United States v. Himelwright ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-25-1994
United States v. Himelwright
Precedential or Non-Precedential:
Docket 94-7206
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-7206
___________
UNITED STATES OF AMERICA
vs.
RICHARD C. HIMELWRIGHT
Appellant.
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 93-cr-00222)
___________
ARGUED SEPTEMBER 12, 1994
BEFORE: STAPLETON, ALITO and LEWIS, Circuit Judges.
(Filed November 25, 1994)
___________
GREGORY L. LENSBOWER (ARGUED)
Stonesifer & Kelley
209 Broadway
Hanover, PA 17331
Attorney for Appellant
KIM D. DANIEL (ARGUED)
Office of the United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
Attorney for Appellee
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
Richard Himelwright was indicted on September 7, 1993,
and charged with two counts of Interstate Threats and
Extortionate Demands, in violation of 18 U.S.C. § 875(b),1
(Counts I and II), and one count of Interstate Threats, in
violation of 18 U.S.C. § 875(c),2 (Count III). Prior to trial,
Himelwright filed a motion in limine seeking to bar testimony
regarding his purchase and possession of two firearms, claiming
that their admission would violate Rule 404(b) of the Federal
Rules of Evidence and would be unduly prejudicial under Rule 403.
By Memorandum Opinion dated November 12, 1993, the district court
1
. 18 U.S.C. § 875(b) provides:
Whoever, with intent to extort from any person,
firm, association, or corporation, any money or
other thing of value, transmits in interstate
commerce any communication containing any threat
to kidnap any person or any threat to injure the
person of another, shall be fined not more than
$5,000 or imprisoned not more than twenty years,
or both.
2
. 18 U.S.C. § 875(c) provides:
Whoever transmits in interstate commerce and
communication containing any threat to kidnap any
person or any threat to injure the person of
another, shall be fined not more than $1,000 or
imprisoned for more than five years, or both.
denied the motion, finding that the firearms evidence was
admissible under Rule 404(b) as proof of Himelwright's intent to
commit the crimes charged or, in the alternative, as indicative
of his plan or preparation. Memorandum Opinion at 5.
Himelwright was subsequently convicted and sentenced to 18 months
imprisonment,3 to be followed by three years supervised release.
Himelwright appeals.
I.
We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291. Because we believe that the district court
erred in admitting testimony concerning Himelwright's purchase
and possession of firearms, as well as the firearms themselves,
we will reverse the district court's denial of the in limine
motion and vacate Himelwright's conviction.
II.
Prior to his arrest on September 8, 1993, Himelwright
had been employed as a truck driver with the United States Post
Office in York, Pennsylvania. Several months before the events
which lead to his arrest occurred, Himelwright had been found
guilty of driving under the influence of alcohol, a conviction
which, because of the mandatory one-year suspension of driving
privileges, jeopardized his continued employment as a truck
3
. The 18 month sentence was imposed after the district court
downwardly departed from the 37-46 month guideline range. The
downward departure was based on the fact that Himelwright "made
threatening phone calls to an answering machine, not an actual
person, and the answering machine was for a[] . . . hotline
designed to assist employees." United States v. Himelwright, No.
93-222-01 (M.D. Pa. March 30, 1994)(order of judgment).
driver. In anticipation of having his license suspended,
Himelwright applied for several non-driving jobs with the Postal
Service. Because he had two daughters who lived with their
mother in Moorhead City, North Carolina, Himelwright focussed his
efforts on openings in the Mid-Carolina's District.
One of the positions Himelwright sought was in
Florence, South Carolina.4 The Florence postal facility had a
maintenance position which would be held open until July 1, 1993.
In order to qualify for the position, Himelwright was required to
take and pass an aptitude test. In early June, Himelwright was
advised that the test was only conducted twice a year, in
February and August. He contacted the Postal Service's Employee
Assistance Program (EAP) Hotline, and requested help in obtaining
an earlier test date. A test was scheduled for July 9, 1993, at
the post office in Lancaster, Pennsylvania. Either because he
was approximately two hours late, or because the Postal Service
did not accurately inform him of the time for the test,
Himelwright was not able to take the test on July 9. The test
was then rescheduled for July 12, 1993, and Himelwright completed
the exam that day. When he was finally notified on July 24 that
he had passed the test, however, the Florence position apparently
was no longer an option.
Almost one week later, on the evening of August 30,
1993, Himelwright placed several telephone calls to two Postal
4
. Himelwright also applied for custodial position in Raleigh,
North Carolina, where his transfer reassignment form was received
on August 30, 1993.
Service hotlines in Washington, D.C., from his home in York. He
had been drinking and was fearful that a hurricane was going to
hit the town where his two daughters lived. The first call,
placed at approximately 8:20 p.m., was to the EAP Hotline.
Because it was received after business hours, his call was
answered by an answering machine. Himelwright made the following
statement:
Hello, my name is Richard C. Himelwright, 866
Tioga Street, York, PA. Case No. 1610. I
requested y'all to give me a letter from
Lancaster where they stated they were going
to give me the test by July 1st. Y'all won't
respond to that. That's fine and dandy. Now
this is August 30th, 8:20 p.m., the hurricane
is gonna hit in the next four hours, where my
daughters live in Moorhead City, North
Carolina, and y'all ain't doing shit about
getting my transfer. Now I'm very, very,
irate here, this ain't a threat, but I shot
on too many rifle teams, and I'm tired of
being jerked around. Now you all ain't
giving me no help at all, none whatsoever.
You won't return no phone call all of a
sudden, nobody's doing nothing. You told me
that Lancaster said, "Oh yeah, you gonna have
the test by July 1st." Wrong. I didn't get
it until July 9th and then it was postponed
'til July 12th. Oh, that's not your fault,
that's my fault, right? Wrong. I lost that
transfer to Florence. Now I'm trying for
Raleigh, North Carolina. Now I'm tellin'
y'all right now, if I don't get that
transfer, there's gonna be some shit! Cause
I'm tired of playing games with y'all. I'm
tired of playin', I don't even know if my
daughters is gonna make it through the night.
I can't even get through. The lines are
dead. I don't even know where my daughters
are right now. They live in Moorhead City,
North Carolina, where the storm is supposed
to hit between now and midnight, and y'all
ain't done shit for me. You got me so (sob)
freakin' upset. Oh, never mind, you ain't no
help.
Himelwright then called the Postal Inspection Service
Crimes Hotline and left a message for a duty officer to return
his call. At about 8:30 p.m., Postal Service Police Officer
Roberto S. Lloyd contacted Himelwright, who explained his
predicament and, in the process, stated:
I am irate and upset because I'm getting
shafted. Someone better do something now
because I'm getting tired of it now. . . . I
want to be with my daughters but the Postal
Service is saying, "Fuck You!" . . . If
something happens to these children, someone
is going down the tubes. . . . I was a
policeman in North Carolina and a weapons
specialist in the Marine Corps. Why is
everybody messing with me? They worry about
shootings in the Post Office, they should
worry about me if anything happens to my
children because of the hurricane. Shit will
hit the fan; this is not a threat but a
promise.
About one-half hour later, Himelwright called the EAP
Hotline again and left another lengthy message. He once again
made threatening remarks and expressed his frustration about the
Florence position as well as his concern that his children might
be in danger. He then called his friend and Local Union
President, Henry P. Dennis, Jr. Himelwright told Dennis:
Henry, I really blew it this time. I really
blew it big time. My job's down the tubes.
I just called the Postal Inspectors and
spilled my guts. I told them everything from
Bill Runkel to them screwing around with my
transfer to North Carolina. I feel like
coming in there and blowing everybody away.
You don't have to worry, I don't want you.
Dennis called the York Post Office receptionist and warned her
that if Himelwright were to appear at the Post Office, she should
call 911.
The next day, a group of Postal Inspectors gathered at
the York Post Office. They contacted Himelwright and asked him
to come into the Post Office to be questioned. Himelwright
refused. Later that day, the inspectors went to his home
accompanied by a uniformed police officer. After he executed a
written waiver of his Miranda rights, the inspectors asked
Himelwright whether he owned any firearms. He produced two
weapons -- a .38 caliber Smith and Wesson revolver and a
Thompson-Center Contender pistol. The inspectors confiscated the
weapons and asked Himelwright if he had placed any calls to the
EAP and Crimes hotlines the night before. Himelwright admitted
placing the calls, but denied making any threats. He also told
the inspectors that he had made the calls after consuming alcohol
and taking the drug diazepam. His arrest and indictment on the
charges mentioned above followed.
III.
When deciding whether to admit "other acts" evidence
under Rule 404(b), a trial court initially must consider two
issues: first, whether the evidence is logically relevant, under
Rules 404(b) and Rule 402, to any issue other than the
defendant's propensity to commit the crime; and second, whether
under Rule 403 the probative value of the evidence outweighs its
prejudicial effect. United States v. Sampson, 980 F.2d 883, 886
(3d Cir. 1992). The trial court has significant leeway in making
both determinations. Id. at 886. We, therefore, would
ordinarily review the district court's evidentiary rulings for an
abuse of discretion. Id. Where, however, the district court
fails to explain its grounds for denying a Rule 403 objection and
its reasons for doing so are not otherwise apparent from the
record, there is no way to review its discretion. Id. at 889
(citing Government of the Virgin Islands v. Pinney, 967 F.2d 912,
918 (3d Cir. 1992)). In such cases, we need not defer to the
reasoning of the district court, and we may undertake to examine
the record and perform the required balancing ourselves.
Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186
(3d Cir. 1993).
Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of
mistake or accident.
Despite our characterization of Rule 404(b) as a rule
of admissibility, United States v. Scarfo, 850 F.2d 1015, 1019
(3d Cir. 1988), we have expressed our concern that, although the
proponents of Rule 404(b) evidence "will hardly admit it, the
reasons proffered to admit prior act evidence may often be
potemkin village, because the motive, we suspect, is often mixed
between an urge to show some other consequential fact as well as
to impugn the defendant's character." United States v. Jemal, 26
F.3d 1267, 1272 (3d Cir. 1994) (quoting Sampson, 980 F.2d at
886). Thus, when evidence of prior bad acts is offered, the
proponent must clearly articulate how that evidence fits into a
chain of logical inferences, no link of which can be the
inference that the defendant has the propensity to commit the
crime charged. Jemal, 26 F.3d at 1272. But even where the
proffered evidence tends to prove some fact besides character,
admissibility depends upon whether its probative value outweighs
its prejudicial effect.5 As a result, once the proponent
articulates a permissible purpose under Rule 404(b), the district
court must weigh the probative value of the evidence against its
potential to cause undue prejudice. Id. at 1272.
With these familiar principles of admissibility and
review in mind, we turn our attention to the district court's
denial of Himelwright's motion in limine and the introduction of
Himelwright's possession and purchase of the firearms in
question.
IV.
The district court found that Himelwright's purchase
and possession of firearms clearly constituted "other acts,"
whose admissibility is governed by Rule 404(b). Memorandum
Opinion at 3. The government offered two theories of
5
. Fed.R.Evid. 403 provides:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.
admissibility: first, to rebut any claim by Himelwright that he
lacked the requisite mens rea; and second, to show that
Himelwright not only planned to carry out his threats, but that
he was prepared to do so. We will address these two theories in
turn.
A.
In order to admit evidence under the "intent" component
of Rule 404(b), intent must be an element of the crime charged
and the evidence offered must cast light upon the defendant's
intent to commit the crime. United States v. Kirk, 528 F.2d
1057, 1060 (5th Cir. 1976).
1.
In Count III of the indictment, Himelwright was charged
with transmitting a wire communication with the intent to injure
another, in violation of 18 U.S.C. § 875(c). The district court
correctly determined that to establish a violation of this
section, the government bore only the burden of proving that
Himelwright acted knowingly and willfully when he placed the
threatening telephone calls and that those calls were reasonably
perceived as threatening bodily injury. The government bore no
burden of proving that Himelwright intended his calls to be
threatening or that he had an ability at the time to carry out
the threats. United States v. Cox, 957 F.2d 264, 266 (6th Cir.
1992); United States v. DeAndino, 958 F.2d 146, 148-49 (6th Cir.
1992); Cf. United States v. Orozco-Santillan, 903 F.2d 1262, 1265
n.3 (9th Cir. 1990) (applying 18 U.S.C. § 115, governing threats
made to federal law enforcement officer). Himelwright's
possession of the two firearms the morning after placing the
calls, the government argued, could permissibly lead the jury not
only to conclude that he possessed the guns at the time he placed
the calls, but that his possession was evidence of his knowledge
and willfulness.
On its face, this might appear to be a plausible basis
for admissibility under Rule 404(b), at least to the extent that
the government attempted to connect one of the exceptions
delineated in the Rule (intent) to an element of the offense with
which Himelwright was charged. To appreciate the error in this
position, however, and in the district court's acceptance of it,
one must look deeper, for the problem with the government's
argument lies in the unavoidable distinction between the general
intent to make a threat to injure another, on the one hand, and a
subjective intention to carry out the threats, on the other. We
believe the government's true aim in offering the firearms
evidence was to prove the latter. Significantly, section 875(c)
requires proof of a defendant's general intent to threaten
injury, but does not require proof of a specific intent to injure
another or the present ability to carry out the threat. United
States v. Holder, 302 F. Supp. 296, 300 (D. Montana 1969), aff'd
by, 427 F.2d 715 (9th Cir. 1970). Cf. United States v. Cooper,
523 F.2d 8, 10 (6th Cir. 1975) (applying 18 U.S.C. § 875(b)).
The government, however, offered no evidence showing a connection
between Himelwright's possession of the firearms and his "intent"
to place the telephone calls and say the things he did.
Moreover, we cannot agree that Himelwright's possession of the
firearms constituted evidence of his intent because the
government did not need to establish that Himelwright had the
specific intent to injure or the present ability to carry out the
threats in order to establish a violation of section 875(c).
Himelwright's intention to accomplish these things, which the
government sought to establish through his possession of the
firearms, simply was not an element of the crime charged and did
not cast light upon his intention to commit the crime charged.
At best, the fact that Himelwright was found in
possession of the firearms the day after he placed the calls is
indicative of his capability to carry out the threats. Evidence
of capability, however, is not only unnecessary to satisfy the
elements of section 875(c); it is likewise not included among the
categories of admissibility to which Rule 404(b) is addressed.
Although evidence can be admitted even if it does not fit one of
the specific exceptions listed in the Rule, character evidence
which is offered to prove the likelihood that the defendant
committed the particular crime is nevertheless inadmissible.
Jemal, 26 F.3d at 1272 (citing Scarfo, 850 F.2d at 1019). Here,
the government sought to convince the jury that Himelwright's
capability to carry out the threats or to injure, demonstrated
through his possession of the firearms, made it more likely that
he intended to do so. Thus, while the government's argument was
cloaked in terms of Himelwright's intent, the goal here was
actually something different; it was to portray Himelwright as a
person who possessed the wherewithal to do what he said he would
do in order to demonstrate that it was more than likely that he
intended the threats and had, therefore, committed the crime
charged.
Accordingly, we conclude that the forbidden purpose
which lay barely beneath the surface of the government's argument
-- the likelihood that Himelwright committed the offense based on
an inference of his intent drawn from evidence pertaining to his
character (his possession of two firearms) -- renders the
evidence inadmissible under Rule 404(b). Id. See also
Archibald, 987 F.2d at 185; cf. Huddleston v. United States, 485
U.S. 681, 691 (1988). In so concluding, we emphasize the
important distinction between the use of character evidence to
show Himelwright's intention to make the threatening calls, as
charged under section 875(c), which might have been permissible
under Rule 404(b) had the government connected it to his
possession of the firearms, and the use of such evidence to show
that he had the capability to act upon the threats. The latter
may easily be seen as a disguised attempt to accomplish precisely
what is disallowed, namely, to show that "more than likely" the
defendant intended to do that with which he or she stands
charged.
2.
We reach a different conclusion -- applying a somewhat
different rationale -- with respect to Counts I and II (the 18
U.S.C. § 875(b) counts). Under § 875(b), the government was not
only required to prove that Himelwright knowingly and willfully
made the calls, but that he acted with the specific intent to
extort a thing of value from the Postal Service. The government
argued that evidence of Himelwright's possession of the two
handguns entitled the jury to conclude that he acted with the
specific intent to extort a job transfer when he communicated the
threats.
We agree that a plausible argument could be made that
the fact that Himelwright was capable of carrying out the threats
might be relevant to his intent to extort a job transfer; that
is, we do not discount the contention that one's capacity to do
violence to another could bear some relevance to one's intent in
conveying an extortionate threat. Conceivably, despite the fact
that the recipients of the calls were hundreds of miles away, the
jury could have (1) inferred from the presence of the two
handguns in his house that Himelwright was more likely to have
had the capacity to carry out a threat of violence than if he had
no handguns in his house,6 (2) inferred from the fact that he may
have had the capacity to carry out a threat of violence that
Himelwright was more likely to have wished to make a threat of
violence than if he had no such capacity, and (3) inferred from
the fact that he may have had a wish to make a threat of violence
that Himelwright was more likely to have understood his
communication to be a threat of violence.
6
. The jury may have regarded this link in the chain of logic
as being foreclosed by the judge's instructions. While he told
the jury that it could consider whether the presence of the
handguns was "probative as to whether defendant intended to make
threats," he also instructed that the presence of the handguns
"may not be used to conclude that the defendant had the ability
to carry out his alleged threat." We have been unable to
perceive any chain of logic from the presence of the handguns to
the required intent that does not involve this apparently
prohibited link.
But even assuming arguendo that Himelwright's gun
possession is marginally relevant to the specific intent to
extort, we nevertheless find that the probative value of the
firearms evidence was substantially outweighed by the resulting
prejudice to Himelwright. In Part V, below, we set forth a full
and detailed analysis with respect to the Rule 403 violation, as
well as our views concerning the district court's failure to
conduct the requisite balancing of interests under the Rule. For
present purposes, however, because we conclude that the evidence
should have been excluded by Rule 403, we will assume, without
deciding, that Himelwright's possession of the firearms was
relevant to his intent to extort and, therefore, admissible under
Rule 404(b).
B.
In addition to arguing that the firearms evidence was
admissible as proof of intent, the government contended that the
firearms evidence was admissible under the "plan" and
"preparation" exceptions to Rule 404(b). It argued that
Himelwright's purchase of the Smith and Wesson revolver on or
about June 20, 1993, less than one week after he made the first
call to the EAP Hotline to inquire about getting an earlier test
date, tended to establish a pre-conceived plan to threaten
violence in the event that the Postal Service did not meet his
transfer demands. But this argument fails to acknowledge that at
the time Himelwright initiated the purchase of the revolver, he
had no way of knowing that he would experience difficulty in
securing a transfer. This is a significant missing "link" in the
chain of logical inferences which the government must clearly
articulate as the very foundation for admissibility of prior bad
act evidence, rendering the links which remain inherently and
inevitably flawed. To carry the metaphor further, it is
important to note again that no link in the chain may contain an
inference that because the defendant committed the prior act, it
is, therefore, more likely that he or she committed this one,
too. Jemal, 26 F.3d at 1272 (citing Sampson, 980 F.2d at 887).
But that is precisely what we are left with here, for as we
discuss below, we can find no demonstrable link -- not even a
remote one -- between, on the one hand, the purchase of the
revolver in June (at a time when Himelwright was just beginning
to pursue a transfer), and his "planning" or "preparing" to carry
out threats of violence because he was, over a month later,
unsuccessful in obtaining the transfer.
We believe the relevant time frame with respect to a
plan or preparation is the time between the purchase of the
revolver on or about June 20, 1993, and the August 30 telephone
calls.7 The government did not present any evidence of
7
. See United States v. Philibert, 947 F.2d 1467 (11th Cir.
1991). In reviewing a district court's admission of evidence
concerning Philibert's purchases of weapons and ammunition two
months prior to making threatening telephone calls to his
supervisor, the Eleventh Circuit stated:
. . . we fail to perceive, any possible relevance,
on the question of whether appellant did or did
not place a threatening phone call . . . on
August 11, 1989, of the fact that two months
earlier he had purchased certain firearms.
Philibert, 947 F.2d at 1470.
Himelwright's actions during this time period which could be
construed as part of a plan or scheme to threaten anyone, let
alone to extort a transfer from the Postal Service. Nor did the
government offer any evidence connecting the purchase of the
weapon in June to the threats Himelwright issued at the end of
August. Indeed, a fair reading of the transcripts suggests that
the impetus for the calls was a hurricane which Himelwright
perceived as a threat to the safety of his children in North
Carolina, and his perception that by failing to transfer him, the
Postal Service was responsible for his inability to respond to an
imminent danger to his children. While we in no way mean to
imply that this constituted any justification for Himelwright's
actions, that is the thrust of his profanity-laced, threatening
diatribes. The transcripts may also fairly be read to evince an
intent on the part of Himelwright to retaliate through the use of
firearms. The meaning to be ascribed to the transcripts,
however, in light of the other evidence in this case, is for a
jury to determine if this case is to be retried. But the point
here is that there is no evidence to suggest that the threats
flowed from a plan Himelwright had concocted in June -- again,
before he even knew whether he would be transferred -- when he
purchased the revolver. While such a conjectural leap might
support the government's theory, the two events are far too
attenuated and devoid of evidence of any connection to one
another to fall within the ambit of Rule 404(b).
(..continued)
V.
Even if we were to accept that the government's
proffered purposes were somehow proper under Rule 404(b), our
inquiry would not end there because the trial court failed to
determine and to articulate whether the probative value of the
firearms evidence outweighed its prejudicial effect under Rule
403. Sampson, 980 F.2d at 889 (citing United States v.
Echeverri, 854 F.2d 638, 644 (3d Cir. 1988)). Once again, when a
court engages in a Rule 403 balancing and articulates on the
record a rational explanation for its determination, we will
rarely disturb its ruling. Id. at 889 (citing Government of
Virgin Islands v. Harris, 938 F.2d 401, 420 (3d Cir. 1991)).
Where, as here, the court fails to perform this analysis, the
measure of deference we might otherwise accord is lessened, and
we may undertake to examine the record ourselves and conduct the
appropriate weighing test. Archibald, 987 F.2d at 186.
Our review of the record compels us to conclude that
even if the firearms evidence had been admissible under Rule
404(b), a proper balancing of its probative value against its
prejudicial effect under Rule 403 would have rendered it
inadmissible in any event.
Initially, it is impossible to overlook the powerful
impact of this type of evidence on the questions whether the
telephone calls were, indeed, sufficiently threatening to satisfy
the elements of section 875(c) beyond a reasonable doubt, and
whether Himelwright made them with the intent to extort a job
transfer from the Postal Service, in violation of section 875(b).
The words Himelwright uttered to the answering machines; the
statements he made to Dennis; the statements he made to Officer
Lloyd; the statements he made to the Postal Inspectors; and the
circumstances surrounding his failed attempt to secure a transfer
all speak for themselves. Without question, a rational chain of
inferences could be drawn from these evidentiary links, each of
which bore some logical relevance to the criminal charges
Himelwright faced. But to compound that evidence by asking the
jury to draw inferences as to Himelwright's intent from his
purchase and possession of the two firearms was, we think, to
invite a degree of prejudice which outweighed the probative value
of that evidence under a proper balancing pursuant to Rule 403.
The government dwelled upon the guns at great length
when presenting its evidence and making its closing argument. At
trial, the man who sold Himelwright the revolver on June 22 was
called by the government to testify about the transaction. He
indicated that Himelwright was "very nervous" and that his hand
was "shaking" when he bought the gun. Appellant's App. 64a. The
government also tendered testimony from the man who helped
complete the paperwork associated with the sale of the revolver.
He testified that Himelwright did not take possession of the
revolver until approximately July 1, when all background checks
had been completed. Then, the government called one of the
postal inspectors who visited Himelwright the day after the
telephone calls and solicited testimony that the two handguns
were in Himelwright's home at the time of his visit. The
government concluded its closing argument to the jury with the
following comments, which contained all of its argument
concerning the handguns:
We know, ladies and gentlemen, that less
than a week [after telephoning the EAP
Hotline for assistance in arranging a
custodial worker's examination], Mr.
Himelwright bought a gun. He bought a .38
caliber revolver. He bought it from William
Kiehl.
Mr. Kiehl testified and the firearms
dealer that was involved in the transfer,
Greg Flinchbaugh, testified. They told about
how Mr. Himelwright inspected the gun and
bought it that night for $120.00 cash. He
told you how the paperwork was filled out so
that Mr. Himelwright could get legal
ownership of that gun. But for some reason,
Mr. Himelwright never personally appeared
before Mr. Flinchbaugh.
The question has been raised why a .38
caliber revolver? Several explanations have
been offered. One, Mr. Himelwright wanted to
use it for target practice. Two, he was a
gun collector. Three, he wanted to give the
gun as a gift to Bonnie, his girlfriend.
But you heard the testimony. Is a short
barrel, a two and a half inch barrel .38
caliber revolver a gun that is normally used
for target shooting? No, it is too
inaccurate. It is not a gun used by target
shooters.
A gun collector? Mr. Himelwright wasn't
a gun collector. He had two guns, but he
wasn't a gun collector.
And giving it as a gift to Bonnie Irvin
[his girlfriend]? You heard her testimony.
Bonnie Irvin never shot that gun. In fact,
she told you she never even held it.
Why a .38 caliber? We know Mr.
Himelwright was a police officer for six
years in North Carolina. Thirty-eight
caliber revolvers are handguns that are
normally used by police departments. As Mr.
Himelwright repeatedly told you, he was a
weapons specialist. He was a cop. He knew
about guns. He knew how to handle them. He
went out and bought a .38 caliber revolver.
That gun wasn't for anybody else except for
Richard Himelwright's use.
Appellant's App. 99a-100a.
The object, or at least effect, of this
disproportionate emphasis by the prosecution, we believe, was to
portray Himelwright as a violence-prone postal worker who was a
danger to society and who needed to be removed for the protection
of the public.8
Moreover, the manner in which this evidence was used at
trial exacerbated the error of its admission: the prosecutor was
permitted to introduce into evidence, and display before the
8
. Himelwright's two-day trial took place on November 15 and
16, 1993, following a series of well publicized shooting sprees
by postal workers. See, e.g., Workers Kill Workers; Yet Again,
Violence in the Post Office, New York Times, May 9, 1993, Sec. 4,
at 2; Inside Post Offices, the Mail is Only Part of the Pressure,
New York Times, May 15, 1993, at A1; Postal Study Aims to Spot
Violence-Prone Workers, New York Times, July 1, 1993, at A9. As
reported in the New York Times on August 3, 1993, "There have
been at least 11 shooting incidents involving aggrieved
emotionally disturbed postal workers in the United States in the
last decade with 35 people killed and 18 wounded." Police Arrest
Postal Worker in Pistol Threat to His Wife, New York Times,
Aug. 3, 1993, at B5.
We believe the government's portrait of Himelwright as the
stereotypical violence-prone postal worker had serious potential
for prejudice to him in two different ways. First, it had the
potential for frightening the jury into ignoring evidence that
otherwise might have raised a reasonable doubt about whether he
intended a serious threat. Second, if the jury was persuaded
that Himelwright was violence-prone by character, it might have
inferred that he intended violence in this particular instance.
That inference is precisely what Rule 404(b) prohibits.
jury, the firearms themselves. Such a method of introduction is
not proscribed. But because of the remote connection between the
possession (or purchase) of the firearms and telephone calls, the
display of weaponry was far more prejudicial than probative under
the circumstances of this case. We believe that this enabled, if
not invited, the jury to draw impermissible inferences which
might well have deprived Himelwright of a fair trial.9
VI.
For the reasons set forth above, we conclude that
evidence of Himelwright's purchase and possession of firearms
should not have been admitted under Rule 404(b) as evidence of a
9
. We note that the district court gave the following
precautionary instruction:
Ladies and gentlemen, the mere fact that the
defendant had purchased or possessed firearms may
not be used to conclude that the defendant had the
ability to carry out his alleged threat. You will
recall I said that is not an element of the
offense.
Nor may you conclude from the fact of the purchase
or possession that the recipient of the
defendant's statements took them as threats. You
may consider whether these facts are probative as
to whether defendant intended to make threats.
Government's App. 45-46.
Although this instruction reflect's the district court's
apparent understanding of the potential for undue prejudice to
Himelwright, it does not cure the error in the first instance in
not conducting the balancing of interests which Rule 403
requires, and which should have lead to the exclusion of
Himelwright's possession and purchase of the firearms. United
States v. Sampson, 980 F.2d 886, 889 (3d Cir. 1992) (Rule 403
requires the district court to evaluate evidence in the context
of the developing case).
plan or preparation to commit the crimes charged, or of
Himelwright's intent with respect to section 875(c). Assuming,
as we do, that Himelwright's gun possession was marginally
relevant to his intent to extort, we nevertheless conclude that
the admission of the firearms evidence violated Rule 403. We
further find that the district court erred by not performing the
balancing analysis in response to the Rule 403 objection.
Accordingly, we will reverse the district court's denial of
Himelwright's motion in limine, vacate Himelwright's conviction
and remand for further proceedings consistent with this opinion.