United States v. William Mabie ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-1899 & 16-2432
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM J. MABIE,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Illinois.
No. 14-CR-30076 — Michael J. Reagan, Chief Judge.
No. 15-CR-30158 — Richard Mills, Judge.
____________________
ARGUED FEBRUARY 24, 2017 — DECIDED JULY 7, 2017
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. This consolidated appeal involves
two criminal cases from the Southern District of Illinois. In
the first case—which we call the “threat case,” numbered 15-
1899 on appeal—William Mabie was convicted of sending
threatening letters through the mail. In the second case—
which we call the “assault case,” numbered 16-2432 on ap-
peal—Mabie was convicted of assaulting a deputy United
2 Nos. 15-1899 & 16-2432
States marshal. Mabie received lengthy prison terms in both
cases.
Mabie brings multiple challenges on appeal. Specifically,
he contends that, in the threat case, the district court im-
properly admitted evidence under Federal Rule of Evidence
404(b). He also argues that, in the assault case, the district
court erred by refusing to allow him to proceed pro se and by
forcing him to attend trial after he had waived his right to be
present in the courtroom. Finally, he claims that he received
unreasonable sentences in both cases. We reject these argu-
ments and affirm Mabie’s convictions and sentences. 1
I. BACKGROUND
Mabie received 340 months’ imprisonment for his
crimes—crimes that involved speech and letters riddled with
scurrilous language directed at state and federal officials and
their families. Throughout this opinion, we repeat his lan-
guage to highlight the severity of his crimes and to illustrate
why the district judges who sentenced him felt compelled to
imprison him for what may be the better part of his life.
We start with some background facts involving a prior
conviction Mabie received in the Eastern District of Missouri
for threatening a police officer. Although that conviction is
not before us, the facts underlying it are necessary to pro-
vide context for the convictions and sentences subject to this
appeal.
1 Citations to the record of the threat case are abbreviated “R1.” Citations
to the record of the assault case are abbreviated “R2.”
Nos. 15-1899 & 16-2432 3
A. The Eastern District of Missouri Case
We begin in 2007 in St. Louis, Missouri. Then and there,
Mabie worked as an auto-body repairman, renting space
from Steven Reisch at Reisch’s business called Affordable
Auto. In August 2007, the two had a falling out, causing Ma-
bie to look for new space to rent. Because Mabie had paid his
rent through the end of the month, he left his work equip-
ment at Affordable Auto as he conducted his search.
At some point, Mabie’s equipment—purportedly worth
$25,000—was stolen in a burglary. Reisch reported this bur-
glary to the St. Louis Metropolitan Police Department. Of-
ficer Joshua Wenstrom and others investigated, but they
were unable to identify the thief or uncover other incriminat-
ing evidence. Thus, much to Mabie’s chagrin, the police de-
partment cancelled the investigation and put the case on in-
active status.
Paranoia ensued. Mabie became convinced that Reisch
was in on the burglary. Mabie contacted Officer Michael
Deeba, whom Mabie had met before: Deeba was one of
Reisch’s customers who occasionally had work done on his
cars at Affordable Auto. Mabie was frustrated with
Wenstrom’s inability to solve the case, so he wanted Deeba to
investigate. But Deeba declined to help because he was a
SWAT commander who did not investigate property crimes
and because he knew Reisch through business dealings and
did not want to create a conflict of interest.
Because Deeba refused to investigate, Mabie concluded
that Deeba too was in on the burglary. Between May and
August 2008, Mabie called Deeba numerous times and left
him several voicemail messages. In one message, Mabie
4 Nos. 15-1899 & 16-2432
called Deeba a “prick eater” and accused him of taking kick-
backs. (R1. 216 at 66.) In another message, Mabie said, “I
think somebody should check on [Deeba]. He might be up in
his office hanging himself or committing suicide. I mean, I
don’t know that would be a bad thing, but maybe you
should check on him.” (Id. at 67.)
It got worse from there: the messages grew darker and
showed Mabie growing angrier as time went on. For in-
stance, in one message, he said,
[W]here’s this investigation fag? Come on you gut-
less son of a bitch. Let’s have the investigation and
find out what a crooked cock sucker you are and
what a thieving bunch of crooked bullshit opera-
tion Affordable [Auto] is … . See ya Mikey.”
(Id. at 72.) And in another message, Mabie commented that
the next day was Deeba’s deceased uncle’s birthday, and
concluded, “Funny how I know things like this, isn’t it?
Have a super day. See you in Greenville.” (Id. at 68.) Deeba
lived in Greenville, Illinois.
Mabie was also able to reach Deeba at the police station.
During one call, Mabie told Deeba, “Why don’t you have
your wife suck my dick and we’ll be even.” (Id. at 70.)
Deeba wasn’t Mabie’s only target: Mabie also sent nu-
merous letters to Officer Wenstrom, accusing Wenstrom of
conducting a shoddy investigation. Wenstrom received a fi-
nal letter in May 2013—almost six years after the burglary.
That letter stated,
Dear Josh, I know you are used to things being up
your ass, [Officer] Anderson[’s] tongue, Deeba’s
fist[,] [Reisch’s] cock, but what of something not so
Nos. 15-1899 & 16-2432 5
tangible like 07-078733. 2 Yes, yes, that was a while
ago. As I sit here as direct link to your never getting
of your ass, I’m still concerned. In fact, I do not
have a statute of limitations. … But wait, could it be
you did not want to catch Reisch? AUSA says the
DEA is well aware of what goes on at 4108 Hoff-
meister and a Freedom of Information request to
DEA, they will not deny Reisch assistance. Hmm.
… I don’t give a fuck if he’s the best snitch out
there. I want my property. … Well, asswipe, check
this. Reisch can make reparation now, 25K for Sa-
ble, S A B L E, 25K for equipment, 25K for lawyer
fee and the rest can quit lying or I deal with every
lying maggot all the way through.
(Id. at 35–37.)
Eventually, internal affairs opened an investigation. On
June 18, 2008, Officer Al Klein called Mabie. During that
conversation, Mabie claimed that Deeba challenged him to a
gun fight, which Mabie said would end badly for Deeba.
Specifically, Mabie claimed that he “can hit what [he’s] ai-
min’ at from 400 fuckin’ yards” and even went so far as to
comment on how blue Deeba would look if Deeba were
dead. (R1. 214 at 59.)
Shortly after, Officer John Anderson of the intelligence
division began investigating to determine whether Mabie
posed a credible threat to Deeba. On July 29, 2008, Anderson
warned Mabie to stop threatening police officers. But Mabie
persisted. On August 4, 2008, Mabie called Officer Anthony
Brooks of the Greenville Police Department, claiming that
Deeba challenged Mabie to a gun fight and that Mabie was
2 This was the complaint number on the burglary-investigation report.
6 Nos. 15-1899 & 16-2432
“up for it.” (Id. at 133.) Mabie further commented that St.
Louis police officers think a gun fight is at 15 yards, but Ma-
bie was good from 300 yards. After this call, Deeba asked the
Bond County Sheriff’s Office to patrol his property in
Greenville. The sheriff’s office complied with this request.
After Anderson learned of Mabie’s call to Brooks, Ander-
son called Mabie again. During their conversation, Mabie
explained that he had an M1, a 30 aught 6, and a 30 aught 8;
he claimed that he could shoot and hit Deeba at 600 yards
with these guns.
Police officers arrested Mabie on August 4, 2008. At that
time, he was living at his sister’s house in Festus, Missouri.
The officers searched the house. Although they did not find
any weapons, they found a map to Greenville along with
some Google Earth photos of the town. They also found a
letter on Mabie’s printer. The letter was addressed to Dee-
ba’s wife Deborah and purported to be from Reisch’s wife
Kim. Deborah received a copy of this letter, which read,
Dear Debbie, As you know, your crooked piece of
crap husband (Lieutenant Michael Deeba) and
Thieving pothead husband (Steve Reisch) have
quite an enterprise what with Steve paying kick-
backs to Mike so he can do every crooked low life
thing that there is. As you may have heard, Steve
and Mike are trying to muscle Bill Mabie out of his
equipment. Already stole one car and working on
stealing a ’67 Camaro. One little problem, Bill Ma-
bie knows about their arrangement. And Mikey
and Steve’s employees made the mistake of chal-
lenging him to a gun fight. Given SLMPD … record
of poor marksmanship, the neighbor must be
warned. (Don’t worry, I’ll let everyone possibly
Nos. 15-1899 & 16-2432 7
know what is coming.) It might be best if you
move. I know you think why not just give it back.
What would be the point of being a scumbag cop if
you acted legally. Sincerely, Kim Reisch. P.S. Good
luck with the federal investigation.
(R1. 216 at 84.)
The government charged Mabie in the Eastern District of
Missouri with three counts of mailing threatening communi-
cations in violation of 18 U.S.C. § 876(c) and one count of in-
terstate communication of a threat in violation of 18 U.S.C.
§ 875(c). The government used the above facts as evidence at
Mabie’s trial. In December 2008, a jury convicted Mabie of
the charged crimes. See United States v. Mabie, 663 F.3d 322,
328 (8th Cir. 2011). The court sentenced Mabie to 88 months’
imprisonment. As the officers escorted Mabie out of the
courtroom, Mabie yelled, “[F]uck you, Deeba, I’m gonna get
you.” (R1. 216 at 90.)
B. The Threat Case (15-1899)
Apparently undeterred by an 88-month sentence, Mabie
continued sending threatening letters, doing so from prison.
One letter, dated January 29, 2012, was to Sheriff Jeff Brown
of Bond County, Illinois. At Mabie’s sentencing hearing in
the Eastern District of Missouri, the government introduced
an email from Brown in which he claimed that police officers
had spent roughly 210 to 220 man hours searching and pa-
trolling Deeba’s property in response to Mabie’s threats. In
Mabie’s letter to Brown, Mabie questioned the legitimacy of
Brown’s accusation and threatened Brown. Specifically, Ma-
bie wrote,
220 hours? How about 5 minutes of legitimate in-
vestigation – of 07-078733 ALL I’VE EVER
8 Nos. 15-1899 & 16-2432
ASKED.....NOPE. Because it would no doubt send
your boy + Reisch (UNDISPUTABLE BOGUS
REPORT) to prison – MUCH EASIER TO COME
AFTER ME, except………what happens when I’m
released – OH NO!! and seek justice – please,
please NOT THAT! I asked [United States Attorney
Richard] Callahan [of the Eastern District of Mis-
souri] if he would prosecute all you lying cock-
suckers, or if he preferred kick your teeth in – NO
RESPONSE Could be all you maggots should look
for a dentist – GROUP RATES[.]
(R1. 106-1 at 5.)
Mabie sent two additional letters to Deeba’s wife Debo-
rah. In the first letter, dated January 21, 2012, Mabie accused
Deeba of misconduct. Regarding that conduct, Mabie wrote,
I asked Richard Callahan – US ATTORNEY if he
preferred to prosecute, or have these people’s teeth
kicked in down their throat—WELL, have you seen
anyone prosecuted lately? ME EITHER. So there
will be justice done.
(R1. 106-2 at 3.)
In the second letter, dated March 11, 2013, Mabie again
accused Deeba of misconduct. Mabie also suggested
a ménage à trois with him, Deborah, and the wife of a de-
ceased St. Louis police officer whom he (erroneously) as-
sumed Deborah knew. He sent this letter using a stamp de-
picting a Purple Heart. Regarding that stamp, he concluded
his letter by writing,
P.S. Did you notice the stamp? Ya know, my dad
got a purple heart, actually eligible for 3. Did he do
that, come back so that Reisch could steal his chain
Nos. 15-1899 & 16-2432 9
come along, threaten his son’s life, have the US
ATTY lie so Reisch can get away with it? probably
not. If you think the old boy fought hard, wait till
you see the length I’ll go to, to get his property
back.
(R1. 106-3 at 5.)
On April 23, 2014, the government obtained a three-count
indictment against Mabie in the Southern District of Illinois,
charging him with mailing threatening communications in
violation of 18 U.S.C. § 876(c). The case was assigned to
Chief Judge Reagan.
Later, on October 22, 2015, a grand jury returned a super-
seding indictment, adding to each count of the original in-
dictment the allegation that Mabie mailed the threatening
communications “with intent to convey a threat to injure the
person of another.” (R1. 132.) Through this superseding in-
dictment, the government acknowledged that a § 876(c) vio-
lation is a specific-intent crime.
To prove the specific-intent element, the government
sought to introduce under Rule 404(b) some of the evidence
at issue in the Eastern District of Missouri trial. This evi-
dence included Mabie’s voicemail messages to Deeba; Ma-
bie’s recommendation that Deeba have his wife Deborah
perform oral sex on Mabie; Mabie’s letter to Officer
Wenstrom; Mabie’s calls to Officers Klein, Brooks, and An-
derson; Mabie’s letter to Deborah purporting to be from Kim
Reisch; and Mabie’s “I’m gonna get you” statement to Deeba
after the sentencing hearing.
The purpose of introducing this evidence was to provide
background and context to the charged conduct and to show
10 Nos. 15-1899 & 16-2432
Mabie’s knowledge and motive in making true threats. The
court admitted this evidence over Mabie’s objection.
The trial lasted four days. Mabie proceeded pro se
through pretrial and the first day of trial. During the second
day, at the court’s urging, Mabie agreed to have standby
counsel step in. In the end, the jury convicted Mabie on all
counts.
On April 3, 2015, Judge Reagan sentenced Mabie to the
statutory maximum—60 months’ imprisonment—on each of
the three § 876(c) counts for a total of 180 months. This sen-
tence not only exceeded the sentencing guidelines recom-
mendation but also was set to run consecutively to the 88-
month sentence Mabie received in the Eastern District of
Missouri. Judge Reagan acknowledged that this sentence
was “a breathtaking departure” from the guidelines recom-
mendation and that he had never imposed a statutory-
maximum sentence before. (R1. 251 at 115.) Even so, after
taking into account the trial evidence and additional evi-
dence of noncharged bad acts—including Mabie’s assault of
Deputy Marshal Berry—the court determined that an above-
guidelines sentence was warranted.
C. The Assault Case (16-2432)
On March 12, 2015, Judge Reagan held a hearing to ad-
dress Mabie’s motion to proceed pro se during sentencing in
the threat case. After the hearing, Mabie met with standby
counsel in one of the interview rooms. When counsel left,
Mabie remained in the room. A couple of hours passed, and
Mabie became agitated. So he started kicking and banging
on the door. Eventually, Deputy United States Marshal Don
Berry moved Mabie to a holding cell with another detainee.
Nos. 15-1899 & 16-2432 11
As Berry turned to walk away, Mabie called him a “punk
ass” and spat on him. (R1. 251 at 48; R2. 100 at 85.)
At that point, Berry deemed Mabie to be a threat to the
other detainee. So he called over two other deputy marshals
to move Mabie to a different cell. As the deputy marshals
attempted to do so, Mabie got into a fighting stance with
“his fists clenched and head down.” (R2. 100 at 86.) When
Mabie stepped forward, breaking the plane of the cell door,
Berry punched him. Consequently, Berry injured his hand;
Mabie suffered facial wounds.
On October 20, 2016, the government obtained a second
indictment against Mabie in the Southern District of Illinois,
charging him with one count of forcibly assaulting, resisting,
opposing, impeding, intimidating, and interfering with a
United States officer in violation of 18 U.S.C. § 111(a)(1). The
case was assigned to Judge Mills.
Mabie proceeded pro se for most of pretrial, but he even-
tually asked the court to appoint counsel. The court acqui-
esced to this request. Later on, after jury selection and open-
ing statements, Mabie became frustrated with his counsel
and demanded to proceed pro se for the rest of the trial. The
court denied this request, concluding that the appointed at-
torney would continue to represent Mabie.
Mabie then said that he was going to leave the courtroom
and that the trial could proceed without him. The court de-
nied this request, too, ordering Mabie to remain in the court-
room during trial.
But Mabie’s presence at trial was short-lived: Mabie went
on a tirade during the government’s first witness’s testimo-
ny, causing the deputy marshals to remove him from the
12 Nos. 15-1899 & 16-2432
courtroom. Mabie was then excused for the rest of the trial,
except that he returned briefly to testify. During that testi-
mony, Mabie explained that, upon his release, he would
“hunt down” Berry, “handcuff him,” and “return the favor.”
(R2. 102 at 99.) And by “return the favor,” Mabie meant,
I’m going to beat the shit out of him … . [T]hat’s
going to be a hell of an assault. I may just kill the
bastard. How do you like that? Under oath. How
about tying him to the bumper and drag his ass
around … .
(Id. at 99-100.)
The jury convicted Mabie. Mabie requested a new trial,
arguing that, because he was forced to attend his trial on the
first day, he engaged in bad conduct that prejudiced him.
The court acknowledged that Mabie’s conduct was prejudi-
cial, but not unfairly prejudicial given that Mabie was capa-
ble of “behaving in a manner that respects the decorum of
the courtroom and the legal process” but he “chose not to
behave in such a manner in front of the jury.” (R2. 101 at 2.)
On June 9, 2016, Judge Mills sentenced Mabie to 72
months’ imprisonment. Like the sentence in the threat case,
this sentence exceeded the sentencing guidelines recom-
mendation. Moreover, the court ran the sentence consecu-
tively to Mabie’s sentences in both the threat case and the
Eastern District of Missouri case. The court explained that
this was necessary; “otherwise it would almost be like [Ma-
bie] isn’t even being punished for this offense. That would
be an egregious result given Mr. Mabie’s lack of remorse and
continued threats, including the threats to kill a Deputy U.S.
Marshal.” (R2. 130 at 38.)
* * *
Nos. 15-1899 & 16-2432 13
Mabie has appealed both his convictions and sentences.
II. ANALYSIS
Mabie raises several issues on appeal. He first argues
that, in the threat case, the district court improperly admit-
ted Rule 404(b) evidence. He next contends that, in the as-
sault case, the district court erred by denying his requests to
represent himself and by forcing him to attend his own trial.
Finally, he claims that his sentences in both cases were un-
reasonable. We address each issue in turn.
A. Admission of Rule 404(b) Evidence (15-1899)
In the threat case, the government charged Mabie under
18 U.S.C. § 876(c), which provides that whoever sends mail
to another person that threatens to injure that person shall be
guilty of a crime. On October 22, 2014, the government ob-
tained a superseding indictment, adding a specific-intent el-
ement to the original charges. In so doing, the government
conceded that § 876(c) is a specific-intent crime, requiring
proof that Mabie sent his letters “for the purpose of issuing a
threat, or with knowledge that the communication [would]
be viewed as a threat.” See Elonis v. United States, 135 S. Ct.
2001, 2012 (2015) (considering 18 U.S.C. § 875(c)); United
States v. Crawford, 665 F. App'x 539, 541 (7th Cir. 2016) (not-
ing that Elonis applies to § 876(c), too).
As noted earlier, to prove Mabie’s intent to issue threats,
the government sought to introduce under Rule 404(b) some
of the evidence offered in the earlier Eastern District of Mis-
souri trial to provide background and context for Mabie’s
14 Nos. 15-1899 & 16-2432
crimes. 3 Indeed, the government’s stated purpose for intro-
ducing this evidence was “to explain the nature of the dis-
pute between [Mabie] and Reisch and Deeba that has led to
the charges in” the indictment. (R1. 18 at 8–9.) On appeal,
Mabie contends that the district court improperly admitted
this evidence.
We have held that, depending on the case, background
and context evidence may be relevant to proving intent to
convey a threat. See United States v. Parr, 545 F.3d 491, 501
(7th Cir. 2008). That certainly is the case here. Consider Ma-
bie’s letter to Sheriff Brown, in which Mabie wrote,
220 hours? How about 5 minutes of legitimate in-
vestigation – of 07-078733 ALL I’VE EVER
ASKED.....NOPE. Because it would no doubt send
your boy + Reisch (UNDISPUTABLE BOGUS
REPORT) to prison – MUCH EASIER TO COME
AFTER ME, except………what happens when I’m
released – OH NO!! and seek justice – please,
please NOT THAT! I asked [United States Attorney
Richard] Callahan [of the Eastern District of Mis-
souri] if he would prosecute all you lying cock-
suckers, or if he preferred kick your teeth in – NO
RESPONSE Could be all you maggots should look
for a dentist – GROUP RATES[.]
3 Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). It does, however, allow this evidence “for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b)(2). This is not an exhaustive list. United States v. Taylor, 522
F.3d 731, 735 (7th Cir. 2008).
Nos. 15-1899 & 16-2432 15
(R1. 106-1 at 5.) Without context, this letter and the threat
imbedded in it make no sense. To what does 220 hours refer?
Why has Mabie allegedly been deprived of an investigation
of 07-078733? What does 07-078733 even mean? Who is
Reisch? Why is he Sheriff Brown’s boy? Why does Mabie
need to seek justice? And who are the “lying cocksuckers”
and “maggots” that Mabie speaks of? To make sense, we
need the evidence from the Eastern District of Missouri trial,
which provides answers to these questions.
Mabie admitted as much during pretrial, conceding that
“we do have to have some background in there or the jury
won’t even know. Basically the content is the context so
they’ll have to have something.” (R1. 221 at 53.) Thus, the
admitted evidence was necessary for the government’s case.
What remains is whether the district court admitted this
evidence through the proper procedure. Our opinion in
United States v. Gomez establishes that procedure. 763 F.3d
845 (7th Cir. 2014) (en banc). There, we held that, to over-
come an objection to Rule 404(b) other-act evidence, “the
proponent of the evidence must first establish that the other
act is relevant to a specific purpose other than the person’s
character or propensity to behave in a certain way.” Id. at
860. This does not mean, however, that evidence is excluded
whenever a propensity inference is possible. But in such a
case, the relevance of the evidence to a proper purpose
“must be established through a chain of reasoning that does
not rely on the forbidden inference that the person has a cer-
tain character and acted in accordance with that character on
the occasion charged in the case.” Id. Moreover, if and when
the proponent makes this showing, the district court must
then “assess whether the probative value of the other-act ev-
16 Nos. 15-1899 & 16-2432
idence is substantially outweighed by the risk of unfair prej-
udice and may exclude the evidence under Rule 403 if the
risk is too great.” Id.
There is no credible argument that the government failed
to comply with Gomez’s requirements. As the proponent of
Rule 404(b) evidence, the government began by filing two
notices identifying the evidence it sought to admit.
The government then filed a detailed, 32-page memoran-
dum explaining that the purpose of the evidence was to pro-
vide background and context and to prove knowledge and
motive. Regarding background and context, the government
asserted that the evidence was necessary to explain why
Mabie’s letters to Sheriff Brown and Deborah Deeba consti-
tuted true threats: as shown above, without this evidence—
which showed Mabie’s frustration over the failed burglary
investigation and his animosity toward Deeba and many
others—the letters for which the government charged Mabie
would lack meaning. Regarding knowledge, the evidence
showed that Deeba knew Reisch, which was necessary for
Mabie to draw the conclusion that Deeba and other police
officers were incentivized not to investigate the burglary.
And regarding motive, the evidence revealed that Mabie
sent letters as an attempt to get his tools back.
The government’s memorandum also rejected the notion
that the evidence was offered for propensity purposes—
essentially, that Mabie has a knack for threatening people.
But insofar as one could draw that propensity inference, the
government argued that, under Rule 403, the resulting prej-
udice did not substantially outweigh the evidence’s proba-
tive value—which, as noted above, was extremely high.
Nos. 15-1899 & 16-2432 17
The government contends that its memorandum linked
all of the evidence to a proper, nonpropensity purpose,
which complies with Gomez’s “chain of reasoning” language.
We agree and hold that the government met its burden un-
der Gomez.
For its part, the court too complied with Gomez. During a
pretrial conference, the court instructed Mabie to read
Gomez, which had issued the week before. The court then
called for a hearing on the admissibility of the evidence in
light of Gomez. At that hearing, the court indicated that, irre-
spective of the government’s detailed memorandum on ad-
missibility, Gomez still required the court to conduct a Rule
403 balancing test, weighing probative value and resulting
prejudice against each other.
The court then invited Mabie to respond. Mabie objected
to the evidence on relevancy grounds. He also claimed that
“the sheer volume” of the evidence would confuse the jury.
(R1. 219 at 7–8.) But at no point did he argue that harm of
admitting the evidence would substantially outweigh its
probative value.
The court decided to admit the Rule 404(b) evidence. In
so doing, the court acknowledged that it looks upon Rule
404(b) evidence “with a jaundiced eye,” but sometimes, such
evidence is appropriate. (Id. at 8.) Even so, the court held
that Mabie was free to make specific objections at trial. And
in accordance with Gomez, the court agreed to apply an ap-
propriate limiting instruction.
At trial, the court imposed a limiting instruction applica-
ble to each witness offering Rule 404(b) testimony. Specifi-
cally, the court instructed the jury that it could not infer from
18 Nos. 15-1899 & 16-2432
the government’s evidence that Mabie is a bad person or has
the propensity to commit crimes; instead, to the extent that
the jury was to consider this evidence, it could do so only for
a proper purpose, like background, context, knowledge, and
motive.
Finally, at the end of the government’s case, the court
gave the jury an evidence-rules “tutorial.” Regarding Rule
403, the court explained that, “even though some evidence
can be relevant, I can still exclude it if the probative value is
substantially outweighed by the prejudicial effect. In other
words, even though it might be relevant, it is just too preju-
dicial and you might not be able to get past it.” (R1. 214 at
141.)
What’s missing from the record, as Mabie points out, are
specific findings from the court that the evidence fulfilled a
nonpropensity purpose and that the prejudicial effect of the
evidence did not substantially outweigh its probative value.
Even so, it’s clear from the record that the court conduct-
ed the proper analysis. From the get-go, the court had Gomez
on its mind: the court instructed Mabie to read Gomez; the
court held a Gomez hearing; and the court agreed to give a
limiting instruction at trial in light of Gomez. Moreover, the
court had read the government’s 32-page memorandum,
which established a chain of reasoning linking the evidence
to a nonpropensity purpose. The court invited Mabie to re-
spond to this filing, yet Mabie made no objection on preju-
dice grounds. Still, the court explained numerous times that
the government’s other-act evidence must have a nonpro-
pensity hook. The court further acknowledged that, before it
could admit the evidence, it had to weigh the probative val-
ue against the resulting prejudice. Finally, the court noted
Nos. 15-1899 & 16-2432 19
that it is skeptical of Rule 404(b) evidence in general, view-
ing it “with a jaundiced eye.” (R1. 219 at 8.) After all of this,
the court decided to admit the evidence.
Would it have been clearer if the court had said, “I find
that the evidence is admitted for a nonpropensity purpose,”
or “I find that any harm in admitting this evidence does not
substantially outweigh its probative value”? Perhaps. But
given the court’s actions and statements combined with the
limiting instruction and evidence tutorial given at trial, the
court committed no error in admitting the evidence.
B. Denial of Request to Proceed Pro Se (16-2432)
In the assault case, as indicated, Mabie proceeded pro se
for most of pretrial. But eventually, he asked the court to ap-
point counsel because he needed help reviewing discovery.
The court agreed, appointing John Stobbs as counsel.
The case proceeded to trial. Things went smoothly
through jury selection and opening statements, but went
downhill from there. In the courtroom, before Judge Mills
and the jury entered, Mabie got into a fight with Stobbs,
causing the deputy marshals to intervene. When the judge
entered, Stobbs explained that Mabie wanted to review some
documents, but Stobbs told him that there wasn’t enough
time to do so; consequently, Mabie got into a fighting stance,
and the marshals had to remove him from the courtroom.
Stobbs concluded by condemning Mabie’s behavior, explain-
ing that everyone in the case had worked hard and that he
didn’t think it was right “for someone to misbehave in Court
to get a mistrial because things aren’t going the way they
think they should.” (R2. 100 at 21.)
20 Nos. 15-1899 & 16-2432
Although not in the courtroom during the foregoing,
Mabie heard all of this discussion by way of a speaker
transmitting courtroom sound into his holding cell. When he
returned to the courtroom, he demanded to proceed pro se.
The court denied this request. When Mabie insisted, the
court said,
[Y]ou had too many opportunities and we tried to
bend over backwards to accommodate you and all
we do is get difficulty. Any time that things aren’t
going exactly as you want, you throw a tantrum
and you fire your counsel and all of this kind of
business. No, we have to go. We have to go. No
way.
(Id. at 36.) Mabie claims that the court erred in rejecting his
request to represent himself.
A criminal defendant’s right to self-representation, alt-
hough well-settled, depends on the time that the defendant
asserts it. United States v. Kosmel, 272 F.3d 501, 505 (7th Cir.
2001). “For example, if a defendant asks to proceed pro se
before trial commences, then that request is absolute and
must be granted.” Id. at 505–06. But once trial begins, “the
district court retains discretion to balance the interests of the
defendant against the potential disruption of the proceed-
ings already in progress.” Id. at 506.
Here, the court did not abuse its discretion in denying
Mabie’s request to proceed pro se. The court clearly ex-
plained its reasoning: Mabie was being disruptive, and the
court wanted order in the courtroom. Mabie’s disruptive be-
havior showing his inability to conduct himself in a respect-
able manner cost him the right to represent himself. Thus,
the court committed no error here.
Nos. 15-1899 & 16-2432 21
C. Denial of Mabie’s Request to Absent Himself From Trial
(16-2432)
In the assault case, even at the start of trial, Mabie was
frustrated with the way things were going: he got into a
fight with his attorney; the deputy marshals had to remove
him from the courtroom; and he heard his attorney speak
badly about him. Mabie thus wanted to leave the courtroom
and return to his cell. The court denied his request, requiring
Mabie to attend trial.
But Mabie was not present at trial for long: as the gov-
ernment’s first witness began testifying, Mabie yelled,
“You’re a piece of shit. Fuck him. Smart mouth maggot
mother fucker. Keep that prick away from me.” (R2. 100 at
41.) Once again, the deputy marshals had to remove Mabie.
But this time, the jury saw everything.
Mabie claims that the court erred in denying his request
to leave the courtroom. Mabie further asserts that this error
resulted in prejudice: but for the court’s error, the jury
wouldn’t have witnessed Mabie’s tirade.
Put aside the fact that any prejudice Mabie suffered was
his own doing. Mabie’s argument is more deeply flawed
than that: his claim of error depends on the assumption that
the law requires the court to allow a criminal defendant to
leave his own trial, which it does not do.
To be sure, the Constitution guarantees a criminal de-
fendant the right to attend his trial. United States v. Smith, 230
F.3d 300, 309 (7th Cir. 2000). And this right has been codified
in the Federal Rules of Criminal Procedure. See Fed. R. Crim.
P. 43(a). But that does not mean that the reverse is true. In-
deed, Mabie has cited no authority suggesting that a defend-
22 Nos. 15-1899 & 16-2432
ant has a right not to attend his trial. Nor could we find any.
In fact, the few cases that have directly addressed this issue
have actually suggested that no such right exists. See, e.g.,
Copeland v. Walker, 258 F. Supp. 2d 105, 139 (E.D.N.Y. 2003)
(noting that the Supreme Court has never recognized a right
of absence); Sims v. Pfeiffer, No. LA CV 15-9454 JCG, 2016
WL 6902096, at *3 (C.D. Cal. Nov. 23, 2016) (same). We see
no good reason to recognize such a right.
Of course, Mabie is free to try to waive his right to attend
trial—as he did. And if the presiding judge so desires, he can
excuse Mabie from the courtroom and conduct the trial in
Mabie’s absence. That said, a criminal defendant has no con-
stitutional right of absence from his own trial. Accordingly,
Mabie’s claim of error fails.
D. Sentences Imposed (15-1899 & 16-2432)
Finally, we address sentencing. Undeniably, Mabie’s sen-
tences are lengthy: Judge Reagan in the threat case and
Judge Mills in the assault case imposed prison terms of 180
months and 72 months, respectively; and they ran those sen-
tences consecutively to the 88-month Eastern District of Mis-
souri sentence for a total of 340 months’ imprisonment.
Moreover, both sentences were above the guidelines rec-
ommendation, and the one in the threat case was the statuto-
ry maximum. Mabie contends that these sentences were sub-
stantively unreasonable. We review the reasonableness of a
criminal sentence for abuse of discretion. United States v.
Lewis, 842 F.3d 467, 477 (7th Cir. 2016).
Mabie’s primary argument is that both of the sentencing
judges considered the assault on Deputy Marshal Berry
when imposing sentences on Mabie. Mabie acknowledges
Nos. 15-1899 & 16-2432 23
that this does not implicate the Double Jeopardy Clause. See
United States v. Faulkner, 793 F.3d 752, 756 (7th Cir. 2015).
Even so, Mabie claims that it is substantively unreasonable
for him to receive two sentences for one act, and moreover,
for those sentences to run consecutively to each other. That
aside, Mabie also believes that the lengthy prison terms im-
posed were unwarranted given his crimes. For instance, in
the threat case, Mabie notes that there was no evidence that
he intended to act on his threats. And in the assault case,
Mabie contends that spitting on a law-enforcement officer is
the least serious version of an assault.
We disagree. In the threat case, although the assault fac-
tored into the sentencing equation, so did many other things.
Specifically, the court considered Mabie’s “lengthy history of
threatening anyone with whom he disagrees,” and conclud-
ed that “there is clearly no limit to what [Mabie] will say or
who he will say it to.” (R1. 238 at 15–16.)
The court noted that Mabie wrote numerous letters to
Deborah Deeba, whom Mabie had never met, in an effort to
harm her husband. Those letters—which include letters ac-
tually sent and letters that were addressed but seized before
Mabie could send them—are laced with demeaning sexual
innuendos and contain recommendations that Deborah and
her 11-year-old daughter participate in body-cavity searches.
Mabie also wrote several letters to Judge E. Richard
Webber, who presided over Mabie’s trial in the Eastern Dis-
trict of Missouri. Throughout those letters, Mabie referred to
Judge Webber as “Lefty” because the judge has a prosthetic
hand. Mabie also discussed plans to dig up the judge’s de-
ceased wife’s body to search for evidence that Mabie claimed
the judge had hidden there.
24 Nos. 15-1899 & 16-2432
But that’s not all. While in prison, Mabie sent additional
harassing and threatening letters to federal judges, federal
prosecutors, FBI agents, postal inspectors, and others.
In one letter, Mabie told Special Agent Cronan, “I can’t
wait until you make it to St. Louis … so we can be together
again. I know your biological clock is ticking, I’m saying I
can have you knocked up within the first 25 or 30
boinkings.” (R1. 238 at 18.) He signed this letter “XOXO Wil-
liam Mabie.” (Id.)
In another letter, Mabie said that he would “force feed
[some document] down [AUSA] Clark’s actual throat-
LITERALLY NOT FIGURATIVELY.” (Id. at 5.)
And in a third letter, Mabie stated, “I am of course going
to retrieve [my] property, if it comes to a gunfight, fine … . I
know upon release the way to kill a snake is to cut off its
head – so … who is the head? AUSA Ware? Follmer? Klein?
Deeba? Reisch? Or Judge Webber/former Mrs. Webber?” (Id.
at 9–10.)
Mabie explained that he sends these letters to try to get
people to change their ways; maybe they will find religion,
or maybe they will meet Jesus—in person.
During the sentencing hearing, Judge Reagan confronted
Mabie with another letter that Mabie had written two weeks
earlier. In that letter, Mabie said, “All right, how does this
sound? I take [Deputy Marshal Berry] for a ride, meaning tie
his nigger ass to the bumper and see what a tough guy he
is.” (R1. 251 at 103.) Mabie considered this statement to be
“completely reasonable” under the circumstances, and re-
fused to disavow it when the court gave him an opportunity
Nos. 15-1899 & 16-2432 25
to do so, asserting that he “didn’t know [he] had to be politi-
cally correct.” (Id.)
The court considered much more. But this evidence alone
proves that the assault on Berry was but a small factor justi-
fying Mabie’s 180-month sentence. Moreover, this evidence
shows that the sentence imposed was substantively reasona-
ble.
And the same holds true for the sentence in the assault
case. There, Judge Mills imposed a 72-month sentence and
ran it consecutively to Mabie’s other sentences. The court
determined that a consecutive sentence was appropriate in
light of Mabie’s continued threats to kill a deputy United
States marshal. For example, at trial, Mabie claimed that,
when released, he would “hunt down” Berry, “handcuff
him,” “beat the shit out of him,” and perhaps “just kill the
bastard.” (R2. 102 at 99–100.) And at sentencing, Mabie
promised to “spend the rest of [his] life bringing that lowlife
fruit [Berry] to justice.” (R2. 130 at 25.) Upon seeing Berry in
the courtroom, presumably smiling, Mabie added, “Yeah, sit
there and smirk, fruit. When I see you on the street you’ll
never smirk again. Believe it.” (Id.)
The court also considered Mabie’s free use of racial epi-
thets and other offensive language during trial. For example,
during Mabie’s direct examination, Mabie admitted to mak-
ing several derogatory comments when assaulting Berry, in-
cluding calling Berry a “[t]ypical fucking nigger.” (R2. 102 at
68.) Mabie also admitted to calling Berry a “bitch.” (Id. at 88.)
At sentencing, Judge Mills commented that, “after 50
years on the bench, state and federal, I can’t say that I recall
anyone who was similarly situated to Mr. Mabie in my expe-
26 Nos. 15-1899 & 16-2432
rience. Nothing has deterred [Mabie] from continuing and
escalating this pattern of threats.” (R2. 130 at 36.) Thus, the
court imposed a lengthy sentence, expressing the need to
protect the public from Mabie.
The record supports Judge Reagan’s and Judge Mills’s
decisions. It appears that no degree of punishment is capable
of deterring Mabie’s reprehensible conduct. Given all that
Mabie has said and done over the past several years, we
conclude that Mabie’s sentences were substantively reason-
able—and deserved.
III. CONCLUSION
In the threat case, Judge Reagan committed no error in
admitting the Rule 404(b) evidence. In the assault case, Judge
Mills committed no error either in denying Mabie’s request
to proceed pro se or in denying Mabie’s request to absent
himself from trial. And in both cases, Judge Reagan and
Judge Mills imposed reasonable sentences. Accordingly, we
AFFIRM.