No. 99-4245

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,
Appellee

v.

MICHAEL BRAD MAGLEBY,
Defendant-Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
Honorable Dee Benson

BRIEF FOR THE UNITED STATES AS APPELLEE
The United States does not believe that oral argument is necessary. But if the Court grants oral argument, the United States requests the same amount of time Magleby receives.

JESSICA DUNSAY SILVER
LOUIS E. PERAERTZ
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 616-2013

TABLE OF CONTENTS

PAGE

STATEMENT OF SUBJECT MATTER AND APPELLATE

JURISDICTION 1

STATEMENT OF THE ISSUES 2

STATEMENT OF THE CASE 2

STATEMENT OF THE FACTS 3

A. Evidence Of Magleby's Cross-

Burning 3

B. Magleby's Motion For Judgment

Of Acquittal 7

SUMMARY OF ARGUMENT 8

ARGUMENT 10

I. THERE WAS SUFFICIENT EVIDENCE TO SHOW THAT
MAGLEBY BURNED A CROSS AT THE HENRYS'
PROPERTY BECAUSE OF RON HENRY'S RACE AND
BECAUSE THE HENRYS OCCUPIED A DWELLING 10

II. JURY INSTRUCTION 30, WHICH INFORMED THE JURY
IT MUST FIND MAGELY BURNED THE CROSS BECAUSE
THE VICTIMS OCCUPIED A DWELLING, WAS NOT
PLAINLY ERRONEOUS 15

III. INSTRUCTION 22, WHICH INFORMED THE JURY THAT
IT COULD CONSIDER THE REACTIONS OF THE
VICTIMS, WAS NOT PLAINLY ERRONEOUS 18

IV. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION BY ADMITTING CERTAIN EVIDENCE 20

CONCLUSION 28

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

-i-

TABLE OF AUTHORITIES

CASES:

United States v. Davis, 40 F.3d 1069 (10th Cir.

1994), cert. denied, 514 U.S. 1088 (1995) 25

United States v. Denny, 939 F.2d 1449

(10th Cir. 1991) 15, 18

United States v. Dysart, 705 F.2d 1247 (10th Cir.),

cert. denied, 464 U.S. 934 (1983) 18

United States v. Fabiano, 169 F.3d 1299 (10th Cir.),

cert. denied, 120 S. Ct. 131 (1999) 15-16

United States v. Johnson, 971 F.2d 562

(10th Cir. 1992) 18

United States v. Lazcano-Villalobos, 175 F.3d 838

(10th Cir. 1999) 11

United States v. Mills, 194 F.3d 1108

(10th Cir. 1999) 21

United States v. Prows, 118 F.3d 686

(10th Cir. 1997) 18

United States v. Springfield, 196 F.3d 1180

(10th Cir. 1999), cert. denied, 120 S. Ct.

1444 (2000) 10

United States v. Viefhaus, 168 F.3d 392 (10th Cir.),

cert. denied, 119 S. Ct. 2402 (1999) 19

United States v. Wood, 207 F.3d 1222

(10th Cir. 2000) 11

STATUTES:

18 U.S.C. 2 2

18 U.S.C. 241 2, 11-12

18 U.S.C. 844(h)(1) 2

18 U.S.C. 1512(b)(3) 2-3

18 U.S.C. 3231 1

-ii-

STATUTES (continued): PAGE

28 U.S.C. 1291 1

42 U.S.C. 3631(a) passim

RULES:

Fed. R. Crim. P. 52(b) 15

Fed. R. Evid.:

103(a)(1) 21

103 (d) 21

STATEMENT OF RELATED OR PRIOR APPEALS

There are no prior appeals related to the instant case.

-iii-

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 99-4245

UNITED STATES OF AMERICA,
Appellee

v.

MICHAEL BRAD MAGLEBY,
Defendant-Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

BRIEF FOR THE UNITED STATES AS APPELLEE

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

This action was initiated by the filing of an indictment in the United States District Court for the District of Utah charging appellant Michael Brad Magleby with violating a number of federal criminal statutes (R. 1).(1) The district court had jurisdiction over this criminal case pursuant to 18 U.S.C. 3231.

The district court announced its sentence on December 10, 1999 (R.A. 41; R. 152), and entered its judgment on December 21, 1999 (R.A. 11; R. 155). Magleby filed his notice of appeal on December 10, 1999 (R.A. 41; R. 153). This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291.

STATEMENT OF THE ISSUES

1. Whether the evidence is sufficient to prove that Magleby burned a cross because of race and because the victims were occupying a dwelling.

2. Whether the district court committed plain error when it instructed the jury on the elements required to find a violation of 42 U.S.C. 3631(a).

3. Whether the district court committed plain error when it instructed the jury that it could infer Magleby's intent from circumstantial evidence including the victims' reactions.

4. Whether the district court abused its discretion by admitting certain evidence.

STATEMENT OF THE CASE

On November 18, 1998, the United States filed a five-count indictment against Michael Brad Magleby (R. 1). The indictment alleged that Magleby violated: (1) 18 U.S.C. 241, by conspiring with another person to burn a cross in order to deprive citizens of their right to enjoy their homes free from violence and other interference; (2) 42 U.S.C. 3631(a) and 18 U.S.C. 2, by using force and the threat of force to willfully intimidate and interfere with citizens because of their color and because they occupied a dwelling; (3) 18 U.S.C. 844(h)(1), by using fire during the commission of a felony; (4) 42 U.S.C. 3631(a) and 18 U.S.C. 2, by using fire in order to deprive citizens of their right to occupy a dwelling; and (5) 18 U.S.C. 1512(b)(3), by intimidating or corruptly persuading persons to hinder or delay the communication of information about the above-mentioned federal offenses (R.A. 6; R. 1). Magleby pled not guilty and his trial began on August 24, 1999 (R. 116). On August 31, 1999, the jury returned a guilty verdict against Magleby on all five counts (R. 120). On October 19, 1999, the district court granted the United States' motion to dismiss count 4 (R. 124).

The district court held Magleby's sentencing hearing on December 10, 1999 (R. 152). The court sentenced Magleby to 144 months of imprisonment and three years of supervised release, and ordered him to pay $1,000 in restitution (R.A. 12-14; R. 155).

STATEMENT OF FACTS

A. Evidence Of Magleby's Cross-Burning

1. At Michael Brad Magleby's trial, it was uncontested that, in the early morning hours of September 7, 1998, Magleby left a party at his apartment and, together with then 15-year-old L.M., built a five-foot wooden cross, doused the cross with gasoline, drove to the home of Ron Henry, who is African-American, and his wife Robyn, who is Caucasian, and their then 11-year-old son, and burned the cross on their property (Tr. 793-798, 802-804, 911-912). Magleby admitted, during direct and cross-examination, that he had constructed the cross and burned the cross at the property (Tr. 794, 802, 911). Magleby did not contest that the Henrys were intimidated by the cross-burning and contemplated leaving their home because the burning cross was a sign that they should leave or be killed (Tr. 652, 680). Nor did he contest that, after the attack, the Henrys were so afraid for the safety of their son that they had him carry a baseball bat around the neighborhood and had him sleep with it under his bed for protection (Tr. 662-663).

A number of Magleby's friends and acquaintances, who had attended a party at Magleby's house from the evening of September 6, 1998, to the early morning of September 7, 1998, corroborated Magleby's admissions (Tr. 331-338, 414-417). For instance, Justin Merriam, Andrew Whitlock and Liz Cannon testified that they saw Magleby and L.M. as they constructed the cross and heard Magleby admit that he had burned the cross (Tr. 332-337; 415-418; 471-475). Magleby's co-conspirator, L.M., also testified and admitted that he and Magleby built a cross and burned it on "a black family's lawn" (Tr. 499).

2. In his defense, Magleby claimed that he was not a racist (Tr. 727, 738, 813) and that he did not know he was burning the cross at a property occupied by black people (Tr. 801, 903). The government presented evidence to refute these assertions. Merriam, Whitlock, and Cannon testified that Magleby had racial animus toward African-Americans.

Merriam testified that Magleby often discussed white supremacy with him and other friends such as L.M. (Tr. 315, 322) and that Magleby said whites were superior to blacks (Tr. 322). He also testified that he watched the movie "Mississippi Burning" with Magleby and that the movie had scenes with cross-burnings against blacks (Tr. 323-325). Merriam further testified that Magleby used racist langugage and often listened to racist compact disc recordings (CDs) in his home and while riding in his Jeep (Tr. 317-318). The night of Magleby's cross-burning, Merriam testified that Magleby was listening to racist CDs (Tr. 337). Cannon testified that Magleby knew the lyrics very well -- "[h]e could sing them word-for-word" (Tr. 469).

Whitlock similarly testified that he heard racist music (Tr. 402) and saw racist literature at Magleby's house (Tr. 404-406); heard Magleby use racial slurs against African-Americans (Tr. 408); and heard Magleby talk about burning a cross a week or two before the incident (Tr. 410). Even Magleby admitted that he had talked to Steve, L.M.'s brother, about cross-burnings months prior to the attack on September 7, 1998 (Tr. 920).

Magleby further claimed that, although he burned the cross at the Henrys' home, he did not intend to intimidate them to leave their home (Tr. 940). Merriam testified, however, that on the night of the cross-burning, Magleby listened to racist lyrics on CDs by the group Screwdriver, which included language such as "nigger get on your boat, nigger go" (Tr. 331) and "blacks moved into my neighborhood and my property values went down" (Tr. 332).

Magleby admitted that he burned the cross because he wanted to "rile people up" (Tr. 939); but he claimed that he did not think about whether the Henrys would be intimidated (Tr. 940). Magleby later admitted, during cross-examination however, that he understood the "racial hatred nature" of burning a cross when the Klan did it (Tr. 980). He also admitted that, like the swastika, the burning of a cross is a universal symbol of hatred (Tr. 983).

Also, during direct examination, Magleby testified that his original plan was to burn the cross where Tongans lived, as an act of retaliation, because "[o]ne of them had hit [him] one time" (Tr. 793). Magleby described the "racial makeup" of Tongans as Polynesian (Tr. 793). On cross-examination, Magleby admitted that he had intended to burn the cross at property occupied by members of a Tongan gang because "[he] didn't like them in the area" (Tr. 930). Magleby testified that he decided against burning the cross at the Tongans' property because they were outside when he passed by (Tr. 931). He then asked L.M. if he knew of another place where they could burn the cross (Tr. 933). Magleby claimed that L.M. told him only that he knew where a "crackhead" lived; he denied that L.M. told him Ron Henry was black before he burned the cross at his home (Tr. 932-933).

The government presented the testimony of Special Agent Robert Gallacher of the Federal Bureau of Investigation (FBI), who interviewed co-conspirator L.M. after the cross-burning. Agent Gallacher testified about a sworn statement that L.M. gave the FBI on December 11, 1998 (Tr. 527). The statement describes the discussion between L.M. and Magleby after they decided to attack a home other than that occupied by Tongans. Magleby asked: "Where else can we burn the cross?" L.M. responded: "If you really want to do it I know where a crack head lives. I also indicated that he was black." Magleby then stated: "Okay. Let's go do it." (Tr. 529). Gallacher also testified that he attended a subsequent interview with L.M. on July 23, 1999. During this interview, L.M. said that when he told Magleby that the "crackhead" was black, "Magleby got very excited about it" (Tr. 532-533). Liz Cannon also testified that, when L.M. and Magleby returned from the cross-burning, they indicated that they burned the cross at a black family's property (Tr. 475).

The government also presented evidence that Magleby attempted to cover-up his conduct. Whitlock testified that, during the weekend following the cross-burning, Magleby told him that he had given Whitlock's name to the police as an alibi (Tr. 420). Magleby told Whitlock to say that he didn't know anything about the cross-burning (Tr. 420). On direct examination, Magleby admitted he had initially lied to the police when he said that he had not been involved with the cross-burning (Tr. 807).

B. Magleby's Motion For Judgment Of Acquittal

At the end of the government's case, Magleby made a motion for a judgment of acquittal (Tr. 721-722). The district court deferred ruling on the motion until the end of the presentation of all the evidence, at which time, the court denied the motion (Tr. 722, 1058-1059).

The court found there was "enough evidence from which a reasonable jury could conclude that Mr. Magleby was involved in racist kinds of activities, listening to racist music, telling racist jokes, discussing racist activities and events with his friends including the idea of burning a cross" (Tr. 1059-1060). The district court therefore reasoned there was "evidence from which a jury could conclude that Mr. Magleby looked at racist information on a web site * * * that he well understood the meaning of the burning cross and what it would mean if he performed such an activity out in public. I think there is sufficient information based on that evidence from which a jury could believe that Mr. Magleby, who has admitted to making the cross and then taking it out and setting it afire on somebody's home, could believe that he intended to do it on the home of an ethnic minority, in this case an African-American" (Tr. 1060). Thus, the court concluded that it "is beyond reason to believe that from those facts a reasonable jury could not conclude that his acts were as charged, motivated by the race of the victim and that he intended to interfere with the victim's housing rights." (Tr. 1060).

SUMMARY OF ARGUMENT

At trial, Magleby admitted that he, and a 15-year-old, constructed and burned a cross at a person's home. He challenges his conviction for violating 42 U.S.C. 3631(a) on the ground that there was insufficient evidence to show he burned the cross because of race (Br. 18-22) and because the victims were occupying a dwelling (Br. 12-18). There is no merit to this claim. On the contrary, there is direct evidence of his intent at the time the cross was burned, as well as evidence from which the jury could infer that his intent was to intimidate the victims because of their race and their occupancy of the house. Magleby's friends testified that he advocated white supremacy. For instance, Justin Merriam, a friend of Magleby, testified that, during the night that he built and then burned the cross, Magleby had been listening to a racist CD by the group Screwdriver and that the lyrics included language such as "nigger get on your boat, nigger go," (Tr. 331) and "blacks moved into my neighborhood and my property values went down" (Tr. 332).

Equally meritless is Magleby's contention that the district court's instructions erroneously suggested to the jury that, to find that Magleby violated 42 U.S.C. 3631(a) it did not have to find he intended to intimidate the victims in part because they were occupying a dwelling. It is clear that jury instructions 27 and 30 properly informed the jury that, to find a violation of 42 U.S.C. 3631(a) it had to find that Magleby interfered with the victims because they were occupying a dwelling as well as because of the victim's race. In any event, Magleby failed to object to these instructions, and thus, they are reviewed for plain error. Magleby failed to meet that standard.

Nor is there any merit to Magleby's claims that the victims' reactions are insufficient to convict him for his crimes (Br. 29-33) and that the district court's instructions improperly allowed the jury to infer Magleby's criminal intent from the reactions of the victims (Br. 33-39). The victims' testimony was not the only evidence of Magleby's intent. Magleby's friends and co-conspirator provided substantial evidence that he burned the cross to intimidate the victims because of race and because they were occupying a home. Magleby failed to object to the jury instructions. Thus, these claims are also reviewed for plain error. In any event, there is no legal merit to his claims. It is well-established that it is proper for a jury to consider circumstantial evidence such as a victim's reaction and to infer the defendant's intent. It is particularly appropriate to consider the victims' reactions when, as in this case, the criminal conduct involved intimidation by threat of force.

Finally, the district court did not abuse its discretion in admitting the evidence Magleby challenges on appeal. Magleby challenges testimony: describing his interactions with alleged racist Mr. James McBride; showing that the Henry's 11-year-old son carried a baseball bat for protection; describing the lyrics of the racist CDs to which he listened; and describing the pornography and drinking that occurred at Magleby's party the night of the cross-burning. Many of the specific objections Magleby is now making on appeal were not made at trial. In any event, the objections lack merit. The admitted evidence was harmless; there was overwhelming evidence of Magleby's guilt.

ARGUMENT

I

THERE WAS SUFFICIENT EVIDENCE TO SHOW THAT MAGLEBY
BURNED A CROSS AT THE HENRYS' PROPERTY BECAUSE OF
RON HENRY'S RACE AND BECAUSE THE HENRYS OCCUPIED A DWELLING

When reviewing a claim of legal insufficiency, the court of appeals is required to determine whether there was sufficient evidence for a rational fact finder to discover the essential elements of the relevant offense. United States v. Wood, 207 F.3d 1222, 1227-1228 (10th Cir. 2000). The reviewing court must view the evidence in the light most favorable to the government. Ibid. That means the court does not "question the jury's credibility determinations or its conclusions about the weight of the evidence." United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999), cert. denied, 120 S. Ct. 1444 (2000) (quoting United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999)).

Section 3631(a) of Title 42, United States Code, provides that "[w]hoever, * * *, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with any person because of his race, color, religion, sex, handicap, familial status, or national origin and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling" shall be guilty of a crime.

Magleby claims (Br. 12) the government's evidence is legally insufficient to sustain his conviction, under Count II, for violating 42 U.S.C. 3631(a). He argues that the evidence failed to show that he acted because Ron Henry was black and because Henry and his family were occupying a dwelling. The government presented substantial evidence to establish both of those elements.(2)

L.M., Magleby's co-conspirator, provided a sworn written statement, dated December 11, 1998, in which he said that he told Magleby, prior to their burning a cross at the property occupied by Ron Henry and his family, that Henry was a "crackhead" and that he was black (Tr. 529). In a subsequent interview with government authorities, on July 23, 1999, L.M. said that when he told Magleby that the "crackhead" was black, "Magleby got very excited about it" (Tr. 533). These statements by L.M., which the jury apparently credited, established that Magleby burned the cross at the Henry home because of Ron Henry's race.

The government presented additional evidence that racial animus motivated Magleby's cross-burning. Magleby's friends and acquaintances testified that, prior to the cross-burning, he harbored racial prejudice against African-Americans. For instance, Justin Merriam testified that Magleby often advocated white supremacy in discussions with him and other friends such as L.M. (Tr. 314-315, 322) and that Magleby said he felt whites were superior to blacks (Tr. 322). Merriam further testified that Magleby used racist langugage and often listened to racist songs on compact disc recordings (CDs) in his home and while riding in his Jeep (Tr. 317-318). Indeed, the night of Magleby's cross-burning, Merriam and others attended a party at Magleby's home. Merriam testified that, during this party, Magleby was listening to racist CDs (Tr. 331). Liz Cannon, who also attended the party testified that Magleby knew the lyrics to the racist songs very well -- "[h]e could sing them word-for-word" (Tr. 469).

There was also substantial evidence to establish that Magleby burned the cross at the Henry home because he wanted to intimidate them so that they would vacate the property. Merriam testified that, on the night of the cross-burning, Magleby listened to a racist CD by the group Screwdriver and the lyrics included language such as "nigger get on your boat, nigger go," (Tr. 331) and "blacks moved into my neighborhood and my property values went down" (Tr. 332). From this evidence and the fact that Magleby constructed and burned a cross soon after listening to the lyrics, a jury could reasonably infer that Magleby burned the cross both because of racial animus against blacks and because he wanted them to leave the property that they occupied.

Also, during direct examination, Magleby testified that his original plan was to burn the cross occupied by members of a Tongan gang, as an act of retaliation, because "[o]ne of them had hit [him] one time" (Tr. 793).(3) On cross-examination, Magleby admitted that he had intended to burn the cross at property occupied by members of a Tongan gang, because "[he] didn't like them in the area" (Tr. 930). Although Magleby opted not to burn a cross at the home of the Tongans and burned it instead at the Henrys' home, this evidence further demonstrates that Magleby understood that burning a cross could intimidate those to whom it was directed and also sent the message that their occupation of a dwelling was not welcome. Liz Cannon also testified that, when L.M. and Magleby returned from the cross-burning, they indicated that they burned the cross at a black family's property (Tr. 475).

There was additional evidence establishing that Magleby knew that cross-burnings were symbols of hatred and that they could intimidate those at whom they were directed. Magleby admitted, during cross-examination, that he understood the "racial hatred nature" of burning a cross when the Ku Klux Klan did it (Tr. 980), and, like the swastika, the burning of a cross is a universal symbol of hatred (Tr. 983). Magleby also admitted during cross-examination that he had been discussing cross-burnings with Steve, L.M.'s older brother, months before the cross-burning at the Henry's home (Tr. 920). Andy Whitlock testified that he heard Magleby and L.M. talk about burning a cross a week or two before the incident at issue in this case (Tr. 410). Merriam testified that, prior to the cross-burning, he watched the movie "Mississippi Burning" with Magleby and that the movie included scenes with cross-burnings against blacks (Tr. 324- 325).

As the district court explained, in denying Magleby's motion for a judgment of acquittal, it "is beyond reason to believe that from those facts a reasonable jury could not conclude that his acts were as charged, motivated by the race of the victim and that he intended to interfere with the victim's housing rights" (Tr. 1060). The jury simply did not believe Magleby. Instead, it credited the government's evidence, which was sufficient to support a conviction under 42 U.S.C. 3631(a).

II

JURY INSTRUCTION 30, WHICH INFORMED THE JURY IT MUST
FIND MAGLEBY BURNED THE CROSS BECAUSE THE VICTIMS
OCCUPIED A DWELLING, WAS NOT PLAINLY ERRONEOUS

When an appellant contests a jury instruction, this Court reviews the instructions in their entirety and determines whether the instructions "in the light of the record as a whole, fairly, adequately, and correctly state the governing law and provide the jury with an ample understanding of the applicable principles of law and factual issues confronting them." United States v. Denny, 939 F.2d 1449, 1454 (10th Cir. 1991). This court "will reverse for an error in jury instructions only when such error is prejudicial in light of the entire record." Ibid. In this case, the prejudice must rise to the level of plain error because Magleby failed to object to the instructions at trial. See Fed. R. Crim. P. 52(b); United States v. Fabiano, 169 F.3d 1299, 1303 (10th Cir.), cert. denied, 120 S. Ct. 131 (1999).

Magleby contends that he properly preserved his challenge to jury instruction 30 because he proposed an alternative instruction which the district court rejected. This Court squarely rejected the same argument in Fabiano and held that it was not enough for the appellant to propose an instruction which is rejected by the court; the appellant was nonetheless required to object to the instructions the court ultimately gave the jury. Id. at 1303.

Magleby challenges the district court's jury instruction 30, because, according to Magleby (Br. 23-28), the instruction informs the jury that it can find that Magleby violated 42 U.S.C. 3631(a) without finding that Magleby acted because the victims occupied the dwelling. Contrary to Magleby's claim, instruction 30 was a proper statement of the necessary elements for a 42 U.S.C. 3631(a) violation and did not mislead the jury. As is clear from the first paragraph, instruction 30 informs the jury that it must find that Magleby used force both because of race and because the victims were occupying a dwelling: "Regarding the third element to be proved for the Section 3631 offense of Count II, if you find that an act by the defendant was for the purpose of intimidating or interfering with Robyn Henry because she was associating with an African-American or with Ron Henry because he is African-American and because either was occupying a dwelling, then this element of the offense would be proven" (R.A. 78 (emphasis added)).

The remainder of instruction 30 explains to the jury that it can find that Magleby acted because of race even if it finds that he had other motives for committing the criminal conduct. The district court apparently issued this instruction because Magleby argued that he burned the cross to "rile people up" (Tr. 939). The fact that the instruction gives guidance to the jury that it can find requisite criminal intent in a mixed motives case does not mean it misled the jury into concluding that it was not required to find that he burned the cross because the victims were occupying a dwelling.

Furthermore, the record of this case does not suggest that the jury was misled into thinking that it could find a violation of 42 U.S.C. 3631(a) without finding that Magleby acted because the victims were occupying a dwelling. As Magleby concedes (Br. 24), instruction 27 also informed the jury that it was required to find that Magleby acted both because of race and "because one or both Ron Henry and Robyn Henry were attempting to occupy their home free from racial discrimination" (see R.A. 75).

Since Magleby admitted his role in constructing and burning the cross, the contested portion of the case was about whether Magleby acted because of race and because he wanted to intimidate the victims because they were occupying the dwelling. The government made this clear in its opening and closing arguments. For instance, during her opening remarks, the prosecutor informed the jury that this was "not a who-done-it case" (Tr. 255): "we expect [Magleby] to tell you that he burned this cross on a dare, as a prank, without knowing that it was a black man's family whose yard he was placing it in * * * that he didn't mean to interfere with anybody's housing rights" (Tr. 256). The prosecutor also told the jury that she believed the evidence "will prove that Mr. Magleby built and burned this cross intentionally and knowing who his victim was and knowing that that person was African-American, and that this cross * * * [was] the warning sign to African-Americans to get out, to leave" (Tr. 256). During the government's closing, the United States Attorney for the District of Utah made clear to the jury that the government's burden included proving that Magleby had burned the cross because of race and because he wanted "to intimidate or interfere with the rights of Ron and Robyn Henry to occupy their dwelling" (Tr. 1184).

There is nothing in the record to support Magleby's contention on appeal that jury instruction 30 misled the jury.

III

INSTRUCTION 22, WHICH INFORMED THE JURY THAT IT COULD CONSIDER
THE REACTIONS OF THE VICTIMS, WAS NOT PLAINLY ERRONEOUS

As he concedes (Br. 33), Magleby failed to challenge jury instruction 22 at trial. Thus, this Court should review the instruction, "in light of the entire record," United States v. Denny, 939 F.2d 1449, 1454 (10th Cir. 1991), for plain error that affected Magleby's substantial rights.

Magleby cannot show that it was erroneous to inform the jury that it could consider evidence of the victims' reactions. It is well-established that a jury may infer a defendant's intent from circumstantial evidence. See United States v. Prows, 118 F.3d 686, 692 (10th Cir. 1997); United States v. Johnson, 971 F.2d 562, 566 (10th Cir. 1992); United States v. Dysart, 705 F.2d 1247, 1257 (10th Cir.) (approving instruction that is substantively equivalent to instruction used here), cert. denied, 464 U.S. 934 (1983).

As Magleby concedes (Br. 34-36), when, as in this case, a defendant is charged with using force or threat of force with the intent to intimidate (R.A. 8), a victim's reaction is relevant to show that the statement or act constituted a true threat of force. See United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir.), cert. denied, 119 S. Ct. 2402 (1999).

Contrary to Magleby's implied argument, the district court did not improperly suggest to the jury that it need not find that the defendant had the requisite intent to intimidate. The first paragraph of jury instruction 31 states that the "fourth element to be proved for the offense charged in Count II is that the defendant acted willfully. An act is done "willfully" if done voluntarily and purposefully and with the specific intent to do something the law forbids" (R.A. 79 (emphasis added)).

In any event, Magleby was not prejudiced by the instruction because there was overwhelming evidence from Magleby's friends and acquaintances and from Magleby himself to establish that he burned the cross because he wanted to intimidate the Henrys because of race and because they occupied a dwelling. As previously discussed, pp. 12-16, supra, Justin Merriam testified that Magleby often used racial slurs, spoke about whites being superior to blacks, and often listened to racist CDs (Tr. 314-331). Indeed, the night of the cross burning, Magleby was listening to racist music with lyrics such as "nigger get on your boat, nigger go," (Tr. 331) and "blacks moved into my neighborhood and my property values went down" (Tr. 332). Magleby's co-conspirator, L.M., stated during an interview with law enforcement authorities on July 23, 1999, that after deciding not to burn the cross at the home occupied by Tongans, Magleby asked L.M. if he knew of another place. When L.M. said that he could burn it at the home of a "crackhead" who was black, "Magleby got very excited about it" (Tr. 533). Magleby made a number of admissions relevant to his intent: he was aware that cross-burnings were symbols of hatred; he wanted to burn the cross at the Tongans' property because "he didn't like them in the area"; and he discussed cross-burnings with L.M.'s older brother months before the cross-burning (Tr. 920). Even without evidence of the victims' reactions, there was substantial evidence that Magleby had the requisite intent to violate 42 U.S.C. 3631(a).

IV

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
BY ADMITTING CERTAIN EVIDENCE

Magleby objects (Br. 40-51) to the district court's admission of six items of evidence: (1) testimony from Dr. Gerlach concerning the historical significance of cross-burnings; (2) testimony about James McBride, an alleged racist; (3) testimony from Ron Henry's 11-year-old son about his carrying a baseball bat, after the incident, for protection; (4) photos showing that the Henrys took steps to improve their home's security; (5) testimony about lyrics from racist songs to which Magleby listened; (6) testimony about co-conspirator L.M. looking at pornography websites and drinking alcohol at Magleby's home the night of the cross-burning.

This Court reviews the admission of evidence for abuse of discretion. United States v. Mills, 194 F.3d 1108, 1111 (10th Cir. 1999). Under Federal Rule of Evidence 103(a)(1), a district court abuses its discretion in the admission of evidence when the party opposing the evidence makes a timely objection and the evidence affects "a substantial right" of the opposing party. In the event that a party fails to make a timely objection, this Court should review the admission of that evidence for plain error. Fed. R. Evid. 103(d).

(1) Magleby did not make a timely objection to Dr. Gerlach's testimony about the Ku Klux Klan and the historical significance of cross-burnings.(4) The admission of Dr. Gerlach's testimony was not erroneous, let alone plainly erroneous. As the prosecution explained at trial (Tr. 646-647), it bears the burden of proving that Magleby burned the cross because of race and because of his intent to intimidate the Henrys from occupying their dwelling to establish a violation of 42 U.S.C. 3631(a). Dr. Gerlach's testimony that the Klan burned crosses to intimidate blacks and that "in [his] experience, [everyone] knows the meaning of a burning cross" (Tr. 646) is relevant to both of those elements. Although Magleby's defense counsel admitted that knew about the significance of cross-burnings (Tr. 647), Magleby did not stipulate to that fact. It was therefore proper for the district court to deny his request to strike the testimony (Tr. 647).

In any event, Dr. Gerlach's testimony did not affect Magleby's substantial rights because his friends and acquaintances had previously testified that Magleby knew of the meaning of cross-burnings. For instance, Andy Whitlock testified that he witnessed Magleby discuss cross-burnings weeks before the September 6, 1998, incident (Tr. 410). Justin Merriam testified that he watched the movie "Mississippi Burning" with Magleby, which depicted cross-burnings (Tr. 324-325). Magleby later admitted, during cross-examination, that he understood the "racial hatred nature" of burning a cross when the Klan did it (Tr. 980). He also admitted that, like the swastika, the burning of a cross is a universal symbol of hatred (Tr. 983).

(2) Magleby objects (Br. 43-46) to the testimony that the prosecution elicited from Justin Merriam and L.M. about James McBride, an alleged racist (Tr. 316-317, 495-497). Magleby objected to both on the grounds of prejudice. The district court did not abuse its discretion in admitting this evidence, nor did it affect Magleby's substantial rights.

Merriam testified that James McBride belonged to white supremacist groups (Tr. 315-316). Merriam's testimony about McBride's interactions with Magleby and the possibility that McBride gave racist literature to Magleby is relevant because the prosecution was required to prove that Magleby's actions were committed because of racial animus. Contrary to Magleby's contentions on appeal (Br. 44), there was sufficient foundation, to admit Merriam's testimony about McBride's interactions with Magleby, because Merriam witnessed those interactions (Tr. 316).

The government asked L.M. to describe conversations about McBride in which Magleby, Merriam, and L.M. were present (Tr. 495-497). The conversations are again relevant to prove Magleby's racial animus. There was sufficient foundation to admit evidence about those conversations. Merriam had already testified that he had seen Magleby and McBride together and that he may have seen McBride give racist literature to Magleby (Tr. 316). In this context, L.M.'s recount of Merriam's description to Magleby about McBride's racist views tends to show that Magleby knew McBride was a racist and his interactions further evince that Magleby may have shared those views. As the court reasoned, the defense counsel could certainly have presented evidence and argued that Magleby's presence while two persons were talking to another person about racism does not demonstrate that Magleby shared racist views; the weight of evidence does not prevent its admission (Tr. 498).(5)

In any event, L.M.'s testimony about McBride did not affect Magleby's substantial rights. As noted above (pp. 4-5, supra), several friends and acquaintances of Magleby testified, prior to L.M., and provided sufficient evidence to show Magleby's racist views.

(3) On appeal, Magleby challenges (Br. 46-47) the testimony that Ron Henry's 11-year-old son carried a baseball bat for protection after the cross-burning incident (Tr. 660). But, at trial, Magleby did not object to testimony that Henry's son used the bat; he objected only to the prosecution showing the bat to the jury (Tr. 660).

The district court did not abuse its discretion in admitting testimony about the bat or in allowing the bat to be shown. Testimony that the Henrys had their bi-racial son carry a baseball bat demonstrates that the cross-burning intimidated the Henrys and their son. That is relevant to show both that the cross-burning was a threat of force and that Magleby acted with the intent to intimidate the Henrys from occupying their dwelling.

(4) On appeal, Magleby objects to the use of any and all photographs (Br. 47-48). The record does not reflect, however, that Magleby's trial objection was that broad (Tr. 667-668). Rather, he objected only to the number of photographs that were being admitted: "He can certainly testify about them, but all these additional photos * * *" (Tr. 668).

The district court did not abuse its discretion in admitting the photographs. The photographs helped the jury to more clearly understand the additional security measures the Henrys took after the cross-burning. The photographs are relevant because they demonstrate that the cross-burning intimidated the Henrys. This evidence establishes that the cross-burning was a threat of force and that Magleby burned the cross to intimidate the victims.

Nor were the photographs cumulative. "Evidence is cumulative if repetitive, and if the small increment of probability it adds may not warrant the time spent in introducing it." United States v. Davis, 40 F.3d 1069, 1076 (10th Cir. 1994) (quotations and citations omitted), cert. denied, 514 U.S. 1088 (1995). The photographs at issue here -- Prosecution Exhibits 10 through 18 -- were not repetitive; each photograph shows a different security measure that the Henrys added to their home after the cross-burning.

(5) Magleby contests the admission of testimony about racist lyrics, because he denies listening to the music. This Court should review that specific challenge to the testimony about racist lyrics for plain error. At trial, Magleby did not object to any testimony from Andy Whitlock concerning lyrics to racist songs that said "[n]igger, nigger get on that boat" (Tr. 394, 401-403). He objected only to the form in which it was being presented. He did not want the prosecution to show Whitlock the lyrics; he wanted Whitlock to try to recount the lyrics he heard (Tr. 401-403).

The district court was correct to admit Whitlock's testimony. Magleby's listening to those lyrics is relevant because it shows he burned the cross with racial animus and because he wanted to intimidate the Henry family to leave their home. Contrary to Magleby's argument (Br. 48-49), there was sufficient foundation to admit Whitlock's testimony about the lyrics. Whitlock testified that he heard Magleby play racist music in his Jeep (Tr. 393) and that one song -- "When the Boat Comes In" -- was recorded by a group called Screwdriver (Tr. 399).

Nor was it an abuse of discretion for the district court to allow the prosecution to read a portion of the lyrics from the song when examining Magleby (Tr. 959). The prosecution read only enough of the lyrics to allow Magleby an opportunity to determine if he had heard them before. This also permitted the jury to see Magleby's reactions to the lyrics and to judge his credibility.

In any event, the reading of those lyrics did not prejudice any of Magleby's substantial rights. The jury had already heard testimony from Justin Merriam (who testified before Whitlock) that Magleby was present when he heard the same racist lyrics -- "nigger get on your boat, nigger go" -- being played at Magleby's home the night before the cross-burning (Tr. 331). At trial, Magleby did not object to Merriam's testimony about those lyrics. Given the testimony from both Whitlock and Merriam that Magleby listened to these lyrics, it is difficult to see how reading the lyrics could have prejudiced Magleby.

(6) As he concedes (Br. 49), Magleby did not object, at trial, to questions concerning L.M., a minor, "looking at porno" (Tr. 913) or drinking alcohol at Magleby's home (Tr. 913-915). Thus, this Court should review the challenge to that question for plain error. Magleby cannot show that the admission of the testimony was erroneous.

The government properly examined Magleby with regard to events that took place on the evening of the crimes to test Magleby's recollection of the events. This evidence allows the jury to assess Magleby's credibility. L.M. testified that, during the evening before the cross-burning, he watched pornography and drank alcohol (Tr. 491-492). Magleby's attempt to minimize his involvement with L.M.'s drinking and watching pornography demonstrated his lack of credibility (Tr. 913-915).

As the government explained at trial, the evidence is also relevant and admissible to explore the relationship between Magleby and his co-conspirator (Tr. 913). It shows that while Magleby may not have been able to entice adults, like Merriam, who attended his party (Tr. 335), he was able to entice a 15-year-old minor to commit a threat of force by allowing him to watch pornography and drink alcohol.

Furthermore, because L.M. testified that he did those acts prior to the conspiracy (Tr. 495-497), additional testimony about those acts did not have a prejudicial effect on Magleby. In any event, that evidence did not substantially affect the outcome of Magleby's trial. He admitted that he constructed and burned the cross. The government presented overwhelming evidence to show that he did so with the intent to intimidate the Henry family because of race and to interfere with their occupation of their home.

CONCLUSION

This Court should affirm Magleby's convictions and sentence.

Respectfully submitted,

JESSICA DUNSAY SILVER
LOUIS E. PERAERTZ
Attorneys
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-2173

CERTIFICATE OF COMPLIANCE

I hereby certify, pursuant to Tenth Circuit Rule 32 (a)(7)(C), that the foregoing brief complies with Federal Rule of Appellate Procedure 32(a)(7)(B). The brief contains 6,995 words.

LOUIS E. PERAERTZ
Attorney
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of August 2000, two copies of the Brief For The United States As Appellee were mailed first class, postage prepaid, to the following counsel of record:

Bel Ami de Montreux, Esq.
Montreux Freres, P.C.
180 South 300 West, Suite 290
Salt Lake City, Utah 84101

LOUIS E. PERAERTZ
Attorney
Department of Justice
P.O. Box 66078
Washington, D.C. 20035-6078

1. "R.A. " refers to Volume VII of the Record on Appeal; "R. " refers to the docket number for a document on the district court's docket sheet; "Tr. " refers to the transcript of the trial; "Br. " refers to Appellant's Opening Brief.

2. The United States' Argument I responds to Magleby's Arguments I and III. In Argument III, Magleby contends that he cannot be convicted, under Count I, 18 U.S.C. 241, for a conspiracy to violate 42 U.S.C. 3631(a). If the evidence does not show that he intended to interfere with his victim's housing rights he cannot be convicted of a conspiracy to violate that right (Br. 30). As we contend in our Argument I, the evidence was more than sufficient to find that Magleby intended to interfere with the Henry family's housing rights. Thus, Magleby's challenge to his conviction for violating 18 U.S.C. 241 is also meritless.

3. Magleby described the "racial makeup" of Tongans as Polynesian (Tr. 793).

4. Trial court asked whether Magleby had an objection to Gerlach's testimony, and his counsel responded that he did not (Tr. 615).

5. The transcript erroneously refers to McBride as McBeth. Compare Tr. 315-317 ("James McBeth") and 495-497 (James McBride).