663 F.3d 322 (8th Cir. 2011), 10-3526, United States v. Mabie

Docket Nº:10-3526.
Citation:663 F.3d 322
Opinion Judge:SMITH, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. William J. MABIE, Appellant.
Attorney:Steven Vincent Stenger, argued and on the brief, St. Louis, MO, for appellant. Dean John Sauer, AUSA, argued and on the brief, John J. Ware, AUSA, on the brief, St. Louis, MO, for appellee.
Judge Panel:Before MELLOY, SMITH, and BENTON, Circuit Judges.
Case Date:December 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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663 F.3d 322 (8th Cir. 2011)

UNITED STATES of America, Appellee,

v.

William J. MABIE, Appellant.

No. 10-3526.

United States Court of Appeals, Eighth Circuit.

December 2, 2011

Submitted: Sept. 20, 2011.

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Steven Vincent Stenger, argued and on the brief, St. Louis, MO, for appellant.

Dean John Sauer, AUSA, argued and on the brief, John J. Ware, AUSA, on the brief, St. Louis, MO, for appellee.

Before MELLOY, SMITH, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

A jury found William Mabie guilty of three counts of mailing threatening communications, in violation of 18 U.S.C. § 876(c), and one count of interstate communication of a threat, in violation of 18 U.S.C. § 875(c). The district court 1 sentenced Mabie to 88 months' imprisonment. Mabie appeals both his conviction and sentence, arguing that (1) the district court violated his right to self-representation, (2) the district court abused its discretion in quashing the witness subpoenas that Mabie requested, (3) insufficient evidence exists to support his convictions, (4) Mabie's conviction under § 876(c) violates his First

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Amendment rights, (5) the district court erred in assessing a two-level obstruction-of-justice enhancement, and (6) Mabie's sentence is unreasonable. We affirm.

I. Background

On July 23, 2009, a federal grand jury returned a superceding indictment charging Mabie with seven counts of making threatening communications. Mabie requested to proceed pro se, and, on April 22, 2010, the district court granted Mabie's request. Mabie filed a number of pro se motions for witness subpoenas. The district court held two hearings in which it determined, among other things, whether and to whom subpoenas should be issued. In a hearing before the court on May 7, 2010, Mabie repeatedly interrupted the court and prosecutor. In another hearing on June 23 and 24, 2010, Mabie accused the court of lying, demonstrated a lack of decorum, and ultimately refused to participate in the proceedings. At the conclusion of the hearing, the district court authorized the issuance of witness subpoenas to 42 proposed witnesses, and soon thereafter Mabie dispatched a series of letters in which he openly boasted of using the court's subpoena power for the purpose of harassing proposed witnesses and their families and offered to drop the subpoenas if he was paid $21,000.

On July 14, 2010, the government filed motions to revoke Mabie's pro se status and to quash his numerous trial subpoenas. Following a hearing, the district court granted the government's motion to revoke and granted in part and denied in part the motion to quash. In its opinion, the district court noted that, " when given authority to request subpoenas, [Mabie] has abused the process afforded to him. He has made open and veiled threats to some proposed witnesses and attempted to solicit money in exchange for withdrawing subpoenas." The court also noted that Mabie was " intent on pursuing theories that will consistently be disallowed, and he becomes openly hostile and inattentive to rulings and objections. He ... has demonstrated serious abuse of court empowerment." The district court quashed subpoenas to 34 of Mabie's proposed witnesses.

Trial evidence showed that Mabie worked for Affordable Towing in St. Louis, Missouri, until the spring of 2007. After that job ended, Mabie made phone calls and sent letters to Steve Reisch, the owner of Affordable Towing. Mabie demanded the return of tools and a toolbox that he had left at the business. In July 2008, Mabie sent an anonymous letter to Reisch's elderly mother, Betty Reisch, at her unlisted home address in Kirkwood, Missouri. In the letter, Mabie accused her " pothead son" of stealing from him and stated that

the only way he could get away with it is if no one knows who did it, and the ACTUAL owner is not ready to put several bullets in his head and his kids and grandkids heads.

This is a problem, as it would take hours to clean up the blood.

Betty Reisch had only one son, Steve Reisch, and the letter was signed in the name of her deceased husband, Forrest Reisch. Betty Reisch testified that she had no idea who sent the letter and that she was " very much" afraid when she received it. Steve Reisch reported the letter to police.

Mabie made objectionable communications to a number of other people. Mabie called Steve Reisch's friend, Lieutenant Mike Deeba of the St. Louis Metropolitan Police Department (SLMPD). In one voice message left on Lieutenant Deeba's office phone, Mabie suggested that someone should check on Lieutenant Deeba

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because he " might be up in his office hanging himself or committing suicide." In another message, Mabie declared that June 5 was " Charles Deeba's birthday, or would be if he was still alive. Funny how I know things like this isn't it.... See you in Greenville." Charles Deeba was Lieutenant Deeba's deceased uncle, and at the time Lieutenant Deeba and his family lived in Greenville, Illinois. Mabie also spoke with Sergeant Al Klein of the SLMPD, who asked Mabie to stop contacting Lieutenant Deeba. Mabie told Sergeant Klein, " I was right there in Barnes Hospital when ... Sergeant Dodge brought in a[sic] Bob Stanze. With that cemetery blue look. I think Deeba would look about right that color. I can hit what I'm aiming at for 400 f- - -ing yards." Bob Stanze was a SLMPD officer who was fatally shot in the line of duty. On August 4, 2008, Mabie told Sergeant Klein over the phone that if Sergeant Klein did not investigate Lieutenant Deeba, Mabie would confront Lieutenant Deeba's wife. Mabie also called Sergeant Tony Brooks of the Greenville Police Department and told him that Lieutenant Deeba had challenged him to a gun fight:

But like I told him, that St. Louis police thinks a gun fight [is] at 15 yards. I'm, I'm from down here [in] Festus[, Missouri]. I think they should be about 300. I'm fighting at 300, I don't think they can make it at 15. So, anyway, yeah keep your eye on [Lieutenant Deeba's] address though I serious[ly] doubt that[ ] it['s] going to be a tranquil area much longer.

Sergeant Brooks went immediately to Lieutenant Deeba's residence and conducted a search of the property. Lieutenant Deeba also went to Greenville and instructed his wife and children on how to use firearms. That same day, officers from the Jefferson County, Missouri Sheriff's Office went to Mabie's home and placed him under arrest. Prior to his arrest, Mabie stated that he could shoot Lieutenant Deeba at 600 yards.

At trial, the government also presented evidence of letters that Mabie had sent to two Franklin County, Missouri prosecutors. Mabie sent a handwritten letter to Franklin County Prosecutor Rodney McKinney, who had prosecuted Mabie in 2004. This letter, sent to McKinney's unlisted home address and dated February 12, 2009, accused McKinney of " helping car thieves" and told McKinney to admit that he had lied or Mabie would " stop by some evening, so we can work toward justice." McKinney, who had been the target of a derogatory flier that Mabie circulated following the 2004 prosecution, testified at trial that he thought this was an escalation in Mabie's behavior and that he perceived that last statement as a threat. The letter prompted McKinney to immediately contact the police.

On February 21, 2008, Franklin County Assistant Prosecutor Mary Choi, who had prosecuted Mabie in 2006, also received a letter from Mabie. Mabie accused Choi of prosecutorial misconduct and demanded that she " take corrective action." The letter concluded: " A cornerstone of this society (for which countless have died) is a fair Justice system, honesty is essential, correct your mistakes / without delay or suffer the consequences." Choi testified that she perceived this last sentence as a threat to harm her. She also believed that Mabie " was not a stable individual and was obsessed with harassing people." As a precaution, Choi alerted security at the courthouse where she worked of Mabie's comments and her concerns. Choi also received two additional letters from Mabie at her unlisted home address, which were derogatory and disturbing in nature. One letter, which was addressed to her husband, stated: " If Mary ... makes

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things right, she may have a happy life, but if she does not, these lies will follow her forever, I AM ABSOLUTELY SURE IT WILL."

At trial, Mabie took the stand in his defense and testified that he did not intend to harm anyone, did not dislike Mary Choi, and only wanted to " make things right." Mabie was convicted of three counts of mailing threatening communications, in violation of 18 U.S.C. § 876(c), and one count of interstate communication of a threat, in violation of 18 U.S.C. § 875(c). On October 4, 2010, Mabie filed a pro se motion to restore his right of self-representation, which the district court denied. At Mabie's sentencing hearing on November 10, 2010, Mabie objected to a two-level enhancement for obstruction of justice on each count. The district court determined that the enhancement applied and sentenced Mabie to 88 months' imprisonment.

II. Discussion

Mabie raises six issues on appeal. He contends that (1) the district court violated his right to self-representation, (2) the district court abused its discretion in quashing the witness subpoenas that Mabie requested, (3) insufficient evidence exists to support his convictions, (4) Mabie's conviction under § 876(c) violates his First Amendment rights, (5) the district court erred in assessing a two-level obstruction-of-justice enhancement, and (6) Mabie's sentence is unreasonable.

A. Right to Self-Representation

First, Mabie argues that his pretrial actions did not rise to the level of disruption that would warrant revocation of his pro se status, and even if they did, the district...

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