### The Honorab le Michael J. Davis, United States District Judge 1 

### for the District of Minnesota. _____________ No. 96-2159

_____________ United States of America, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * Herman L. Abrams, * * Defendant-Appellant. *

_____________ Submitted: November 21, 1996 Filed: March 18, 1997

_____________ Before FAGG, HEANEY, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge. Herman L. Abrams appeals his convict ion on one count of bank robbery in violation of 18 U.S.C. § 2113(a) (1994). He contends that the district court committed plain error by allowing the government to elici t

1 prejudicial testimony that the district court ha d preliminarily determined should be excluded. We affirm.

I. At approximately 4:43 p.m. on November 21, 1994, the First Bank , located at 1071 Grand Avenue in St. Paul, Minnesota, was robbed as th e tellers were preparin g to close for the evening. Viewing the evidence in the light most favorable to the verdict,

### 2

two b ank tellers were counting and bundling their money as the robber , later iden tified as Herman Abrams, entered through the back door. H e waited in line at one teller window, requested a deposit slip, and went to
a n earby table where he wrote a demand note on the deposit slip. Th e robber returned to the line in front of the first teller, who was stil l count ing the money from her drawer. A bank teller supervisor summone d Abrams to her window as she was returning a bund le of money to her drawer. Abrams demanded that she give him the bundle of money and handed her the note that said, "I have a gun. Give me the money." (Trial Tr. at 31. ) The supe rvising teller complied, and the robber fled with a bundl e containin g $5,500. Both tellers had a good opportunity to view th e robber's face at a close distance, and they independently filled out a for m detailing the bank robber's description without having discussed the matte r with each other. Each identified Abrams at trial.

The bank's surveillance camera captured pictures of the robber, a n African-American male whom the supervising teller described as wearing a dark colored baseball cap with an "M" on the front, a navy blue jacket, an d dark pants. Shortly after the robbery, an officer was carrying one o f these pictures when he stopped to visit Ms. Done sther Morris. She noticed the pictu re in the officer's hand and said she knew the person in th e picture to be Herman Abrams, whom she knew from high school. Earlier that day, be tween 3:15 and 3:30 p.m., Ms. Morris had seen Herman Abrams in a nearby car wearing the clothes depicted in the s urveillance picture. They exchanged waves as they waited at a stoplight.
Ms. Tina Entner was Abrams' girlfriend at the time of the robbe ry and testified that Abrams had confessed the robbery to her in late November, 1994. M s. Entner testified that Abrams told her he had parked his ca r three blocks away in an alley, and after robbing the bank, he fled to his mother's house in St. Paul. At approximately 6:40 that evening Abrams gav e Ms. Entner $300 from a

### 3

wad of mo ney to help pay household bills. Additionally, on December 1 , 1994, she was with Abrams when he retrieved a Minnesota Twins baseball hat , a blue jack et, and a pair of brown jeans from his mother's home an d disposed of them at a garbage hauling company.
The government also showed that between noon and 3:00 p.m. on t he day of the ro bbery, Abrams had visited his insurance agent to obtain a n estimate of the cost to reinstate his car insurance. The estimate wa s $310. Abrams told the agent he did not have the money but would have it by Friday. Abrams did not purchase the insurance at that time but returne d at approximately 6:00 p.m. (after the robbery) a nd purchased the insurance with two money orders purchased shortly before 6:00 p.m.
A few days after the robbery, a depu ty in northern Minnesota stopped Abrams fo r speeding. Abrams was acting nervous and kept his hands dow n behin d his waist. The officer noticed a stack of money to the right o f Abrams on the driver' s seat and on the floor. The bills totalled $1,594.

On May 25, 1995, Abrams was indicted on one count of bank robbery , in violation of 18 U.S.C. § 2113(a). Prior to trial, the district court ruled that the govern ment could not admit at trial any details concerning any domestic violence perpetrated by Abrams against Ms. Entner. Th e defense s ought to impeach the testimony of Tina Entner with a prio r inconsistent statement. She had originally told the FBI that Abrams was not the robber, but changed her story in April 1995 after thei r relati onship had ended. On redirect examination, the Assistant Unite d States Attorney (AUSA ) attempted to rehabilitate her witness, Ms. Entner. In answer to questions posed by the AUSA, Ms. Entner testified that sh e initial ly lied to the FBI because she feared for her life. She furthe r testif ied that she and Abrams had a bad relationship and that he ha d previously pulled guns and knives on her, choked her,

### 4

threatene d her, and chased her on the freeway. Defense counsel made n o objection to this testimony.

Abrams presented an alibi defense through his sister, Dana Abrams , who tes tified that Abrams had been shopping with her at the time of th e robbery. She also te stified that she had loaned Abrams $1,000 a few days before the robbery at issue.

The jury convicted Abrams. After granting a joint motion for a downward departure, the district court sentenced Abrams to a term of 121 months of imprisonmen t. Abrams appeals his conviction, raising one issue -- the redirect testimony of Ms. Entner.

II.

Abrams contends that the district court committed plain error b y adm itting the testimony of Tina Entner, detailing Abrams' prior acts o f domestic abuse. As indicated, the district court had made a preliminary pre-trial ruling prohibiting the government from offering any details of the domestic violence Abrams allegedly engaged in during his relationship with Ms. Entner. The district court ruled that, if the defense impeached Ms. Entner with her first statement, the government could attempt t o explain the inconsistency but could not inquire into the details of th e abuse or whether any charges of domestic assault were filed against Abrams

. Ms. Entner was expected to explain her inconsistent prior statement b y stati ng that she feared the defendant because he had abused her durin g their relationship but that after the relationship had ended, she moved 30 0 miles away and then felt free to talk to the FBI.

At trial, after the defense impeached Ms. Entner with her prio r inconsistent statement, the AUSA attempted to rehabilitate the witness, an d the following exchange occurred:

### 5 Q. Why were you lying when you talked to the FBI agents the firs t time? A. The first time, in fear of my life. Q. Tell me why you feared for your life? A. Herman and I had a v ery bad relationship. There was a lot of abuse. It was a very -- there was a lot of domestic abuse in o ur relationship. A lot of threats were made to me. Mr

. Abrams has pulled guns. He's pulled knives. Q. I'm sorry. I didn't hear you.
A. He's pulled guns on me. He's pulled knives on me. He' s choked me. He's chased me down the freeways. Q. Okay. Did you fear for your life?
A. Yes.
(Trial Tr. at 110.) The defense lodged no objection to this testimony at the time of trial, and Abrams now argues that the admission of thi s evidence deprived him of a fair trial.
Because Abrams failed to object to t his evidence at trial, we review for plain error. Fed . R. Crim. P. 52(b). Our authority under Rule 52(b) is limited to determining if there is "an `error ' that is `plain' and that `affect[s] substantial rights.'" United States v. Olano , 507 U.S. 725, 73 2 (1993 ) (quoting Rule 52(b)). "When a forfeited error meets thes e limitations, we have discretionary authority to order correction," United States v. Montanye , 996 F.2d 190, 192 (8th Cir. 1993) (en banc), but w e "should not exercise that discretion unless the error seriously affects th e fairness, integrity or public reputation of judi cial proceedings." Olano , 507 U.S. at 732 (internal quotations and alterations omitted).

Th ere is no dispute that the district court properly allowed Ms

. Entner to testify to her fear of Abrams as a means of

### 6

explaining the reason for her prior inconsistent statement. See Wycoff v. Nix , 869 F.2d 1111, 1116 (8th Cir.) (government allowed to ask genera l questions about threats in attempt to explain reason for prior inconsisten t statement), cert. denied , 493 U.S. 863 (1989). However, that portion of Ms. Entner's testimony detailing that Abrams pulled guns and knives on her , cho ked her, and chased her, is exactly the type of testimony that th e district court sought to exclude by its preliminary ruling. Abram s cont ends that the district court erred by failing to give a limitin g instruction sua spont e after this testimony was erroneously admitted into evidence and by failing to grant a mistrial due to prosecutorial misconduc t in eliciting this testimony.

The district court did not err by failing to give a limitin g instruction sua sponte in this case. See United States v. Perkins , 94 F.3 d 429, 435-36 (8th Cir. 1996) (stating "we have never found it to be plain
error w hen a court does not give a limiting instruction of any kind su a sponte with respect t o Rule 404(b) type evidence"), cert. denied , 1997 WL 10420 (U.S. Feb. 18, 1997) (No. 96-7365); United States v. McGuire , 45 F.3 d 1177, 1188 (8th Cir.) (stating court need not issue prior crimes limiting instru ction sua sponte), cert. denied , 115 S. Ct. 2558 (1995)

. Furthermore, while th is testimony was excluded by the court's preliminary ruling, it was not so prejudicial as to affect A brams' substantial rights. See Olano , 507 U.S. at 732. The jury was properly informed that Ms. Entne r init ially lied because she feared for her life. While her testimon y referr ing to guns, knives, chasing, and choking violated the distric t court's preliminary ruling, we conclude that this reference (in the contex t of explaining her inconsistent statement and fear of Abrams) had littl e overall prejudicial effect because the properly admitted evidence of guilt
was strong. The government presented considerable evidence against Abrams

. The government's case was not solely dependent on Ms. Entner's testimony but in cluded the eye witness identifications of two bank tellers , photographs of the robbery from security cameras, Ms.

### The government asserts that the witness's testimony wa s 2 

### emotional and at times barely audible. The prosecutor states that she asked Ms. Entner to repeat the objectionable testimony because she did not hear Ms. Entner's response, not in an attempt t o unders core the improper statement before the jury. Because th e cold record does not communica te this type of information, we give the defendant the benefit of the doubt in our analysis.
7 Morris's testimony that the man in the surveilla nce photo was Abrams, whom she had seen earlier in the day dressed as shown in the surveillance camer a pictures, and the evidence that Abrams possessed large amounts of cas h close in time to the robbery. Moreover, the dis trict court allowed Abrams to exte nsively cross examine and impeach Ms. Entner's testimony. Th e admission of her prejudicial statements did not deprive Abrams of a fair trial and did not seriously affect the fairness or integrity of th e judicial proceeding.

For the same reasons, the district court did not err by not su a sponte granting a mistrial on the basis of prosecutorial misconduct

. Gen erally, when assessing allegations of prosecutorial misconduct, w e consider whether the prosecutor's remarks were in fact improper and whethe r they p rejudicially affected the defendant's substantial rights so as t o deprive the defendant of a fair trial. McGuire , 45 F.3d at 1189. First, assuming that the prosecutor intentionally elicited the prejudicia l statements , such conduct is improper. Turning to the second part of the 2 test, we consider three factors to determine the prejudicial effect from the prosecutorial misconduct: (1) the cumulative effect of the misconduct , (2) the strength of the properly admitted evidence of guilt, and (3) the curative actions taken by the trial court. United States v. Jackson , 41 F.3d 1231, 1233 (8th Cir. 1994). As already discussed, the cumulativ e effect of the misconduct is minimal in light of the strength of th e properly admitted evidence of guilt in this case, and the fact that th e district court took no curative action sua sponte did not deprive Abrams of a fair trial.

### 8 III.
Accordingly, we conclude that the district court did not commit plain error, and we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.