    16-2604-cr
    United States of America v. Dwight Mundle

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 7th day of November, two thousand
    seventeen.

    PRESENT: DENNIS JACOBS,
             GERALD E. LYNCH,
                  Circuit Judges,
             Paul A. CROTTY,*
                  District Judge.

    - - - - - - - - - - - - - - - - - - - -X
    United States of America,
             Appellee,

                -v.-                                       16-2604

    Dwight Mundle,
             Defendant-Appellant.
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                      Paul P. Rinaldo, Law Office of
                                        Paul P. Rinaldo, White Plains,
                                        New York.


    *Judge Paul A. Crotty, United States District Court for the
    Southern District of New York, sitting by designation.
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FOR APPELLEE:              Joon H. Kim, Acting United
                           States Attorney for the Southern
                           District of New York (Lauren B.
                           Schorr, Douglas S. Zolkind,
                           Michael Ferrara, Assistant
                           United States Attorneys, on the
                           brief), New York, New York.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Roman, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Dwight Mundle appeals from the judgment of the United
States District Court for the Southern District of New York
sentencing him to 27 months in prison after he was
convicted of transmitting a threat in interstate commerce.
We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for
review.

     For a week in January 2015, Dwight Mundle went on an
intoxicated rampage against his mother, Sonia Green, while
staying at her Florida home. He demanded money, broke
furniture, showed Sonia his gun, and repeatedly told her
that he was going to kill her, his stepfather, and himself.
On Friday, January 23, the stepfather reached out for
assistance to Mundle’s sister, Anika, after discovering
that his wife was trapped by her son. That same day Anika
called the appellant multiple times to check whether Sonia
was safe. During these calls, an enraged Mundle made
specific threats to kill Anika and his stepfather, and to
hurt his mother. Afterwards he continued to threaten and
hold his mother hostage until she escaped several days
later. He was arrested on January 27 and charged in a two-
count indictment with transmitting a threat in interstate
commerce, 18 U.S.C. § 875(c), for the statements he made on
the phone to his sister on January 23, and with using,
carrying, or possessing a firearm during a crime of
violence, 18 U.S.C. § 924(c).
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     Prior to trial, the prosecution moved in limine to
admit testimony related to Mundle’s uncharged conduct over
the course of the week during which he made the threatening
communications. The district court granted the motion over
Mundle’s opposition, and the prosecution elicited testimony
from Mundle’s mother and stepfather, detailing Mundle’s
abusive and menacing behavior towards his mother. Anika
further testified that she believed Mundle’s threats over
the phone in part because of what she knew was transpiring
between him and his mother in her Florida home.

     Rule 404(b)(1) bars the admission of evidence of
uncharged crimes or acts for the purpose of showing a
defendant’s criminal propensity. Fed. R. Evid. 404(b)(1).
However, “evidence of uncharged criminal activity is not
considered other crimes evidence under Fed. R. Evid. 404(b)
if it arose out of the same transaction or series of
transactions as the charged offense, if it is inextricably
intertwined with the evidence regarding the charged
offense, or if it is necessary to complete the story of the
crime on trial.” United States v. Carboni, 204 F.3d 39, 44
(2d Cir. 2000)(internal quotation marks omitted)(citing
United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir.
1997)). The district court may admit relevant evidence not
barred by Rule 404(b) unless its probative value is
substantially outweighed by the risk of unfair prejudice.
See id.; see also Fed. R. Evid. 403.

     On appeal, Mundle argues that the district court erred
in granting the Government’s motion because the uncharged
conduct was not inextricably intertwined with the
threatening phone calls, and in any event, because its
admission resulted in undue prejudice. “District courts
have broad discretion to balance probative value against
possible prejudice, and we will not disturb that balancing
unless there is a clear showing of abuse of discretion.”
United States v. Bermudez, 529 F.3d 158, 161-62 (2d Cir.
2008) (internal citations and quotation marks omitted).

     The district court did not abuse its discretion in
admitting the evidence of Mundle’s threatening and abusive
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behavior towards his mother. His conduct during his stay
with Sonia was inextricably intertwined with the evidence
of the charged offenses and its inclusion was necessary to
understand the sequence of events that form the basis for
Mundle’s conviction. For one, the evidence tends to show
that the defendant “transmit[ted] the communication for the
purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat,” which is part of
the Government’s burden of proof to convict under 18 U.S.C.
§ 875(c), Elonis v. United States, 135 S. Ct. 2001, 2012
(2015): Mundle’s continuing aggression towards his family
members up to and including the day of the call supports
the inference that the threats conveyed to his sister would
be perceived as real. And although Mundle was ultimately
acquitted on the 18 U.S.C. § 924(c) count, Sonia’s
testimony about Mundle’s weapon provided direct evidence of
an element of the offense. It is impossible to separate
the “possess[ion of] a firearm” “during and in relation to”
the making of the threats against his sister from Mundle’s
conduct towards his mother. 18 U.S.C. § 924(c)(1)(A).

     Evidence of the events surrounding the January 23 phone
calls also “g[ives] coherence to the basic sequence” of the
charged crime. Gonzalez, 110 F.3d at 942. These events
account for Anika’s calls and explain how they fit into the
criminal narrative. See Carboni, 204 F.3d at 44. As the
district court explained: “Absent an explanation that
Anika was aware the defendant was holding their mother
hostage...and had threatened her,” Anika’s calling—and
Mundle’s response—could seem inexplicable. J. App’x at 79.

     Mundle contends that the evidence of his conduct
leading up to the call should nevertheless have been
excluded because it effectively put him on trial for
kidnapping his mother. But as explained above, the
challenged testimony helped establish elements of the
charged offenses and provided context for the
communications at the center of the case. See Gonzalez,
110 F.3d at 941 (Relevant background evidence includes “the
circumstances surrounding the events or to furnish an
explanation of the understanding or intent with which
certain acts were performed.”). The district court, being
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“in the best position to do the balancing required by Rule
403,” did not abuse its broad discretion in deciding that
any prejudice Mundle may have suffered from admitting this
testimony did not substantially outweigh its probative
value. United States v. Ansaldi, 372 F.3d 118, 131 (2d
Cir. 2004); accord United States v. Mercado, 573 F.3d 138,
142 (2d Cir. 2009) (noting the district court’s superior
position to balance probative value against the dangers of
unfair prejudice).

     For the foregoing reasons, and finding no merit in
Mundle’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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