F I L E D

United States Court of Appeals

Tenth Circuit

MAR 7 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL BRAD MAGLEBY,

Defendant - Appellant.

No. 99-4245

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 98-CR-565)

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
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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 fifteenyear-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 AfricanAmericans. 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
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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.

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.
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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
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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,
1Mr. Magleby did not object to either Jury Instruction No. 30 or Jury

Instruction No. 22. He asserts, however, that proposing an alternative to Jury

Instruction No. 30 should be considered an objection to that instruction. This

court has previously held, however, that proposing an alternate jury instruction is

not an objection that “put the district court clearly on notice as to the asserted

inadequacy of the jury instruction.” Fabiano, 169 F.3d at 1303 (10th Cir. 1999)

(internal quotation marks omitted). We therefore review both jury instructions for

plain error.

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169 F.3d 1299, 1302-03 (10th Cir. 1999).1 In reviewing 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
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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
2This instruction also permitted the jury to consider as evidence of Mr.

Magleby’s intent “all the evidence in this case and the entire context in which the

cross was burned,” “the defendant’s actions before, during and after the crossburning,” and “the location at which the cross was burned and its nearness to the

intended victims.”

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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 Instruction No. 30 is not erroneous

and did not mislead the jury.

2. Jury Instruction No. 22

Mr. Magleby also argues that the district court erred in submitting Jury

Instruction No. 22 to the jury, instructing the jury that they may consider, among

other factors,2

 “the reaction of the victims and other witnesses to the cross

burning in determining the defendant’s intent” under 18 U.S.C. § 241.
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Section 241 prohibits any person or persons from conspiring “to injure,

oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment

of any right or privilege secured to him by the Constitution or laws of the United

States.” In determining the existence of a threat in other contexts, this circuit has

adopted an objective test, focusing on whether a reasonable person would find

that a threat existed. United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir.

1999). To determine whether this objective test is satisfied, this court has stated

that a trier of fact may look to the reaction of the recipient of the alleged threat. 

United States v. Martin, 163 F.3d 1212, 1216 (10th Cir. 1998). The Supreme

Court has also looked to the reaction of the recipients in determining whether a

threat exists. Watts v. United States, 394 U.S. 705, 708 (1969). Additionally,

other circuits that have adopted a similar reasonable foreseeability test have held

that evidence of the recipient’s response to the alleged threat is relevant to

whether a threat was made. E.g., United States v. Fulmer, 108 F.3d 1486, 1500

(1st Cir. 1997) (“[E]vidence of the effect of the threat upon its listener is relevant

to what a reasonable person in the position of the speaker should have

foreseen.”); United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.

1990) (“Alleged threats should be considered in light of their entire factual

context, including the surrounding events and reaction of the listeners.”). 

Furthermore, other circuits that have adopted a “reasonable recipient test” have
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also held that evidence of a recipient’s response is relevant to whether a true

threat exists. E.g., United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994) (“In

making this determination, proof of the effect of the alleged threat upon the

addressee is highly relevant.”); United States v. Roberts, 915 F.2d 889, 890-91

(4th Cir. 1990) (finding evidence of the reactions of recipients of an alleged

threat relevant to whether a “reasonable recipient” would believe that a threat

exists).

In the particular context of cross-burnings, the Seventh and Eighth Circuits

have held that evidence of victims’ reactions to a cross-burning is relevant to a

defendant’s intent under 18 U.S.C. § 241. United States v. Hartbarger, 148 F.3d

777, 782-83 (7th Cir. 1998) (holding that victim reaction evidence is relevant

under the reasonable foreseeability test); United States v. J.H.H., 22 F.3d 821,

827-28 (8th Cir. 1994) (holding that victim reaction evidence is relevant under the

reasonable recipient test). We agree with these circuits and hold that victims’

reactions to a cross-burning may be considered by a trier of fact as relevant

evidence of a defendant’s intent under § 241. Consequently, we find that the

district court did not err in issuing Jury Instruction No. 22.

B. Sufficiency of the Evidence

Mr. Magleby argues that the district court erred by denying his motion for
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judgment of acquittal because there was insufficient evidence to support his

convictions under 18 U.S.C. § 241, 18 U.S.C. § 844(h)(1), and 42 U.S.C. §

3631(a). We review de novo both the sufficiency of the evidence and the denial

of the motion for judgment of acquittal. United States v. Wood, 207 F.3d 1222,

1228 (10th Cir. 2000).

In reviewing his sufficiency of the evidence claims, we must ask “only

whether taking the evidence – both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom – in the light most favorable to the

government, a reasonable jury could find [Defendant] guilty beyond a reasonable

doubt.” United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999)

(internal quotation marks omitted). Mr. Magleby’s hurdle in persuading this court

to overturn the jury verdict is high. We will only overturn a jury verdict if “no

reasonable juror could have reached the disputed verdict.” United States v.

Whitney, 229 F.3d 1296, 1300-01 (10th Cir. 2000) (internal quotation marks

omitted). Furthermore, “the evidence necessary to support a verdict need not

conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt.” Wood, 207 F.3d at 1228 (internal quotation marks

omitted).

In a sufficiency challenge, we review the record as a whole and consider

the collective inferences reasonably drawn therefrom. United States v. Jenkins,
3

42 U.S.C. § 3631(a) imposes criminal penalties upon anyone who

“whether or not acting under color of law, by force or threat of force

willfully injures, intimidates or interferes with, or attempts to injure,

intimidate or interfere with (a) 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.”

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175 F.3d 1208, 1215 (10th Cir. 1999). Where conflicting evidence exists, we do

not question the jury’s conclusions regarding the credibility of witnesses or the

relative weight of evidence. Springfield, 196 F.3d at 1184. “[W]hen a record

allows for conflicting findings, we must presume that the trier of fact resolved

any such conflicts in favor of the prosecution.” Wingfield v. Massie, 122 F.3d

1329, 1333 (10th Cir. 1997) (alterations and internal quotation marks omitted).

1. Conviction under 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.” Whitney, 229 F.3d at 1303

(internal quotation marks omitted).3 Mr. Magleby argues that the district court

improperly denied his motion for judgment of acquittal because the government
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presented insufficient evidence to prove either that he targeted the Henrys

because of their race or that he acted because the Henrys occupied their home.

In making its determination regarding a defendant’s intent, “a jury is

permitted to draw inferences of subjective intent from a defendant’s objective

acts.” Wingfield, 122 F.3d at 1333. The government may also prove intent

through circumstantial evidence and surrounding circumstances. E.g., United

States v. Prows, 118 F.3d 686, 692 (10th Cir. 1997) (“‘[B]ecause intent involves

the defendant’s state of mind, and is difficult to prove directly, it is usually

proven by circumstantial evidence.’” (quoting Kathleen Flavin & Kathleen

Corrigan, Eleventh Survey of White Collar Crime: Mail Fraud and Wire Fraud, 33

Am. Crim. L. Rev. 861, 869 (1996))); United States v. Johnson, 971 F.2d 562,

566 (10th Cir. 1992) (“Direct evidence of a defendant’s intent is seldom

available. Intent can be proven, however, from surrounding circumstances.”);

United States v. Dysart, 705 F.2d 1247, 1257 & n.15 (10th Cir. 1983) (upholding

jury instruction permitting jury to infer intent from circumstantial evidence). 

“Thus, even when a defendant, as here, denies having the requisite intent, a jury

may disbelieve the defendant if [his] words and acts in the light of all the

circumstances make [his] explanation seem improbable.” Wingfield, 122 F.3d at

1333 (alterations and internal quotation marks omitted). 

Viewing the record in its entirety together with the reasonable inferences to
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be drawn therefrom in a light most favorable to the government, as we must, we

find that the evidence was sufficient to permit a reasonable jury to find beyond a

reasonable doubt that Mr. Magleby targeted the Henrys because of their race. The

jury heard evidence that Mr. Magleby knew that burning crosses were symbols of

racial hatred. Mr. Magleby admitted during cross-examination that he understood

the “racial hatred nature” of a burning cross when used by the Ku Klux Klan. He

also admitted that he understood that a burning cross, like a swastika, was a

universal symbol of racial hatred. He admitted that he knew that the general

public saw a burning cross as a symbol of racial hatred. Mr. Magleby’s friends

and associates testified that, prior to the cross-burning, Mr. Magleby had watched

the movie Mississippi Burning – a movie that includes scenes of crosses being

burned as symbols of hatred toward African-Americans. 

Although Mr. Magleby testified that he could not remember whether L.M.

had told him that the Henrys are an interracial family, claiming that he could

remember being told only that the home was occupied by a “crackhead,” he also

testified that he first learned that Mr. Henry is African-American after returning

to his house following the cross-burning. Likewise, L.M. testified that he first

learned that Mr. Henry is African-American subsequent to the cross-burning. 

Evidence was presented at trial, however, that L.M. had signed a statement in

which he told police that he had told Mr. Magleby that Mr. Henry is black prior to
4The government argues that L.M.’s signed statement that he told Mr.

Magleby that Mr. Henry is African-American should be considered as evidence

that Mr. Magleby targeted the Henrys because of race. That statement, however,

was admitted as a prior inconsistent statement to impeach L.M.’s testimony

pursuant to Fed. R. Evid. 613. The district court properly instructed the jury that

the statement was admitted only to impeach L.M.’s credibility, not for the truth of

the statement itself. Because the statement was not admitted for its truth, the jury

could not properly consider it as evidence of Mr. Magleby’s intent. Our review is

limited to whether the jury reasonably could have found that Mr. Magleby

targeted the Henrys because of race. We therefore do not consider this statement

as evidence of Mr. Magleby’s intent.

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the cross-burning.4 Furthermore, Andy Whitlock testified that, after the crossburning, both Mr. Magleby and L.M. appeared to know that Mr. Henry is AfricanAmerican. Liz Cannon testified that, after Mr. Magleby and L.M. returned from

burning the cross in the Henrys’ yard, she “clearly recall[ed] them indicating the

family was black” and that they discussed with their friends at the party that Mr.

Henry is African-American. Tr. at 474-75. Moreover, contrary to Mr. Magleby’s

assertion that he felt remorse after learning that Mr. Henry is African-American,

Ms. Cannon testified that Mr. Magleby appeared excited by what he had done and

bragged about it. We do not question the jury’s conclusions regarding the

credibility of Mr. Magleby and L.M. and must presume that the jury resolved

these conflicts in favor of the prosecution. See Springfield, 196 F.3d at 1184;

Wingfield, 122 F.3d at 1333.

The jury also heard Mr. Henry’s unrebutted testimony that he is the only

African-American on his block. This evidence, combined with Mr. Magleby’s
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and L.M.’s testimony that they targeted a specific residence, was sufficient to

permit the jury to reasonably infer that it was highly unlikely that Mr. Magleby

burned a cross at a home occupied by an African-American merely by

coincidence. 

Viewing this evidence – combined with the background of racial slurs,

racist jokes, racist music, and racist internet sites – in the light most favorable to

the government, we conclude that a reasonable jury could find beyond a

reasonable doubt that Mr. Magleby targeted the Henrys because of their race.

Mr. Magleby also argues that the evidence was insufficient to prove that he

targeted the Henrys because they occupied their home. We disagree. Mr.

Magleby’s own testimony regarding his understanding of the meaning of a

burning cross, combined with his testimony that he intentionally burned the cross

in the Henrys’ yard, provides sufficient evidence from which a jury could

reasonably find beyond a reasonable doubt that Mr. Magleby also targeted the

Henrys because they occupied their home. We therefore find that the district

court properly denied Mr. Magleby’s motion for judgment of acquittal on this

count.

2. Conviction under 18 U.S.C. § 241 and 18 U.S.C. § 844(h)(1)

18 U.S.C. § 844(h)(1) makes illegal the use of fire to commit a felony. At
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trial, Mr. Magleby did not deny igniting a cross in the Henrys’ yard. 

Consequently, if the evidence is sufficient to sustain his conviction under 18

U.S.C. § 241, it is also sufficient to sustain his § 844(h)(1) conviction.

Section 241 is violated “[i]f two or more persons conspire to injure,

oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment

of any right or privilege secured to him by the Constitution or laws of the United

States.” Section 241 requires that a “specific intent to interfere with the Federal

right . . . be proved.” United States v. Guest, 383 U.S. 745, 760 (1966). Mr.

Magleby does not argue that the Henrys do not have a federally protected right to

occupy their home. Rather, Mr. Magleby contends that the evidence was

insufficient to prove beyond a reasonable doubt that he intended to “oppress,

threaten, or intimidate” the Henrys in their enjoyment of that right. We disagree.

The record contains substantial evidence of Mr. Magleby’s intent. Mr.

Magleby testified that he decided to burn a cross to “rile people up.” Tr. at 921. 

He acknowledged that he knew the public found cross-burning highly

objectionable. He anticipated that the cross-burning would receive the attention

of the news media. He admitted that he understood the message of racial hatred

conveyed by a burning cross. Mr. Magleby further admitted that he intended to

burn and did burn the cross in the Henrys’ yard. Given this evidence of Mr.

Magleby’s understanding of the meaning of a burning cross to the general public
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and the placement of the burning cross in the Henrys’ yard, we conclude that the

jury could reasonably infer that Mr. Magleby intended to oppress, threaten, and

intimidate the Henrys in the free exercise of their federal right to occupy property.

Furthermore, the district court properly instructed the jury that they could

consider the Henrys’ reactions when deciding whether Mr. Magleby’s actions

were intended to be a threat. Robyn Henry testified that the cross-burning

“terrified” her. Id. at 652. She testified that she discussed with her husband

moving from their neighborhood. She testified that she was “scared, confused,

anxious, [and] didn’t sleep well at night.” Id. at 652. She stopped sitting on their

porch because she feared for her safety. The Henrys’ eleven-year-old son

testified that he was scared because he “didn’t know if they were still going to try

to hurt [him].” Id. at 659. He testified that he started carrying a baseball bat with

him when he would walk in his neighborhood. He also testified that he started

sleeping with this baseball bat under his bed at night “[i]n case somebody came in

[his] house.” Id. at 653. Ron Henry testified that the significance of the crossburning to him was “move, leave, you’re not welcome here, . . . you were in

trouble somewhere and they wanted you to leave, leave the community.” Id. at

680. He testified that he was “afraid for [himself] as well as the members of [his]

family.” Id. at 681. He also testified that he made several modifications to his

home to improve security and protect his family. The jury was shown
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photographs of these modifications. From this evidence, the jury could

reasonably infer that a reasonable person would foresee a burning cross in

another’s yard being interpreted in a like manner.

Having viewed the above evidence in the light most favorable to the

government, we find that there was sufficient evidence for a reasonable jury to

find beyond a reasonable doubt that Mr. Magleby intended to oppress, threaten,

and intimidate the Henrys in the free exercise of their federal right to occupy

property. We therefore find that the district court properly denied Mr. Magleby’s

motion for judgment of acquittal on these counts.

C. Evidentiary Challenges

Finally, Mr. Magleby argues that the district court erred in admitting

several pieces of evidence. We review the district court’s rulings on the

admission of evidence for abuse of discretion, if an objection is timely made, and

otherwise for plain error. United States v. Mills, 194 F.3d 1108, 1113 (10th Cir.

1999).

Under the abuse of discretion standard, we will not overturn the district

court’s decision unless we are firmly convinced that the district court “made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). In
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applying this standard, “we defer to the trial court’s judgment because of its firsthand ability to view the witness or evidence and assess credibility and probative

value.” Id. 

Under the plain error standard, Mr. Magleby must show “(1) an ‘error,’ (2)

that is ‘plain,’ which means ‘clear’ or ‘obvious’ under current law, and (3) that

‘affect[s] substantial rights.’” United States v. Fabiano, 169 F.3d 1299, 1303

(10th Cir. 1999) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)). 

Once these requirements are met, this court may “exercise discretion to correct

the error if it ‘seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” Fabiano, 169 F.3d at 1303 (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)).

In all of Mr. Magleby’s evidentiary challenges, he argues that the district

court admitted the evidence in violation of Rule 403 of the Federal Rules of

Evidence. Rule 403 permits the district court to exclude evidence if “its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading of the jury.” The district court has “broad

discretion to determine whether prejudice inherent in otherwise relevant evidence

outweighs its probative value.” United States v. Youts, 229 F.3d 1312, 1319

(10th Cir. 2000). Evidence is not unfairly prejudicial simply because it is

detrimental to a party’s case. United States v. Martinez, 938 F.2d 1078, 1082
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(10th Cir. 1991). Evidence is unfairly prejudicial when it has “‘an undue

tendency to suggest decision on an improper basis, commonly, though not

necessarily an emotional one.’” Stump v. Gates, 211 F.3d 527, 538 (10th Cir.

2000) (quoting Fed. R. Evid. 403 advisory committee’s note).

1. The Henrys’ Reactions

Mr. Magleby argues that the evidence of what he characterizes as “the

Henrys’ extended and delayed reactions” is irrelevant and highly prejudicial

because it did not pertain to their reaction at the time of the incident. He also

argues that the district court erred in admitting photographs of security measures

taken by Mr. Henry. Additionally he argues that the district court erred in

admitting a baseball bat and testimony that the Henrys’ eleven-year-old son slept

with it for protection following the cross-burning. Mr. Magleby objected only to

the admission of the photographs and the baseball bat itself, so we review the

admission of this evidence for abuse of discretion and the remainder for plain

error. Mills, 194 F.3d at 1113.

As we discussed above, evidence of the victims’ reactions to a crossburning is probative of the defendant’s intent under 18 U.S.C. § 241. The

Henrys’ reactions contained in the record begin immediately with their discovery

of the burning cross in their yard and continue through the following days. 
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Because the threat communicated by the burning cross did not disappear once the

cross was extinguished, the Henrys’ reactions in the days following the crossburning are relevant to their ongoing perception of that threat. We therefore find

no plain error in the admission of the testimony regarding the Henrys’ reactions.

The reactions of the Henrys include the security measures taken by Mr.

Henry. The government offered eight photographs as illustrative aids to Mr.

Henry’s testimony regarding the security measures he had taken. Furthermore,

the photographs are not 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)

(citations and internal quotations marks omitted). The district court reviewed the

photographs and determined that each photograph shows a different security

measure taken by Mr. Henry following the cross-burning. Because they aided the

jury in understanding Mr. Henry’s relevant testimony and are not cumulative, we

find that the district court did not abuse its discretion in admitting the

photographs into evidence.

The Henrys’ biracial son was also a victim of the cross-burning. He lived

at the home with his parents. His reactions, like those of his parents, are

probative of Mr. Magleby’s intent. His testimony that he carried and slept with a

baseball bat for protection is certainly relevant to his reaction to the cross-
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burning. We find no plain error in the admission of this testimony. Furthermore,

the baseball bat itself is illustrative of that testimony. We find, therefore, that the

district court did not abuse its discretion in admitting the baseball bat into

evidence.

2. The Testimony of Dr. Gerlach

Mr. Magleby argues that the district court erred in allowing Dr. Larry

Gerlach to testify as an expert on hate groups and the Ku Klux Klan. Mr.

Magleby did not object to this testimony at trial, so we review for plain error. 

Mills, 194 F.3d at 1113.

At trial, Dr. Gerlach testified that he is a history professor who specializes

in the history of hate groups in America, particularly the Ku Klux Klan. He

testified that he had authored a book on the history of the Klan in Utah. He

testified briefly regarding the history of the Klan in both the United States and

Utah, the symbols it used, and the groups it targeted. Finally, he testified

regarding the symbol of a burning cross as used by the Klan.

The admission of this testimony raises concerns similar to those faced by

the Eighth Circuit in United States v. J.H.H., 22 F.3d 821 (8th Cir. 1994). In

J.H.H., a “skinhead” expert was permitted to testify in a cross-burning trial even

though there was no evidence in the record that the defendant was a skinhead. Id.
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at 829. The Eighth Circuit expressed concern that the testimony implied that the

defendant was, in fact, a skinhead and that it came close to permitting the

factfinder to conclude that the defendant was guilty by association. Id.

We share these concerns and find the admission of this testimony troubling

in a number of respects. First, the record contains no evidence that Mr. Magleby

was a member of the Ku Klux Klan. Indeed, the record is completely devoid of

any evidence indicating or suggesting that Mr. Magleby was a member or

sympathizer of the Ku Klux Klan or any other hate group. At most, the evidence

shows that Mr. Magleby harbored similar prejudicial attitudes toward AfricanAmericans. This does not provide a sufficient foundation for Dr. Gerlach’s

testimony. Second, even if the government’s testimony did establish an adequate

foundation for Dr. Gerlach’s testimony, the admission of his testimony, like the

testimony in J.H.H., “comes dangerously close” to inviting the jury to find Mr.

Magleby guilty by association. Id.

Notwithstanding its concerns regarding the expert testimony, the Eighth

Circuit held that any error in its admission was harmless due to the ample

evidence of the defendants’ guilt. Id. at 829-30. In J.H.H., however, the Eighth

Circuit reviewed the admission of evidence in a bench trial. Id. at 829. 

Consequently, the court reasoned that the prejudicial impact of inflammatory

evidence was lessened. Id. In contrast, Mr. Magleby’s trial was before a jury,
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and the prejudicial impact of inflammatory evidence may therefore be heightened. 

See 1 McCormick on Evidence § 60, at 262-63 (John W. Strong ed., 5th ed.

1999). Nevertheless, we need not decide whether the admission of Dr. Gerlach’s

testimony was either an “error” or “plain” under our plain error analysis because

we too find that any error was harmless. “A non-constitutional error, such as a

decision whether to admit or exclude evidence, is considered harmless ‘unless a

substantial right of [a] party is affected.’” United States v. Charley, 189 F.3d

1251, 1270 (10th Cir. 1999) (quoting Fed. R. Evid. 103(a)). We have held that an

error affects a substantial right when it has a “‘substantial influence’ on the

outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United

States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc) (quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946)). We review “the record as

a whole de novo to evaluate whether the error is harmless, examining the context,

timing and use of the erroneously admitted evidence at trial and how it compares

to properly admitted evidence.” United States v. Hanzlicek, 187 F.3d 1228, 1237

(10th Cir. 1999). The burden of persuasion is on the defendant to show that the

error “affected the outcome of the district court proceedings.” Olano, 507 U.S. at

734 (1993). 

We find that Dr. Gerlach’s testimony did not affect the outcome of Mr.

Magleby’s trial. As discussed above, the record contains substantial evidence to
-26-

support Mr. Magleby’s convictions. Moreover, Dr. Gerlach’s testimony regarding

the history of the Ku Klux Klan in America and in Utah was brief and was the

only evidence regarding the Ku Klux Klan presented at trial. In addition, Dr.

Gerlach’s testimony regarding the symbolism of a burning cross was rendered

harmless by Mr. Magleby’s own admission on cross-examination that he

understood the “racial hatred nature” of a cross burned by the Klan. Tr. at 980. 

Mr. Magleby also admitted that he understood that a burning cross, like a

swastika, is a universal symbol of hatred.

Given the amount of evidence supporting Mr. Magleby’s convictions, we

are confident that the jury would have reached the same result even without Dr.

Gerlach’s testimony. We find, therefore, that any error in admitting Dr. Gerlach’s

testimony was harmless.

3. The Testimony Regarding James McBride

During the presentation of its case, the government introduced testimony

regarding James McBride and his views. Because Mr. Magleby objected to the

admission of this evidence at trial, we review for abuse of discretion. Mills, 194

F.3d at 1113.

Mr. McBride is allegedly a racist and member of a hate group. Mr.

Magleby testified that he had only met Mr. McBride once and that he did not
-27-

know him and was not friends with him. One of Mr. Magleby’s friends testified

that they had conversations about Mr. McBride in Mr. Magleby’s presence, but

that they had not spoken to Mr. Magleby directly about Mr. McBride or his views

[3:495-98]. Another of Mr. Magleby’s friends testified that he had once taken

Mr. McBride to a party at Mr. Magleby’s where Mr. McBride “could have” given

racist CDs, racist literature, and information regarding a hate group to Mr.

Magleby, but that he did not know if Mr. McBride had in fact provided Mr.

Magleby with such materials. Tr. at 316-17. Mr. Magleby argues that the district

court erred in admitting this evidence because it was irrelevant and highly

prejudicial. The government argues that this evidence was relevant because it

was probative of Mr. Magleby’s racial animus. 

Because this testimony raises concerns similar to those raised by Dr.

Gerlach’s testimony, we find its admission troubling. There is no evidence in the

record that Mr. Magleby even discussed Mr. McBride’s views with him or anyone

else, let alone that he shared them. There is also no evidence that Mr. Magleby

belonged to or sympathized with the “Church of the Creator,” the hate group to

which Mr. McBride allegedly belonged. Moreover, there was no evidence that

Mr. McBride attended Mr. Magleby’s party on the night that Mr. Magleby burned

the cross. It is difficult to see how the admitted testimony regarding Mr. McBride

had any relevance to Mr. Magleby’s intent on the evening he burned the cross. 
-28-

Furthermore, Mr. McBride’s testimony also comes dangerously close to inviting

the jury to find Mr. Magleby guilty by association.

Notwithstanding our doubts regarding the relevance of this testimony, we

need not decide whether the district court abused its discretion in admitting it

because we find that it was harmless error. The admission of the testimony

regarding Mr. McBride did not affect any of Mr. Magleby’s substantial rights

because we conclude it did not affect the outcome of the trial. See Rivera, 900

F.2d at 1469. As discussed in detail above, the record contains extensive

evidence of Mr. Magleby’s attitudes toward African-Americans. We are

confident that the jury would have found that Mr. Magleby acted with racial

animus even without the testimony regarding James McBride.

4. Song Lyrics

Mr. Magleby also argues that the district court erred in admitting song

lyrics from racist CDs. He argues that there was no foundation for the song lyrics

read during Mr. Magleby’s testimony and that their probative value, if any, is

substantially outweighed by their prejudicial effect. Because Mr. Magleby

objected at trial to their admission, we review for abuse of discretion. Mills, 194

F.3d at 1113. 

During its cross-examination of Mr. Magleby, the government was
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permitted to read into evidence the lyrics from a song entitled “When the Boat

Comes In” by the band Screwdriver. The message of the passage read into

evidence is that the nation has been taken over by African-Americans, that it

should be taken back, and that African-Americans should leave the country. The

chorus to this song is “Nigger, nigger, get on that boat. Nigger, nigger, row. 

Nigger, nigger, get out of here. Nigger, nigger go, go, go.” Tr. at 959.

We first address Mr. Magleby’s argument that there was no foundation for

the admission of the song lyrics. Mr. Magleby’s friend Andy Whitlock testified

that he heard Mr. Magleby play a CD by Screwdriver on a number of occasions. 

He testified that the message of one of Screwdriver’s songs played by Mr.

Magleby was “[j]ust get out, leave the country” and that it contained the word

“nigger.” Id. 394-95. Another of Mr. Magleby’s friends, Justin Merriam,

testified that, on the night of the cross-burning, Mr. Magleby was playing a CD by

Screwdriver with lyrics “nigger get on your boat, nigger go.” Id. at 331. Liz

Cannon, who accompanied Mr. Merriam to Mr. Magleby’s party on the evening of

the cross-burning, testified that Mr. Magleby played a CD with lyrics like “nigga,

nigga.” Id. at 468. She also testified that Mr. Magleby knew and sang along with

the lyrics to the racist CDs: “[Mr. Magleby] knew the lyrics on the CD’s. . . . as

good as you can know them, he knew the lyrics. He could sing them word-forword.” Id. at 468-69. All of this testimony preceded the introduction of the
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Screwdriver lyrics during the cross-examination of Mr. Magleby. We find that

this evidence provided a sufficient foundation to permit the district court to

appropriately exercise its discretion in admitting the lyrics.

We now turn to Mr. Magleby’s argument that the lyrics are irrelevant and

unfairly prejudicial. Although the admission of the lyrics to the Screwdriver song

was certainly harmful to Mr. Magleby’s case, we conclude that its probative value

outweighed its prejudicial effect. This evidence is probative both of Mr.

Magleby’s racial animus under 42 U.S.C. § 3631(a) and of his intent under 18

U.S.C. § 241.

In United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999), we held that

the context in which an alleged threat is made is probative of whether a “true

threat” exists. Id. at 398. In Viefhaus, the defendant was convicted of making

threats against, inter alia, African-Americans, Jews, and federal law enforcement

on an answering machine “hotline.” The defendant asserted as a defense that he

lacked the intent requisite to make a true threat. We upheld the admission of

racially inflammatory items as relevant to the defendant’s intent. 

[T]he need to demonstrate the context in which Viefhaus uttered his

remarks rendered much of the evidence of Viefhaus’ racial hostility

intrinsic to the crime charged in the indictment. . . .

 

. . . .

. . . The only way a jury could properly assess the sincerity of

Viefhaus’ beliefs, as well as the likely effect Viefhaus’ message
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would have on an objective listener, was to examine the

circumstances in which the comments were made.” 

Id.

As did the defendant in Viefhaus, Mr. Magleby denies having the requisite

intent under 42 U.S.C. § 3631(a) and 18 U.S.C. § 241. The lyrics to the

Screwdriver song, as well as the evidence that Mr. Magleby knew the lyrics and

could sing along with them, are probative of his intent under these sections. First,

§ 3631(a) requires that the government prove beyond a reasonable doubt that Mr.

Magleby targeted the Henrys because of their race. The lyrics and Mr. Magleby’s

familiarity with them are probative of his racial animus in burning the cross. 

Second, under § 241, the government must prove beyond a reasonable doubt that

Mr. Magleby had the specific intent to “oppress, threaten or intimidate” the

Henrys in the enjoyment of their federally protected right to occupy property. 

Context is important in determining whether a true threat has been made. 

Viefhaus, 168 F.3d at 397. The necessity of demonstrating the context in which

the cross was burned renders the Screwdriver lyrics and other evidence of

hostility toward the presence of African-Americans in this country intrinsic to a

violation of § 241. And, as in Viefhaus, the only way the jury could properly

determine the message conveyed by Mr. Magleby’s cross-burning and the

foreseeable effect it would have on the Henrys was to examine the circumstances

in which the cross-burning was conceived, planned, and executed. We find that
-32-

the district court did not abuse its discretion in admitting the song lyrics into

evidence.

5. Testimony that Mr. Magleby Provided Alcohol and Pornography to

Minors

Finally, Mr. Magleby argues that the district court erred in admitting

testimony that Mr. Magleby provided alcohol and pornography to a minor. 

During its cross-examination of Mr. Magleby, the government inquired into

whether he allowed L.M. to look at pornography while at his home and whether

he provided L.M. with alcohol. The government argues that this evidence is

relevant as illustrative of the relationship between Mr. Magleby and his coconspirator. The government also argues that this testimony permitted the jury to

assess Mr. Magleby’s credibility. Because Mr. Magleby did not object to this

evidence at trial, we review for plain error. Mills, 194 F.3d at 1113.

Viewing the record as a whole and taking this evidence in context, we

conclude that the jury would have reached the same verdict even without the

testimony about Mr. Magleby providing alcohol and pornography to minors. The

cross-examination on this subject was brief. Additionally, Mr. Magleby denied

that he gave L.M. alcohol or permitted him to look at pornography. There was

sufficient evidence for the jury to find Mr. Magleby guilty beyond a reasonable
-33-

doubt. We find, therefore, that the admission of this testimony was not plain

error.

III. Conclusion

We find that neither challenged jury instruction constituted plain error. We

also find that the government presented sufficient evidence to permit the jury to

find beyond a reasonable doubt that Mr. Magleby violated 42 U.S.C. § 3631(a),

18 U.S.C. § 241, and 18 U.S.C. § 844(h)(1). Furthermore, we find that the district

court did not commit reversible error in admitting any of the evidence challenged

by Mr. Magleby.

Accordingly, we AFFIRM.