                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1440
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                          Andre Michael LaFontaine, III

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                    Appeal from United States District Court
                for the Northern District of Iowa - Cedar Rapids
                                 ____________

                            Submitted: January 13, 2017
                              Filed: February 8, 2017
                                  ____________

Before LOKEN, BEAM, and BENTON, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

      Andre Michael LaFontaine was convicted of making a threatening
communication in violation of 18 U.S.C. § 875(c) and sentenced to 18 months'
imprisonment. He appeals his conviction and sentence, arguing that the government
committed prosecutorial error and the district court1 erred in admitting evidence of
a prior perceived threatening statement. LaFontaine also challenges the district
court's imposition of several special conditions of supervised release. For the reasons
discussed below, we affirm.

I.    BACKGROUND

       In November 2010, LaFontaine was charged in state court with, and convicted
of, operating while intoxicated, second offense, and eluding, in Iowa Falls, Iowa. The
Iowa Court of Appeals affirmed the convictions. Believing that a conspiracy to
obstruct justice existed between the state court, police, and attorneys, LaFontaine
complained to a local law firm, the President of the United States, and the
International Association of Anti-Corruption Authorities. LaFontaine then filed two
civil lawsuits in federal court: one against the Iowa Falls Police Department and
another against the police officers who arrested him. The district court dismissed
both lawsuits, and this court affirmed the dismissals. LaFontaine was unsuccessful
in appealing his federal lawsuits to the United States Supreme Court.

       On October 1, 2013, LaFontaine contacted a federal court employee about his
lawsuits and stated, "Sometime we are actually going to meet up, and I'm looking
forward to it. I can do what I want to do. You're a baby." The United States
Marshals Service investigated the threatening remarks and interviewed LaFontaine.
During an interview in January 2014, LaFontaine admitted that he was frustrated
when he made the call but denied making a threat. He said it would be "foolish to do
so," and that he "[knew] better than that." LaFontaine then asked the FBI to
investigate the Iowa Falls Police Department for civil rights violations. FBI Agent
Tomlinson told LaFontaine that there was no basis for his complaint.


      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

                                         -2-
      On July 20, 2015, LaFontaine called the Department of Justice (DOJ) in
Washington, D.C., to complain about Agent Tomlinson. He left the following voice
mail, which led to the conviction appealed in this case:

      Yeah my name is Andre Michael LaFontaine, the third, I'm from Iowa
      Falls, Iowa, co-state litigant. What I've done is sent you fuckin' retards
      evidence of corruption multitude of times, I'm getting really fuckin' sick
      and tired of you people disregarding all the evidence, the profound
      evidence, that I've sent you, and put in front of Craig, special agent of
      the FBI, Craig Tomlinson's face — and have him call me while I record
      him and tell me that the evidence is no fucking good. So what I'm
      telling you for the last fuckin' time is that if this fuckin' writ isn't
      satisfied or investigated properly, these judges in Eldora are gonna get
      their fuckin' throats cut, you fuckin' niggers better do your fuckin' job.

Special Agent Kieffer with the Federal Protective Service investigated the perceived
threatening voice mail. During an interview on July 23, 2015, at LaFontaine's
residence, LaFontaine admitted that he left the voice mail with the DOJ and intended
for the message to "spark action" on his complaints about the Iowa Falls Police
Department. According to Kieffer, LaFontaine also admitted during the interview
that he intended for the communication to be threatening. LaFontaine was in
possession of a pocket knife at the time of the interview. A search of his residence,
pursuant to a search warrant, yielded a variety of documents from disputes with
others, including police officers, and audio recordings of phone calls made to
numerous courts and law enforcement officials. In a letter addressed to the FBI,
LaFontaine stated that he intended to rescind his United States citizenship and "may
have to take a life just to defend [himself]" since the government had not done
anything to resolve his grievances.

        On August 12, 2015, LaFontaine was indicted for transmitting a threatening
communication in interstate commerce, in violation of 18 U.S.C. § 875(c). Prior to
trial, LaFontaine filed a motion to exclude any evidence that he threatened the federal

                                         -3-
court employee, in October 2013. The government sought to use the evidence to
show LaFontaine's intent and lack of mistake. In light of the government's response,
LaFontaine requested that if the district court were to admit the evidence, the court
should also allow content of the prior statements into evidence to support his claim
that the statements were not threatening. The district court held that the statements
were admissible under Federal Rule of Evidence 404(b) as evidence of LaFontaine's
intent or lack of mistake. At trial, a Deputy United States Marshal testified about the
2013 perceived threatening communication and the subsequent interview with
LaFontaine. LaFontaine was also allowed to present evidence about the content of
the prior statements.

       A jury found LaFontaine guilty on October 14, 2015. He then filed a motion
for a new trial alleging that the district court erred by allowing evidence of the prior
threatening communication. The district court denied the motion. With an offense
level of twelve and a criminal history category of II, LaFontaine's Guidelines range
was twelve to eighteen months. The Presentence Investigation Report (PSR) also
recommended the following special conditions of supervised release: (1) a substance
abuse program; (2) a total alcohol ban, meaning that he was "prohibited from entering
any establishment that holds itself out to the public to be a bar or tavern"; (3) a mental
health program; (4) GPS monitoring; (5) housing in a residential reentry program; (6)
a "no-contact" agreement; and (7) submission to random searches. LaFontaine
objected to the GPS monitoring special condition in a sentencing memorandum. At
sentencing, the district court determined that LaFontaine's Guidelines range was
twelve to eighteen months. The district court then heard argument on the sentence,
including the conditions of supervised release, and considered the 18 U.S.C.
§ 3553(a) factors. The district court sentenced LaFontaine to eighteen months'
imprisonment, to be followed by a three-year term of supervised release. The court
also imposed the special conditions of supervised release listed above.




                                           -4-
       LaFontaine now appeals, arguing that (1) the government repeatedly committed
prosecutorial misconduct during its closing argument; (2) the district court erred in
admitting the Rule 404(b) evidence; (3) the district court abused its discretion in
imposing GPS monitoring during supervised release; and (4) the district court's
imposition of a total alcohol ban and substance abuse treatment during supervised
release was plain error.

II.   DISCUSSION

      A.     Prosecutorial Misconduct

       LaFontaine argues that the government repeatedly committed prosecutorial
misconduct during closing argument by stating that LaFontaine was not presumed
innocent, indirectly commenting on LaFontaine's failure to testify, expressing its
opinion on LaFontaine's guilt, and personally attacking LaFontaine's counsel. We
disagree. "The test for reversible prosecutorial misconduct has two parts: (1) the
prosecutor's remarks or conduct must in fact have been improper, and (2) such
remarks or conduct must have prejudicially affected the defendant's substantial rights
so as to deprive the defendant of a fair trial." United States v. Jones, 795 F.3d 791,
799 (8th Cir. 2015) (quoting United States v. Wilkens, 742 F.3d 354, 361 (8th Cir.
2014)). Because LaFontaine failed to object to the alleged misconduct, we review for
plain error. United States v. Alaboudi, 786 F.3d 1136, 1141 (8th Cir. 2015). Under
the plain error standard of review, the defendant must show that the error was "clear,
prejudicial, and affected the trial's outcome." Id. In other words, the error must be
such that it "affect[s] the fairness, integrity or public reputation of judicial
proceedings." Id. (quoting United States v. Wadlington, 233 F.3d 1067, 1079 (8th
Cir. 2000)).

      First, LaFontaine takes issue with the government's statement that LaFontaine
"absolutely does not stay presumed innocent." LaFontaine, however, takes the

                                         -5-
government's statement out of context. After the above-quoted statement, the
government reviewed previously presented evidence that rebutted the presumption
of innocence and stated that "[h]e's been proven guilty beyond a reasonable doubt."
It is undisputed that the presumption of innocence "remains with the defendant
through every stage of the trial, most importantly, the jury's deliberations" and that
the presumption is "extinguished only upon the jury's determination of guilt beyond
a reasonable doubt." United States v. Crumley, 528 F.3d 1053, 1065 (8th Cir. 2008)
(quoting Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999)). Here, both the
preliminary and final jury instructions correctly stated this rule of law. Neither party
objected to the jury instructions, and the government's argument simply mirrored
these instructions. There is no prosecutorial misconduct when the government does
"little more than paraphrase the court's instruction." United States v. Johnson, 639
F.3d 433, 442 (8th Cir. 2011). Moreover, "[a]n advocate is permitted considerable
latitude in responding to his opponent's arguments." United States v. Collins, 642
F.3d 654, 658 (8th Cir. 2011) (quoting United States v. Beaman, 361 F.3d 1061, 1065
(8th Cir. 2004)). During closing argument, LaFontaine argued that he "remains
presumed innocent, and the government has failed to overcome that presumption."
The government then responded to that argument by stating that LaFontaine did not
stay presumed innocent because he had, in fact, been proven guilty beyond a
reasonable doubt. This argument does not exceed the wide latitude afforded attorneys
when responding to opposition. See id.

        Second, LaFontaine argues that the government indirectly commented on
LaFontaine's failure to testify when it stated that "[t]he only evidence in this
courtroom is what you heard, on that point, from this agent." An indirect comment
on the defendant's failure to testify "rise[s] to the level of a constitutional violation
if the statement[] either (1) manifest[s] the prosecutor's intention to call attention to
the defendant's failure to testify, or (2) [is] such that the jury would naturally and
necessarily understand the comments as highlighting the defendant's failure to
testify." Herrin v. United States, 349 F.3d 544, 546 (8th Cir. 2003). To fit within the

                                          -6-
second prong of the test, "the question is not whether the jury possibly or even
probably would view the challenged remark in this manner, but whether the jury
necessarily would have done so." United States v. Gardner, 396 F.3d 987, 992 (8th
Cir. 2005) (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)).

       Here, the government had to prove that LaFontaine intended for the
communication to be threatening or at least knew that the communication would be
viewed as threatening. Elonis v. United States, 135 S. Ct. 2001, 2012 (2015). When
Kieffer interviewed LaFontaine at his residence, LaFontaine allegedly admitted that
the voice mail was intended to be a threat that would "spark action." However, this
interview was not recorded or transcribed, and there was no signed statement. When
cross-examining Kieffer at trial, LaFontaine focused on this, asking the jury to
question Kieffer's credibility. In response to the cross-examination and knowing that
LaFontaine would advocate for a position that conflicted with Kieffer's testimony, the
government pointed out that Kieffer's testimony was the only direct evidence of the
interview presented at trial, which was a true statement. The government then
presented other evidence to establish the element of intent. And as expected, in
closing argument, LaFontaine claimed that the voice mail was not a threat and that
he did not know it would be viewed as such. Examining "the entire context of the
remarks, including 'the argument itself, and the larger context of the evidence
introduced at trial,'" United States v. Martin, 777 F.3d 984, 996 (8th Cir.) (quoting
United States v. Durant, 730 F.2d 1180, 1184 (8th Cir. 1984)), cert. denied, 135 S. Ct.
2827 (2015), the jury would not have necessarily understood the government's
statement as an attempt to call attention to LaFontaine's failure to testify. See Herrin,
349 F.3d at 546. Rather, the record supports the government's position that the
statement was made to strengthen Kieffer's credibility and highlight evidence of
LaFontaine's intent.

     Third, LaFontaine argues that the government committed prosecutorial
misconduct by twice expressing an opinion on his guilt. At trial, the government

                                          -7-
stated, "Is that a friendly call? . . . No, it's not. It's a threat. Everybody understands
that." LaFontaine argues that the government's statement that "[e]verybody
understands that" was an improper "personal expression of [LaFontaine's]
culpability." United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976). This is
a stretch. The government was merely submitting its theory. It did not opine on
LaFontaine's guilt or innocence. The comment was in reference to whether the
communication contained a threat to injure, the element of the offense at issue in this
case. See 18 U.S.C. § 875(c). As discussed above, LaFontaine argued that he did not
intend to threaten anyone and that he did not know that his voice mail would be
viewed as a threat. The government's statement was a clear attempt to show that
LaFontaine must have known that his statement would be interpreted as a threat
because such words are widely understood as threatening. It was an appeal to the
jury's common sense, which is not improper. See Six v. Delo, 94 F.3d 469, 477 (8th
Cir. 1996). Similarly, contrary to LaFontaine's argument, the government's use of the
phrase "I submit" was not improper vouching. "Although the use of [this] phrase[]
has been often criticized (and discouraged) . . . , it is not always improper." United
States v. Bentley, 561 F.3d 803, 811 (8th Cir. 2009). "It is only improper when it
suggests that the government has special knowledge of evidence not presented to the
jury, carries an implied guarantee of truthfulness, or expresses a personal opinion
about credibility." Id. at 812. Here, the record shows that the government used the
phrase "to refer the jury to the government's evidence and to summarize the
government's case against [LaFontaine]," which is not improper. Id. (quoting United
States v. Lahey, 55 F.3d 1289, 1299 (7th Cir. 1995)).

      Finally, LaFontaine argues that the government made personal attacks on
defense counsel during rebuttal, specifically that the prosecutor called defense
counsel ridiculous. However, the prosecutor never called defense counsel ridiculous.
LaFontaine argued that if he had intended for the voice mail to be a threat, he would
have done more to effectuate the alleged threat. The government called LaFontaine's
argument "complete speculation" and stated that the argument was "ridiculous." The

                                           -8-
government then explained how the evidence, including the voice mail itself,
disproved LaFontaine's theory. Personal attacks on opposing counsel are improper.
United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005). However, as
demonstrated here, "[t]he prosecutor may . . . use '"colorful pejoratives" and argue a
personal interpretation of the evidence' during closing." United States v. Sigillito,
759 F.3d 913, 936 (8th Cir. 2014) (quoting United States v. White, 241 F.3d 1015,
1023 (8th Cir. 2001)). The government did not exceed the "considerable latitude"
allowed when responding to LaFontaine's arguments. Collins, 642 F.3d at 658.

       Because none of the actions LaFontaine complains of were improper, let alone
clear error, LaFontaine's prosecutorial misconduct claims fail the first prong of the
test. See Jones, 795 F.3d at 799. Thus, we need not discuss whether the remarks
prejudicially affected LaFontaine's rights. The government committed no reversible
prosecutorial misconduct during closing argument.

      B.     Rule 404(b) Evidence

       The district court admitted evidence of LaFontaine's 2013 conversation with
the federal court employee, in which LaFontaine's comments were perceived as
threatening. The court allowed the evidence under Federal Rule of Evidence 404(b)
to show LaFontaine's intent and lack of mistake. LaFontaine argues that this was in
error because the evidence was irrelevant and highly prejudicial. We disagree.

       "A district court's evidentiary rulings are reviewed for an abuse of discretion
and are reversed 'only when an improper evidentiary ruling affects the substantial
rights of the defendant or when we believe that the error has had more than a slight
influence on the verdict.'" United States v. Contreras, 816 F.3d 502, 511 (8th Cir.
2016) (quoting United States v. Elbert, 561 F.3d 771, 775 (8th Cir. 2009)). Under
Rule 404(b),



                                         -9-
       [e]vidence of a crime, wrong, or other act is not admissible to prove a
       person's character in order to show that on a particular occasion the
       person acted in accordance with the character. This evidence may be
       admissible for another purpose, such as proving motive, opportunity,
       intent, preparation, plan, knowledge, identity, absence of mistake, or
       lack of accident.

This rule is "one of inclusion, such that evidence offered for permissible purposes is
presumed admissible absent a contrary determination." Contreras, 816 F.3d at 511
(quoting United States v. Williams, 796 F.3d 951, 958 (8th Cir. 2015), cert. denied,
136 S. Ct. 1450 (2016)). A four-part test is used to determine whether a district court
abused its discretion by allowing Rule 404(b) evidence. Id. The evidence is properly
admitted if "(1) it is relevant to a material issue; (2) it is similar in kind and not overly
remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4)
its potential prejudice does not substantially outweigh its probative value." Id.
(quoting Williams, 796 F.3d at 959).

       First, the evidence of the 2013 incident was relevant to the key issue in the
case–whether LaFontaine intended to send a threatening communication or knew that
the voice mail would be viewed as threatening. Second, like the instant offense, the
prior incident involved a potentially threatening statement to a government official
because of LaFontaine's frustration with his treatment by a government official. And,
the prior incident occurred in October 2013, less than two years before the current
incident, which is not overly remote. Third, the Deputy United States Marshal who
investigated the incident and interviewed LaFontaine testified at trial and provided
sufficient evidence of the incident. Lastly, LaFontaine was not prejudiced by the
introduction of this evidence. As requested, LaFontaine was allowed to present
evidence of the content of the communication, and the court gave a limiting
instruction. Moreover, the government did not address the 2013 incident in closing
argument. Thus, the district court did not abuse its discretion by admitting this
evidence.

                                            -10-
      C.     GPS Monitoring

      LaFontaine also appeals the district court's imposition of GPS monitoring as
a condition of supervised release. "We review a district court's imposition of special
conditions of supervised release for [an] abuse of discretion." United States v.
Hobbs, 710 F.3d 850, 852 (8th Cir. 2013). A district court has broad discretion to
impose special conditions of supervised release so long as the condition is
"reasonably related to certain sentencing factors set forth in 18 U.S.C. § 3553(a)."
United States v. Forde, 664 F.3d 1219, 1222 (8th Cir. 2012). However, "[a] special
condition may not deprive an individual of more 'liberty than is reasonably necessary'
to accomplish these purposes." Id. (quoting 18 U.S.C. § 3583(d)(2)). LaFontaine
argues that this condition violated the tailoring requirement. We disagree.

       LaFontaine received notice prior to sentencing that the court was considering
placing him on electronic monitoring, which includes GPS monitoring. LaFontaine
then filed a sentencing memorandum specifically objecting to GPS monitoring. At
sentencing the court heard argument on the conditions of supervised release. The
court carefully considered all of the § 3553(a) factors, including LaFontaine's history
and character, as well as trial testimony and counsels' written and oral arguments.
LaFontaine had a prior conflict with a federal court employee, had multiple
confrontations with other people, and threatened to take life to defend himself against
injustice. Taking all of this into account, the district court determined that
LaFontaine's criminal behavior had escalated and that he was a safety risk. Moreover,
although LaFontaine did not dispute that the judges of Eldora County were victims
and agreed to a no-contact order, given his prior criminal history, there was no
guarantee he would comply with the order. GPS monitoring would provide law
enforcement with advance notice if LaFontaine sought to contact anyone he had
previously threatened. Based on these facts, GPS monitoring was clearly reasonable
and as narrowly tailored as possible. The district court did not abuse its discretion.



                                         -11-
      D.     Alcohol Ban and Substance Abuse Treatment

      In addition to GPS monitoring, the district court also imposed a total alcohol
ban, which "prohibited [LaFontaine] from entering any establishment that holds itself
out to the public to be a bar or tavern," and ordered substance abuse treatment.
LaFontaine argues that imposing these special conditions of supervised release
without explanation was in error. We disagree.

        As with GPS monitoring, the court advised LaFontaine prior to sentencing that
it intended to require special conditions for supervised release, including an alcohol
ban and substance abuse treatment. Unlike GPS monitoring, however, LaFontaine
failed to object to these conditions. In fact, at sentencing LaFontaine stated that he
was "not objecting to–the substance abuse treatment, the mental health evaluation,
the prohibition of alcohol consumption, the no-contact orders, and the search
provisions." Thus, although we would normally review for plain error because
LaFontaine failed to object to the conditions, United States v. Simons, 614 F.3d 475,
478 (8th Cir. 2010), because LaFontaine "knowingly and voluntarily waive[d these]
right[s], any error is unreviewable on appeal," United States v. Campbell, 764 F.3d
874, 878 (8th Cir. 2014). The district court advised LaFontaine of its plan of action,
and LaFontaine agreed to it. He "invited [any] error," id. (quoting Matthew v. Unum
Life Ins. Co. of Am., 639 F.3d 857, 868 (8th Cir. 2011)), and he "cannot [now]
complain that the district court gave him exactly what his lawyer asked," United
States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002). LaFontaine waived his right
to appeal these conditions of supervised release.




                                        -12-
III.   CONCLUSION

       The judgment of the district court is affirmed.
                      ______________________________




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