FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        January 28, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                  No. 08-1393
                                                  (D. Ct. No. 1:06-CR-00294-MSK-01)
 WILLIAM C. CRABBE,                                             (D. Colo.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, LUCERO, and HARTZ, Circuit Judges.


       Defendant-appellant William C. Crabbe was convicted of multiple counts of

failure to pay over federal payroll taxes in violation of 26 U.S.C. § 7202 and multiple

counts of filing false tax returns in violation of 26 U.S.C. § 7206(1). On appeal, Mr.

Crabbe challenges his convictions on multiple grounds including: (1) the statutes under

which he was convicted are unconstitutionally vague; (2) the government presented

insufficient evidence to support his convictions; (3) the district court’s erroneous jury

instructions misled the jury and caused prejudice to him; (4) multiple instances of

prosecutorial misconduct resulted in a fundamentally unfair trial; and (5) the erroneous


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jury instructions and multiple instances of prosecutorial misconduct amount to cumulative

error that requires a reversal of his convictions. We have jurisdiction under 28 U.S.C. §

1291 and AFFIRM.

                                    I. BACKGROUND

       Mr. Crabbe’s convictions arise from his ownership and management of Columbine

Health Care, Inc. (“Columbine”). Columbine’s business was to provide nurses, with

whom it had ongoing contracts, to health care facilities on a short-term basis. Mr. Crabbe

and his business partner, James Rowan, equally shared the bulk of Columbine’s

ownership interests with a small percentage of the company being owned by third parties.

Mr. Rowan was Columbine’s President and manager of its day-to-day operations. Mr.

Crabbe, on the other hand, was Columbine’s Vice President, had no defined managerial

duties, and had a limited day-to-day role in the operation of the business. Indeed, there

was substantial testimony that Mr. Rowan asserted dictatorial control over the company

and sometimes directed employees not to discuss its operations with Mr. Crabbe.

       Columbine’s business model was to contract with nurses willing to provide short-

term services to health care facilities, match these nurses with health care facilities based

on the nurses’ skills and the facilities’ needs, and negotiate contracts with the facilities to

deliver those services. All compensation for services was paid by the facilities to

Columbine who would then pay the nurses based on a negotiated hourly wage. Each

nurse that worked for Columbine received a packet of materials and was required to sign

a form containing various contractual provisions that would govern the relationship

                                              -2-
between the nurse and Columbine. Among these provisions was a statement explaining

that the nurse “understand[s] that [she] will be acting as an employee of Columbine and

that all taxes and other appropriate deductions shall be made from [her] compensation as

provided by law.” Consistent with this provision, Columbine distributed W-4 tax forms

to its nurses, withheld federal taxes from their paychecks, and provided them with W-2

forms. The forms signed by the nurses also required that they consent to Columbine’s

authority to “terminate their employment.”

       Additionally, all nurses were required to wear Columbine name tags and were

prohibited from discussing prospective employment opportunities with a facility while

they were under contract with Columbine. Columbine also routinely reimbursed nurses

for their travel expenses and often paid for their housing when they were assigned to

facilities outside their hometowns.

       Columbine also executed “Facility Agreements” with each health care facility to

which it provided nurses. These agreements stated that “[Columbine], as employer, takes

responsibility for its employees’ employment taxes and shall deduct and pay applicable

FICA, Federal and State withholding taxes.” The “Facility Agreements” further provided

that Columbine and each facility would “jointly plan and implement” a nurse’s services,

although the evidence suggested that Columbine actually asserted little control over a

nurse’s activities once she was placed with a facility.

       Mr. Crabbe first became aware of Columbine’s delinquent tax liabilities sometime

in 1999. At that time, Mr. Crabbe discovered that the Columbine employee responsible

                                             -3-
for preparing and filing the company’s quarterly IRS Form 941s (“941s”)1 had been

directed by Mr. Rowan to retain the forms rather than submit them to the IRS. Mr.

Crabbe also discovered that Mr. Rowan had been siphoning substantial sums of

Columbine funds for his own personal use.

       Mr. Crabbe expressed deep concern about Columbine’s tax delinquencies and Mr.

Rowan’s personal use of corporate funds. Ultimately, he convinced Mr. Rowan to retain

a tax attorney who advised Columbine to stay up to date on its current tax liabilities and

to pay any tax delinquencies as it could afford them. The record also demonstrates that

Mr. Crabbe explored the possibility of officially treating Columbine nurses as

independent contractors for tax purposes in order to diminish the company’s tax liability;

however, he was told by corporate officers who were more involved with the business

operations of the company that this was not a viable option. For a short time after Mr.

Crabbe first addressed Columbine’s tax delinquencies, the company regularly paid its

taxes, but by the end of 1999 it had fallen behind again.

       In 2000, Mr. Crabbe unilaterally opened a bank account on Columbine’s behalf out

of which he intended to pay the company’s taxes. He opened this account without Mr.

Rowan’s knowledge to prevent further diversions of corporate funds by him. Mr. Crabbe

was the sole signatory on the account and the majority of checks written from it were

signed by him. These checks included paychecks and other payments to Columbine


       1
       A 941 is an IRS form by which companies report quarterly payroll taxes they
have withheld and remit those withholdings to the IRS.

                                            -4-
creditors.

       In 2001, Mr. Crabbe agreed with Mr. Rowan to increase their respective draws

from Columbine, which had increased its revenues, but only if Mr. Rowan would agree to

make a concerted effort to resolve the company’s tax problems. Mr. Rowan agreed to

allow Mr. Crabbe to prepare the company’s delinquent 941s and promised that he would

file them himself. Mr. Crabbe used Columbine’s payroll software to prepare the

company’s delinquent 941s which spanned from the first quarter of 1999 to the first

quarter of 2001. Despite his arrangement with Mr. Rowan, Mr. Crabbe took it upon

himself to file these forms once he had prepared them. On each of these forms, Mr.

Crabbe left the “number of employees” section blank, and he later testified that he was

focused on the total tax liability reflected in the forms which “seemed right” to him. In

fact, these 941s and the payments Mr. Crabbe made pursuant to them only encompassed

Columbine’s corporate employees and did not include any of its nurses. Mr. Crabbe’s

failure to include the nurses on these forms was the basis for his failure to remit payroll

tax convictions.

       Mr. Crabbe continued to prepare 941s for quarters two through four of 2001, but

on these later forms he represented that Columbine employed between twenty-one and

thirty-one employees rather than leaving that section blank as he had done on prior 941s.

Mr. Crabbe later admitted that at the time he filed these forms he was aware that

Columbine had contracts with over 100 nurses. Furthermore, the record reflects that at

the same time Mr. Crabbe represented to the IRS that Columbine employed less than

                                             -5-
thirty-one people, he signed and filed state tax statements that reflected a much higher

number of employees and a much greater total tax liability. These misrepresentations of

the number of Columbine employees on 941s for the year 2001 formed the basis of Mr.

Crabbe’s false filing convictions.

        In October 2002, Mr. Crabbe was informed by one of Columbine’s financial

officers that he had failed to file 941s for Columbine nurses from whom the company had

withheld federal taxes and that he had misrepresented the number of Columbine

employees on some of the 941s he had filed. Although he inquired about what steps he

needed to take to remedy these misrepresentations and another Columbine employee

began preparing correct and complete 941s, Mr. Crabbe took no further action at that

time.

        In 2003, the IRS became aware of Columbine’s tax delinquencies and by 2004 it

had opened a criminal investigation into the company and its officers. In August 2004,

after being informed of the criminal investigation, Mr. Crabbe filed complete and correct

941s spanning from the first quarter of 1999 to the fourth quarter of 2002. These forms

included Columbine’s nurses as employees and accurately reflected Columbine’s tax

liability.

        Despite these remedial measures, Mr. Crabbe was indicted for over thirty

violations of federal criminal tax laws. A jury convicted him of ten out of eleven counts

of failure to pay over payroll taxes and six out of twelve counts of filing false tax returns,

and acquitted him of one charge of tax evasion. Mr. Crabbe filed motions for judgment

                                             -6-
of acquittal and for a new trial. The district court denied both motions and ultimately

sentenced him to thirty-seven months’ imprisonment.

                                       II. DISCUSSION

A.     The Statutes Under Which Mr. Crabbe Was Convicted Are Not Unconstitutionally

       Vague

       Mr. Crabbe contends on appeal that the statutory definitions of “employees” and

“responsible persons” are unconstitutionally vague such that he was not given fair notice

that Columbine had a duty to pay over payroll taxes for the nurses or that he was

personally responsible for ensuring that these taxes were accurately reported and paid.

Mr. Crabbe concedes that he did not raise these claims to the district court; therefore, we

only review them for plain error. See United States v. Agnew, 

, 1406 (10th

Cir. 1991) (reviewing for plain error defendant’s argument, raised for the first time on

appeal, that the statutes under which he was convicted were unconstitutionally vague).

The plain-error standard of review imposes a heavy burden on Mr. Crabbe to demonstrate

that there is: “(1) error, (2) that is plain, (3) which affects [his] substantial rights, and (4)

which seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Romero, 

, 1178 (10th Cir. 2007).

       “A statute is impermissibly vague if it fails to provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits.” United

States v. Franklin-El, 

, 910 (10th Cir. 2009) (quotations omitted). “[The

Supreme] Court has long recognized that the constitutionality of a vague statutory

                                               -7-
standard is closely related to whether that standard incorporates a requirement of mens

rea.” Colautti v. Franklin, 

, 395 (1979). This close relationship was

articulated many years ago in Screws v. United States, 

, 101–102 (1945), in

which the Court stated:

       [T]he requirement of a specific intent to do a prohibited act may avoid those
       consequences to the accused which may otherwise render a vague or
       indefinite statute invalid. The constitutional vice in such a statute is the
       essential injustice to the accused of placing him on trial for an offense, the
       nature of which the statute does not define and hence of which it gives no
       warning . . . The requirement that the act must be willful or purposeful may
       not render certain, for all purposes, a statutory definition of the crime which
       is in some respects uncertain. But it does relieve the statute of the objection
       that it punishes without warning an offense of which the accused was
       unaware.

(quotations omitted). In other words, “a specific intent requirement . . . eliminate[s] the

objection that [a] statute punishes the accused for an offense of which he was unaware.”

.

       Indeed, “[t]he proliferation of statutes and regulations has sometimes made it

difficult for the average citizen to know and comprehend the extent of the duties and

obligations imposed by the tax laws.” Cheek v. United States, 

, 199–200

(1991). To ensure that taxpayers are not exposed to criminal liability for unwittingly

violating the complex tax code, Congress has made specific intent to violate the law an

element of certain federal tax offenses. 

Both statutes under which Mr. Crabbe

was convicted require a “willful” violation of the code, and are therefore among the

criminal tax offenses that require specific intent. See 26 U.S.C. § 7202 (imposing


                                            -8-
criminal liability on a person who “willfully fails to collect or truthfully account for and

pay over” a required tax); see also 

(proscribing “willfully mak[ing] and

subscrib[ing] any return, statement, or other document” which the maker “does not

believe to be true and correct as to every material matter”). Accordingly, Mr. Crabbe’s

claims that he was unconstitutionally denied fair notice that his conduct violated these tax

laws necessarily fail because the laws require specific intent.

B.     The Evidence Was Sufficient to Sustain Mr. Crabbe’s Convictions

       Mr. Crabbe’s also contends on appeal that there was insufficient evidence to prove

that under the Internal Revenue Code: (1) Columbine nurses were “employees” for whom

the company was responsible to pay taxes; (2) Mr. Crabbe was a “responsible person”

with a duty to pay Columbine’s taxes and ensure that they were not falsely reported; and

(3) Mr. Crabbe committed willful violations. This court reviews the sufficiency of the

evidence to support a jury verdict de novo and examines only whether taking the

evidence, both direct and circumstantial, “in the light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt.” United

States v. Hanzlicek, 

, 1239 (10th Cir. 1999) (quotations omitted). Although

the evidence supporting a jury verdict must be substantial, “it need not conclusively

exclude every other reasonable hypothesis and it need not negate all possibilities except

guilt.” United States v. Burkley, 

, 1188 (10th Cir. 2008) (quotations

omitted).

       1.     Columbine Nurses as “Employees”

                                             -9-
       Under the Internal Revenue Code, the definition of “employee” includes “any

individual who, under the usual common law rules applicable in determining the

employer-employee relationship, has the status of an employee.” 26 U.S.C. § 3121(d)(2).

The IRS has articulated a non-exhaustive list of twenty factors that bear on a person’s

status as either an employee or an independent contractor. See Rev. Rul. 87-41. Some of

these factors include: (1) the employer’s ability to control the manner in which the work

is completed and the ultimate result of the work; (2) the extent to which the business’s

existence depends on the performance of the worker’s duties; (3) the extent of a

continuing relationship between the worker and the employer; (4) whether payment is

made by the hour or week as opposed to by the job; (5) whether the employer pays the

worker’s business or travel expenses; (6) whether the worker can realize a profit or loss as

a result of her services; (7) whether the worker performs more than de minimus services

for more than one person or entity at a time; (8) the extent to which a worker makes her

services open to the general public; and (9) the employer’s right to terminate the worker

and the worker’s concomitant right to terminate her relationship with the employer. 

has adopted this twenty-factor test, but we have recognized that

“[e]ach factor may not have application to every situation . . . and no one of the[] factors

in isolation is dispositive; rather, it is the total situation that controls.” Eastern Inv. Corp.

v. United States, 

, 653 (10th Cir. 1995) (quotations omitted). Nevertheless,

we have recognized that the employer’s ability to control the method and manner of the

work is perhaps the most determinative factor. Marvel v. United States, 

,

                                              - 10 -
1514 (10th Cir. 1983).

       Mr. Crabbe’s argument that Columbine nurses were either independent contractors

or employees of the facilities in which they worked heavily relies on two opinions that are

not binding on this court, Critical Care Register Nursing, Inc. v. United States, 776 F.

Supp. 1025 (E.D. Pa. 1991), and Hospital Resource Personnel, Inc. v. United States, 

(11th Cir. 1995). Although both of these cases involve the worker classification

of nurses by companies that provided temporary nurse staffing to health care facilities,

they are both factually and legally distinguishable from Mr. Crabbe’s case. Accordingly,

we do not address them.

       Instead, we apply the IRS’s worker classification factors to the facts of this case.

Here, Columbine had the contractual authority to control the manner of the nurses’ work,

even if that control was rarely, if ever, exercised; Columbine’s existence was entirely

dependent upon the nurses’ work; the nurses had a continuing relationship with

Columbine; Columbine paid nurses by the hour and routinely paid for their travel and

housing expenses; the nurses were prohibited from discussing prospective employment

opportunities with any health care facility while under contract with Columbine; and both

Columbine and the nurses had the mutual right to terminate their relationship at will.

These multiple factors all support the jury’s conclusion that Columbine’s nurses were

indeed its employees. Accordingly, we determine that the jury had a substantial amount

of evidence to conclude beyond a reasonable doubt that Columbine nurses were

employees for whom the company was responsible for paying taxes.

                                            - 11 -
       2.     Mr. Crabbe as a “Responsible Person”

       Under the Internal Revenue Code, “[a]ny person required to collect, truthfully

account for, and pay over any tax imposed by this title who willfully fails to collect such

tax, or truthfully account for and pay over such tax” may be subject to criminal penalties.

26 U.S.C. § 6672(a). We have concluded that “[a] corporate officer or employee is

responsible [under the Code] if he or she has significant, though not necessarily

exclusive, authority in the general management and fiscal decisionmaking of the

corporation.” Taylor v. IRS, 

, 416 (10th Cir. 1995) (quotations omitted). In

this context we have also articulated a non-exhaustive list of factors to consider, which

includes “whether the person: (1) held corporate office; (2) controlled financial affairs;

(3) had authority to disburse corporate funds; (4) owned stock; and (5) had the ability to

hire and fire employees.” 

person possesses sufficient indicia of responsibility, he

is legally a “responsible person” under the Internal Revenue Code regardless of whether

he has the final say on corporate expenditures or is specifically responsible for ensuring

that the company’s taxes are paid. 

case, Mr. Crabbe: (1) was the Vice President of Columbine; (2) had some

control over Columbine’s financial affairs, as demonstrated by his unilateral

establishment of a corporate bank account; (3) had authority to distribute corporate funds,

as demonstrated by his signing of corporate checks; (4) held a large share of Columbine’s

ownership interests; and (5) participated in firing at least one employee and ostensibly

had the authority as Vice President of the company to hire or fire others. Furthermore, as

                                            - 12 -
noted in Taylor, Mr. Crabbe’s claim that Mr. Rowan often marginalized his authority and

the fact that he was not, at least initially, specifically tasked with paying Columbine’s

taxes, do not conclusively establish that he was not a “responsible person” under the

Internal Revenue Code. Accordingly, we conclude that the evidence sufficiently

established each of our recognized indicia of responsibility and therefore the jury could

reasonably conclude that he was a “responsible person.”

       3.     Evidence of Mr. Crabbe’s Willful Violations

       As noted above, both statutes under which Mr. Crabbe was convicted require

willful violations of the tax code. These willfulness requirements impose a burden on the

government to prove that “the law imposed a duty on [Mr. Crabbe], that [he] knew of this

duty, and that he voluntarily and intentionally violated that duty.” 

.

       Mr. Crabbe specifically argues that there was no evidence that he actually knew

that Columbine nurses were employees such that the company had a duty to pay their

payroll taxes or that he had a personal duty to ensure that Columbine’s taxes were

accurately reported and paid. As discussed above, the Internal Revenue Code imposed a

clear duty on Columbine to pay the nurses’ payroll taxes and it imposed a clear duty on

Mr. Crabbe to ensure that Columbine’s taxes were accurately reported and paid. It is also

apparent that Mr. Crabbe was aware of these duties. The record demonstrates that Mr.

Crabbe knew Columbine was withholding payroll taxes from nurses; he attempted to

persuade others in power at Columbine to restructure the company so that nurses could be

                                            - 13 -
treated as independent contractors rather than employees; and he made unilateral efforts

to prepare and file 941s on Columbine’s behalf.

       Furthermore, there was ample evidence from which a jury could reasonably

conclude that Mr. Crabbe intentionally did not fulfill his duties to pay taxes for

Columbine’s nurse employees and to file accurate 941s on the company’s behalf. That

evidence includes: (1) Mr. Crabbe’s failed attempts to formally treat Columbine nurses as

independent contractors in order to alleviate some of the company’s tax liabilities; (2) Mr.

Crabbe’s admitted knowledge that Columbine had contracts with over 100 nurses; (3) Mr.

Crabbe’s failure to include the nurse employees in the 941s and his representation on

those forms that Columbine had fewer than thirty-one employees while at the same time

signing state tax statements that reflected a much higher number of employees and a

much greater tax liability; (4) his failure to correct the false 941s he filed—even after

receiving notice that they were incorrect—for over a year, and then, only after he became

aware that he was the subject of a criminal investigation; and (5) his agreement with Mr.

Rowan to increase their draws from Columbine when he was aware of the company’s

substantial tax delinquencies. This evidence is certainly sufficient for a reasonable jury to

conclude beyond a reasonable doubt that Mr. Crabbe willfully violated his clearly

articulated tax duties.

C.     The District Court’s Jury Instructions Were Not Erroneous

       Mr. Crabbe also asserts various claims that the district court’s jury instructions

were erroneous. He contends the district court: (1) did not properly instruct the jury on

                                            - 14 -
the worker classification issue; (2) failed to instruct the jury in writing as to the

differences in state and federal law regarding worker classification and “responsible

persons;” (3) did not adequately instruct the jury regarding Mr. Crabbe’s good faith

defense; and (4) erroneously employed the term a “responsible person.” Generally, “[w]e

review de novo the jury instructions as a whole and view them in the context of the entire

trial to determine if they accurately state the governing law and provide the jury with an

accurate understanding of the relevant legal standards and factual issues in the case.”

United States v. Bedford, 

, 1152 (10th Cir. 2008) (quotations omitted).

“We also [generally] review for abuse of discretion a district court’s shaping or phrasing

of a particular jury instruction.” 

case, however, Mr. Crabbe only objected

below to the district court’s jury instruction on worker classification. Accordingly, we

review his other arguments, which are raised for the first time on appeal, under the plain-

error standard of review discussed above. See United States v. Hutchinson, 

, 1019 (10th Cir. 2009) (analyzing claims of instructional error raised for the first

time on appeal under a plain-error standard of review).

       Mr. Crabbe’s contention that the district court erroneously instructed the jury on

the worker classification issue is without merit. Indeed, the district court, pursuant to Mr.

Crabbe’s objections, rewrote this instruction to track the language of the statute,

enumerate the many factors bearing on the worker classification question, and emphasize

that no one factor is dispositive. Certainly, the district court’s carefully crafted jury

instruction adequately apprised the jury of the applicable legal standards for that issue.

                                             - 15 -
Accordingly, we find no error in the district court’s worker classification jury instruction.2

       Moreover, none of Mr. Crabbe’s claims of instructional error raised for the first

time in this appeal satisfy the stringent plain-error standard. First, his claim that the

district court erroneously failed to instruct the jury in writing regarding the differences

between state and federal law on the issue of worker classification is belied by the district

court’s oral admonition that federal law controlled in this case. Second, Mr. Crabbe’s

claim that the district court did not adequately instruct the jury regarding his good-faith

defense is belied by the fact that the district court included, at Mr. Crabbe’s request, an

instruction regarding his ability to assert such a defense in this case. Finally, Mr.

Crabbe’s argument concerning the district court’s responsible-person instruction

primarily claims that the instruction was erroneous because it failed to put the words

“responsible person” in quotations. Even if this were error, a proposition we do not

decide, we fail to see how such an error could seriously affect the fairness, integrity, or

public reputation of judicial proceedings. Accordingly, we reject each of Mr. Crabbe’s

claims of instructional error.

D.     Mr. Crabbe Was Not Prejudiced By Prosecutorial Misconduct


       2
        Relatedly, Mr. Crabbe appears to argue that the district court erred by failing to
include a burden of proof instruction for each element of the crimes charged. This
contention is similarly without merit. As the government points out, Mr. Crabbe does not
provide any legal support for his claim that a district court must emphasize the
government’s “beyond a reasonable doubt” burden during every elemental instruction.
Here, the district court apprised the jury of the government’s burden multiple times
throughout the trial and the jury instructions. Accordingly, the district court adequately
instructed the jury regarding the government’s burden of proof.

                                             - 16 -
       Finally, Mr. Crabbe asserts that the government made various statements in its

closing argument that were aimed at misleading the jury and that rendered his trial

fundamentally unfair. Like many of his other appellate arguments, we review these for

plain error because Mr. Crabbe failed to object below to any government statements made

during closing arguments. “Allegations of prosecutorial misconduct are mixed questions

of fact and law that require a two-step process for review.” United States v. Rogers, 

, 1140–41 (10th Cir. 2009). “We first determine whether the prosecutor’s

conduct was in fact improper, and second, whether the error was harmless beyond a

reasonable doubt.” 

government bears the burden of proving the

error is harmless beyond a reasonable doubt.” 

defendant fails to timely

object to an alleged error, however, “[i]t is the defendant, rather than the Government

who bears the burden of persuasion with respect to prejudice.” United States v. Olano,

, 734 (1993).

       Specifically, Mr. Crabbe claims that the government made improper statements

regarding: (1) the wrong done to Columbine nurses by Mr. Crabbe’s withholding taxes

from their paychecks but failing to remit those withholdings to the IRS; (2) the state tax

statements signed and filed by Mr. Crabbe; (3) the importance of the contract between

Columbine and the nurses to the worker classification issue; (4) the law regarding

whether Mr. Crabbe was a “responsible person”; and (5) the prosecutor’s personal

opinion of Mr. Crabbe’s good-faith defense. All of these arguments, except the last, fail

the first step of our two-step review because none of these statements to which Mr.

                                           - 17 -
Crabbe objects were even improper. Furthermore, while a prosecutor is obviously

prohibited from stating her personal beliefs in a closing argument, Mr. Crabbe did not

object to this statement and has failed to carry his burden to show that this statement

caused him prejudice. Accordingly, Mr. Crabbe’s allegations of prosecutorial misconduct

are without merit.3

                                   III. CONCLUSION

       For the reasons stated above, we AFFIRM. Appellant’s motion to file an

oversized reply brief is GRANTED.



                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




       3
       Because we conclude that there was no instructional error or prosecutorial
misconduct that caused Mr. Crabbe prejudice in this case, we necessarily reject Mr.
Crabbe’s argument that the combination of instructional error and prosecutorial
misconduct resulted in cumulative error that requires reversal of his convictions.

                                           - 18 -