United States v. HimelwrightUnited States v. Himelwright
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
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
We have jurisdiction over this appeal pursuant to
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 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.
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.
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).
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 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.
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
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
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
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.
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.
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.
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 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
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.
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 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.
Notes
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.
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 not more than five years, or both.
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.
Philibert, 947 F.2d at 1470.. . . 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.
Government‘s App. 45-46.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.
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).