UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-4141


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JUSTIN P. STAHMER,

                   Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:17-cr-00123-RAJ-LRL-1)


Submitted: October 31, 2018                             Decided: November 14, 2018


Before GREGORY, Chief Judge, RICHARDSON and QUATTLEBAUM, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney,
Alexandria, Virginia, Keith Loren Kimball, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. G.
Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Joseph Kosky,
Assistant United States Attorney, Brendan Gavin, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       A federal grand jury indicted Justin P. Stahmer for communicating a false distress

message to the United States Coast Guard, in violation of 14 U.S.C. § 88(c) (2012), by

reporting a “man overboard” (Count 1) and calling “mayday” (Count 2); and for

threatening to assault a federal law enforcement officer, in violation of 14 U.S.C. § 89(a)

(2012); 18 U.S.C. § 115(a)(1)(B), (c)(1) (2012) (Count 3). Stahmer pled not guilty. A

jury convicted him of Counts 1 and 3 but acquitted him of Count 2. The district court

sentenced Stahmer to a total of 56 months’ imprisonment and ordered him to pay

$56,704.05—the total expenses the Coast Guard incurred in its search-and-rescue

response to Stahmer’s calls—in restitution.        On appeal, Stahmer challenges his

convictions and the district court’s restitution award. We affirm.

       Stahmer first contends that the district court erred in denying his motion to

suppress statements he made to the Coast Guard prior to being advised of his Miranda ∗

rights. In reviewing a district court’s denial of a motion to suppress, we review the

district court’s legal conclusions de novo and its factual findings for clear error,

construing the evidence presented in the light most favorable to the Government. United

States v. Stover, 

, 994 (4th Cir. 2015). “[L]aw enforcement [must] inform

individuals who are in custody of their Fifth Amendment rights prior to interrogation.”

United States v. Hashime, 

, 282 (4th Cir. 2013). “Without a Miranda

warning, evidence obtained from the interrogation is generally inadmissible.” 

v. Arizona, 

, 444 (1966).

                                             3
       The district court properly declined to suppress Stahmer’s statements. First, with

the exception of the threats, Stahmer was not in custody when he made the statements in

question.   Stahmer admitted to a Coast Guard officer when a Coast Guard boat

approached Stahmer’s boat that there was no one in the water and that he had called for

help because he ran out of gas. At this point, the totality of the circumstances shows that

Stahmer’s “freedom of action was [not] curtailed to a degree associated with formal

arrest.” See 

The officers were responding to Stahmer’s distress

calls and had no reason to believe that he had committed a crime, officers were not yet

aboard Stahmer’s boat, no evidence showed that the officers’ tone was intimidating or

that they displayed weapons, there was no physical contact between the officers and

Stahmer, and Stahmer was not physically restrained.            See 

(providing

nonexhaustive list of factors to consider in determining whether defendant is in custody).

       Stahmer was also not in custody when he later admitted to making the mayday

call. Although two Coast Guard officers were aboard Stahmer’s boat at this point,

Stahmer had given them permission to board and conduct a standard safety inspection.

The officers had not yet handcuffed Stahmer, and the only physical contact they made

with Stahmer was when they helped him back on his boat. While Stahmer made the

admission in the middle of a sobriety test, the questioning officer testified that he did not

suspect that Stahmer had committed a crime, and no evidence indicates that the officer’s

questioning was threatening or unprofessional.

       Further, the district court was justified in refusing to suppress Stahmer’s threats to

a Coast Guard officer. Although Stahmer was under arrest at that point, Miranda did not

                                             4
apply because he was not subjected to interrogation. Stahmer threatened the officer on a

20- to 30-minute boat ride, during which the only statement the officer made to Stahmer

was to inquire where Stahmer wanted his boat taken. Stahmer’s threats were unprovoked

and not in response to any questioning.           Thus, the district court properly denied

Stahmer’s motion to suppress.

         Stahmer next contests the district court’s admission of evidence relating to the

charge of threatening to assault a federal law enforcement officer. We review evidentiary

rulings for an abuse of discretion. United States v. Cowden, 

, 471 (4th Cir.

2018).

         Stahmer first argues that the district court erred in admitting Fed. R. Evid. 404(b)

evidence that, during a 2017 arrest for public intoxication, Stahmer was combative and

threatened to kill a police officer and his family, which the officer construed as a

legitimate threat. “Evidence 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.” Fed. R. Evid. 404(b)(1). However, “[t]his evidence may

be admissible for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.

Evid. 404(b)(2). We apply a four-factor test to determine whether a district court abused

its discretion in admitting Rule 404(b) evidence:

         (1) The evidence must be relevant to an issue, such as an element of an
         offense, and must not be offered to establish the general character of the
         defendant. In this regard, the more similar the prior act is (in terms of
         physical similarity or mental state) to the act being proved, the more
         relevant it becomes. (2) The act must be necessary in the sense that it is

                                              5
      probative of an essential claim or an element of the offense. (3) The
      evidence must be reliable. And (4) the evidence’s probative value must not
      be substantially outweighed by confusion or unfair prejudice in the sense
      that it tends to subordinate reason to emotion in the factfinding process.

.

      The district court did not abuse its discretion in admitting evidence of the 2017

incident. First, the evidence was relevant, as the 2017 incident was close in time and

highly similar to the incident at issue in this action. See 

evidence was

“necessary” to demonstrate that Stahmer had the requisite intent and that the threats

constituted true threats, as defense counsel argued at trial that the threats were not

serious. See 18 U.S.C. § 115(a)(1)(B) (providing elements of offense); United States v.

Armel, 

, 185 (4th Cir. 2009) (holding that threat must constitute true threat

to convict); see also 

(evidence of defendant’s prior use of

excessive force was necessary to prove intent “[i]n view of . . . conflicting testimony and

the government’s heavy proof burden. . . .”). With regard to the third factor, Stahmer

concedes that the evidence was reliable. Finally, in light of the district court’s limiting

instruction, the probative value of the 2017 incident was not substantially outweighed by

the risk of unfair prejudice. See United States v. Lespier, 

, 448 (4th Cir.

2013) (“[A]ny risk of unfair prejudice was effectively mitigated by the court’s carefully

framed limiting instructions regarding proper consideration of such evidence.”).

       Stahmer next asserts that the district court abused its discretion in admitting his

reference to an alleged race-based hate group in threatening the Coast Guard officer. He

claims that the probative value of such evidence was substantially outweighed by the risk


                                            6
of unfair prejudice. Under Fed. R. Evid. 403, the district “court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” “We apply a highly deferential standard of review to such an issue, and a

[district] court’s decision to admit evidence over a Rule 403 objection will not be

overturned except under the most extraordinary circumstances. . . .” United States v.

Hassan, 

, 132 (4th Cir. 2014) (internal quotation marks omitted). Indeed,

“relevant evidence should only be excluded under Rule 403 when there is a genuine risk

that the emotions of a jury will be excited to irrational behavior, and this risk is

disproportionate to the probative value of the offered evidence.” 

marks omitted).

      The district court did not abuse its discretion in admitting Stahmer’s reference to

the group or the Coast Guard officer’s belief that the group was a race-based hate group.

The fact that Stahmer referenced an alleged race-based hate group in threatening the

African-American officer is indicative of the seriousness of the threat and whether the

threat constituted a true threat. We conclude that the admission of such evidence did not

create “a genuine risk that the emotions of [the] jury [would] be excited to irrational

behavior.”   See 

marks omitted).         Thus, Stahmer fails to

demonstrate extraordinary circumstances warranting reversal.

      Finally, Stahmer challenges the district court’s restitution award. Noting that the

jury acquitted him of making a false mayday call, Stahmer contends that he should not be

required to pay restitution for the total expenses the Coast Guard incurred in its response



                                            7
because, even without the man overboard call, the Coast Guard would still have deployed

resources in response to the mayday call.

       We “review[] a district court’s restitution order for abuse of discretion.” United

States v. Stone, 

, 224 (4th Cir. 2017). The Government bears “[t]he burden

of demonstrating the amount of the loss sustained by a victim as a result of the offense”

by a preponderance of the evidence. 18 U.S.C. § 3664(e) (2012). A person convicted of

communicating a false distress message to the Coast Guard is “liable for all costs the

Coast Guard incurs as a result of the individual’s action.” 14 U.S.C. § 88(c)(3); see

United States v. Serafini, 

, 151 (4th Cir. 2016).

       We conclude that the district court’s restitution order was proper.        Prior to

Stahmer’s mayday call, the Coast Guard had already deployed the boats and helicopter in

response to his man overboard call. Further, the record shows that, if the Coast Guard

had known that Stahmer was merely out of gas, it would have contacted commercial

assistance rather than deploying search-and-rescue resources. Thus, the district court’s

view that the Coast Guard incurred these costs as a result of Stahmer’s false man

overboard call “is plausible in light of the record viewed in its entirety.” See 

(internal quotation marks omitted).

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                              AFFIRMED



                                             8