U.S. v. Myers

• Decision Date: 04 October 2007
• Docket Number: No. 06-3252.,No. 06-3581.,06-3252.,06-3581.
• Citation: 503 F.3d 676
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Christopher Orville MYERS, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

503 F.3d 676

UNITED STATES of America, Appellee/Cross-Appellant, v. Christopher Orville MYERS, Appellant/Cross-Appellee.

No. 06-3252.

No. 06-3581.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2007.

Filed: October 4, 2007.

F. Montgomery Brown, argued, Clive, IA, for appellant/cross-appellee.

Craig P. Gaumer, Assistant, U.S. Attorney, argued, Des Moines, IA, for appellee/cross-appellant.

Before BYE, RILEY, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Christopher Orville Myers appeals his convictions for mailing threatening communications. He contends that the district court¹ violated his Sixth Amendment right to self-representation by denying a continuance, erred in admitting evidence of other wrong acts, and should have held evidentiary hearings on his motions for a new trial. He also claims that the evidence was not sufficient to support the conviction. The United States cross-appeals, contending that the sentence is improper. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms the convictions and the sentence.

I.

In 2003, Myers was indicted for mailing threatening letters to the President and court officers. Myers pled guilty pursuant to a plea agreement. Chief District Judge Linda R. Reade presided over the case, sentencing Myers to 28 months incarceration. The guidelines range was calculated as 37 to 46 months, as reflected in the plea agreement. The court's sentence of 28 months represented a downward departure of 24 percent (or 3 levels).

Myers, a "problem" inmate, was placed in segregation at Corrections Corporation of America Leavenworth ("CCA"). Because he repeatedly tried to put unauthorized items in his legal mail, his unsealed mail was inspected in front of a CCA employee.

On the morning of July 27, 2005—eight days after sentencing—Myers was transferred out of the CCA. The CCA mailroom staff recall that the general outgoing mail that day contained legal mail belonging to Myers. Six days later, an envelope—metered on July 27 at the CCA—was received by a clerk of the Southern District of Iowa. It contained three letters: one addressed "to whom it may concern," one to Judge Reade, and one to Myers's public defender. The letter "to whom it may concern" states that "2 threatening letters" are enclosed in order to "try to obtain justice." The letter also says that a copy was sent to the Eighth Circuit Court of Appeals, the United States Supreme Court, and the television networks. The letter concludes that the letters "serve[] no purpose other than to vent rage." The letter to Judge Reade included:

Your days are numbered lying bitch. I trusted your sorry bitch ass and you screwed me over real good.... I am going to kill your sorry bitch ass to put you out of your fucking misery you sorry bitch lying piece of shit.... You bitch ass punks made me lie in court and say I was guilty of something I did not do.... You can go burn in hell with your father saton [sic] and all the rest of your kind ... you best enjoy the next 2 years because then you can kiss your sorry bitch ass goodbye because your going to hell. I am going to get my day in court one way or another and I am going to send you to hell to be with your father saton [sic].

The clerk who received the envelope was familiar with Myers because of his voluminous pro se filings. She recognized the letters as consistent in appearance with others that Myers had sent. Myers' fingerprints were on the letters; handwriting analysis confirmed that Myers wrote the letters and addressed the envelope.

Myers was indicted on three counts: a violation of 18 U.S.C. § 876(c) for mailing a threatening letter to Judge Reade; a violation of 18 U.S.C. § 115(a)(1)(B) for retaliating against Judge Reade; and a violation of 18 U.S.C. § 876(c) for mailing a threatening letter to his federal public defender. Myers proceeded pro se with standby counsel. Before trial, two separate standby counsel withdrew. Myers was appointed a third standby counsel. He moved for a continuance a month before trial. The district court denied the continuance a week before trial, and re-sustained the denial on the first day of trial. Myers allowed standby counsel to represent him once the denial was re-sustained. During trial, the court admitted testimony about new threatening letters that Myers had mailed to the Magistrate Judge and the Assistant United States Attorney during the litigation. The court also admitted the government's Exhibit 10, a filing by Myers accusing a county jail of mailing the new letters without his consent. The jury found Myers guilty on counts one and two, after the court acquitted him on count three (the public defender testified he did not consider the letter threatening). The district court sentenced Myers to 60 months imprisonment on counts one and two, to run concurrently, and three years of supervised release.

II.

Myers argues that the district court violated his Sixth Amendment right to self-representation by denying his motion for a continuance. "A trial judge has broad discretion in deciding whether to grant or deny a motion for a trial continuance." United States v. Heine, 920 F.2d 552, 555 (8th Cir.1990). See generally United States v. Pruett, 788 F.2d 1395 1396 (8th Cir.1986)(district court considerations in ruling on a motion for continuance). To determine whether an abuse of discretion occurred, this court looks at three factors: (1) whether counsel had sufficient time to prepare for trial; (2) whether counsel's conduct at trial shows that counsel was well prepared; and (3) whether the denial of the continuance prejudiced the defendant. Heine, 920 F.2d at 555.

The district court did not abuse its discretion by denying the continuance. Myers had sufficient time, over nine months, to prepare. During this time he made hundreds of pro se filings, many frivolous or repetitive. Myers contends that he was denied access to his legal files (including the government's discovery) unless standby counsel was present. This was due largely to Myers' own actions; he was prohibited from having legal material in his cell because he was throwing feces through the mail slot and using documents to plug the toilets. Myers also contends that, until a month before trial, he did not have access to 24 boxes of documents and tape recordings from his earlier trial. This claim is without merit. The record shows that the boxes were returned to Myers's mother after his previous trial, and his standby counsel had canvassed the boxes and given Myers copies of documents from them.

The fact that Myers's standby counsel did not request a continuance once he became trial counsel, indicates that the defense was well prepared for trial. Meyers was not prejudiced by the denial of a continuance. In fact, counsel obtained an acquittal on the third count. Myers was also not prejudiced by "being forced" to allow standby counsel to represent him at trial. While the Sixth Amendment allows a defendant to represent himself at trial, that right is not absolute. United States v. Edelmann, 458 F.3d 791, 807 (8th Cir. 2006). A trial judge may terminate self-representation when the defendant engages in serious obstructionist misconduct. Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Because of Myers's obstructionist conduct before trial, the district court did not err in denying the continuance, even if he eventually accepted representation. See Edelmann, 458 F.3d at 808-09 ("The right [to self-representation] does not exist . . . to be used as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process.") quoting United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.2000).

III.

Myers asserts that the district court erred in admitting the evidence of the new threatening letters he mailed during the litigation, and his filing accusing another jail of mailing the letters without his consent. Myers challenges the evidence under Federal Rules of Evidence 404(b) and 403.

Rule 404(b) prohibits evidence of other wrong acts to prove a person's character and conformity therewith. However, this same evidence may be "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). Whether Myers caused the threatening letters to be mailed was the main issue in the case. Myers's defense was that CCA officials sent the letters without his consent. Evidence of the new threatening letters, and the accusation against other jail officials, are admissible under Rule 404(b) to show absence of mistake or accident.

Myers counters that the wrongful acts were not probative because they occurred a year after the acts charged in the indictment. Myers acknowledges that "mere subsequency" does not render them inadmissible. See United States v. Wonderly, 70 F.3d 1020, 1023 n. 2 (8th Cir.1995)(wrongful acts committed after the acts charged in the indictment are admissible under Rule 404(b) to show absence of mistake or accident where the defense was good faith). As for his objection based on remoteness in time, a one-year gap does not necessarily destroy the probative value of the evidence. See Edelmann, 458 F.3d at 810 (prior bad acts 15 years old were probative because of the similarities with the crime charged). The district court did not err in admitting the evidence under Rule 404(b).

Under Rule 403, district courts have broad discretion to assess unfair prejudice, and are reversed only for an abuse of discretion. United States v. Henderson, 416 F.3d 686, 693 (8th Cir.2005), cert. denied, 546 U.S. 1175, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006). Rule 403 "does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to...