FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 15, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11329

Non-Argument Calendar

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D. C. Docket No. 08-00347-CR-T-30-TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RANDY NOWAK,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(March 15, 2010)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

Randy Nowak appeals his convictions for attempting to kill Christine
Brandt, an employee of the United States Internal Revenue Service (“IRS”), on

account of the performance of her duties, in violation of 18 U.S.C. § 1114, and

using interstate commerce facilities in the intended commission of murder-for-hire,

in violation of 18 U.S.C. § 1958. At trial, the Government called Walter McGhee,

who testified that Nowak wanted to have Brandt killed by some Outlaw bikers

whom McGhee knew because Nowak was being audited. McGhee contacted law

enforcement who arranged for Nowak to meet an undercover officer posing as an

Outlaw biker named “the Reaper,” who would kill Brandt for Nowak. The jury

found Nowak guilty as charged, and the court sentenced him to consecutive prison

sentences of 240 months and 120 months, respectively. Nowak now appeals,

raising four issues. We consider them in sequence.

I. Whether the district court abused its discretion in denying Nowak’s motion

in limine to exclude evidence of Nowak’s possession of a firearm, statements

regarding time he spent in state prison, and his desire to destroy the IRS

building where Brandt worked

Nowak first contends that McGhee’s testimony that Nowak gave him a gun

on his way to meet the Reaper to make the final payment for the murder was not

relevant to the crime of murder-for-hire because there was no evidence that Nowak

intended to commit the crime himself. Moreover, he maintains that possession of

the firearm was not part of the offense because he gave the gun to McGhee because

he did not want to take it to his meeting with the Reaper. Nowak argues that Rule

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403 of the Federal Rules of Evidence barred evidence of his possession of the

firearm because it was not probative of any issue in the case and the evidence

portrayed him as a dangerous man. He also submits that the evidence should have

been excluded under Rule 404 due to the risk that the jury might convict him for

being a felon in possession of a firearm. Nowak asserts that the district court’s

denial of his motion in limine was “nonsensical.”

Second, Nowak contends that the court erred in allowing the Government to

introduce his recorded remark to the Reaper that he had served time twice in state

prison because the probative value of the evidence was not substantially

outweighed by the danger of undue prejudice under Rule 403. He maintains that

while evidence of his prior prison time was of “incremental” probative value, it

carried a “tremendous danger of unfair prejudice” because a “jury is more likely to

convict [a] person because the jury considers the defendant a bad or dangerous

person.”

Third, Nowak contends that evidence that he asked the Reaper to also

destroy the IRS building where Brandt worked was inadmissible as intrinsic

evidence in light of United States v. Jiminez, 224 F.3d 1243 (11th Cir. 2000), and

United States v. McLean, 138 F.3d 1398 (11th Cir. 1998), because his statements

about the IRS building did not arise out of the same transaction as either of the

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charged offenses. Lastly, he maintains that the cumulative effect of these adverse

evidentiary rulings led to an unfair trial.

We review a district court’s ruling on a motion in limine for an abuse of

discretion. United States v. Thompson, 25 F.3d 1558, 1563 (11th Cir. 1994).

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403.

District courts have broad discretion to admit probative evidence, but their

discretion to exclude evidence under Rule 403 is limited. United States v.

Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990). “[T]he application of

Rule 403 must be cautious and sparing. Its major function is limited to excluding

matter of scant or cumulative probative force, dragged in by the heels for the sake

of its prejudicial effect.” United States v. Mills, 704 F.2d 1553, 1560 (11th Cir.

1983).

Under Fed. R. Evid. 404(b),

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, 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) (emphasis added). However, evidence is intrinsic to the

charged offense, and thus does not fall within Rule 404(b)’s ambit, if it (1) “arose

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out of the same transaction or series of transactions as the charged offense”; (2) is

“necessary to complete the story of the crime”; or (3) is “inextricably intertwined

with the evidence regarding the charged offense.” United States v. Edouard, 485

F.3d 1324, 1344 (11th Cir. 2007) (quotation omitted).

Regardless of whether such evidence falls inside or outside the scope of

Rule 404(b), the evidence must still comport with Rule 403’s requirements that its

probative value outweighs the danger of unfair prejudice. Id. We have described

unfair prejudice as evidence that was “of a heinous nature, likely to incite the jury

to an irrational decision . . . or . . . cumulative or confusing to the jury.” See United

States v. Astling, 733 F.2d 1446, 1457 (11th Cir. 1984) (quotation and citations

omitted). Moreover, the evidence must be relevant to an issue other than the

defendant’s character, and there must be sufficient proof that a jury could

reasonably find that the defendant committed the act. See id. “To establish

relevance . . . where testimony is offered as proof of intent, it must be determined

that the extrinsic offense requires the same intent as the charged offense.” United

States v. Dickerson, 248 F.3d 1033, 1047 (11th Cir. 2001) (quotations omitted).

The “same intent” requirement will be satisfied if the prior act and the charged

crime “involve the same mental state.” Id. (holding that extrinsic evidence of

cocaine purchases was sufficient to prove intent in conspiracy to distribute

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cocaine).

Even though the district court admits evidence “under Rule 404(b), we may

still determine if it was admissible on other grounds.” United States v. Cardenas,

895 F.2d 1338, 1345 (11th Cir. 1990). Moreover, “we have held that the

cumulative effect of multiple errors may so prejudice a defendant’s right to a fair

trial that a new trial is required, even if the errors considered individually are nonreversible.” United States v. Khanani, 502 F.3d 1281, 1295 (11th Cir. 2007).

However, if the defendant cannot show that the district court erred in admitting the

challenged evidence, he cannot establish cumulative error. United States v.

Hoffman-Vaile, 568 F.3d 1335, 1342 (11th Cir. 2009).

In this case, the district court did not abuse its discretion in denying

Nowak’s motion in limine because all of the challenged evidence fell within the

enumerated exceptions of Rule 404(b).

II. Whether the district court erred in granting the Government’s motion in

limine to exclude evidence that McGhee had been arrested on state tax

charges

Nowak contends that the district court erred in restricting his counsel’s

cross-examination of McGhee in violation of his rights under the Confrontation

Clause and United States v. Hurn, 368 F.3d 1359, 1363 (11th Cir. 2004)

(addressing compulsory process and due process guarantees). Nowak submits that

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his defense was based on McGhee’s initiation of contact with the Outlaws, the

Outlaws’ decision to kill Brandt, and Nowak’s decision to go along with the plan

because he feared crossing the Outlaws. Nowak argues that because he was not

permitted to question McGhee about his recent arrest on state tax charges, the jury

was unable to hear critical impeachment evidence about McGhee’s motive for

testifying against him, namely his attempt to curry favor with “the authorities

prosecuting him.” Moreover, Nowak argues that Rules 608 and 609 of the Federal

Rules of Evidence were irrelevant to his argument, and alternatively, even if those

rules were applicable, the court should not have used them to deny his

constitutional right of confrontation. He also asserts that the court compounded the

evidentiary errors discussed under Issue I when it admitted his statements about his

prior convictions while precluding him from cross-examining McGhee about his

motive to testify against him.

“The doctrine of invited error is implicated when a party induces or invites

the district court into making an error.” United States v. Silvestri, 409 F.3d 1311,

1327 (11th Cir. 2005) (quotation and citation omitted). A party who invites an

error may not later challenge that error on appeal. See id. “Where invited error

exists, it precludes a court from invoking the plain error rule and reversing.” Id.

In this case, on both occasions when the Government moved to exclude

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evidence of McGhee’s arrest, Nowak’s counsel conceded that evidence of the

arrest was not proper and that she was not going to question him about it.

Accordingly, because Nowak invited any error resulting from the district court’s

exclusion of evidence about McGhee’s arrest, we will not entertain the argument.

III. Whether the district court erred in denying Nowak’s motion for a mistrial

based on prosecutorial misconduct

Nowak submits that the prosecutor made improper comments during her

closing argument that seriously damaged his credibility. He cites the prosecutor’s

repeated references to his “fabricated” story, “fantasy,” “fallacy,” and his comfort

with “lying” to the jury. He asserts that the prosecutor’s statements that he lied to

the jury and that his counsel was afraid to put some of the transcripts of recorded

conversations before the jury prevented him from receiving a fair trial. Nowak

also argues that the prosecutor impermissibly attempted to shift the burden of proof

to him during cross-examination by twice asking him whether he had any

corroborating evidence to back up his story. He contends, moreover, that the

prosecutor’s questions were not invited responses to his testimony under United

States v. Schardar, 850 F.2d 1457 (11th Cir. 1988) and United States v. Castro, 89

F.3d 1443 (11th Cir. 1996). Finally, he argues that this court should vacate his

convictions and remand the case for a new trial under the cumulative error

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doctrine.

“Allegations of prosecutorial misconduct present mixed questions of law and

fact that we review de novo.” United States v. Campa, 529 F.3d 980, 992 (11th

Cir. 2008), cert. denied, 129 S.Ct. 2790 (2009). Denial of a motion for a mistrial is

reviewed for abuse of discretion. Id. Objections or arguments that are not raised

before the district court are reviewed for plain error. United States v. Evans, 478

F.3d 1332, 1338 (11th Cir. 2007). To establish plain error, a defendant must show:

“(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (quotation omitted). If all three

conditions are met, we may exercise our discretion to correct the error if it

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation and alterations omitted).

“In reviewing a claim of prosecutorial misconduct, we assess (1) whether the

challenged statements were improper and (2), if so, whether they prejudicially

affected the appellants’ substantial rights.” United States v. Demarest, 570 F.3d

1232, 1242 (11th Cir.) (quotations omitted), cert. denied, 130 S.Ct. 421 (2009). In

Demarest, we held that a prosecutor’s questions during cross-examination asking

whether the defendant had evidence to support his story did not impermissibly shift

the burden of proof from the government to the defense because the “prosecutor

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was entitled to cross-examine Demarest after he decided to testify, and a

cross-examination necessarily entails testing the plausibility of a defendant’s

account.” Id. The cases Nowak cites, Schardar, 850 F.2d 1457, and Castro, 89

F.3d 1443, do not relate to the scope of cross-examination. See Schardar, 850 F.2d

at 1463 (holding that the prosecutor’s comment during closing argument that while

the government bore the burden of proof, both the government and the defense had

subpoena powers was not improper); and Castro, 89 F.3d at 1457 (holding that the

prosecutor did not impermissibly vouch for the credibility of a witness on direct

examination).

With respect to prosecutorial statements made during closing argument, “an

attorney’s statements that indicate his opinion or knowledge of the case as

theretofore presented before the court and jury are permissible if the attorney

makes it clear that the conclusions he is urging are conclusions to be drawn from

the evidence.” United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984)

(quotation omitted). “Application of this standard requires consideration of all

circumstances at trial, including the strength of the evidence against [the

defendant].” Id. at 662. In Johns, we explained that the prosecutor’s closing

argument fell within this prescript because:

The low credibility the prosecutor suggested the jury accord the

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defense experts’ testimony and the alibi testimony arose from the

evidence. The prosecutor did not place the credibility of his office

behind his own witnesses. At most he merely attempted to rebut

aspersions the defense had cast on those witnesses; he pointed out

features of their own testimony that supported their credibility. He did

not express personal opinions about the witnesses. Rather, he urged

the jury to draw inferences and conclusions from the evidence

produced at trial.

Id. at 663.

The district court did not commit plain error by not declaring a mistrial

based on the prosecutor’s statements during closing argument because it was not

improper for her to challenge Nowak’s truthfulness during summation—given that

the record supported a finding that he was lying to the jury. Further, the prosecutor

was entitled to test the plausibility of Nowak’s account on cross-examination by

asking whether he had any corroborative evidence. Nowak’s cumulative error

argument is thus without merit.

IV. Whether the district court plainly erred by not dismissing count two based

on the ground that 18 U.S.C. § 1958 exceeds Congressional authority under

the Commerce Clause

Nowak contends that Congress exceeded its authority under the Commerce

Clause in enacting 18 U.S.C. § 1958, and that the statute was applied

unconstitutionally to him. In a footnote, he concedes that we have rejected similar

arguments in several opinions and cites United States v. Evans, 476 F.3d 1176

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(11th Cir. 2007). and United States v. Covington, 565 F.3d 1336 (11th Cir.), cert.

denied, 130 S.Ct. 564 (2009). Nevertheless, he maintains that “[e]volving

federalism jurisprudence of the Supreme Court supports the requirement of actual

and meaningful interstate use of a facility for the proper application of Commerce

Clause power.” He states that none of the phone calls between himself, McGhee,

and the Reaper crossed state lines, and therefore, the statute is invalid under the

Commerce Clause both facially and as applied to him.

“Constitutional objections not raised before the district court are reviewed

only for plain error.” United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir.

2005). Under 18 U.S.C. § 1958,

Whoever . . . uses . . . any facility of interstate or foreign commerce,

with intent that a murder be committed in violation of the laws of any

State or the United States as consideration for the receipt of, or as

consideration for a promise or agreement to pay, anything of

pecuniary value . . . shall be imprisoned.

18 U.S.C. § 1958(a) (emphasis added). A “facility of interstate commerce includes

means of transportation and communication.” 18 U.S.C. § 1958(b). We have held

that “[t]he telephone system is clearly a ‘facility of interstate . . . commerce’ [under

18 U.S.C. § 1958(b)],” Covington, 565 F.3d at 1343, and the phone is an

instrumentality of interstate commerce even when used solely intrastate, United

States v. Faris, 583 F.3d 756, 759 (11th Cir. 2009).

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Nowak’s argument that Congress exceeded its authority in enacting 18

U.S.C. § 1958 is without merit. The district court did not commit plain error in not

dismissing the § 1958 charge of the indictment.

AFFIRMED.

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