United States v. Steven Mueller

Filing

OPINION FILED - THE COURT: DIANA E. MURPHY, LAVENSKI R. SMITH and KAREN E. SCHREIER. Karen E. Schreier, Authoring Judge (PUBLISHED) [3848117] [10-3159, 10-3691]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3159
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United States of America,

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Appellee,
v.
Steven A. Mueller,
Appellant.
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Appeals from the United States
District Court for the
Eastern District of Missouri.

No. 10-3691
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United States of America,

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Appellee,
v.
James K. Kornhardt,
Appellant.

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Submitted: June 16, 2011
Filed: November 10, 2011
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Before MURPHY and SMITH, Circuit Judges, and SCHREIER,1 District Judge.
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SCHREIER, District Judge.
Appellant Steven Mueller challenges his convictions on conspiracy to commit
murder-for-hire and murder-for-hire by raising seven arguments: (1) the trial court2
erred in denying his motion to dismiss the murder-for-hire charge and the related
conspiracy charge because they were barred by the statute of limitations; (2) his
motion for severance was improperly denied; (3) the second superseding indictment
failed to state an offense; (4) the prosecutor’s remarks during closing arguments
constituted prosecutorial misconduct; (5) the trial court erred in finding him
competent to stand trial; (6) his due process right to a competency hearing was
violated; and (7) there was insufficient evidence to support the jury’s verdict.
Appellant James Kornhardt challenges his convictions on conspiracy to commit
murder-for-hire, murder-for-hire, and obstruction of justice contending that the
convictions were barred by the statute of limitations, severance was improperly
denied, and his Sixth Amendment confrontation rights were denied. We affirm on all
counts.
I.

Background

Karen Coleman wanted to kill her husband, Danny Coleman. She told her
friend, Michelle Nolan, that she wanted to kill Danny. Michelle had Karen talk to
Larry Nolan, Michelle’s husband. Larry asked about the amount of life insurance
Danny had and then agreed to have Danny killed in exchange for part of the life
1

The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota, sitting by designation.
2

The Honorable Charles A. Shaw, United States District Court Judge for the
Eastern District of Missouri.
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insurance proceeds. Larry arranged for Karen and Kornhardt to meet and discuss
killing Danny. Karen agreed to pay $15,000 to Kornhardt and an unspecified amount
to Larry. To help kill Danny, Kornhardt enlisted his friend Mueller.
On October 22, 1992, Kornhardt, Mueller, and another individual, “Dozer,”
beat Danny to death in another individual’s house. Danny’s body was ultimately
found in a vehicle that had been set on fire in an open field. A new box of matches
was found near the truck. Fingerprints were found on the cellophane wrapper of the
box, but at that time the police were unable to match the fingerprints to anyone. The
investigation into Danny’s death eventually came to a standstill.
Then in 1999 an inmate, Michael Kempker, disclosed information about
Danny’s death to law enforcement. Michael was Larry’s friend when the two men
were in prison together. Larry had asked Michael to procure a silencer to be used in
Danny’s murder. The silencer had been given by Michael’s father to Kornhardt in
exchange for $1,000.
Based on Michael’s information, law enforcement questioned Kornhardt and
eventually matched his fingerprint to one that had been found on the box of matches.
Kornhardt and Karen were then indicted for Danny’s murder. While Kornhardt was
in jail, he called Mueller on the phone and directed him to immediately remove
several items that were hidden in a fireplace and in a detached garage, which were
located on Kornhardt’s property. This phone conversation was recorded and
eventually overheard by the authorities.
After listening to the recording, an agent with the United States Bureau of
Alcohol, Tobacco & Firearms (ATF) questioned Mueller about the items he removed
from the house and garage and about Danny’s death. Mueller admitted to the agent
that he had disposed of a silencer, gun, and ammunition. Mueller told the agent
various stories about what had happened on the day that Danny was killed, including
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one account of the murder where three men beat Danny with bats and fighting sticks
and then shot him three times. Mueller showed the agent where Danny was killed and
walked him through the crime scene while explaining what happened. He admitted
to the agent that he shot Danny and had received $1,000 to $1,200 for his role in the
murder. He ultimately testified to a grand jury that he had removed the silencer and
gun from the house and garage after the phone conversation with Kornhardt.
A second superseding indictment charged Karen, Kornhardt, and Mueller with
murder-for-hire and conspiracy to commit murder-for-hire. Additionally, Kornhardt
was charged with obstruction of justice based on his phone conversation with
Mueller. Karen pleaded guilty to murder-for-hire and conspiracy to commit murderfor-hire. Mueller and Kornhardt went to trial.
During the trial, Karen testified that she received checks totaling $150,000
through the mail from various insurance companies, which were subsequently
deposited into her bank account. The first insurance payment was received on
October 6, 1993, and the final payment was received on July 15, 1997. She also
testified that she paid $15,000 of the insurance proceeds to Kornhardt in October of
1994 for his role in killing Danny. After a six-day jury trial, Kornhardt and Mueller
were convicted of murder-for-hire and conspiracy to commit murder-for-hire. The
jury also found Kornhardt guilty on the obstruction of justice charge.
II.

The Issues Raised by Both Mueller and Kornhardt
A.

Statute of Limitations

Appellants argue that the trial court erred in denying their motions to dismiss
the charges of murder-for-hire and conspiracy to commit murder-for-hire because
they are barred by the statute of limitations. We review de novo the district court’s

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denial of a motion to dismiss the indictment on the grounds that the statute of
limitations had expired. United States v. Hance, 501 F.3d 900, 905 (8th Cir. 2007).
Prior to September 13, 1994, the murder-for-hire statute, 18 U.S.C. § 1958(a),
provided as follows:
Whoever travels in or causes another (including the intended victim) to
travel in interstate or foreign commerce, or uses or causes another
(including the intended victim) to use the mail or any facility in
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 fined not more than $10,000 or
imprisoned for not more than ten years, or both; and if personal injury
results, shall be fined not more than $20,000 and imprisoned for not
more than twenty years, or both; and if death results, shall be subject to
imprisonment for any term of years or for life, or shall be fined not more
than $50,000, or both.

Section 1958(a) fell under the general “catchall” federal criminal statute of
limitations, which imposed a five-year statute of limitations for non-capital federal
offenses. See 18 U.S.C. § 3282(a).
Effective September 13, 1994, Congress amended § 1958 by increasing the
maximum punishment to death in the event that death resulted from the murder-forhire. No statute of limitations applies to an indictment for an offense punishable by
death. See 18 U.S.C. § 3281. As a result, effective September 13, 1994, a murder-forhire that results in a death is not subject to a statute of limitations.
Appellants argue that the ex post facto clause forbids the application of a
penalty increase to an already completed crime. Appellants contend that the murderfor-hire and the conspiracy to commit murder-for-hire were completed on or about
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October 6, 1993, and therefore, application of § 1958(a) as amended violates the ex
post facto clause.
The ex post facto clause generally prohibits the retroactive application of a
criminal statute that changes the legal consequences for a crime after it was
committed. Miller v. Florida, 482 U.S. 423, 430 (1987). Two elements must be met
before legislation violates the ex post facto clause: (1) the legislation in question must
apply to events occurring before its enactment; and (2) the offender affected by the
legislation must be disadvantaged. United States v. Chandler, 66 F.3d 1460, 1467 (8th
Cir. 1995) (citing Miller, 482 U.S. at 430). The ex post facto clause “forbids the
application of any law that increases punishment to preexisting criminal conduct.”
United States v. Sidney, 648 F.3d 904, 909 (8th Cir. 2011) (citations omitted).
Count two of the second superseding indictment alleges that from 1991 to
1997, appellants used “the mail and other facilities in interstate commerce with the
intent that the murder of Danny H. Coleman be committed . . . as consideration for
the receipt of, and as consideration for, a promise and agreement to pay things of
pecuniary value, that is, money gained from the proceeds of Danny H. Coleman’s
insurance polices.” To convict defendants of murder-for-hire, the government had to
prove that appellants (1) used or caused another to use the mail or a facility in
interstate commerce, (2) with the intent that a murder be committed, (3) for hire.
United States v. Delpit, 94 F.3d 1134, 1149 (8th Cir. 1996). Generally, “ ‘[a]n offense
is committed when it is completed, that is, when each element of that offense has
occurred.’ ” United States v. Gonzalez, 495 F.3d 577, 580 (8th Cir. 2007) (quoting
United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999)).
The nature of the crime of murder-for-hire focuses on “the use of the facilities
of interstate commerce or of the mails with the requisite intent[.]” Delpit, 94 F.3d at
1150. Evidence of insurance transactions arising from the death of the victim, which
involved the mails and interstate facilities, and payment of a portion of those
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insurance proceeds to a defendant are sufficient evidence to show the required nexus
between using the mail or facilities in interstate commerce and the murder-for-hire
scheme. United States v. Basile, 109 F.3d 1304, 1312-13 (8th Cir. 1997). Even if the
insurance proceeds are collected after the murder is complete, a defendant can still
be found guilty of murder-for-hire. Id. at 1312 n.9.
While some of appellants’ conduct necessary to fulfill the elements of murderfor-hire occurred prior to the amendment to § 1958(a), conduct essential to
completing the crime and proving the murder-for-hire scheme, such as receipt of
pecuniary gain and the use of the mails to obtain life insurance proceeds, occurred
after the amendment to § 1958(a) took effect. This scheme was premised around life
insurance proceeds; in fact, Larry specifically asked Karen what amount of life
insurance was available, and he agreed to the murder plan in exchange for a portion
of those proceeds. And as appellants stipulated at trial, Karen was still using the mails
to reap the rewards of those insurance proceeds in 1997. Moreover, the evidence that
concretely proves that Kornhardt and Mueller were “hired” to commit murder was the
receipt of the $15,000 payment, which occurred in October of 1994 after the
amendment went into effect. This evidence of the hitmen’s pecuniary benefit and its
connection to Danny’s insurance proceeds is fundamental to fulfilling the elements
of the murder-for-hire charge.
Mueller, citing United States v. Delpit, 94 F.3d 1134 (8th Cir. 1996), argues
that the intent to commit murder-for-hire must be formed before the murder occurs
and that once the interstate commerce facility is used with the required intent, then
the crime is complete. Mueller contends that because the intent to commit murder-forhire could only have been formed on or prior to Danny’s death on October 22, 1992,
the applicable statute of limitations is five years. Delpit, however, is distinguishable
because the use of the interstate commerce facility in that case was the hitman
traveling to the target in Minnesota, and there was no motive to kill for insurance
proceeds. Id. at 1150. The defendant recruited the hitman to travel to Minnesota to
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kill rival gang members, and after the hit failed the defendant told the hitman to keep
trying and agreed to send partial payment to the hitman’s wife. Id. Because the
interstate commerce nexus in Delpit was the defendant causing the hitman to travel
in interstate commerce before the attempted hit, the crime was complete after the
hitman attempted the hit because the hitman had already traveled and received his
partial payment. Here, the interstate commerce nexus was the receipt of insurance
proceeds by mail, which Karen was still obtaining in 1997. As a result, the crime was
not complete immediately prior to or after Danny’s death in 1992 as appellants allege,
but rather after Karen obtained the last payment from Danny’s life insurance policies
in 1997.
Because the murder-for-hire crime was not completed prior to the amendment
going into effect on September 13, 1994, there is no ex post facto violation. See
Munger v. Erickson, 979 F.2d 1323, 1325 (8th Cir. 1992) (“A law violates the ex post
facto clause if it applies to events occurring before its enactment[.]” (citations
omitted)). The charges against appellants are not barred because no statute of
limitations applies to this crime, which was completed in 1997 and resulted in death.
Thus, the district court did not err in denying appellants’ motions to dismiss count
two.
Count one of the second superseding indictment charges conspiracy to commit
murder-for-hire. “In a conspiracy charge, the limitations period begins to run from the
occurrence of the last overt act committed in furtherance of the conspiracy that is set
forth in the indictment.” United States v. Dolan, 120 F.3d 856, 864 (8th Cir. 1997)
(citations omitted). Count one alleges numerous overt acts involving the use of mail
or facilities of interstate commerce that occurred after September 13, 1994, including,
among other acts, that Karen withdrew $2,000 from her Lemay Bank and Trust
Company account and paid an individual on behalf of Larry on October 16, 1994.
Additionally, during trial, both appellants stipulated that Karen received some of
Danny’s life insurance benefits through the mails and various interstate commerce
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facilities in May and July of 1997 and deposited those proceeds into a bank. The use
of interstate commerce facilities, such as the mail, is an overt act in furtherance of a
conspiracy to commit murder-for-hire. Because some of appellants’ acts involved
interstate commerce facilities that occurred after September 13, 1994, there is no ex
post facto clause violation. Thus, the trial court did not err in denying appellants’
motions to dismiss count one.
The government concedes, however, that the trial court should have instructed
the jury to only consider the use of the mails or of interstate commerce facilities
occurring on or after September 13, 1994. But the government argues that this error
was harmless.
The harmless-error analysis applies “to cases involving improper [jury]
instructions on a single element of the offense.” Neder v. United States, 527 U.S. 1,
11 (1999). Errors that are harmless beyond a reasonable doubt are disregarded. Id. at
8. If the defendant admitted the element on which the jury was improperly instructed,
then the error is harmless. Id. at 13.
During trial, appellants stipulated that mails and other interstate commerce
facilities were used to secure Danny’s insurance policies’ proceeds in May and July
of 1997. This evidence was sufficient to prove beyond a reasonable doubt the
interstate facilities element of a murder-for-hire charge. Thus, any error by the trial
court in omitting from the jury instructions that the jury should only consider
appellants’ use of the mails or interstate commerce facilities that occurred after
September 13, 1994, is harmless.
B.

Severance

Appellants also argue that the trial court erred in denying their motions for
severance. “A denial of a motion to sever will not be reversed unless clear prejudice
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and an abuse of discretion are shown.” United States v. Pherigo, 327 F.3d 690, 693
(8th Cir. 2003). “Generally, persons charged in a conspiracy should be tried together,
especially when proof of the charges against the defendants is based upon the same
evidence and acts.” United States v. Arenal, 768 F.2d 263, 267-68 (8th Cir. 1985).
Nonetheless, “[a] defendant can demonstrate real prejudice to his right to a fair trial
by showing (a) his defense is irreconcilable with that of his co-defendant or (b) the
jury will be unable to compartmentalize the evidence as it relates to the separate
defendants.” United States v. Washington, 318 F.3d 845, 858 (8th Cir. 2003) (citation
omitted). Neither appellant argues that their defenses were irreconcilable as to any of
the charged crimes. Appellants must therefore show that the jury was unable to
compartmentalize the evidence in arriving at the verdict. See id. at 858.
Because the murder-for-hire and the conspiracy to commit murder-for-hire
charges were identical to both appellants, severance is unnecessary. See, e.g., United
States v. Donnell, 596 F.3d 913, 923 (8th Cir. 2010) (reasoning that there is a
preference to try “ ‘persons charged in a conspiracy or jointly indicted on similar
evidence from the same or related events should be tried together.’ ” (quoting United
States v. Adkins, 842 F.2d 210, 211 (8th Cir. 1988))). And it does not matter that
Mueller was not charged with obstruction of justice because the obstruction of justice
charge was factually interrelated to the conspiracy to commit murder-for-hire and
murder-for-hire charges. See United States v. Darden, 70 F.3d 1507, 1526-27 (8th
Cir. 1995) (“ ‘[I]t is not necessary that every defendant have participated in or be
charged with each offense.’ ” (quoting United States v. Jones, 880 F.2d 55, 62-63 (8th
Cir. 1989))).
After reviewing the record, we find that the evidence and jury instructions in
this case were no more complex than those generally associated with trials involving
two defendants. The properly joined trial gave “the jury the best perspective on all of
the evidence[.]” Darden, 70 F.3d at 1528 (internal quotations and citations omitted).
The jury was able to compartmentalize the evidence and follow the trial court’s
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instructions on how to consider the evidence. Thus, appellants have failed to
demonstrate any real prejudice stemming from the trial court’s denial of their motions
for severance.
III.

The Remaining Issue Raised by Kornhardt

Kornhardt argues that the trial court erred in denying his motion for a mistrial.
According to Kornhardt, his confrontation clause rights as recognized in Bruton v.
United States, 391 U.S. 123 (1968), were violated when Mueller’s statements about
the phone conversation between Mueller and him were admitted into evidence.
“In Bruton, the Supreme Court held that the admission of a nontestifying
defendant’s statement [facially] inculpating a codefendant violates the codefendant’s
Confrontation Clause rights, notwithstanding a curative instruction.” United States
v. Lewis, 557 F.3d 601, 611 (8th Cir. 2009). There is no confrontation clause
violation when “the defendant's name and existence are excised from the statement
and limiting instructions are given, even though the confession might implicate the
defendant when linked to other evidence.” United States v. Williams, 429 F.3d 767,
772-73 (8th Cir. 2005) (citation omitted). Obvious redactions, however, such as
substituting a defendant’s name with a “blank space” or the word “deleted” can also
violate the confrontation clause. See Gray v. Maryland, 523 U.S. 185, 192 (1998)
(“[W]e believe that, considered as a class, redactions that replace a proper name with
an obvious blank, the word ‘delete,’ a symbol, or similarly notify the jury that a name
has been deleted are similar enough to Bruton’s unredacted confessions as to warrant
the same legal results.”). “To determine whether a statement violates Bruton, we must
‘look[] at whether the context is one in which the risk is too great that the jury will
not or cannot follow the cautionary instruction to consider the statement solely
against the declarant.’ ” United States v. Sandstrom, 594 F.3d 634, 648 (8th Cir.
2010) (alteration in original) (quoting Williams, 429 F.3d at 773).

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There are two sets of statements at issue: (1) Mueller’s confession to an ATF
agent after Mueller was identified as the other individual on the recorded phone call;
and (2) Mueller’s grand jury testimony about the phone conversation. We must view
the redacted statements in isolation from the other evidence in order to determine
whether the out-of-court statements violate Kornhardt’s confrontation clause rights.
See United States v. Logan, 210 F.3d 820, 822 (8th Cir. 2000) (“[T]he admissibility
of a confession under Bruton is to be determined by viewing the redacted confession
in isolation from the other evidence admitted at trial[.]”).
A.

Mueller’s Confession to the Agent about the Phone Call

The agent testified that after Mueller was identified as the other person on the
recorded telephone call, he confronted Mueller, who admitted to removing a firearm,
ammunition, and a silencer from certain areas of a house and detached garage. The
agent said that Mueller admitted to throwing a homemade silencer, a revolver, and a
box of .38 ammunition in the river.
The agent’s testimony made no specific reference to Kornhardt and did not
suggest, on its own, that Kornhardt had anything to do with Mueller’s confession in
relation to the phone conversation. The trial court instructed the jury that the agent’s
testimony was to be considered only for purposes of determining whether Mueller
was guilty of the murder-for-hire and conspiracy to commit murder-for-hire charges.
When viewed in isolation, we do not believe that this testimony impermissibly
suggested to the jury that Kornhardt was the “individual” mentioned by the
investigator. Thus, the admission of this testimony did not violate Kornhardt’s
confrontation clause rights as recognized in Bruton. See Logan, 210 F.3d at 822
(recognizing that the jury is presumed to follow the trial court’s limiting instructions
when the testimony “itself does not implicate the defendant”).

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B.

Mueller’s Grand Jury Testimony

Mueller’s grand jury testimony was admitted during trial after being altered to
replace Kornhardt’s name with variations of “the individual” in approximately 43
instances. These facts are similar to the facts in United States v. Williams, 429 F.3d
767, 773 (8th Cir. 2005), where the defendant’s name was replaced in 40 instances
with the word “someone” in a manner that made it obvious that a name had been
redacted. While we observed in Williams that “this case may fall within the Bruton
class of cases where a district court’s repeated cautionary instructions cannot protect
the defendant,” id. at 774, the court did not decide that issue because it found the
error was harmless. Similarly, here, we need not decide the Bruton issue because,
assuming that a confrontation clause error occurred, the independent evidence against
Kornhardt on all three charges establishes that any error was harmless beyond a
reasonable doubt. See United States v. Chapman, 345 F.3d 630, 635 (8th Cir. 2003)
(a stricter standard of harmless beyond a reasonable doubt applies to confrontation
right error).
A harmless-error analysis in the context of a confrontation clause violation
requires us to “examine the other evidence adduced at trial and determine whether it
appears beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained.” Id. at 1164 (citing Lufkins v. Leapley, 965 F.2d 1477, 1481
(8th Cir. 1992)). Several factors are considered under this analysis: “(1) the
importance of the witness’s testimony to the prosecution’s case; (2) whether the
testimony was cumulative; (3) the presence or absence of corroborating or
contradicting testimony of the witness on material points; (4) the extent of
cross-examination otherwise permitted; and (5) the overall strength of the
prosecution’s case.” Id. (citation omitted).

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1.

Murder-for-Hire Charge and Related Conspiracy Charge

As to the murder-for-hire and conspiracy to commit murder-for-hire charges,
the evidence against Kornhardt was overwhelming. Karen testified about Kornhardt’s
involvement in Danny’s murder, including the discussions before Danny’s death and
the payments received after Danny’s death. Kempker also testified about Kornhardt’s
involvement before Danny’s death. There was also the recorded phone conversation
where Kornhardt told Mueller to immediately remove several hidden items from the
house shortly after Kornhardt was arrested for Danny’s death. Cf. United States v.
Bolzer, 367 F.3d 1032, 1037 (8th Cir. 2004) (“The reference to destruction of
evidence . . . was a permissible inference that could be drawn from the evidence the
government ultimately produced in the case.” (citations omitted)). Similarly,
Kornhardt’s recorded statements to his brother where he “[s]aid it doesn’t look good
for me” support the jury’s verdict as well. Appellee App. at 9. Finally, the presence
of Kornhardt’s fingerprint on the new box of matches found near Danny’s burned
body is a particularly strong piece of evidence.
When considering all of the other evidence supporting the government’s case
against Kornhardt with regard to the murder-for-hire and conspiracy to commit
murder-for-hire charges, Mueller’s grand jury statements are insignificant. The
overall strength of the government’s case was very strong. Thus, the government has
established beyond a reasonable doubt that any error in admitting Mueller’s out-ofcourt statements to the grand jury was harmless.
2.

Obstruction of Justice Charge

With regard to the obstruction of justice charge, the other evidence clearly
establishes beyond a reasonable doubt that any error in admitting Mueller’s grand
jury statements was also harmless. Shortly after being arrested for Danny’s death,
Kornhardt called Mueller. During the phone conversation, which the jury properly
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heard, Kornhardt ordered Mueller to immediately remove several items that were
hidden throughout his house and detached garage. Kornhardt’s wife initially
answered the phone and remained in the house during the phone conversation. She
identified Kornhardt and Mueller as the speakers in the recorded conversation. She
also testified that she expected the police to search the house. The recorded phone
conversation significantly reduced the importance of Mueller’s grand jury testimony
because Mueller’s grand jury testimony was largely cumulative of the phone
conversation. When viewed collectively, the other evidence against Kornhardt as to
the obstruction of justice charge was strong.
We have reviewed the record in accordance with the factors set forth in
Chapman. The phone conversation and the testimony of Kornhardt’s wife established
beyond a reasonable doubt that Kornhardt called Mueller and ordered him to
immediately remove from the house incriminating evidence related to Danny’s
murder before the police discovered the evidence during a search. Thus, any error in
admitting the grand jury testimony into evidence was harmless.
IV.

The Remaining Issues Raised by Mueller
A.

Failure to State an Offense

Mueller argues that the trial court erred in denying his motion to dismiss the
indictment because it failed to state an offense against the United States. We review
de novo the district court’s denial of a motion to dismiss the indictment. United States
v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (citation omitted).
Mueller argues that the murder-for-hire charge and the related conspiracy
charge fail to allege the actual interstate use of an interstate commerce facility as
required by 18 U.S.C. § 1958(a) prior to its 2004 amendment. According to Mueller,
the pre-2004 language, “to use the mail or any facility in interstate commerce,”
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required the indictment to allege that the interstate commerce facility usage involved
multiple states.3 This court rejected this same argument in United States v. Howard,
540 F.3d 905 (8th Cir. 2008), when we interpreted the statute’s pre-amendment
language as covering interstate financial facility usage that was entirely intrastate. Id.
at 908 (“The difference in language does not alter the essential elements of the charge
because the phrase ‘to use the mail or any facility in interstate commerce’ includes
the intrastate use of facilities of interstate commerce.”). This panel is bound by the
holding in Howard. United States v. Franklin, 250 F.3d 653, 665 (8th Cir. 2001) (“It
is well established, however, that one panel of this Court may not overrule another
and so we must decline Appellant’s invitation to reconsider our prior decision.”
(citation omitted)). Thus, the district court did not err in denying the motion to
dismiss the indictment.
B.

Prosecutorial Misconduct

Mueller argues that the prosecutor’s remarks made during closing argument
constitute prosecutorial misconduct. Mueller did not object to the comments at the
time they were made. “[T]herefore, we review under the plain-error standard and will
reverse only ‘if there is 1) error 2) that is plain and 3) affects the defendant’s
substantial rights.’ ” Hance, 501 F.3d at 908 (quoting United States v. Robinson, 439
F.3d 777, 780 (8th Cir. 2006)). “To obtain a reversal for prosecutorial misconduct,
the defendant must show that (1) the prosecutor’s remarks were improper, and (2)
such remarks prejudiced the defendant’s rights in obtaining a fair trial.” Id. at 780
(internal quotations and citation omitted). “If we reach the second step, we consider:
(1) the cumulative effect of such misconduct; (2) the strength of the properly admitted
evidence of [Defendant’s] guilt; and (3) the curative actions taken by the trial court.”

3

In 2004, the statute was amended in relevant part by changing “any facility
in interstate commerce” to “any facility of interstate commerce.” See 18 U.S.C.
§ 1958(a).
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United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996), abrogated on other
grounds by Watson v. United States, 552 U.S. 74 (2007).
There are two specific statements made by the prosecutor that are alleged to
constitute plain error. The first involved the following objection by the prosecutor:
“Your Honor, I’m going to object to that. We got ethical problems here. I don’t know
why you’d get into that.” Docket 300 at 118. Shortly thereafter, the prosecutor made
the following statement at the beginning of the prosecution’s rebuttal argument:
“Ladies and gentlemen, after listening to these two arguments, it amazes me that
either one of these attorneys have the gall to criticize witnesses.” Docket 300 at 121.
The prosecutor’s objection and beginning statement in his rebuttal was in
response to Mueller’s argument that “[t]he government rejected, rejected [Mueller]
as a witness in this case. They rejected his story.” Docket 300 at 118. The
prosecutor’s objection was in response to Mueller’s argument that the government did
not believe Mueller’s story because the government did not call Mueller to testify as
a witness at trial. Mueller’s Fifth Amendment right against self-incrimination
precluded the government from forcing Mueller to be a witness against himself.
Similarly, the prosecutor’s statement in rebuttal was in response to appellants’
arguments that the witnesses who testified at the trial were not credible. Understood
in this context, we cannot say that the prosecutor’s objection and statement in rebuttal
constituted plain error.
Moreover, Mueller has failed to demonstrate that the prosecutor’s statements
deprived him of a fair trial. The objection and the opening rebuttal statement were
very brief and played a minuscule role in the context of the case against Mueller. The
evidence against Mueller was strong. Finally, the jury was repeatedly instructed by
the trial court that the attorneys’ objections and closing arguments were not evidence.
Thus, Mueller has failed to demonstrate that the alleged plain error affected his
substantial rights.
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C.

Competent to Stand Trial

Two weeks before the scheduled trial date, Mueller’s attorney moved under 18
U.S.C. § 4241(a) for a determination of Mueller’s mental condition. The trial court
conducted a hearing shortly after Mueller’s motion and ordered an examination to
assist in an initial determination of whether Mueller was competent to stand trial. In
response to the court’s order, Dr. Kline, a licensed psychologist who examined
Mueller, submitted a report finding that Mueller was competent to stand trial. Mueller
objected to Dr. Kline’s report and requested a continuance for purposes of obtaining
an additional examination.
In response to Mueller’s objections to the report, the trial court held another
hearing for purposes of determining the nature and extent of Mueller’s objections.
Dr. Kline was present at the hearing. The trial court refused Mueller’s request to
question Dr. Kline about how he arrived at the conclusions stated in his report
because of the trial court’s limited resources, including time. Mueller’s request for
another evaluation was also denied. The trial court found that Mueller was competent
to stand trial. Mueller argues that the trial court’s determination was in error.
“A defendant has a due process right not to be convicted while incompetent
and to have his competence determined in an evidentiary hearing.” United States v.
Long Crow, 37 F.3d 1319, 1325 (8th Cir. 1994) (citations omitted). “The burden rests
with the defendant to demonstrate that he was not competent to stand trial[.]” United
States v. Denton, 434 F.3d 1104, 1112 (8th Cir. 2006) (citation omitted).
“Determining whether a defendant is competent to stand trial is committed to the
discretion of the district court.” United States v. Ghane, 490 F.3d 1036, 1040 (8th Cir.
2007) (citing United States v. Denton, 434 F.3d 1104, 1112 (8th Cir. 2006)). The trial
court’s determination is reviewed for clear error. Denton, 434 F.3d at 1112.

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Dr. Kline’s report expressed the opinion that Mueller was competent to stand
trial. A “ ‘medical opinion on the mental competency of an accused is usually
persuasive evidence on the question of whether a sufficient doubt exists [about the
defendant’s competence].’ ” Long Crow, 37 F.3d at 1325 (quoting Griffin v.
Lockhart, 935 F.2d 926, 930 (8th Cir. 1991)) (other citations omitted). We have
reviewed Dr. Kline’s report and find that his explanation and rationale supporting his
conclusion is more than sufficient to uphold the trial court’s finding that Mueller was
competent to stand trial. See United States v. Ghane, 593 F.3d 775, 781 (8th Cir.
2010) (“[I]n crediting an expert’s opinion, it is not the opinion itself that is important,
but the rationale underlying it.”). Thus, we affirm the trial court’s finding that Mueller
was competent to stand trial.
D.

Competency Hearing

Mueller also argues that the trial court violated his due process right by failing
to allow him the opportunity to ask questions of the examining psychologist, denying
his request for a second opinion, and failing to adequately inquire into his
competency.
“Under 18 U.S.C. § 4241(a), a district court is required to grant a motion
requesting a competency hearing when ‘there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly in his defense.’ ”
United States v. Whittington, 586 F.3d 613, 618 (8th Cir. 2009). “Decisions regarding
competency hearings are factual findings that we will affirm unless clearly arbitrary
or unwarranted, or clearly erroneous.” United States v. Minnis, 489 F.3d 325, 329
(8th Cir. 2007) (internal quotations and citations omitted).

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The trial court conducted multiple hearings, ordered a psychological
examination, and considered Dr. Kline’s rationale and explanations. Based on this
record, we find unpersuasive Mueller’s argument that the trial court failed to
adequately inquire into his competency. We also cannot say that the trial court clearly
erred in denying Mueller’s requests to cross-examine Dr. Kline or for a second
opinion. Cf. United States v. Jones, 23 F.3d 1307, 1309 (8th Cir. 1994) (Morris
Sheppard Arnold, J., plurality) (recognizing that a “trial court ha[s] the discretion to
hold or to forgo an additional hearing” when “[t]he psychiatric report submitted to the
court indicate[s] that [the defendant] was competent to stand trial”); id. at 1316
(Wellford, J., concurring in result) (“It is clear in this circuit that once a defendant has
been determined to be competent to stand trial, a hearing on competency is not
required.” (citation omitted)). See also United States v. Lebron, 76 F.3d 29, 32 (1st
Cir. 1996) (“If a psychiatrist has determined that a defendant is competent, a court is
not required to hold a further evidentiary hearing absent extenuating circumstances.”).
Moreover, even if the trial court committed a procedural error during the second
hearing, we find that the error was harmless because Mueller was competent to stand
trial as explained above. See United States v. Huguenin, 950 F.2d 23, 28 (1st Cir.
1991) (“[P]rocedural glitches during the competency determination may be deemed
harmless error where there is no reasonable probability that different procedures
would have produced a finding of incompetency.” (citing United States ex rel. Lewis
v. Lane, 822 F.2d 703, 706 (7th Cir. 1987)) (other citations omitted).
E.

Sufficiency of the Evidence

Finally, Mueller argues that there was insufficient evidence to support the
jury’s verdict. “ ‘We review the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government's favor, and accepting all reasonable inferences that support the
verdict.’ ” United States v. May, 476 F.3d 638, 640-41 (8th Cir. 2007) (quoting
United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003)). “We may reverse
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only if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” Id. (internal quotations and citation omitted).
Mueller repeatedly confessed to being involved in Danny’s murder. He
identified the location of the murder scene, which was in the basement of a house that
was previously unknown to the agents. He also told agents about his role in the
murder. In the presence of the agents, he reenacted the events leading up to Danny’s
death inside the house. And he told an agent during an interview that he was paid for
his role in the murder.
After reviewing the record, we find that a jury could conclude that Mueller was
guilty of conspiracy to commit murder-for-hire and murder-for-hire beyond a
reasonable doubt. Thus, there was sufficient evidence to convict Mueller of the
crimes charged against him. We therefore affirm on all accounts.
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