241 F.3d 1306 (10th Cir. 2001), 99-4245, US v. Magleby

Docket Nº:99-4245
Citation:241 F.3d 1306
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL BRAD MAGLEBY, Defendant - Appellant.
Case Date:March 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1306

241 F.3d 1306 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MICHAEL BRAD MAGLEBY, Defendant - Appellant.

No. 99-4245

United States Court of Appeals, Tenth Circuit

March 7, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D. Ct. No. 98-CR-565)

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[Copyrighted Material Omitted]

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Bel-Ami J. de Montreux, Montreux Freres, P.C., Salt Lake City, Utah, appearing for Defendant-Appellant.

Lisa J. Stark, Attorney (Jessica Dunsay Silver and Louis E. Peraertz, Attorneys, on the brief), United States Department of Justice, Civil Rights Division, Washington, DC, appearing for Plaintiff-Appellee.

Before TACHA, Chief Judge, McKAY, and HENRY, Circuit Judges.

TACHA, Chief Judge.

Defendant Michael Brad Magleby was convicted of four counts of an indictment stemming from the burning of a cross on the property of an interracial family. On appeal, Mr. Magleby argues that the evidence of his guilt regarding three of these four counts was insufficient to support his conviction. He also argues that the district court submitted two erroneous instructions to the jury. Finally, he argues that the district court erred by admitting evidence which he argues was highly prejudicial and of little or no probative value. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Background

On the evening of September 6, 1996, the defendant, Michael Brad Magleby, hosted a barbecue at his home. His friends Andy Whitlock, Steve Meguerditchian, Justin Merriam, Mr. Merriam's date Liz Cannon, and fifteen-year-old L.M. were in attendance. During the course of the barbecue, Mr. Magleby and his guests drank heavily. In addition to drinking that evening, Mr. Magleby took prescription pain pills. On this occasion, as on other occasions, Mr. Magleby joined his friends in expressing prejudicial views of African-Americans. They told racist jokes, used racial slurs, and listened to racist CDs. The group accessed internet sites with racist jokes and other internet hate sites on Mr. Magleby's computer.

At some point during the evening, Mr. Magleby began talking about some Tongans, alleged gang members, who lived in his neighborhood. He later testified that he did not like having the Tongans in his neighborhood. L.M. also testified that the Tongans had previously assaulted Mr. Magleby. During the course of this conversation, Mr. Magleby and L.M. began talking about burning a cross at the Tongans' house. Mr. Merriam taunted Mr. Magleby, telling him that he did not dare burn a cross there. Mr. Merriam told Mr. Magleby that if he were really going to do it, he should stop talking about it and just do it.

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At about 1:00 AM, after several hours of drinking, Mr. Magleby and L.M. gathered wood from Mr. Magleby's garage to build a cross. In his kitchen, Mr. Magleby used a power drill to drill holes in the wood and fastened the pieces of wood together with screws. He then applied black spray-paint to make the cross more flammable. After the cross was ready, Mr. Magleby and L.M. carried it to Mr. Magleby's jeep and drove off with Mr. Magleby behind the wheel. They stopped at a gas station to fill a beer bottle with gasoline which they planned to pour over the cross to ensure that it would burn. They then set out for the Tongans' house.

When they arrived at the Tongans' house at about 2:30 AM, Mr. Magleby got out of his jeep and started taking the cross out. Before he took the cross out of the jeep, L.M. noticed several men outside. Because there were men outside the house, Mr. Magleby decided that "it wouldn't be too wise" to burn the cross at that house. Tr. at 800. He got back in the jeep.

At that point, Mr. Magleby told L.M. that they still had to the burn the cross because their friends would ridicule them if they did not. The parties dispute what happened next. Mr. Magleby argues that L.M. told him that he knew where a "crackhead" lived and that they could burn the cross at his house. The government argues that L.M. told him that he knew where a black man lived and that they could burn the cross there. The parties agree that Mr. Magleby knew nothing about the Henrys prior to that moment. Mr. Magleby and L.M. then drove to the house where Ron and Robyn Henry and their eleven-year-old son lived. The Henrys are an interracial family: Ron is African-American and Robyn is white.

When Mr. Magleby and L.M. arrived at the Henrys' home, Mr. Magleby took the cross out of the jeep, placed it in the Henrys' yard, poured gasoline on it, and then ignited it. The two immediately returned to Mr. Magleby's house.

After returning to Mr. Magleby's house, Mr. Magleby was excited and bragged to his friends about what he had done. Mr. Merriam became angry when he learned where Mr. Magleby and L.M. had burned the cross because the Henrys lived in his neighborhood and his father knew them. Mr. Magleby argues that it was at this point that he first discovered that Ron Henry was African-American.

Mr. Magleby was arrested and indicted on charges stemming from burning the cross at the Henrys' home. On December 10, 1999, Mr. Magleby was convicted by a jury of conspiracy against rights in violation of 18 U.S.C. § 241, violation of civil rights and aiding and abetting in violation of 42 U.S.C. § 3631(a), using fire or an explosive in the commission of a felony in violation of 18 U.S.C. § 844(h)(1), and tampering with a witness in violation of 18 U.S.C. § 1512(b)(3).

II. Discussion

Mr. Magleby argues that the district court submitted two erroneous instructions to the jury. He also argues that the district court erred in denying his motion for judgment of acquittal because the evidence was insufficient to support his convictions under 18 U.S.C. § 241, 18 U.S.C. § 844(h)(1), and 42 U.S.C. § 3631(a). Finally, he argues that the district court erred in admitting several pieces of evidence which, he argues, were highly prejudicial and of little or no probative value.

A. Sufficiency of the Jury Instructions

Mr. Magleby argues that the district court erred in submitting two instructions to the jury. Because Mr. Magleby did not object to either instruction at trial, we review these instructions for plain error. United States v. Fabiano, 169 F.3d 1299, 1302-03 (10th Cir. 1999).1 In reviewing

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jury instructions for error, we review the instructions "as a whole to determine whether the jury may have been misled, upholding the judgment in absence of substantial doubt that the jury was fairly guided." Id. at 1303 (internal quotation marks omitted).

1. Jury Instruction No. 30

Mr. Magleby argues that the district court erred in submitting Jury Instruction No. 30 to the jury because it misstates the relevant legal standard of 42 U.S.C. § 3631(a). "To establish a violation of 42 U.S.C. § 3631(a), the Government must prove beyond a reasonable doubt that the defendant acted with the specific intent to injure, intimidate or interfere with the victim[s] because of [their] race and because of the victim[s'] occupation of [their] home." United States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000) (internal quotation marks omitted).

Mr. Magleby concedes that Jury Instruction No. 27 correctly states the third element of a § 3631(a) violation: "[t]he defendant engaged in conduct described because of the race or color of one or both Ron Henry or Robyn Henry and because one or both Ron Henry and Robyn Henry were attempting to occupy their home free from racial discrimination." (emphasis added). This instruction further specifies that the government must prove each element "beyond a reasonable doubt." He argues, however, that Jury Instruction No. 30 permits conviction if a defendant is motivated by race alone. To support this argument, he points to the following passage:

The Government may satisfy its burden of proof by proving beyond a reasonable doubt that one or more of the victims' race was one of the reasons that the defendant acted. It does not matter that the defendant may have had more than one motive in performing the act as long as the defendant's race was one of his motives.

In other words, if you find beyond a reasonable doubt that the defendant did the act charged because of the race of the victim, the Government has satisfied its burden.

We find Mr. Magleby's argument unpersuasive. In the first paragraph of Jury Instruction No. 30, the district court instructed the jury regarding the third element of the § 3631(a) charge:

[I]f 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.

(emphasis added). Additionally, the sentence preceding the passage quoted by Mr. Magleby helps clarify that the following language refers only to the race prong of § 3631(a). Taking the instruction in its entirety, it is sufficiently clear that Jury Instruction No. 30 states that two factors must be satisfied, and that the language cited by Mr. Magleby simply instructs the jury as to what it can consider with respect to one of these two factors. We conclude, therefore, that Jury Instruction No. 30 accurately describes the legal standard of § 3631(a). Furthermore, when combined with Jury Instruction No. 27 and looking at the jury instructions as a whole, it is clear that the jury was properly instructed that they must find beyond a reasonable doubt that Mr. Magleby targeted the Henry's both because of race and because they occupied a dwelling in order to convict him under § 3631(a). We find, therefore, that Jury...

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