                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1553
                                   ___________

United States of America,                *
                                         *
            Plaintiff-Appellee,          *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   District of South Dakota
Joshua A. Waldman,                       *
                                         *
            Defendant-Appellant.         *

                                   ___________

                             Submitted: October 8, 2002
                                Filed: November 20, 2002
                                 ___________

Before MURPHY, JOHN R. GIBSON, and SMITH, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Joshua A. Waldman was convicted by a jury of carjacking, in violation of 18
U.S.C. § 2119, and of using a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c). The district court1 sentenced him to 180 months
for carjacking and 84 months for the firearm violation, to be served consecutively.
Waldman appeals his conviction and his sentence. We affirm.


      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, sitting by designation.
                                          I.

      On the evening of April 22, 2000, Lieutenant David Panzer, Jr. of the Pierre
police department observed a vehicle fail to yield at an intersection. Panzer stopped
the vehicle, learned that its driver was Waldman, and noticed an odor of alcohol. He
administered a sobriety test to Waldman and then arrested him for “zero-tolerance
DUI,” a charge used for drivers under the age of 21 who have consumed alcohol.
Panzer handcuffed Waldman with his hands behind his back, patted him down, and
then placed him in the rear passenger side of his police car. The rear seat was
separated from the front by a solid plexiglass screen on the driver side and a wire
cage on the passenger side.

       While Panzer was driving toward the jail, Waldman was able to move his
handcuffed arms to the front of his body without being detected and suddenly drew
a concealed gun and yelled, "Don't fuckin' move cop." Waldman pointed the gun at
Panzer through the wire cage separating the front and rear seats and told him where
to drive, finally ordering him to drive to a gravel pit outside of town. On the way out
of town, Waldman kept his weapon pointed at the lieutenant's head and threatened
him with death and grievous injury. The threats included statements such as "I swear
to God, . . . got a 45 fucking magnum and blow [sic] your fucking head right off," "I
don't wanna fucking kill you, but I swear to fucking God, I will," and "motherfucking
trigger's got five pounds of pressure, I got three on the motherfucker right now.”

       Once they arrived at the gravel pit, Waldman ordered Panzer to stop the car
behind a pile of gravel and to press his head to the barrel of the gun. He warned
Panzer, "You better do the fucking thing, this . . . fucker is pointed right at your
fucking eye." Panzer, who was afraid he was about to be killed, managed to open the
car door and roll out of the car onto the ground. From there he drew his weapon and
fired twice into the back seat. Waldman then threw his gun out of the car and



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surrendered. His gun was later found about eight feet from the car; it was loaded with
six hollow point bullets and its hammer was cocked.

      Waldman was first charged with state crimes, and a jury found him guilty of
driving under the influence and consumption of alcohol by a minor, not guilty of
attempted first degree murder, and not guilty by reason of insanity of the remaining
charges (aggravated assault, kidnapping, commission of a felony while armed,
attempted escape, and carrying a pistol or revolver without a permit). He was
subsequently indicted by a federal grand jury for carjacking and for using a firearm
during and in relation to a crime of violence. At the federal trial, the government
presented witnesses who testified that Waldman had expressed to them his dislike for
police officers and his desire to kill one. There was also evidence that Waldman's
gun was in working order and that the hammer had to be cocked manually before it
could be fired. Waldman again raised an insanity defense and contended that he
lacked the requisite criminal intent to be convicted of carjacking under § 2119.

        In its rebuttal case, the government called two psychiatrists and a psychologist
who had examined Waldman and found him to have been sane at the time he
commandeered the police vehicle. Dr. Ronald Franks also testified that Waldman had
told him that he had not shot Panzer on the way to the gravel pit because he was not
able to aim his gun properly through the wire screen. During the course of his
testimony, Dr. Franks also volunteered the statement that Waldman "had an intent to
kill a policeman." Defense counsel objected, and the court sustained the objection,
struck that portion of the testimony, and instructed the jurors to disregard the
comment, reminding them that the question of intent was for them to decide. No
motion for a mistrial was made.

       Waldman was convicted on both counts and later came before the district court
for sentencing. It imposed a three level enhancement for an official victim under §
3A1.2 of the sentencing guidelines and declined to award a two level reduction for

                                          -3-
acceptance of responsibility under § 3E1.1. See United States Sentencing
Commission, Guidelines Manual, §§ 3A1.2, 3E1.1 (Nov. 2001) [USSG]. Waldman's
criminal history category of IV and his adjusted offense level of 31 resulted in a
guideline range of 151 to 188 months for carjacking and a mandatory 84 months for
use of a firearm. See id. Ch.5, Pt.A; id. § 2K2.4(a)(2). The court sentenced him to
180 months on the carjacking count and 84 months on the firearm count, to be served
consecutively.

       On appeal, Waldman challenges his convictions and his sentence. He argues
that the evidence was insufficient to support the carjacking conviction, that the
district court should have sua sponte declared a mistrial after Dr. Franks' comment
about Waldman's intent, and that the district court erred both in applying the official
victim enhancement and in declining to grant a reduction for acceptance of
responsibility.

                                          II.

                                          A.

       Waldman contends that the evidence was insufficient to prove that he “acted
with the intent to cause death or serious bodily harm," the state of mind required for
conviction under § 2119. United States v. Wright, 246 F.3d 1123, 1126 (8th Cir.
2001). In considering the sufficiency of the evidence on appeal, we review "the
evidence in the light most favorable to the verdict, allowing the government all
reasonable inferences that may be drawn from the evidence." United States v. Eide,
297 F.3d 701, 704 (8th Cir. 2002). This standard of review does not permit us to
weigh the evidence or assess the credibility of witnesses. See id. at 705. The verdict
must be upheld "if there is substantial evidence that would allow any rational trier of
fact to find the essential elements of the crime beyond a reasonable doubt." Wright,
246 F.3d at 1126.

                                         -4-
       A necessary element for conviction under § 2119 is "the intent to cause death
or serious bodily harm." 18 U.S.C. § 2119 (2000). In a case such as this one where
"the driver surrendered or otherwise lost control over his car without the defendant
attempting to inflict, or actually inflicting, serious bodily harm, . . . the Government
[must] prove beyond a reasonable doubt that the defendant would have at least
attempted to seriously harm or kill the driver if that action had been necessary to
complete the taking of the car." Holloway v. United States, 526 U.S. 1, 11–12
(1999). Contrary to Waldman's contention, however, criminal intent may be inferred
from circumstantial evidence. See United States v. Warbonnet, 750 F.2d 698, 700
(8th Cir. 1984) (per curiam).

       The government presented a great deal of evidence on the issue of Waldman's
intent. The jury could have inferred from the threats he made to Panzer that he was
ready to kill him unless he followed instructions and surrendered control over the car.
Waldman warned Panzer, for example, that he would "shoot you in the fucking face"
and "I don't wanna fucking kill you, but I swear to fucking God, I will.” One of the
passengers in Waldman's car when it was stopped testified that Waldman had said
that he wanted to "kill a Pierre police officer and become famous." There was
evidence that Waldman's gun was loaded, and Panzer testified that Waldman had
cocked his gun and kept it aimed at the back of the officer’s head when he took
control of the car. Dr. Franks testified that Waldman had told him that he had been
prepared to use a weapon that day but that he had not shot Panzer because he had not
been able to get a proper angle on him. After reviewing the evidence, we cannot
conclude that "'no reasonable jury could find beyond a reasonable doubt,'" Eide, 297
F.3d at 704 (quoting United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996)),
that Waldman had the specific intent seriously to harm or kill Lieutenant Panzer if it
had been necessary to complete the taking of the car.




                                          -5-
                                            B.

        Waldman also contends that the district court should have declared a mistrial
after Dr. Franks volunteered that he had "had an intent to kill a policeman."
Waldman argues that Dr. Franks was testifying as an expert and this statement
therefore violated Federal Rule of Evidence 704(b), which prohibits an expert from
stating an opinion as to whether a defendant had the mental state constituting an
element of the crime. Waldman argues that he is entitled to a reversal like the
defendant in United States v. Boyd, 55 F.3d 667 (D.C. Cir. 1995), where an expert
testified to intent. The government does not deny that Dr. Franks' statement was
improper, but it argues that in light of the district court's curative instructions and the
other substantial evidence of Waldman's guilt, the error was harmless and did not
warrant a mistrial.

       Our standard of review when no motion for a mistrial was made at trial is only
for plain error. See United States v. Boyd, 180 F.3d 967, 983 (8th Cir. 1999); United
States v. Nelson, 984 F.2d 894, 898 n.6 (8th Cir. 1993). We will reverse for plain
error "only if the error prejudices the substantial rights of a party and would result in
a miscarriage of justice if left uncorrected." United States v. McNeil, 184 F.3d 770,
777 (8th Cir. 1999) (quoting Cross v. Cleaver, 142 F.3d 1059, 1067 (8th Cir. 1998)).
This form of review "is extremely narrow and is limited to those errors which are so
obvious or otherwise flawed as to seriously undermine the fairness, integrity, or
public reputation of judicial proceedings." United States v. Beck, 250 F.3d 1163,
1166 (8th Cir. 2001).

       This case is unlike Boyd, on which Waldman relies. There, the expert's
testimony came in response to a hypothetical question from the prosecutor
specifically designed to elicit an opinion on intent, the court gave no corrective
instruction to the jury, and the government's other evidence of intent was
"questionable." Boyd, 55 F.3d at 670, 672. In this case, Dr. Franks' comment was

                                           -6-
an unsolicited remark that the prosecutor did not seek to exploit and the district court
immediately sustained the defense objection, ordered the statement stricken, and
instructed the jurors that they alone were to determine the issue of intent. Cf. Nelson,
984 F.2d at 897 ("The admission of allegedly prejudicial testimony is ordinarily cured
by an instruction to the jury to disregard the testimony."). Moreover, there was
considerable evidence of Waldman's intent, such as the stream of threats made to
Panzer, the fact that his gun was loaded and manually cocked, and his statements that
he wanted to "kill a Pierre police officer and become famous" but had not been able
to get his weapon aimed at the proper angle to kill Panzer. Cf. id. ("[S]ubstantial
evidence of guilt can lead to a finding that the allegedly improper testimony was
harmless."). We conclude that the district court's failure to declare a mistrial sua
sponte did not prejudice Waldman's substantial rights or result in a miscarriage of
justice.

                                           C.

       Waldman challenges the district court's application of the official victim
enhancement. We review a district court's factual findings at sentencing for clear
error and its application of the guidelines de novo. See United States v. Moore, 242
F.3d 1080, 1081 (8th Cir. 2001). The enhancement for an official victim applies
when "during the course of the offense . . ., the defendant . . ., knowing . . . a person
was a law enforcement . . . officer, assaulted such officer in a manner creating a
substantial risk of serious bodily injury." USSG § 3A1.2(b) (2001). This section
"applies in circumstances tantamount to aggravated assault against a law enforcement
. . . officer." Id. § 3A1.2, cmt. n.5. Waldman argues that he did not create a
substantial risk of bodily injury to Lieutenant Panzer, but there was sufficient
evidence in support of the district court's finding to the contrary. Waldman
threatened to kill Panzer while pointing a cocked and loaded gun to the back of his
head for an extended period of time.



                                          -7-
                                           D.

        Waldman also argues that the district court erred by declining to grant a
reduction for acceptance of responsibility. Such a reduction is appropriate if "the
defendant clearly demonstrates acceptance of responsibility for his offense." USSG
§ 3E1.1(a). The defendant has the burden to show he is entitled to the reduction.
United States v. Arellano, 291 F.3d 1032, 1034 (8th Cir. 2002). The issue "'is a
factual question which depends largely on credibility assessments by the sentencing
court,'" and we will only reverse the district court's determination "if it is so clearly
erroneous as to be without foundation." United States v. Santos, 235 F.3d 1105,
1108–09 (8th Cir. 2000) (quoting United States v. Yell, 18 F.3d 581, 583 (8th Cir.
1994)); see also USSG § 3E1.1, cmt. n.5 ("[D]etermination of the sentencing judge
is entitled to great deference on review."). Waldman is correct that a defendant who
proceeds to trial on an insanity defense "may nevertheless qualify for an acceptance-
of-responsibility reduction." United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995).
In order to obtain the reduction, however, he must show that he is entitled to it, and
we cannot say on this record that the district court clearly erred in finding that
Waldman did not accept responsibility for his offenses.

                                           E.

      For these reasons, we affirm the judgment of the district court.

      A true copy.

             Attest:

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




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