United States v. LaFontaine

• Decision Date: 08 February 2017
• Docket Number: No. 16-1440,16-1440
• Citation: 847 F.3d 974
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Andre Michael LAFONTAINE, III, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

847 F.3d 974

UNITED STATES of America, Plaintiff–Appellee,

v.Andre Michael LAFONTAINE, III, Defendant–Appellant.

No. 16-1440

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2017

Filed: February 8, 2017

Rehearing and Rehearing En Banc Denied April 7, 2017^*

Counsel who presented argument on behalf of the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was Richard L. Murphy, AUSA, of Cedar Rapids, IA.

Before LOKEN, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

Andre Michael LaFontaine was convicted of making a threatening communication in violation of 18 U.S.C. § 875(c) and sentenced to 18 months' imprisonment. He appeals his conviction and sentence, arguing that the government committed prosecutorial error and the district court¹ erred in admitting evidence of a prior perceived threatening statement. LaFontaine also challenges the district court's imposition of several special conditions of supervised release. For the reasons discussed below, we affirm.

I. BACKGROUND

In November 2010, LaFontaine was charged in state court with, and convicted of, operating while intoxicated, second offense, and eluding, in Iowa Falls, Iowa. The Iowa Court of Appeals affirmed the convictions. Believing that a conspiracy to obstruct justice existed between the state court, police, and attorneys, LaFontaine complained to a local law firm, the President of the United States, and the International Association of Anti–Corruption Authorities. LaFontaine then filed two civil lawsuits in federal court: one against the Iowa Falls Police Department and another against the police officers who arrested him. The district court dismissed both lawsuits, and this court affirmed the dismissals. LaFontaine was unsuccessful in appealing his federal lawsuits to the United States Supreme Court.

On October 1, 2013, LaFontaine contacted a federal court employee about his lawsuits and stated, "Sometime we are actually going to meet up, and I'm looking forward to it. I can do what I want to do. You're a baby." The United States Marshals Service investigated the threatening remarks and interviewed LaFontaine. During an interview in January 2014, LaFontaine admitted that he was frustrated when he made the call but denied making a threat. He said it would be "foolish to do so," and that he "[knew] better than that." LaFontaine then asked the FBI to investigate the Iowa Falls Police Department for civil rights violations. FBI Agent Tomlinson told LaFontaine that there was no basis for his complaint.

On July 20, 2015, LaFontaine called the Department of Justice (DOJ) in Washington, D.C., to complain about Agent Tomlinson. He left the following voice mail, which led to the conviction appealed in this case:

Yeah my name is Andre Michael LaFontaine, the third, I'm from Iowa Falls, Iowa, co-state litigant. What I've done is sent you fuckin' retards evidence of corruption multitude of times, I'm getting really fuckin' sick and tired of you people disregarding all the evidence, the profound evidence, that I've sent you, and put in front of Craig, special agent of the FBI, Craig Tomlinson's face—and have him call me while I record him and tell me that the evidence is no fucking good. So what I'm telling you for the last fuckin' time is that if this fuckin' writ isn't satisfied or investigated properly, these judges in Eldora are gonna get their fuckin' throats cut, you fuckin' niggers better do your fuckin' job.

Special Agent Kieffer with the Federal Protective Service investigated the perceived threatening voice mail. During an interview on July 23, 2015, at LaFontaine's residence, LaFontaine admitted that he left the voice mail with the DOJ and intended for the message to "spark action" on his complaints about the Iowa Falls Police Department. According to Kieffer, LaFontaine also admitted during the interview that he intended for the communication to be threatening. LaFontaine was in possession of a pocket knife at the time of the interview. A search of his residence, pursuant to a search warrant, yielded a variety of documents from disputes with others, including police officers, and audio recordings of phone calls made to numerous courts and law enforcement officials. In a letter addressed to the FBI, LaFontaine stated that he intended to rescind his United States citizenship and "may have to take a life just to defend [himself]" since the government had not done anything to resolve his grievances.

On August 12, 2015, LaFontaine was indicted for transmitting a threatening communication in interstate commerce, in violation of 18 U.S.C. § 875(c). Prior to trial, LaFontaine filed a motion to exclude any evidence that he threatened the federal court employee, in October 2013. The government sought to use the evidence to show LaFontaine's intent and lack of mistake. In light of the government's response, LaFontaine requested that if the district court were to admit the evidence, the court should also allow content of the prior statements into evidence to support his claim that the statements were not threatening. The district court held that the statements were admissible under Federal Rule of Evidence 404(b) as evidence of LaFontaine's intent or lack of mistake. At trial, a Deputy United States Marshal testified about the 2013 perceived threatening communication and the subsequent interview with LaFontaine. LaFontaine was also allowed to present evidence about the content of the prior statements.

A jury found LaFontaine guilty on October 14, 2015. He then filed a motion for a new trial alleging that the district court erred by allowing evidence of the prior threatening communication. The district court denied the motion. With an offense level of twelve and a criminal history category of II, LaFontaine's Guidelines range was twelve to eighteen months. The Presentence Investigation Report (PSR) also recommended the following special conditions of supervised release: (1) a substance abuse program; (2) a total alcohol ban, meaning that he was "prohibited from entering any establishment that holds itself out to the public to be a bar or tavern"; (3) a mental health program; (4) GPS monitoring; (5) housing in a residential reentry program; (6) a "no-contact" agreement; and (7) submission to random searches. LaFontaine objected to the GPS monitoring special condition in a sentencing memorandum. At sentencing, the district court determined that LaFontaine's Guidelines range was twelve to eighteen months. The district court then heard argument on the sentence, including the conditions of supervised release, and considered the 18 U.S.C. § 3553(a) factors. The district court sentenced LaFontaine to eighteen months' imprisonment, to be followed by a three-year term of supervised release. The court also imposed the special conditions of supervised release listed above.

LaFontaine now appeals, arguing that (1) the government repeatedly committed prosecutorial misconduct during its closing argument; (2) the district court erred in admitting the Rule 404(b) evidence; (3) the district court abused its discretion in imposing GPS monitoring during supervised release; and (4) the district court's imposition of a total alcohol ban and substance abuse treatment during supervised release was plain error.

II. DISCUSSION

A. Prosecutorial Misconduct

LaFontaine argues that the government repeatedly committed prosecutorial misconduct during closing argument by stating that LaFontaine was not presumed innocent, indirectly commenting on LaFontaine's failure to testify, expressing its opinion on LaFontaine's guilt, and personally attacking LaFontaine's counsel. We disagree. "The test for reversible prosecutorial misconduct has two parts: (1) the prosecutor's remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial." United States v. Jones, 795 F.3d 791, 799 (8th Cir. 2015) (quoting United States v. Wilkens, 742 F.3d 354, 361 (8th Cir. 2014) ). Because LaFontaine failed to object to the alleged misconduct, we review for plain error. United States v. Alaboudi, 786 F.3d 1136, 1141 (8th Cir. 2015). Under the plain error standard of review, the defendant must show that the error was "clear, prejudicial, and affected the trial's outcome." Id. In other words, the error must be such that it "affect[s] the fairness, integrity or public reputation of judicial proceedings." Id.(quoting United States v. Wadlington, 233 F.3d 1067, 1079 (8th Cir. 2000) ).

First, LaFontaine takes issue with the government's statement that LaFontaine "absolutely does not stay presumed innocent." LaFontaine, however, takes the government's statement out of context. After the above-quoted statement, the government reviewed previously presented evidence that rebutted the presumption of innocence and stated that "[h]e's been proven guilty beyond a reasonable doubt." It is undisputed that the presumption of innocence "remains with the defendant through every stage of the trial, most importantly, the jury's deliberations" and that the presumption is "extinguished only upon the jury's determination of guilt beyond a reasonable doubt." United States v. Crumley, 528 F.3d 1053, 1065 (8th Cir. 2008) (quoting Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999) ). Here, both the preliminary and final jury instructions correctly stated this rule of law. Neither party objected to the jury instructions, and the government's argument simply mirrored these instructions. There is no prosecutorial misconduct when the government does "little more than paraphrase the court's instruction." United States v. Johnson, 639 F.3d 433, 442 (8th Cir. 2011). Moreover, "[a]n advocate is permitted considerable latitude in responding to his opponent's arguments." United States v. Collins, 642 F.3d 654, 658 (8th Cir. 2011) (quoting United States...