    whether (1) the evidence was offered for a proper purpose under 404(b); (2) the
    evidence was relevant under Federal Rule of Evidence 401; (3) the probative
    value of the evidence was not substantially outweighed by its potential for unfair
    prejudice under Federal Rule of Evidence 403; and (4) the district court, upon
    request, instructed the jury to consider the evidence only for the purpose for
    which it was admitted. Wilson, 
    107 F.3d at
    782 (citing Huddleston v. United
    States, 
    485 U.S. 681
    , 691-92 (1988)).
    The prosecutor wanted to introduce the pretrial diversion agreements into
    evidence to show Maass possessed the requisite intent to commit the charged
    crime, or that Maass had “prior knowledge and notice that threats against federal
    officers violated the law.” R. I, doc. 30 at 2. Maass concedes intent is a proper
    purpose under 404(b), but he argues the intent at issue in the present charge
    differs from that involved in the charges underlying the agreements.
    The pretrial diversion agreements were also relevant. Relevant evidence is
    “evidence having any tendency to make the existence of any fact that is of
    consequence to the determination of the action more probable or less probable
    than it would be without the evidence.” Fed. R. Evid. 401. Maass was charged
    -5-
    with threatening a federal official. To convict him of the crime, the government
    was required to establish that he intended to communicate a threat. See United
    States v. Orozco-Santillan, 
    903 F.2d 1262
    , 1266 n.3 (9th Cir. 1990). Whether
    Maass was serious when he made the threatening statements was a central issue in
    the case. The fact that Maass previously had made threatening statements to a
    government agency and a government official that resulted in his being charged
    with violating federal laws sheds light on whether his statements to Skrondahl and
    Brosnan should be considered threats. It is more likely that, having been charged
    with issuing a threat in violation of federal law, an individual would not later joke
    about “taking down” or killing his or her letter carrier. See United States v.
    Dysart, 
    705 F.2d 1247
    , 1258 (10th Cir. 1983); see also United States v.
    Frederickson, 
    601 F.2d 1358
    , 1365 (8th Cir. 1979). Because the agreements were
    probative of whether Maass’ statements should be considered threats, the
    agreements were relevant. 2
    As discussed, the pretrial diversion agreements were extremely probative of
    Maass’ state of mind and whether he was joking was a central issue in the case.
    2
    Maass also argues the agreements did not provide the jury enough information to
    draw any proper inferences. However, the fact that he was previously charged with
    threatening the government and its officials provided enough information for the jury to
    infer such a person could reasonably foresee statements like “I will kill you” or “I am
    going to take him down” would be taken as threats. It was not necessary to provide
    additional details of the charges to the jury.
    -6-
    The district court specifically determined the probative value of the pretrial
    diversion agreements outweighed any possible prejudicial effect on Maass. We
    give great deference to that determination. See United States v. Reddeck, 
    22 F.3d 1504
    , 1509 (10th Cir. 1994).
    Finally, the district court properly instructed the jury to use the pretrial
    diversion agreements for a limited purpose, namely to determine whether Maass
    had the state of mind or intent necessary to commit the acts charged in the
    indictment. In other words, the jury was told to use the agreements to determine
    whether Maass issued a threat. See United States v. Fulmer, 
    108 F.3d 1486
    ,
    1491-92 (1st Cir. 1997). The district court provided this limiting instruction
    immediately after the agreements were admitted into evidence. See Reddeck, 
    22 F.3d at 1510
    . The instruction was not merely a recitation of the technical
    language of 404(b), but was a carefully crafted explanation of specifically how
    the jury was to use the agreements.
    Because the four-part Huddleston test was satisfied, the district court’s
    decision to admit the pretrial diversion agreements into evidence did not
    constitute plain error.
    III.
    Prosecutorial Misconduct
    Maass also contends the prosecutor made three comments that amounted to
    -7-
    prosecutorial misconduct and which entitle him to a new trial. When an appellant
    preserves the issue on appeal, we use a two-step procedure to evaluate a claim of
    prosecutorial misconduct. First, we examine whether the conduct was, in fact,
    improper. If we answer that question in the affirmative, we must then determine
    whether it warrants reversal. United States v. Ivy, 
    83 F.3d 1266
    , 1288 (10th Cir.),
    cert. denied 
    117 S. Ct. 253
     (1996) (citing United States v. Lonedog, 
    929 F.2d 568
    ,
    572 (10th Cir. 1991)). “Prosecutorial misconduct does not warrant reversal if it
    was harmless error.” Lonedog, 
    929 F.2d at 572
    . A non-constitutional error is
    harmless unless it had a substantial influence on the outcome or leaves one in
    ‘grave doubt’ as to whether it had such effect. 
    Id.
     (citing United States v. Rivera,
    
    900 F.2d 1462
    , 1469 (10th Cir. 1990) (en banc)). In determining whether
    prosecutorial misconduct affected the outcome, requiring reversal, we examine
    “‘the curative acts of the district court, the extent of the misconduct, and the role
    of the misconduct within the case as a whole.’” 
    Id.
     (quoting United States v.
    Martinez-Nava, 
    838 F.2d 411
    , 416 (10th Cir. 1988)). An allegation of
    prosecutorial misconduct presents a mixed question of fact and law that we
    review de novo. Ivy, 
    83 F.3d at 1288
    .
    Maass argues the prosecutor misrepresented the effect of the pretrial
    diversion agreements because she referred to the agreements as establishing he
    accepted responsibility for threatening a federal agency and federal officials.
    -8-
    Maass takes issue both with the level of culpability he accepted and the
    description of the underlying behavior. He argues that although the agreements
    indicate he “accepted responsibility” for the “unspecified behavior” that led to the
    charges, he did not “plead guilty” to threatening a federal official or a federal
    agency. Maass’ argument ignores the fact that he stipulated the “unspecified
    behavior” referenced in the agreements was his threatening of a federal official
    and a federal agency. The prosecutor did not misrepresent evidence by publishing
    this stipulation to the jury. Moreover, it is very unlikely the jury believed Maass
    pleaded guilty to threatening a federal official or a federal agency because the
    orders dismissing both charges were also admitted into evidence.
    During summation, the prosecutor told the jury it was in court to enforce
    the law. Maass moved for a mistrial arguing the jury’s function was to weigh
    facts, not enforce the law. The court denied the motion and declined to give the
    jury a limiting instruction clarifying its duties. Maass’ counsel responded to the
    argument in her closing argument, stating: “Now, Ms. McCulloch just said that
    you are here to enforce the law. That’s not true. You are not here to enforce the
    law. . . . Your function is to decide the facts.” R. IV at 470.
    A prosecutor may not use closing argument to inflame the passions and
    prejudice of the jury. See United States v. Pena, 
    930 F.2d 1486
    , 1490-91 (10th
    Cir. 1991). The jury’s function is to weigh the evidence and determine whether
    -9-
    the government has sustained its burden of proof. It is improper to inflame the
    passions or prejudice of the jury by implying that the jury has a different role.
    See United States v. Manning, 
    23 F.3d 570
    , 574 (1st Cir. 1994) (“[A]rguments
    urging a jury to act in any capacity other than as the impartial arbiter of the facts
    in the case before it are improper.”); Arrieta-Agressot v. United States, 
    3 F.3d 525
    , 527 (1st Cir. 1993) (prosecutor’s argument that jurors were present to fight
    war on drugs improper); People of Territory of Guam v. Quichocho, 
    973 F.2d 723
    , 727 (9th Cir. 1992) (prosecutor’s argument that jurors are “truly the final
    law enforcers in our community,” coupled with reference to murdered children,
    was improper); United States v. Smith, 
    930 F.2d 1081
    , 1089 (5th Cir. 1991)
    (prosecutor mischaracterized jury’s role as being to “decide which of our federal
    laws are going to be enforced”). However, when not calculated to inflame the
    passion and prejudice of a jury, a prosecutor can urge the jury to enforce the law.
    See United States v. Carter, 
    953 F.2d 1449
    , 1461 (5th Cir. 1992) (prosecutor’s
    comment that police had “done their jobs . . . now you have to do your job” did
    not “go beyond proper limits of a plea for law enforcement); United States v.
    Brown, 
    887 F.2d 537
    , 542 (5th Cir. 1989) (prosecutor’s statement to jury that
    “it’s up to you to do something about [society’s drug problem by] . . . returning a
    verdict of guilty on these charges” not plain error); but see United States v.
    Young, 
    470 U.S. 1
    , 18 (1985) (improper for prosecutor to urge jury to “do its
    -10-
    job”); United States v. Mandelbaum, 
    803 F.2d 42
    , 44 (1st Cir. 1986) (improper
    for prosecutor to urge jury to do its duty).
    In the present case, the prosecutor’s comment was not calculated to inflame
    the passion and prejudice of the jury. Moreover, the comment about the jury’s
    role was singular and isolated. See Pena, 
    930 F.2d at 1491
    . Maass’ counsel
    addressed the prosecutor’s comment and the jury’s role in closing argument. In
    its final instructions to the jury, the court referred to the jury’s role in the trial as
    that of a “judge.” Finally, the court instructed the jury three times that statements
    and arguments of counsel were not evidence. If the prosecutor’s comment was
    improper, it constituted harmless error.
    Maass moved for a mistrial on the basis of the prosecutor’s statement to the
    jury during closing argument to consider “[i]f it was you, would you ignore those
    words?” R. IV at 468. Maass argued it was improper to personalize the threats.
    The court denied the motion for mistrial. Asking jurors to put themselves in the
    position of the victim is commonly referred to as a “Golden Rule” appeal.
    Blevins v. Cessna Aircraft Co., 
    728 F.2d 1576
    , 1580 (10th Cir. 1984). Such an
    appeal is regarded as “improper because it encourages the jury to depart from
    neutrality and to decide the case on the basis of personal interest and bias rather
    than on the evidence.” 
    Id.
     (quoting Ivy v. Security Barge Lines, Inc., 
    585 F.2d 732
    , 741 (5th Cir. 1978)). Comments which personalize the crime with the
    -11-
    individual jurors by urging the jurors to put themselves in the victim’s place
    should be avoided by the prosecution. Such comments will give rise to an
    appellate issue and, if egregious enough, reversal of the conviction. United States
    v. Manriquez-Arbizo, 
    833 F. 2d 244
    , 248 (10th Cir. 1987).
    Although the prosecutor’s comment was arguably improper, we need not
    give Maass a new trial on this basis. A prosecutor’s comment should be reviewed
    in the context of the entire record, not in a vacuum, and this comment was
    singular and isolated. See 
    id. at 247
    ; Pena, 
    930 F.2d at 1491
    . Moreover, the
    district court instructed the jury three times that statements and arguments of
    counsel were not evidence. Under these circumstances, the prosecutor’s
    comment, if error, was harmless.
    IV.
    Cumulative Error
    Maass also argues the cumulative errors in his trial necessitate a new trial.
    “A cumulative-error analysis merely aggregates all the errors that individually
    have been found to be harmless, and therefore not reversible, and it analyzes
    whether their cumulative effect on the outcome of the trial is such that
    collectively they can no longer be determined to be harmless.” United States v.
    Rivera, 
    900 F.2d 1462
    , 1470 (10th Cir. 1990) (en banc). However, cumulative-
    error analysis only aggregates actual errors. 
    Id.
     “Individual rulings frequently
    -12-
    will have an adverse effect on a party, but unless that party can demonstrate that
    the ruling was an error, reversal would not be warranted.” 
    Id. at 1470-71
    .
    Since we find only one instance of harmless error here, a cumulative-error
    analysis is not necessary. The alleged errors in this case might have had an
    impact on the outcome of the trial, but “impact alone, not traceable to error,
    cannot form the basis for reversal.” 
    Id. at 1471
    .
    V.
    Maass’ conviction is AFFIRMED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -13-
    

Document Info

Docket Number: 97-2118

Filed Date: 12/22/1997

Precedential Status: Non-Precedential

Modified Date: 4/18/2021

Authorities (24)

United States v. Joe Henry Carter, Jr., Joseph Estel Hammack , 953 F.2d 1449 ( 1992 )

The People of the Territory of Guam v. Richard Reyes ... , 973 F.2d 723 ( 1992 )

United States v. Fred Anthony Frederickson , 601 F.2d 1358 ( 1979 )

Robert B. Blevins v. Cessna Aircraft Company, a Kansas ... , 728 F.2d 1576 ( 1984 )

United States v. Richard Donald Lonedog , 929 F.2d 568 ( 1991 )

United States v. Gregorio Manriquez Arbizo , 833 F.2d 244 ( 1987 )

United States v. Wilson , 107 F.3d 774 ( 1997 )

United States of America, Cross-Appellant v. Irma Pena, ... , 930 F.2d 1486 ( 1991 )

United States v. Felipe Martinez-Nava and Jose Cepeda-Cabada , 838 F.2d 411 ( 1988 )

United States v. Fulmer , 108 F.3d 1486 ( 1997 )

Warnie Lee Ivy, Cross-Appellants v. Security Barge Lines, ... , 585 F.2d 732 ( 1978 )

United States v. Palmaria Brown and Sharon Dixon Porter , 887 F.2d 537 ( 1989 )

United States v. Sinclair , 109 F.3d 1527 ( 1997 )

United States v. Alfredo Orozco-Santillan , 903 F.2d 1262 ( 1990 )

United States v. Walter A. Culpepper, Jr. , 834 F.2d 879 ( 1987 )

united-states-v-tracy-dinah-ivy-aka-tracy-norwood-united-states-of , 83 F.3d 1266 ( 1996 )

United States v. Edward P. Reddeck , 22 F.3d 1504 ( 1994 )

kenneth-franklin-mcewen-as-representative-of-the-estate-of-lawrence-robert , 926 F.2d 1539 ( 1991 )

Huddleston v. United States , 108 S. Ct. 1496 ( 1988 )

Johnson v. United States , 117 S. Ct. 1544 ( 1997 )

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