United States of America v. Kyle Milbourn

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2525
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
K YLE M ILBOURN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:07-cr-00159-JDT-KPF—John Daniel Tinder, Judge .
A RGUED D ECEMBER 7, 2009—D ECIDED A PRIL 7, 2010
Before C UDAHY , W OOD , and E VANS , Circuit Judges.
E VANS , Circuit Judge. Of all the things to burn in some-
one’s yard, Kyle Shroyer and Kyle Milbourn chose a
cross. Of all the places to burn that cross, they chose the
front yard of a rented house that served as the home
for three biracial children. Eventually, Milbourn was
charged with four counts: conspiracy to intimidate and
interfere, because of the race of the occupants, with their
right to occupy their home; a substantive charge of in-

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2 No. 08-2525
timidation; using fire to commit a felony; and witness
tampering. He was convicted after a jury trial on all four
counts and sentenced to serve a term of 121 months.
Today we resolve his appeal.
The rented house where the cross was burned was in
a predominantly white neighborhood just off a main
road in Muncie, Indiana. Paula Tracy and her boyfriend
(Phillip Thrash), who are white, lived in the house with
her three biracial children from a previous relationship.
The children’s grandfather, a black man named Paul
Jones, lived upstairs in a separate unit. Paula and Phillip
got married sometime after the cross burning and prior
to Milbourn’s trial, which took place two years later.
We’ll generally refer to them as the Thrashes as we
move along. In an ironic twist, Kyle Shroyer married
Paula’s half sister, Hope Pierce, between the incident and
Milbourn’s trial. Kyle Shroyer, by the way, pled guilty
to charges growing out of his role in the cross burning.
He received a 15-month sentence.
Milbourn’s primary argument on appeal is that the
evidence was insufficient to support the jury finding
(1) that he was motivated by the racial makeup of the
people who lived in the Thrash home and (2) that the
cross was burned to intimidate (or interfere), on account
of race, with the Thrash family’s right to occupy their
home. Prevailing, of course, on an insufficiency of the
evidence claim is a tall order for any defendant. Before
getting to the evidence, however, we pause for a brief
word about cross burning.
For most of the last century, ever since the emergence
of a reenergized Ku Klux Klan around 1915, cross burning

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No. 08-2525 3
“The Ride of the Valkyries” also plays during the unforget- 1
table scene in Apocalypse Now (1979) when a squadron of heli-
copters attacks a Vietnamese village. The music is played,
according to Lieutenant Kilgore (Robert Duvall—a commander
who loves “the smell of napalm in the morning”) because
“it scares the hell out of the slopes!”
has been recognized as a symbol of racial hatred. In a
climactic scene from The Birth of a Nation (1915), as Wag-
ner’s “The Ride of the Valkyries” plays in the back-1
ground, the protagonist of the movie rears up his horse
and brandishes a flaming cross to summon fellow Klan
members to drive out the black oppressors—yes, the black
oppressors—and their northern white allies, all in the
defense of their “Aryan birthright.” After the movie
was released, the Klan got a second life. During one of
its first meetings, which took place on Georgia’s Stone
Mountain in 1915, a cross was burned. Since that time,
cross burning has been associated with the KKK and racial
hatred. See Virginia v. Black, 538 U.S. 343 (2003), for a
lengthy discussion about the history of cross burning,
especially by the KKK.
And now to the evidence, which Milbourn asserts
was insufficient to support the verdict on counts one
and two. To repeat what we said a moment ago,
Milbourn’s task is a tall order. That is so because we
review the evidence in the light most favorable to the
government. United States v. Masten, 170 F.3d 790 (7th Cir.
1999).
On March 12, 2006, Shroyer and Milbourn began drink-
ing in Shroyer’s trailer. After dusting off a lot of beer and

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4 No. 08-2525
some vodka, they put on hard hats and danced around the
living room. Silly, however, soon became serious, as they
discussed burning a cross in Shroyer’s father’s field, which
was about a 20-minute drive away. Shroyer’s live-in
girlfriend, Hope Pierce, tried to dissuade. It didn’t work.
So the pair went to a nearby shed and built a cross out
of some wooden molding. They loaded the newly con-
structed cross, a can of gas, some nails, and a shovel
into Milbourn’s truck and drove away.
Instead of going to Shroyer’s father’s field, however,
they went to the Thrash-Tracy home and carried the
cross to the front yard. Shroyer dug a hole and they both
lifted the cross into it. Milbourn poured gasoline on the
cross and, after he lit it, the pair laughed while they
watched it burn. Upon returning to Shroyer’s trailer, one
of the two—Hope could not remember which one—told
her they had just burned a cross in her sister’s yard.
For the Thrashes the evening was anything but joyful.
After noticing an orange glow, they discovered a burning
cross in their front yard. It was about five feet away
from the room in which two of the children—ages 6 and
10—were sleeping. Phillip Thrash rushed outside and
saw two men in hard hats. He yelled at them and they
fled. Thrash chased them for a short distance but they
got away. Paula Thrash called 911.
After the cross burning, Paula was “visibly upset,
frantic,” and “crying.” She and Phillip were concerned
for the children’s safety. After learning that her oldest
child had been awake during the cross burning, she
sought counseling for him. The incident also ruined the

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No. 08-2525 5
children’s relationship with their biological father. Ulti-
mately, the Thrashes “didn’t feel that it was appropriate
for our children to remain” in the house after the cross
burning. They decided they “needed to move on” to a
different home. And move they did.
Burning a cross on the Thrashes’ lawn was not the
only stupid thing Milbourn and Shroyer did that fateful
March evening: they took pictures to memorialize the
event. After the incident, Milbourn went to the Shroyers’
trailer and showed pictures of the cross burning. He even
gave Kyle Shroyer a set to keep. Milbourn’s roommate,
Casey Burke, also saw the pictures. Milbourn showed
them to Gerald Davis as well. And then, in a statement
that might very well have cooked his goose with the
jury, Milbourn told Davis that “he had burned a cross
on a nigger’s yard.”
In addition to this evidence, the jury could have
easily concluded that Milbourn (and Kyle Shroyer) knew
that the Thrash home housed biracial children. Hope
Shroyer (recall, she’s Paula’s half sister) likely told him
so. And the frosting on the cake was that he picked, of
all things, a cross to burn. And not just any cross, but
one he and Shroyer constructed, crudely to be sure, in a
shed near the trailer where they had been drinking
and dancing. The burning of a cross, of course, is “an age
old symbol of racism.” United States v. Gresser, 935 F.2d
96, 101 (6th Cir. 1991). Also, several witnesses recalled
that they heard Milbourn make derogatory comments
about blacks. He frequently used the term “nigger” and
at least once referred to a black child as a “niglet.” He

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6 No. 08-2525
even mentioned, in high school, that “it would be cool” to
join the Ku Klux Klan. There was even more, but the
reader, by now, has probably got the point. Without a
shadow of a doubt, the evidence that Milbourn acted
with a racial motive was more than sufficient to sup-
port the jury’s verdict.
Milbourn also argues that the evidence was not suf-
ficient to show that he intended to threaten or intimidate
the Thrash family. Burning a cross on the front yard
of a biracial family is both threatening and an act of
intimidation. United States v. Hayward, 6 F.3d 1241, 1250
(7th Cir. 1993) (“[T]he act of cross burning promotes
fear, intimidation, and psychological injury.”), overruled
in part on other grounds by United States v. Colvin, 353 F.3d
569 (7th Cir. 2003) (en banc). Further, in cross burning
cases, a jury may consider the victims’ reaction as an
indication of threatening intent because “[e]vidence
showing the reaction of the victim of a threat is
admissible as proof that a threat was made.” United
States v. J.H.H., 22 F.3d 821, 827 (8th Cir. 1994) (citing
Watts v. United States, 394 U.S. 705, 708 (1969)). The gov-
ernment presented evidence of the Thrash family’s
feelings of fear and anger after the cross burning. They
sought counseling for their oldest child—who as we
said was awake and saw the burning cross—and the
family ultimately moved out of the home. Overall, there
was plenty of evidence to support a jury verdict that
Milbourn intended to threaten or interfere with the
Thrash family’s occupancy of their home.
Evidence aside, Milbourn also argues that the gov-
ernment engaged in prosecutorial misconduct during

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No. 08-2525 7
closing arguments. Because he did not object to the prose-
cutor’s arguments, however, we review the issue only
for plain error. United States v. Sandoval, 347 F.3d 627, 631
(7th Cir. 2003). To prevail, Milbourn must establish
“not only that the remarks denied him a fair trial, but
also that the outcome of the proceedings would have
been different absent the remarks.” Id. at 631 (citation
and quotation marks omitted).
Milbourn argues that the prosecutor’s statements
during closing arguments met this stringent standard. The
prosecutor said, “[W]e’ve never claimed during this trial
he’s a member of any organization [Ku Klux Klan and
Aryan Nation] of any kind. He may aspire to be. Based
on the evidence you’ve heard, I think that’s something
that can be concluded. He aspires to be part of one of
these organizations, but he’s not.” A witness testified that
he heard Milbourn discuss “potentially becoming a
member” of the Ku Klux Klan. The witness stated that
he and Milbourn “had talked about it and thought it
would be cool, and we was talking about joining the
Klan, and mostly just blowing off steam.” The two had
also talked about the Aryan Nation. We think the pros-
ecutor’s statement that Milbourn “may aspire to be” a
part of the KKK or the Aryan Nation was a reasonable
inference from the evidence in the record. There was
nothing objectionable about the comment. See United
States v. Young, 470 U.S. 1, 8 & n.5 (1985). Other claims
about the prosecutor’s closing argument do not merit
discussion.
Finally, Milbourn argues that the district judge should
have disregarded the statutorily required mandatory

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8 No. 08-2525
minimum sentence of 10 years for the use of fire in com-
mission of a felony and imposed a lesser sentence by
applying the 18 U.S.C. § 3553(a) factors. The statute
directs district courts to impose a sentence “sufficient,
but not greater than necessary,” in order to achieve the
four purposes of sentencing: retribution; deterrence;
incapacitation; and rehabilitation. This argument is
being raised for the first time on appeal so it is waived.
United States v. Gimbel, 782 F.2d 89 (7th Cir. 1986). But
having said that, the argument, were it to be considered
on the merits, would have to be rejected. The judge’s
hands were tied. He could not go below the mandated
minimum even if he were inclined to do so. Milbourn’s
counsel acknowledged as much at sentencing when he
said he was “not aware of a basis by which the Court
c[ould] get around” the statutory minimum sentence.
For these reasons, the judgment of the district court
is A FFIRMED .
4-7-10

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