United States v. Lee

United States Court of Appeals
For the First Circuit

No. 14-1042

UNITED STATES OF AMERICA,

Appellee,

v.

BENJAMIN LEE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Kayatta and Barron, Circuit Judges.

Peter J. Cyr on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Richard W. Murphy, Attorney for the United States, acting under
authority conferred by 28 U.S.C. § 515, on brief for appellee.

June 12, 2015
 LYNCH, Chief Judge. Following a jury trial, Benjamin Lee

was convicted of two counts of interstate stalking with the intent

to harm, or even kill, his estranged wife and her boyfriend, in

violation of 18 U.S.C. §§ 2261A(1) and 2261(b)(5), and sentenced to

100 months' imprisonment. On appeal, he challenges the admission

of evidence of his earlier domestic abuse of his wife, the conduct

of his trial, and the sufficiency of the evidence against him. He

also says his sentence was unreasonable. There was no error. Lee

had a fair trial, the jury verdict was soundly based, and the

sentence was reasonable in view of the facts.

I.

We review the facts in the light most favorable to the

jury's guilty verdict. See United States v. Rodríguez, 731 F.3d

20, 23 (1st Cir. 2013).

The interstate stalking convictions follow upon Benjamin

Lee's turbulent relationship with his then-wife, Tawny Lee, who had

left him in Missouri, and her boyfriend, Timothy Mann, with whom

she lived in Maine. Because two Lees are involved, we use their

first names.

Tawny met Benjamin in Colorado around 1970, when she was

eight. She began dating Mann when she was 16. After Mann left to

work on a family farm, he and Tawny separated, and Tawny began

dating Benjamin. Tawny continued a friendship with Mann, angering

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Benjamin, which eventually caused Tawny to distance herself from

Mann. Tawny's mother and a friend testified that Benjamin was

controlling and verbally abusive toward Tawny.

One incident occurred around 1979. Benjamin drove up to

a car containing Tawny, her brother, her sister-in-law, and Mann,

whom Tawny had previously dated. Benjamin approached the car,

opened the driver's side door, pushed the driver's seat forward,

pulled Tawny out of the car by her clothing, pushed her into his

car, and drove away. Tawny testified that, while driving away,

Benjamin told her "if he couldn't have [Tawny], no one could."

Tawny stayed with Benjamin because she "feared what he could

possibly do or would do." They married in the late 1970s,

eventually having two children. Six months after the 1979 car

incident, Tawny and Benjamin argued. Tawny ran out of their home

to the end of the street, where Benjamin grabbed her by the hand

and pulled her back into the apartment where they lived.

Tawny testified that Benjamin subjected her to near daily

verbal abuse for the duration of their marriage. According to the

Presentence Investigation Report, they divorced in 1993.

Tawny returned to Benjamin when he told her he had

"people" watching Mann's house, where Tawny spent time. Tawny and

Benjamin moved together from Colorado to Missouri. In 2001, the

couple remarried, so Benjamin could have back surgery while covered

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by Tawny's insurance. Benjamin continued to abuse Tawny, verbally

and sometimes physically.

On July 5, 2010, Tawny picked up medication for Benjamin,

then picked her son up from college before returning home. On

returning home, Benjamin berated Tawny for failing to drop the

medicine off with Benjamin first, and when Tawny tried to flee,

Benjamin hit her with his cane. Tawny's daughter called the

police, but Tawny did not press charges.

In the fall of 2011, Tawny reconnected with Mann through

Facebook. Around the same time, she testified that she also became

upset at Benjamin's "associat[ion] with people that [Tawny] felt

had extreme poor moral conduct." The couple argued, and Tawny

repeatedly threatened to leave Benjamin. In December 2011, Tawny

made plans to leave.

In February 2012, Benjamin broke his back in an

automobile accident. He was hospitalized for two weeks, and Tawny

cared for him at home for six weeks.

In April 2012, Tawny left Benjamin and moved with Mann to

Maine. In the ensuing months, Benjamin searched for Tawny,

emailing her 300 times and calling relatives. Some of the emails

contained threats toward Mann and threats to "[n]ail [Tawny's] head

on the wall." Tawny's mother filed a police report after Benjamin

left her angry messages accusing her of hiding Tawny.

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 The Lees communicated by phone and email, with Benjamin

blaming his behavior on his medications. Tawny insisted that

Benjamin leave her alone, but Benjamin threatened that he would

find her when able and that the police would not be able to prevent

him from acting. Tawny understood one email from Benjamin to be a

death threat.

Benjamin was hospitalized in Missouri three times between

April and July 2012. His diagnoses included altered mental status,

hypoglycemia, drug abuse, diabetes, a thyroid disorder, high blood

pressure, and depression. Benjamin, who is morbidly obese, was

scheduled to have another back surgery, and the Lees began

communicating more frequently by phone. Tawny took his emails

after the hospitalization to be "more cordial" and not "rude."

Around the same time, at the urging of Benjamin's sister, Tawny

gave Benjamin her address in Maine. She and Mann had moved to

Limerick, Maine, and Tawny was concerned that Benjamin would

discover her previous address and entangle the person living there,

Mann's uncle. She also thought that Benjamin would eventually

discover her location.

Upon learning Tawny's location, Benjamin told a friend

that he would "kill [Mann] and if Tawny didn't come home, he would

kill her too." His sister testified that, in July and August 2012,

Benjamin made near-daily promises to harm Tawny or Mann. On July

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27, 2012, Benjamin changed his will to leave everything to his son,

to the exclusion of his wife and daughter.

In August 2012, Benjamin borrowed his brother's white

Cadillac and told his son and a sister that he was leaving for a

fishing trip in Colorado with a friend. Disbelieving him,

Benjamin's sisters contacted Tawny and warned her that they thought

Benjamin was headed to Maine. Tawny and Mann applied for a

restraining order in Maine state court near Sanford, Maine, on

September 7, but it was refused.

Benjamin was in fact heading to Maine. On September 7,

from a McDonald's in Rumford, Maine, an hour from Limerick,

Benjamin emailed Tawny and said, misleadingly, that he was en route

to his mother's home in Kansas. Later that day, Mann spotted a

white Cadillac with Missouri license plates driving past the house

in which Tawny and Mann lived. The car drove past the house

approximately a dozen times, then stopped, and the driver got out

of the car, opened the car's trunk, then closed it and returned to

the driver's seat. Tawny called the police, while Mann got his

shotgun. Mann testified that "everybody was in a state of panic"

and "scared to death." The car moved on.

A Maine state trooper stopped the white Cadillac about

four miles from the home and arrested Benjamin. A search of the

car revealed five firearms, including two loaded handguns and a

loaded shotgun. The car also contained two knives, a bayonet, two

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rolls of duct tape, rope, rubber gloves, plastic bags and sheeting,

handcuffs, camouflage face paint, ammunition, maps identifying

Tawny's home, and a walker. Benjamin's brother testified that the

family kept many of those items in the car for hunting and camping,

but also that other of the items found in the car did not belong to

him. Analysis of Benjamin's computer showed that he had searched

for a blueprint of Tawny's home, and he told the police that he had

been able to find its layout. A camera contained photos of the

house. After the arrest, Lee's son discovered a note from his

father explaining that, when the son read it, Lee would "probably"

be "either dead or not with you any longer." Lee did not testify;

he did present four defense witnesses.

II.

On December 4, 2012, Benjamin was charged in the United

States District Court for the District of Maine with two counts of

interstate stalking, with Tawny and Mann each identified as a

victim. The federal interstate stalking statute punishes those who

travel[] in interstate or foreign commerce . . . with the
intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass,
or intimidate another person, and in the course of, or as
a result of, such travel or presence engage[] in conduct
that –
(A) places that person in reasonable fear of the
death of, or serious bodily injury to –

(i) that person;

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 (ii) an immediate family member . . . of that
person; or

(iii) a spouse or intimate partner of that
person; or

(B) causes, attempts to cause, or would be
reasonably expected to cause substantial emotional
distress to a person described in clause (i), (ii), or
(iii) of subparagraph (A) . . . .

18 U.S.C. § 2261A(1). On September 16, 2013, a jury convicted

Benjamin on both counts.

The Presentence Investigation Report recommended a

guidelines sentencing range of 51 to 63 months. The district court

varied above the guidelines, imposing a total sentence of 100

months: 60 months on Count One and 40 months on Count Two, to be

served consecutively, followed by three years of supervised

release. The district court entered the judgment on January 6,

2014, and this appeal followed the same day.

III.

Benjamin challenges both his conviction and sentence.

A. Conviction

Benjamin attacks his trial in three respects. First, he

argues that the district court erred in admitting evidence of his

history of abusing Tawny. Second, he argues that the district

court improperly truncated his trial proceedings, preventing him

from obtaining a fair trial. Third, he argues that the evidence

was insufficient to convict him. He is wrong on all three.

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 1. Evidentiary Rulings

Before trial, Benjamin moved in limine to exclude

evidence of the 1979 car incident, the 2010 incident involving the

cane, and any evidence of a pattern of his abuse of Tawny during

their marriage, under Rules 404(b) and 403 of the Federal Rules of

Evidence.1 Rule 404(b) prevents the introduction of prior bad acts

"to prove a person's character in order to show that on a

particular occasion the person acted in accordance with the

character," though it permits the introduction of the same evidence

to show motive or intent, or for other purposes. Fed. R. Evid.

404(b). As relevant here, Rule 403 allows a court to exclude

relevant evidence "if its probative value is substantially

outweighed by a danger of . . . unfair prejudice." Id. 403.

The district court denied the motion as to testimony

regarding the prior abuse of Tawny. In its view, evidence of

Benjamin's past abuse of Tawny was relevant to whether her fear of

Benjamin at the time of his arrest was reasonable, and that

reasonable fear went to an element of the offense. See 18 U.S.C.

§ 2261A(1)(A) (defining the crime as conduct that "places that

person in reasonable fear" of serious harm (emphasis added)). The

1
Benjamin also moved pretrial to exclude evidence that he was
abusive toward his daughter and sister, as well as evidence that he
engaged in acts of animal cruelty. The government did not object
to that motion, except for use as impeachment or for rebuttal, and
Benjamin does not argue on appeal that any such evidence was in
fact used at trial.

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evidence was also relevant to Benjamin's motive or intent, a

permissible purpose under Rule 404(b). See Fed. R. Evid.

404(b)(2). To minimize prejudice, the district court gave a

limiting instruction, explaining that the evidence of past physical

or verbal abuse could not be used to infer guilt for the charged

crime through Benjamin's character, but "only for the limited

purpose of deciding whether [Benjamin], at the time of his

interstate travel, had the state of mind or intent necessary to

commit the crimes charged." This instruction limited use of the

testimony at trial to a basis more narrow than it concluded when

denying the motion in limine.

We review the district court's decision for abuse of

discretion. United States v. Tse, 375 F.3d 148, 155 (1st Cir.

2004). There was none. Benjamin's principal argument on appeal is

that the evidence of a defendant's past abuse of a victim is

irrelevant. He relies on the interstate stalking statute's

language that a violator must place a person in reasonable fear by

conduct "in the course of, or as a result of, [interstate] travel

or presence." 18 U.S.C. § 2261A(1). Under his reading, only

conduct that occurs during interstate travel or after arrival is

relevant to the offense, and that makes any earlier fear-inducing

conduct irrelevant.

This court rejected this argument in United States v.

Walker, 665 F.3d 212 (1st Cir. 2011). There, we affirmed the

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denial of a motion for judgment of acquittal which had been based

on the same grounds as Benjamin now argues. See id. at 224-26. We

held that conduct causing reasonable fear "as a result of"

interstate travel must be "viewed in the historical perspective of

previous events." Id. at 225. Having so read the statute, we also

rejected the defendant's challenge to the introduction of his

threats and violent behavior prior to his interstate travel,

explaining that it was relevant to "the reasonableness of . . .

apprehension of harm." Id. at 229. The analysis in Walker applies

here. Benjamin's prior bad acts are relevant to the reasonableness

of the fears of Tawny and Mann, which are informed by the context

in which Benjamin engaged in interstate travel.

Benjamin argues that even if the evidence were relevant,

its relevance is substantially outweighed by the danger of unfair

prejudice. See Fed. R. Evid. 403. We overturn a district court's

"on-the-spot" Rule 403 balancing "[o]nly rarely -- and in

extraordinarily compelling circumstances." United States v.

Mehanna, 735 F.3d 32, 59 (1st Cir. 2013) (quoting United States v.

Pires, 642 F.3d 1, 12 (1st Cir. 2011)) (internal quotation marks

omitted). There is no extraordinarily compelling reason to do so

here, especially in light of the district court's limiting

instruction.

2. Trial Timing

Benjamin's trial was scheduled to conclude on Monday,

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September 16, 2013. Well before trial, a pretrial schedule was

set, without objection, which so provided. The presiding judge had

planned to travel outside Maine the following day. During the

trial, the judge ensured that the trial proceeded efficiently,

telling the parties to "keep using every available minute" and

warning the jury that they might need to stay late on Monday. The

defendant's counsel expressed some concern about the schedule on

Thursday, September 12. But on Friday, September 13, the parties

rested, and the defense told the judge, "We are in very good shape.

No further witnesses." The jury deliberated on the 16th and

returned a verdict the same day.

On appeal, Benjamin argues that the district court

"unreasonably and arbitrarily insisted that the case be finished by

Monday, September 16, 2013," depriving him of "a meaningful

opportunity to present a complete defense." Our review is for

abuse of discretion, reversing "only where the Court exhibited an

unreasonable and arbitrary insistence upon expeditiousness in the

face of a justifiable request for delay." United States v. Romero-

Lopez, 695 F.3d 17, 21 (1st Cir. 2012) (quoting United States v.

Mangual-Santiago, 562 F.3d 411, 429-30 (1st Cir. 2009)) (internal

quotation marks omitted). At the close of his case, defense

counsel expressed satisfaction with the proceedings. On appeal,

Benjamin does not identify any evidence he was prevented from

offering or any prejudice to him. See United States v. Delgado-

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Marrero, 744 F.3d 167, 196 (1st Cir. 2014) (emphasizing the

importance of prejudice when reviewing the denial of a

continuance). The district court did not abuse its discretion.2

3. Sufficiency of the Evidence

Benjamin attacks the sufficiency of the evidence in a

variety of respects. Tawny's and Mann's fears were unreasonable,

he argues, in light of his health problems, his lack of "alarming

conduct" while driving by the house, and his arrest several miles

from their home. The items found in his car are used in camping,

and some belonged to his brother. He never directly threatened

Mann, and his threats to Tawny were "hyperbolic reactions to the

demise of his marriage." He says Tawny had to have known that his

threats were caused by mental problems associated with his health,

and once he recovered from hypoglycemia, their communications were

nonthreatening and focused on property issues relating to their

divorce. And, the pro se brief adds, he traveled to Maine only to

take photos for use in the divorce, so he lacked the criminal

2
In a pro se brief, Benjamin argues he received ineffective
assistance of counsel. He alleges that, due to the trial schedule,
his trial counsel omitted the testimony of two witnesses and
convinced him not to testify, along with other allegations of
prejudice. "[W]e do not generally address ineffective assistance
claims on direct appeal, but instead require them to be raised on
collateral review." Delgado-Marrero, 744 F.3d at 197 n.31. We
will reach such claims when "scrutiny of the factual record is
unnecessary because the attorney's ineffectiveness is manifestly
apparent from the record," id. (quoting United States v. Neto, 659
F.3d 194, 203 (1st Cir. 2011)) (internal quotation marks omitted),
but this is not such a case.

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intent required by statute. That, of course, is not what he said

earlier, when he said that "he was going to kill [Mann,] and if

Tawny didn't come home, he would kill her too."

We affirm if "a rational jury could find the defendant

guilty beyond a reasonable doubt." Walker, 665 F.3d at 224. It is

abundantly clear from the record that a rational jury could find

the defendant guilty.

B. Sentencing

Benjamin similarly attacks his 100-month sentence in

three respects. We review challenges to a sentence in two steps,

reviewing claims of procedural error before considering the

sentence's substantive reasonableness. United States v. Flores-

Machicote, 706 F.3d 16, 20 (1st Cir. 2013). Our review is for

abuse of discretion, evaluating the interpretation and application

of the guidelines de novo and factual findings for clear error.

Id.; United States v. Maisonet-González, __ F.3d __, 2015 WL

1965863, at *3 (1st Cir. May 4, 2015).

First, Benjamin argues that the district court improperly

applied a two-level sentencing enhancement for offenses involving

"a pattern of activity involving stalking, threatening, harassing,

or assaulting the same victim" when calculating his Guidelines

range. U.S.S.G. § 2A6.2(b)(1) (2013). The commentary to the

guidelines indicates that a pattern of activity involves, "under

the totality of the circumstances, any conduct that occurred prior

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to or during the offense; however, conduct that occurred prior to

the offense must be substantially and directly connected to the

offense." Id. cmt. n.3. We have analyzed this provision by

"identify[ing] a pattern of activity that fits the guideline

description," and "determin[ing] whether the offense 'involves'

that pattern." United States v. Robinson, 433 F.3d 31, 37 (1st

Cir. 2005).

The district court found that Benjamin threatened Tawny

in a series of emails through the Spring of 2012. That is enough

to sustain the pattern-of-activity enhancement. Benjamin argues

that those threats should not count under the guidelines because

they were made while he suffered from hypoglycemia, but he has not

shown that the district court's contrary factual finding was clear

error.3

Second, Benjamin argues that the district court erred by

denying him a downward departure (or variance) for his mental and

physical condition, as permitted by §§ 5H1.3 and 5H1.4 of the

guidelines. The district court "recognize[d]" its discretion to

depart under those sections, but it declined to do so "for reasons

that have to do with danger to the victims and to the public." In

particular, the district court concluded that Benjamin had "no

3
Like the district court, we need not consider whether the
incidents of physical abuse from 1979 to 2010 are too old to count
as substantially and directly connected to the underlying offense
for the purposes of sentencing, because the more recent emails
suffice.

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recognition . . . as to the conduct he engaged in, the seriousness

of it."

On appeal, Benjamin emphasizes the seriousness of his

health and mental problems. Aware of those concerns, the district

court recommended a special assignment to the Bureau of Prisons.

But it did not reduce Benjamin's sentence, and that choice was not

an abuse of discretion.

Finally, Benjamin challenges the substantive

reasonableness of his sentence. The district court varied thirty-

seven months above the guidelines range, imposing a 100-month

sentence. The court provided a detailed statement of its reasons

for doing so. After reviewing the relevant factors under 18 U.S.C.

§ 3553(a), the district court explained that this case "is [not] a

standard variety misdemeanor domestic violence" case. Citing to

Benjamin's letter to his son, the items in the car, and Benjamin's

knowledge of the layout of the Limerick house, the district court

concluded that "[t]his was a serious interstate stalking case" that

"created exceeding danger." While recognizing Benjamin's medical

issues, the district court also noted that Benjamin still did not

recognize the seriousness of his conduct. The court heard

allocution from Benjamin. Indeed, the district court stated its

concern that nothing it could do would deter Benjamin: "I see no

recognition on the part of the defendant as to the conduct he

engaged in, the seriousness of it and so I have real concern for

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protecting the victims and the public." The "need for just

punishment, the seriousness of the crime, the respect for the law

and . . . the need to protect the public and the horrific nature of

the crime that was interrupted" justified the upward variance. The

court rejected the statutory maximum as more than was needed.

There was no abuse of discretion. We need not add more.

IV.

The conviction and sentence are affirmed.

So ordered.

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