United States v. Fulmer
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Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1331
UNITED STATES,
Appellee,
v.
KEVAN FULMER,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_____________________
Miriam Conrad, Federal Defender Office, for appellant. _____________
Paul G. Levenson, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, was on brief for _______________
appellee.
____________________
March 28, 1997
____________________
TORRUELLA, Chief Judge. On April 28, 1995, Defendant- TORRUELLA, Chief Judge. ___________
Appellant Kevan Fulmer ("Fulmer") was indicted for threatening a
federal agent in violation of 18 U.S.C. 115(a)(1)(B).
Following a jury trial, Fulmer was convicted on November 3, 1995,
of threatening Richard Egan ("Egan"), a special agent with the
Federal Bureau of Investigation ("FBI"). Fulmer was sentenced to
a term of five months imprisonment to be followed by two years of
supervised release. On appeal, Fulmer challenges his conviction,
a number of evidentiary rulings, and the jury instructions. We
find that several improper evidentiary rulings were not harmless
error, and, accordingly, we vacate Fulmer's conviction and remand
for a new trial.
BACKGROUND BACKGROUND
We sketch the facts presented at trial, providing
further details as they become relevant to the discussion. In
May 1994, the Office of the United States Trustee referred to
Egan a complaint in which Fulmer alleged that his former father-
in-law, Antonio Boschetti ("Boschetti"), and his brother, David
Fulmer, had failed to disclose assets in bankruptcy and had
committed pension fraud and income tax fraud. Egan arranged to
meet Fulmer in August or September of 1994. At the meeting,
Fulmer explained to Egan that he and his brother had married
Boschetti's daughters, and that Fulmer had since been divorced.
Fulmer indicated that Boschetti and David Fulmer had engaged in
illegal business activities. Fulmer explained that these were
"vicious" people and that they had "used the courts to keep him
-2-
away from his family." Egan described Fulmer's demeanor as
"polite, articulate" and "tense." Egan noted that, although he
tried repeatedly to steer the conversation toward the alleged
concealment of assets, Fulmer would return to his strained
relationship with his family.
Over the next three months, Fulmer contacted Egan
"every week or ten days." Fulmer delivered documents to Egan's
office and stopped by to inquire about the investigation. Fulmer
also sent letters and faxes to Egan and called Egan on the
telephone, leaving messages when he did not reach Egan.
Throughout this interaction, Fulmer continued to comment on his
poor relationship with his family.
Egan interviewed Boschetti and David Fulmer, and
obtained and reviewed documents related to the bankruptcy. After
Egan investigated Fulmer's allegations, Egan consulted with an
Assistant United States Attorney. In January 1995, the United
States Attorney's office advised Egan that it would not prosecute
the case. Egan in turn informed Fulmer that the records did not
support prosecution. Fulmer protested the decision, but said
"good-bye" and hung up after Egan told him there was nothing
further to discuss. Fulmer may have asked Egan whether he could
provide further information to make a stronger case against
Boschetti and David Fulmer.
There were no further interactions between Egan and
Fulmer until April 25, 1995, when Egan received the following
voicemail message from Fulmer at approximately 5:40 p.m.:
-3-
Hi Dick, Kevan Fulmer. Hope things are well,
hope you had an enjoyable Easter and all the
other holidays since I've spoken with you
last. I want you to look something up. It's
known as misprision. Just think of it in
terms of misprision of a felony. Hope all is
well. The silver bullets are coming. I'll
talk to you. Enjoy the intriguing unraveling
of what I said to you. Talk to you, Dick.
It's been a pleasure. Take care.
At Fulmer's trial, Egan testified that he was "shocked"
by the message, which he found "chilling" and "scary." He
testified that he had never heard the term "silver bullets"
before and believed that the term indicated a threat. He stated
that he intended to report the message to the United States
Attorney's office. Egan's supervisor, Robert Schlabach,
testified that Egan played the message for him the next morning
and told Schlabach that he believed the message was a threat and
intended to take it to the United States Attorney's office.
Schlabach also testified that Egan appeared "clearly upset,
concerned, [and] agitated." Trial Transcript, vol. 2, at 130.
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1331
UNITED STATES,
Appellee,
v.
KEVAN FULMER,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_____________________
Miriam Conrad, Federal Defender Office, for appellant. _____________
Paul G. Levenson, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, was on brief for _______________
appellee.
____________________
March 28, 1997
____________________
TORRUELLA, Chief Judge. On April 28, 1995, Defendant- TORRUELLA, Chief Judge. ___________
Appellant Kevan Fulmer ("Fulmer") was indicted for threatening a
federal agent in violation of 18 U.S.C. 115(a)(1)(B).
Following a jury trial, Fulmer was convicted on November 3, 1995,
of threatening Richard Egan ("Egan"), a special agent with the
Federal Bureau of Investigation ("FBI"). Fulmer was sentenced to
a term of five months imprisonment to be followed by two years of
supervised release. On appeal, Fulmer challenges his conviction,
a number of evidentiary rulings, and the jury instructions. We
find that several improper evidentiary rulings were not harmless
error, and, accordingly, we vacate Fulmer's conviction and remand
for a new trial.
BACKGROUND BACKGROUND
We sketch the facts presented at trial, providing
further details as they become relevant to the discussion. In
May 1994, the Office of the United States Trustee referred to
Egan a complaint in which Fulmer alleged that his former father-
in-law, Antonio Boschetti ("Boschetti"), and his brother, David
Fulmer, had failed to disclose assets in bankruptcy and had
committed pension fraud and income tax fraud. Egan arranged to
meet Fulmer in August or September of 1994. At the meeting,
Fulmer explained to Egan that he and his brother had married
Boschetti's daughters, and that Fulmer had since been divorced.
Fulmer indicated that Boschetti and David Fulmer had engaged in
illegal business activities. Fulmer explained that these were
"vicious" people and that they had "used the courts to keep him
-2-
away from his family." Egan described Fulmer's demeanor as
"polite, articulate" and "tense." Egan noted that, although he
tried repeatedly to steer the conversation toward the alleged
concealment of assets, Fulmer would return to his strained
relationship with his family.
Over the next three months, Fulmer contacted Egan
"every week or ten days." Fulmer delivered documents to Egan's
office and stopped by to inquire about the investigation. Fulmer
also sent letters and faxes to Egan and called Egan on the
telephone, leaving messages when he did not reach Egan.
Throughout this interaction, Fulmer continued to comment on his
poor relationship with his family.
Egan interviewed Boschetti and David Fulmer, and
obtained and reviewed documents related to the bankruptcy. After
Egan investigated Fulmer's allegations, Egan consulted with an
Assistant United States Attorney. In January 1995, the United
States Attorney's office advised Egan that it would not prosecute
the case. Egan in turn informed Fulmer that the records did not
support prosecution. Fulmer protested the decision, but said
"good-bye" and hung up after Egan told him there was nothing
further to discuss. Fulmer may have asked Egan whether he could
provide further information to make a stronger case against
Boschetti and David Fulmer.
There were no further interactions between Egan and
Fulmer until April 25, 1995, when Egan received the following
voicemail message from Fulmer at approximately 5:40 p.m.:
-3-
Hi Dick, Kevan Fulmer. Hope things are well,
hope you had an enjoyable Easter and all the
other holidays since I've spoken with you
last. I want you to look something up. It's
known as misprision. Just think of it in
terms of misprision of a felony. Hope all is
well. The silver bullets are coming. I'll
talk to you. Enjoy the intriguing unraveling
of what I said to you. Talk to you, Dick.
It's been a pleasure. Take care.
At Fulmer's trial, Egan testified that he was "shocked"
by the message, which he found "chilling" and "scary." He
testified that he had never heard the term "silver bullets"
before and believed that the term indicated a threat. He stated
that he intended to report the message to the United States
Attorney's office. Egan's supervisor, Robert Schlabach,
testified that Egan played the message for him the next morning
and told Schlabach that he believed the message was a threat and
intended to take it to the United States Attorney's office.
Schlabach also testified that Egan appeared "clearly upset,
concerned, [and] agitated." Trial Transcript, vol. 2, at 130.
Fulmer presented two witnesses who testified to the
meaning Fulmer associated with the term "silver bullets." The
first, John Noonan, a lawyer and former federal investigator,
testified that he had heard Fulmer use the phrase "silver
bullets" to describe "a clear-cut simple violation of law."
Noonan stated that Fulmer used the phrase to describe specific
evidence, including an $8,200 check from a bankruptcy estate that
never reached its intended recipient.
The second witness, David Tremblay, testified that he
had known Fulmer for more than twenty years and that Fulmer had
-4-
used the phrase "silver bullets" to mean "information that he was
going to provide to banks proving the illegality of some of David
Fulmer's transactions."
David Baarlaer, a portfolio analyst for GE Capital,
testified that in April 1995 Fulmer prompted Baarlaer to
investigate whether GE Capital had received a check for
approximately $8,300 from the Boschettis. Baarlaer found that
the check had not been received. In April, David Fulmer sent
Baarlaer a copy of the check, which showed no signs of having
been canceled, endorsed, or deposited. Sometime before April 25,
1995, Baarlaer told Fulmer about the check.
DISCUSSION DISCUSSION
I. Sufficiency of the Evidence I. Sufficiency of the Evidence
Fulmer contests the sufficiency of the evidence
supporting his conviction on two grounds, first, that an
ambiguous statement cannot be considered a "true threat," and
second, that the evidence did not support a finding that Fulmer
had the requisite intent. We begin with the now-familiar
standard of review:
In assessing a challenge to the sufficiency
of the evidence, we "review the record to
determine whether the evidence and reasonable
inferences therefrom, taken as a whole and in
the light most favorable to the prosecution,
would allow a rational jury to determine
beyond a reasonable doubt that the defendant[
was] guilty as charged."
United States v. Sullivan, 85 F.3d 743, 747 (1st Cir. 1996) ______________ ________
(quoting United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st ______________ ___________
Cir. 1993)).
-5-
A. "True threat" A. "True threat"
Fulmer argues that the appropriate standard for
determining a true threat is whether "a reasonable person would
foresee that the statement would be interpreted by those to whom
the maker communicates the statement as a serious expression of
intent to harm or assault." United States v. Orozco-Santillan, _____________ ________________
903 F.2d 1262, 1265 (9th Cir. 1990). The government argues that
the proper standard is whether an "ordinary, reasonable recipient
who is familiar with the context of the [statement] would
interpret it as a threat of injury." United States v. Maisonet, _____________ ________
484 F.2d 1356, 1358 (4th Cir. 1973). This circuit has not yet
ruled on the appropriate standard regarding the nature of a "true
threat." Although our sister circuits that have reviewed the
standard under this and other1 federal threat statutes agree that
____________________
1 18 U.S.C. 871 provides, in part:
Threats against President and successors to the
Presidency
(a) Whoever knowingly and willfully deposits for
conveyance in the mail or for a delivery from any post
office or by any letter carrier any letter, paper,
writing, print, missive, or document containing any
threat to take the life of, to kidnap, or to inflict
bodily harm upon the President of the United States,
the President-elect, the Vice President or other
officer next in the order of succession to the office
of President of the United States, or the Vice
President-elect, or knowingly and willfully otherwise
makes any such threat against the President, President-
elect, Vice President or other officer next in the
order of succession to the office of President, or Vice
President-elect, shall be fined under this title or
imprisoned not more than five years, or both.
18 U.S.C. 875 provides, in part:
-6-
an objective standard is required, they disagree regarding the
appropriate vantage point -- what a person making the statement
should have reasonably foreseen or what a reasonable person
receiving the statement would believe. Compare United States v. _______ _____________
Malik, 16 F.3d 45, 48 (2d Cir. 1994) ("The test is an objective _____
one -- namely, whether 'an ordinary, reasonable recipient who is
familiar with the context of the letter would interpret it as a
threat of injury.'" (quoting Maisonet, 484 F.2d at 1358)), and ________ ___
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) _____________ _________
("The test for whether a statement is a threat is an objective
one; it is not what the defendant intended but whether the
recipient could reasonably have regarded the defendant's
statement as a threat.") with Orozco-Santillan, 903 F.2d at 1265 ____ ________________
("Whether a particular statement may properly be considered to be
a threat is governed by an objective standard -- whether a
____________________
Interstate communications
(c) Whoever transmits in interstate or foreign
commerce any communication containing any threat to
kidnap any person or any threat to injure the person of
another, shall be fined under this title or imprisoned
not more than five years, or both.
18 U.S.C. 876 provides, in part:
Mailing threatening communication
Whoever knowingly so deposits or causes to be
delivered as aforesaid, any communication with or
without a name or designating mark subscribed thereto,
addressed to any other person and containing any threat
to kidnap any person or any threat to injure the person
of the addressee or of another, shall be fined under
this title or imprisoned not more than five years, or
both.
-7-
reasonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the statement
as a serious expression of intent to harm or assault.") and ___
United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984) ______________ _____
(maintaining that the test is "whether a reasonable person would
foresee that the statement would be interpreted by persons
hearing it as a serious expression of an intention to inflict
bodily harm upon or to take the life of the President of the
United States." (internal quotations omitted)). See also United ________ ______
States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) ("[T]he ______ ________
standard . . . is an objective standard, i.e., would a reasonable ____
person consider the statement to be a threat.").
We believe that the appropriate standard under which a
defendant may be convicted for making a threat is whether he
should have reasonably foreseen that the statement he uttered
would be taken as a threat by those to whom it is made. This
standard not only takes into account the factual context in which
the statement was made, but also better avoids the perils that
inhere in the "reasonable-recipient standard," namely that the
jury will consider the unique sensitivity of the recipient. We
find it particularly untenable that, were we to apply a standard
guided from the perspective of the recipient, a defendant may be
convicted for making an ambiguous statement that the recipient
may find threatening because of events not within the knowledge
of the defendant. Therefore, we follow the approach of several
-8-
circuits by holding that the appropriate focus is on what the
defendant reasonably should have foreseen.
Fulmer contends that the statement was at most
ambiguous and could not have been a "true threat." Fulmer cites
United States v. And jar, which states that _____________ _______
[i]f the evidence viewed in the light most
favorable to the prosecution gives equal or
nearly equal circumstantial support to a
theory of guilt and a theory of innocence of
the crime charged, this court must reverse
the conviction. This is so because . . .
where an equal or nearly equal theory of
guilt and a theory of innocence is supported
by the evidence viewed in the light most
favorable to the verdict, a reasonable jury
must necessarily entertain a reasonable
doubt.
49 F.3d 16, 20 (1st Cir. 1995) (citation, internal quotation
marks, and emphasis omitted).
Although Fulmer properly recites the law, we find that
And jar's wisdom does not apply here. A reasonable jury could _______
have found the following. A bankruptcy trustee referred Fulmer's
complaint to Egan in May 1994. In August or September, Egan met
with Fulmer, and found his demeanor regarding his family
"intense." Fulmer expressed his belief that Boschetti and David
Fulmer had engaged in illegal activities and further claimed that
they were "vicious" people who had used the courts to keep Fulmer
away from his family. Thereafter, Egan had conversations with
Boschetti and David Fulmer who reiterated the ill feelings Fulmer
bore toward them. Fulmer contacted Egan frequently, by letter
and by telephone, leaving voicemail messages when Egan was not
available.
-9-
After a thorough investigation, Egan and an Assistant
United States Attorney determined that the evidence was
insufficient to support a prosecution. Fulmer protested, but
when Egan told him there was nothing further to discuss, he said
"goodbye" and hung up. Egan's next interaction with Fulmer
occurred three months later, when Fulmer left the voicemail
message at issue.
The jury could have also found that, although the usage
of the term "silver bullets" varies, the phrase may be used as a
threat.
Reviewing all of these facts, and drawing all
inferences in favor of the verdict, we cannot say that no
rational jury could have found beyond a reasonable doubt that
Fulmer's statement was a threat. "Whether a given [statement]
constitutes a threat is an issue of fact for the trial jury."
Malik, 16 F.3d at 49. The use of ambiguous language does not _____
preclude a statement from being a threat. See id.; Schneider, ___ ___ _________
910 F.2d at 1570 ("The threat in this case was ambiguous, but the
task of interpretation was for the jury."); Orozco-Santillan, 903 ________________
F.2d at 1265 ("The fact that a threat is subtle does not make it
less of a threat." (citation and quotation marks omitted));
Maisonet, 484 F.2d at 1358 (finding determination of whether ________
statement constitutes a threat a jury question); see also United ________ ______
States v. Barcley, 452 F.2d 930, 934 (8th Cir. 1971) (Aldrich, ______ _______
J., sitting by designation, dissenting) (contending that the
interpretation of an ambiguous statement is a factual question to
-10-
be resolved by a jury). While the statement on its face may be
susceptible to more than one interpretation, some factors not
discernable from the record, such as the tone of the defendant's
voice or the credibility of the government's and Fulmer's
witnesses, may legitimately lead a rational jury to find that
this statement was a threat.
Fulmer further suggests that we must strictly apply the
"true threat" standard in order to avoid trampling on his First
Amendment rights, citing Watts v. United States, 394 U.S. 705 _____ ______________
(1969). Watts involved a statement made against the president in _____
the context of a political rally against a war. The Court was
concerned with punishing Watts' constitutionally protected
political speech. See id. at 1401 ("The language of the ___ ___
political arena, like the language used in labor disputes, . . .
is often vituperative, abusive and inexact. . . . Taken in
context, and regarding the expressly conditional nature of the
statement and the reaction of the listeners, we do not see how it
could be interpreted otherwise."). In this case, Fulmer does not
argue his message was one criticizing either Egan or any other
government figure. Moreover, a true threat is unprotected by the
First Amendment. Orozco-Santillan, 903 F.2d at 1265. Thus, a ________________
conviction under this statute, based on a finding that the
statement was a true threat, would not violate Fulmer's
constitutionally protected right to speech.
B. Intent to impede, intimidate, interfere with, or B. Intent to impede, intimidate, interfere with, or
retaliate retaliate
-11-
The jury was entitled to infer Fulmer's intent from the
circumstances surrounding the statement. See United States v. ___ ______________
DiMarzo, 80 F.3d 656, 661 (1st Cir.) ("The jury was entitled to _______
rely upon circumstantial evidence . . . to infer essential
elements of the crime . . . ."), cert. denied, 117 S. Ct. 259 ____________
(1996); United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995) _____________ ______
(noting that a showing of criminal intent "may be made wholly on
the basis of circumstantial evidence"). Drawing all inferences
and credibility determinations in favor of the government's case,
we find that a rational jury could have found that Fulmer
knowingly made the statement alleged to be a threat, and that he
did so with the intent to "impede, intimidate, or interfere with"
Egan in the performance of his duties, or to "retaliate" against
him, within the meaning of 18 U.S.C. 115(a)(1)(B).
Although we find that the evidence was not
insufficient as a matter of law, we come to this conclusion by
viewing the properly admitted evidence in the light most
favorable to the verdict and by drawing all credibility
determinations in favor of the verdict. As we discuss in section
III, we believe that the improperly admitted evidence was so
inflammatory that it may have prompted the jury at the outset to
weigh the properly admitted evidence in the government's favor.
This sort of taint we cannot condone, and justifies a reversal
even where Fulmer's argument as to the sufficiency of the
evidence fails.
II. Jury Instructions II. Jury Instructions
-12-
A. Intent to Threaten Egan A. Intent to Threaten Egan
Fulmer argues that the district court erred when it
failed to instruct the jury that the statute requires both the
statutory intent and an intent "to put Mr. Egan in fear of being
assaulted or murdered." He also claims that the district court
erred when it declined to instruct "to say or do something that
would cause a person of ordinary sensibilities to be fearful of
harm to himself or another."
The district court set forth the jury instruction
regarding the elements of the statute2 as follows:
To prove the defendant committed this
crime, the Government must prove that the
defendant knowingly threatened the officer.
The term "knowingly," as used in these
instructions, means that the defendant was
conscious and aware of his actions, realized
what he was doing, and did not act out of
ignorance, mistake, or accident.
____________________
2 18 U.S.C. 115(a)(1)(B) states:
(a)(1) Whoever --
* * *
(B) threatens to assault, kidnap, or
murder, a United States official, judge, a
Federal law enforcement officer, or an
official whose killing would be a crime under
such section,
with intent to impede, intimidate, or
interfere with such official, judge, or law
enforcement officer while engaged in the
performance of official duties, or with
intent to retaliate against such person on
account of the performance of official duties
during the term of service of such person,
shall be punished . . . .
-13-
Now, what is a threat for purposes of this
statute? A threat is a statement that
expresses an intent to inflict bodily harm on
someone. To be a threat, a statement must be
of such a nature as can reasonably induce
fear. You must determine whether a statement
was a true threat when judged in this context
-- in its context.
Among other things, you should consider
whether on its face and in the circumstances
in which the statement is made, a reasonable
person would foresee that the statement would
convey to the recipient a seriousness of
purpose and the apparent prospect of
execution. Whether a particular statement is
a threat is governed by an objective standard
whether a reasonable person in the
circumstances would foresee that the
statement would be interpreted by the person
to whom it is made as a serious expression of
intent to harm or assault.
This means that you should consider the
statement in light of its entire factual
context, including the surrounding events,
reaction of the listeners, and the manner and
tone in which it is made -- was made.
Sometimes the tone or the way something is
expressed can make a difference between a
threat and something that is not a threat.
Keep in mind that the Government must prove
its case beyond a reasonable doubt. So if
there is something ambiguous about the way
the statement is made and you think that the
statement can be reasonably interpreted under
the circumstances, either as threatening or
nonthreatening, the case has not been proven.
However, the fact that a threat is subtle or
lacks explicitly threatening language does
not make it less of a threat.
Now, a threat can be made in person, in a
phone call, or in a letter. To be a threat,
it's not necessary that the statement be made
face to face. The Government does not have
to prove that the defendant actually intended
to carry out the threat or that he was able
to. That is not a part of the definition of
threat.
-14-
If the Government proves that a threat was
made by the defendant, then you must decide
whether the person threatened was a federal
law enforcement officer and whether at the
time the threat was made, the officer was
engaged in the performance of his official
duties.
* * *
If you find that a threat to assault or
murder a federal law enforcement officer was
made, then you must consider the next element
of the offense. The indictment says that the
threat was made with intent to impede,
intimidate, and interfere with Agent Egan
while engaged in the performance of his
official duties and to retaliate against him
on account of the performance of those
duties.
Even though the indictment uses the word
"and," you must determine whether the
defendant made the threat with the intent to
impede or intimidate or interfere with the
federal law enforcement officer's performance
of his other official duties or whether the
defendant made the threat with the intent to
retaliate against the law enforcement officer
because of his performance of his official
duties.
The Government may satisfy this element of
the offense by proving any of these
intentions. It is not necessary that the
Government prove that the defendant intended
all of these things. If you find that the
Government has proven any of these intentions
beyond a reasonable doubt and you agree
unanimously as to which one it is, then the
Government would have proven the element of
intent.
When we talk about a defendant's -- about
the defendant's intent, we are talking about
what he meant to do and what was in his mind.
This is difficult to prove directly, because
there is no way directly to scrutinize the
works of someone else's mind or his state of
mind. But you may infer . . . the
defendant's intent from the surrounding
circumstances, that is to say, you may rely
-15-
on circumstantial evidence in determining the
defendant's intent. You may consider any
statement made, act done, or omitted by the
defendant and all other facts and
circumstances in evidence which indicate his
intent.
Trial Transcript, vol. 4, at 84-87.
"We review allegedly erroneous jury instructions de __
novo to determine [whether] the instructions, taken as a whole, ____
show a tendency to confuse or mislead the jury with respect to
the applicable principles of law." Tatro v. Kervin, 41 F.3d 9, _____ ______
14 (1st Cir. 1994).
We find that the instructions, in their entirety,
accurately reflect the elements, including the required intent,
necessary to convict under 18 U.S.C. 115(a)(1)(B). "The only
intent requirement is that the defendant intentionally or
knowingly communicates his threat, not that he intended or was
able to carry out his threat." Orozco-Santillan, 903 F.2d at ________________
1265 n.3. The district court's instruction accurately reflects
this standard and, thus, there was no error.
Regarding Fulmer's contention that the district court
erred in failing to adopt Fulmer's definition of "intimidate," we
note that his trial counsel failed to state an objection to the
definition of "intimidate." Therefore, we review only for plain
error. And jar, 49 F.3d at 22. _______
Beyond stating that the court did not include this
instruction, Fulmer fails to state why this omission would
constitute error. We believe that the meaning of the word
"intimidate" is not outside of the juror's understanding such
-16-
that the district court's failure to define the word could
constitute an error that threatens to "undermine the fundamental
fairness of the trial." United States v. Joselyn, 99 F.3d 1182, _____________ _______
1197 (1st Cir. 1996) (citing United States v. Young, 470 U.S. 1 _____________ _____
(1985)). We thus find no plain error here.
-17-
B. Definition of "threat" B. Definition of "threat"
Fulmer states his objections to the district court's
definition of threat as:
1) to the absence of an instruction that a
threat is "a serious expression of intent to
inflict injury and not merely a vehement or
emotional expression of political opinion,
hyperbole, or arguments against Government
officials"; 2) that the instruction should
not define a threat as an expression of
intent to harm or assault, since the threat ____
charged was one to assault or murder; 3) to
the phrase "reasonably induce fear"; 4) to
the instruction that the tone could make the
difference between a threat and a
nonthreatening statement; and 5) to the
instruction that the absence of explicitly
threatening language or the use of subtle
words does not make a statement less of a
threat.
Appellant's Brief at 44-45.
Regarding Fulmer's first argument, that an instruction
that the statement was not "merely . . . arguments against a
government official," exclusion of this language was proper.
Although a defendant is entitled to an instruction on a defense
theory that is "sufficiently supported by both the evidence and
the law," United States v. Olmstead, 832 F.2d 642, 647 (1st Cir. _____________ ________
1987), there is no evidence in the record to support a theory
that Fulmer intended any statement in this message to register
his displeasure with the manner in which Egan was conducting his
official duties. No such argument was presented to the jury in
Fulmer's closing arguments. Furthermore, the statutory
requirement of an intent to impede, intimidate, or interfere
with, or to retaliate against a federal law enforcement officer
-18-
"serves to insulate the statute from unconstitutional application
to protect speech." United States v. Gilbert, 813 F.2d 1523, ______________ _______
1529 (9th Cir. 1987). We find that there is a risk that
including such language would serve to confuse the jury in its
review of the facts in the case and its exclusion was not error.
Fulmer next argues that the district court's
instruction that a threat could mean an intent to harm creates a
risk that the jury would convict Fulmer for making a "threat of
nonphysical harm, such as harm to the agent's reputation or
career." Appellant's Brief at 46. Fulmer's argument obfuscates
the actual instruction, which creates no such risk. The court
instructed that "[a] threat is a statement that expresses an
intent to inflict bodily harm on someone." The district court's
limitation of the jury's attention to only bodily harm protects ______
Fulmer from the situation against which he protests. There was
no error in the district court's use of the word "harm" to define
"threat."
Fulmer fails to present any further argument, let alone
developed argument, regarding the term "reasonably induce fear,"
and thus the argument is waived. See United States v. Tracy, 989 ___ _____________ _____
F.2d 1279, 1286 (1st Cir. 1993) ("It is well settled that issues
are deemed waived when 'adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation.'"
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. ______________ _______
1990)).
-19-
Fulmer's next two contentions, that the court's
"emphasis" on tone diminished the standard of proof, and that the
court's instruction that the absence of explicitly threatening
language or the use of subtle language does not rule out a
finding of a true threat misstates the law, are without support.
Where a statement may be ambiguous, the entire context, including
the tone used, may assist the jury in determining whether that
ambiguous statement was a threat. See Malik, 16 F.3d at 50 ___ _____
("[R]igid adherence to the literal meaning of a communication
without regard to its reasonable connotations derived from its
ambience would render the statute powerless against the ingenuity
of threateners who can instill in the victim's mind as clear an
apprehension of impending injury by an implied menace as by a
literal threat."); see also United States v. Sciolino, 505 F.2d ________ ______________ ________
586, 588 (2d Cir. 1974) ("Since the question of whether subtle
conduct can amount to a threat of force depends greatly upon all
of the surrounding circumstances, including not only the words
used but the facial expressions and gestures of the accused, it
is peculiarly one for resolution by the jury."). There was
nothing improper with so instructing the jury, and, given the
district court's repeated admonitions that the jury must find all
of the elements beyond a reasonable doubt in order to convict
Fulmer, to do so did not diminish the standard the jury was
required to apply.
C. Supplemental instruction on "assault" C. Supplemental instruction on "assault"
-20-
Fulmer's final argument is that the district court's
supplemental jury instruction defining assault "tended to confuse
or mislead the jury on the controlling issues." United States v. _____________
Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995), cert. denied, 116 S. _______ ____________
Ct. 909 (1996). "[T]he giving, or withholding, of a supplemental
instruction, or the contents of it if given, are matters
committed to the trial court's sound discretion." United States _____________
v. Parent, 954 F.2d 23, 25 (1st Cir. 1992). ______
A few hours into their deliberations, the jury sent a
note to the district judge stating, "We have would [sic] like a
definition of the word 'assault' used in the complaint or legal
definition." After a bench conference on the appropriate
definition, the district court instructed the jury, over Fulmer's
objection, that assault means:
any deliberate and intentional attempt or
threat to inflict physical injury upon
another with force or strength when that
attempt or threat is coupled with an apparent
present ability to do so. . . . An assault
may be committed by a defendant without
actually touching, striking, or doing bodily
harm to another.
Trial Transcript, vol. 4, at 113-14.
We can see how this wording, by defining the overall
offense at issue as a threat to threaten to harm another, could
confuse a jury and we believe that a more logical instruction,
considering the offense in its entirety, probably ought to have
been given. Even when we consider the supplemental instruction
in the light of the instructions in their entirety, see United ___ ______
States v. Femia, 57 F.3d 43, 46 (1st Cir. 1995), we believe that ______ _____
-21-
the instructions conflicted with the court's earlier instruction
that a threat expressed an intent to inflict bodily harm. ______
Compare Trial Transcript, vol. 4, at 84 ("A threat is a statement _______
that expresses an intent to inflict bodily harm on someone."),
with id. at 114 ("An assault may be committed by a defendant ____ ___
without actually touching, striking, or doing bodily harm to
another."). The instructions in their entirety may have had a
tendency to confuse the jury regarding the definition of
"assault" in the context of a threat to assault and the court's
provision of such conflicting instructions was error. Because we
are remanding on other grounds, we need not venture into the
weighing necessary to determine whether any error in the
instructions was harmless. It is sufficient that we note the
potentially confusing nature of the instructions and the need to
tailor them so as to avoid any such confusion.
III. Evidentiary Issues III. Evidentiary Issues
A. Admission of Egan's testimony regarding the A. Admission of Egan's testimony regarding the
Oklahoma City bombing and subsequent bomb threats Oklahoma City bombing and subsequent bomb threats
Fulmer argues that the prejudicial effect of the
following colloquy substantially outweighed any probative value
and thus it should have been excluded under Federal Rule of
Evidence 403.3
____________________
3 Federal Rule of Evidence 403 states:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice
. . . .
-22-
Q. Now, apart from what you knew and had
learned about Kevan Fulmer, was there
anything else that affected the way you
interpreted the message that you received on
April 25, 1995?
A. Yes.
Q. What was that?
A. There had been a series of recent events
. . . that involved threats to federal law
enforcement officials and, in fact, a bombing
of the federal building in Oklahoma.
Q. And what did you understand about the
bombing of the federal building in Oklahoma
City?
* * *
THE WITNESS: I understand that 169 federal
employees died.
Q. And when had the Oklahoma City bombing
occurred in relation to your hearing the
message on April 25?
A. One week before.
* * *
Q. And after the bombing in Oklahoma City of
the federal building and the time that you
heard the message, had anything happened in
the interim that affected your interpretation
of the statement?
* * *
THE WITNESS: I think we are at -- yes,
there were incidents in Oklahoma City that
concerned me.
Q. Were those local incidents?
A. There had been a series of bomb threats
and evacuations of buildings to include
specific bomb threats to the FBI, bomb
threats to the JFK Federal Building which is
across the street which was evacuated, and a
bunch of other ones around the city.
-23-
Q. Directed at different Government offices?
A. Yes.
Q. And had your own office, the FBI office,
been evacuated because of the [sic] threat?
A. Yes.
Trial Transcript, vol. 2, at 113-15. The government referred to
the bombing in both its opening statement and its closing
argument. In the opening statement, the prosecutor stated that
Fulmer's statement occurred
just one week after someone apparently
unhappy with the way the Federal Government
was doing its business had killed hundreds of
federal agents, federal employees, and
civilians. And in the week after that
threat, came threats near Boston to various
federal buildings including the FBI Building,
and the need to evacuate those buildings
based on those threats.
Id. at 46. The government returned to this topic in its closing ___
argument:
One week after the Oklahoma City bombing,
bomb [sic] that can turn the federal building
out there into rubble, killing hundreds of
federal law enforcement agents, employees and
civilians, an event that so dominated the
airways, it [was] almost the only thing in
almost a year, [to] take the O.J. Simpson
trial off the page.
Id., vol. 4, at 41. ___
We review a trial court's on-the-spot weighing under
Rule 403 for abuse of discretion, reversing only in
extraordinarily compelling circumstances. United States v. ______________
Lewis, 40 F.3d 1325, 1339 (1st Cir. 1994). The district court _____
admitted the evidence as "relevant to the agent's state of mind
-24-
at the time he received the communication and to why he might
have considered it threatening." Order on Motions in Limine,
October 24, 1995, at 2. Fulmer challenges this assessment,
arguing that, "[w]hile the context of a statement may well cast
light on its meaning, that fact does not permit, without
limitation, any and all facts to be bootstrapped into the trial."
Appellant's Brief at 28. The government, on the other hand,
argues that the testimony was properly admissible as evidence of
the context in which Fulmer's statement was made. The government
suggests that there was no risk of prejudice to Fulmer because
"there was no suggestion of, and no serious risk that the jury
would infer, any link between Fulmer and the Oklahoma City
bombing." Appellee's Brief at 29. We agree with Fulmer.
The probative value of this evidence was, at best,
slight. Fulmer's "silver bullets" statement did not make
reference to Oklahoma City, bomb threats, or the use of bombs or
any other type of explosive. The statement could not be read as
related to the events that took place in Oklahoma City, nor to
the bomb threats in Boston. True, such evidence may have shed
light on what the person making the statement reasonably should
have foreseen. The danger of unfair prejudice, however, is
tremendous. Undue focus on evidence of the Oklahoma City bombing
and resulting deaths, as well as subsequent bomb threats and
evacuations, serves only to evoke an improper emotional response
from the jury, distracting the jury from careful consideration of
the relevant issues before it and thereby prejudicing Fulmer.
-25-
While some reference to the bombing may have been permissible,
the scope of the evidence admitted constituted an abuse of
discretion.
We turn to consider whether the error was harmless.
"In determining whether or not error was harmless, a reviewing
court must assess the record as a whole to determine the probable
impact of the improper evidence upon the jury." United States v. _____________
Melvin, 27 F.3d 703, 708 (1st Cir. 1994) (citation and quotation ______
marks omitted). "An error will be treated as harmless only if it
is 'highly probable' that the error did not contribute to the
verdict." Id. Considering all of the evidence submitted in this ___
trial, including other improperly admitted evidence, see infra ___ _____
sections III.B. & III.C, and the fact that Fulmer's statement is
certainly not without ambiguity, we cannot find that reference to
the Oklahoma City bombing to be harmless. See Melvin, 27 F.3d at ___ ______
708; see also United States v. Sep lveda, 15 F.3d 1161, 1182 (1st ________ _____________ _________
Cir. 1993) ("[A] harmlessness determination demands a panoramic,
case-specific inquiry considering, among other things, the
centrality of the tainted material, its uniqueness, its
prejudicial impact, the uses to which it was put during the
trial, the relative strengths of the parties' cases, and any
telltales that furnish clues to the likelihood that error
affected the factfinder's resolution of a material issue.").
B. Admission of actual bullets B. Admission of actual bullets
During a pre-trial conference, the government sought
permission to introduce bullets obtained from Egan to rebut
-26-
Fulmer's suggestion that a silver bullet is a solution to a
problem. The district court allowed the introduction of four .38
caliber bullet taken from Egan's desk and two 9-millimeter
bullets taken from his handgun, instructing the jury that the
ammunition was admitted
to demonstrate what it is Mr. Egan had in his
desk drawer. So far there is no evidence in ______
this case that the defendant knew anything
about this exhibit at all.
Trial Transcript, vol. 2, at 104 (emphasis added).
On appeal, Fulmer contends that the district court's
admission of this ammunition was "grossly improper." He argues
that the introduction of these bullets could not have assisted
the jury in understanding the phrase "silver bullets," that the
court's suggestion that they were offered "to demonstrate what .
. . Mr. Egan had in his desk" bears no relevance to any issue in
the case, and that the presence of live ammunition in the jury
room only served to inflame the jury and provoke an improper
response.
The government supports the admission of the bullets as
a means of showing that a reasonable person would interpret the
term "silver bullets" to mean actual bullets that are silvery in
color. The government suggests that there was no danger of
prejudice here because the bullets were clearly identified in the
limiting instruction as belonging to Egan rather than Fulmer. We
find this distinction unconvincing.
The probative value of actual bullets in this case is
minimal. If the jury were in need of the suggestion that actual
-27-
bullets may be silvery in color, a proposition that we find
dubious, the government could have presented testimonial evidence
to that effect. The introduction of ammunition was certainly
unnecessary. We also find that the risk of prejudice or
confusion to the jury substantially outweighed any minimal
probative value this evidence may have had. Notwithstanding the
district court's admonition that the ammunition was intended to
show what was in Egan's desk, the jury may have been confused as
to the significance and role of the ammunition in this threats
case.4 Furthermore, more central to the issue of the relevancy
of this evidence and, consequentially, to its potential to unduly
influence the jury improperly, we fail to see what possession by
the victim of these bullets has to do with whether the ______
defendant's statement constituted a threat, particularly since he
was unaware of their existence.
In light of the entire case and the significance of
actual bullets in evidence, we cannot find that this error was
harmless. See supra Section III.A; see also Melvin, 27 F.3d at ___ _____ ________ ______
708 ("An error will only be treated as harmless if it is 'highly
probable' that the error did not contribute to the verdict.").
C. Admission of evidence regarding Agent Egan's C. Admission of evidence regarding Agent Egan's
reactions to the telephone message reactions to the telephone message
Fulmer contends that the district court made various
errors in allowing Egan to testify about his reaction to Fulmer's
____________________
4 We note as well that the limiting instruction carried the risk
of confusing the jury by suggesting that evidence that Fulmer
knew of the bullets in Egan's drawer would be forthcoming.
-28-
voicemail message. During this testimony, Egan stated that he
believed that Fulmer's initial pleasantries were "dripping with
sarcasm." He also indicated that he believed Fulmer's reference
to "misprision of a felony" meant that Fulmer believed Egan had
committed the crime of misprision by failing to pursue the case
against Fulmer's family. Egan stated that he interpreted
Fulmer's use of the term "silver bullets" as a death threat.
Egan testified that he found the message "chilling" and "scary,"
and that he was "shocked, couldn't believe he would do it."
Trial Transcript, vol. 2, at 97. In response to the question,
"Did you do anything different in going home that night than you
ordinarily did," Egan responded that he "[t]ook some comfort out
of the fact that I could hear an extra magazine. There was an
extra magazine in my car, and I took some comfort out of the fact
that it was in there." Fulmer's trial counsel objected that the
statement was both non-responsive and should have been excluded
under Federal Rule of Evidence 403. The district court overruled
the objection, and Egan continued to testify:
Q. Special Agent Egan, what do you mean
there was an extra magazine in your car?
A. Magazine is for . . . my semiautomatic
pistol, held an extra 18 rounds.
Q. A magazine is something that holds an
extra 18 rounds of ammunition --
A. Yes.
Q. -- that was in your car that night after
you heard the message?
A. I could hear it rattling. It was in the
glove box.
-29-
Id. at 98. ___
On appeal, Fulmer raises three arguments regarding this
testimony. First, he claims that such reaction evidence is not
relevant to determining whether, under an objective standard,
Fulmer made a threat. Second, Fulmer objects to portions of
Egan's testimony in which he interpreted each portion of the
message. Third, Fulmer claims that even if it were relevant, the
reaction evidence was unfairly prejudicial.
Those circuits that have considered the issue have
found evidence of the recipient's reactions to the alleged threat
relevant to the determination of whether the statement is a "true
threat." See Malik, 16 F.3d at 49 ("In making this ___ _____
determination, proof of the effect of the alleged threat upon the
addressee is highly relevant."); United States v. Roberts, 915 _____________ _______
F.2d 889, 890-91 (4th Cir. 1990) (noting that evidence of
recipient's state of mind and actions taken in response are
relevant to determination of true threat); Schneider, 910 F.2d _________
at 1571 ("The fact that the victim acts as if he believed the
threat is evidence that he did believe it, and the fact that he
believed it is evidence that it could be believed and therefore
that it is a threat. By this chain of inference, the relevance
of the [recipient's] testimony is established."); Orozco- _______
Santillan, 903 F.2d at 1265 ("Alleged threats should be _________
considered in light of their entire factual context, including
the surrounding events and reaction of the listeners."); United ______
States v. Davis, 876 F.2d 71, 72 (9th Cir. 1989) ("A recipient's ______ _____
-30-
state of mind, as well as his actions taken in response to the
letter, are highly relevant in establishing . . . whether the
letter could reasonably be read as containing a threat of
injury."); Maisonet, 484 F.2d at 1358 ("Whether a letter that is ________
susceptible of more than one meaning -- one of which is a threat
of physical injury -- constitutes a threat must be determined in
the light of the context in which it was written.").
Moreover, in the context of an attempted extortion
case, we have held the recipient's reactions to a threat to be
relevant and admissible. United States v. Goodoak, 836 F.2d 708, _____________ _______
712 (1st Cir. 1988). We determined that the "state-of-mind
evidence will be most relevant to th[e] question [of whether
there was an attempt to frighten] where the defendant knew or
reasonably should have known that his actions would produce such
a state of mind in the victim." Id. Thus, even when, in the ___
extortion context, we have employed the legal standard advocated
by Fulmer -- determining a "true threat" from the perspective of
the person who makes the statement -- we have found that evidence
of the effect of the threat upon its listener is relevant to what
a reasonable person in the position of the speaker should have
foreseen. Therefore, although the proper standard is what a
person making the statement should have reasonably foreseen, we
find that evidence of the recipient's reactions is relevant to
that inquiry. Because Egan's interpretation of the message
provided the basis for his reactions thereto, it is also relevant
-31-
under the same analysis as his reaction and was properly
admitted.
Fulmer further contends that, even if Egan's reaction
is relevant, its relevance was substantially outweighed by its
prejudicial impact and it should have been excluded. It is well
established that "[i]f the evidence brings unwanted baggage, say,
unfair prejudice or a cognizable risk of confusing the jury, and
if the baggage's weight substantially overbalances any probative
value, then the evidence must be excluded." United States v. _____________
Rodr guez-Estrada, 877 F.2d 153, 155 (1st Cir. 1989). We _________________
recognize that all evidence mustered by the government is meant
to prejudice the defendant. Rule 403 is meant only to exclude
that evidence that poses a danger of unfair prejudice. United ______ ______
States v. Wood, 982 F.2d 1, 4 (1st Cir. 1992). ______ ____
The actual recipient's reaction to the statement shows
that the recipient did perceive the message as a threat. This
reaction is probative of whether one who makes such a statement
might reasonably foresee that such a statement would be taken as
a threat. On the other side of the equation, any prejudice, let
alone unfair prejudice, did not substantially outweigh the
probative value of much of the proffered evidence. Egan's
reaction to and interpretation of the message did not infect the
proceedings with unfair prejudice.
The weighing of Egan's testimony regarding the extra
magazine of ammunition "rattling" around in his glove
compartment, however, is a closer call. Although this evidence
-32-
may have been probative of Egan's reaction to receiving Fulmer's
message, and may have indicated the extent of Egan's fear, there
is a risk that it may also have aroused an emotional or biased
response in the jury that may have confused the issues in the
case. This risk was increased by the government's
mischaracterization of Egan's testimony in its closing, when it
erroneously stated that Egan made sure to take home an extra
eighteen rounds of ammunition the night he received the message.
Finally, the prejudicial effect of this testimony is compounded
when we view it in light of the contested evidence discussed in
sections I.A and I.B. We find that its use could have evoked an
emotional response in the jury, and that this likely prejudicial
effect substantially outweighed any probative value. We find the
district court abused its discretion by admitting evidence as to
the ammunition carried by Egan on the night he received the
threat.
D. Admission of discussion between Egan and his D. Admission of discussion between Egan and his
supervisor supervisor
Fulmer next contests the introduction of testimony from
both Egan and his supervisor, Schlabach, regarding a conversation
that took place between them the morning after Egan received the
message. Egan testified that he played the tape for Schlabach,
and told Schlabach that he thought the message was a threat and
intended to bring it to the attention of the United States
Attorney.
Schlabach testified that Egan said that he considered
the message a threat, particularly the statement "[t]he silver
-33-
bullets are coming for you."5 Schlabach stated that Egan was
"clearly upset, concerned, agitated. His motions were somewhat
exaggerated. Typical reaction you would see under those
circumstances." Trial Transcript, vol. 2, at 130. Schlabach
indicated that Egan intended to discuss the message with the
United States Attorney's office and with a squad in the FBI unit
responsible for investigating threatening matters.
In a pre-trial conference, the district court ruled
that these statements were admissible as either statements of
present sense impression or of then-existing state of mind. See ___
Fed. R. Evid. 803(1), 803(3). Fulmer argues that the district
court misinterpreted and/or misapplied these two hearsay
exceptions. He further argues that the introduction of this
testimony was grossly prejudicial because it emphasized Egan's
conclusion on the ultimate issue, that the statement was a
threat, and should have been excluded on those grounds.
We have already noted that a victim's reactions and
actions taken in response to an alleged threat are relevant to
the determination of whether a statement is a "true threat." See ___
supra section I.C. The statements made by Egan in the context of _____
this conversation are not offered for the truth of the matter
asserted, that the statements were a threat and that Egan would
bring the message to the attention of the United States
Attorney's office. Rather, Egan's statements relate to the
____________________
5 The actual statement in the message was "[t]he silver bullets
are coming."
-34-
nature and extent of the impact of Fulmer's statement upon Egan.
They, thus, are not hearsay.
Regarding Schlabach's testimony, we find that his
testimony as to Egan's statements are cumulative and that his
comments regarding Egan's demeanor during the course of this
conversation were not hearsay at all. The district court did not
err in admitting this evidence.
E. Admission of bad character evidence E. Admission of bad character evidence
Egan testified at trial that, at their first meeting,
Fulmer indicated that Boschetti and David Fulmer "had used the
courts against him, . . . to keep him away from the family."
Trial Transcript, vol. 2, at 59-60. Egan also testified that
Fulmer told Egan that he had been restrained from seeing his
family by the court. Id. at 108-09. Egan further testified that ___
Boschetti informed him that Fulmer's allegations were "vengeance"
on Fulmer's part. Id. at 77. Egan stated that David Fulmer told ___
Egan that "this is the last episode in a continuing series of
hard feelings between Kevan Fulmer and his family." Id. at 79. ___
Fulmer first contends that these statements were
hearsay. We agree with the district court's assessment that
these statements were not hearsay, but were offered to show the
context in which Fulmer's statement was made.
Fulmer also contends that introduction of both his own
statements and those of others violates Federal Rules of Evidence
-35-
404(b),6 because the acts mentioned had a tendency to show a
propensity toward bad acts, and Rule 403, because the prejudicial
effect of the evidence substantially outweighed its probative
value. Rule 404(b) is intended to "forbid judging a person on
the basis of innuendo arising from conduct [that] is irrelevant
to the charges for which he or she is presently standing trial,
i.e., against finding present guilt based on a 'bad character ____
profile.'" United States v. Cortijo-D az, 875 F.2d 13, 15 (1st _____________ ____________
Cir. 1989). We employ a two-pronged test to determine whether
evidence of a defendant's "other acts" is admissible.
First the evidence must overcome the
"absolute bar" of Fed. R. Evid. 404(b) by
being specially probative of an issue in the
case -- such as intent or knowledge --
without including bad character or propensity
as a necessary link in the inferential chain.
Probative value "must be considered in light
of the remoteness in time of the other act
and the degree of resemblance to the crime
charged." If the proffered evidence has
"special relevance," it is nonetheless
inadmissible if its probative value is
"substantially outweighed by the danger of,"
inter alia, "unfair prejudice, confusion of
the issues, or misleading the jury."
United States v. Frankhauser, 80 F.3d 641, 648-49 (1st Cir. 1996) _____________ ___________
(citations omitted).
____________________
6 Federal Rule of Evidence 404(b) provides:
Other crimes, wrongs, or acts. Evidence of
other crimes, wrongs or acts is not
admissible to prove the character of a person
in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, preparation, plan, knowledge,
identity, or absence of mistake or accident.
-36-
We find first that the evidence did have "special
relevance" to an issue in this case, namely, whether a person
making the statement should have reasonably foreseen that his
statement, viewed in light of the factual context in which it was
made, was a "true threat." Whether Fulmer's family relationship
was strained, whether he had been restrained from seeing his
family, whether he harbored ill feelings toward his former
father-in-law and brother -- all of these things are especially
relevant to understanding Fulmer's motivation in his pursuit of
sanctions against his former family and perhaps the extent of his
potential disappointment at the government's failure to prosecute
Boschetti and David Fulmer. We find that the district court did
not abuse its discretion in finding that this evidence fell
outside the prohibitions of Rule 404(b) because the evidence
could go both to Fulmer's possible motive and to his intent to
threaten Egan.
Under Rule 403, the district court is to exclude
evidence that creates unfair prejudice or a risk of confusing or
misleading the jury that substantially outweighs any probative
value. Id. at 649. Certainly evidence that Fulmer had engaged ___
in other acts that might show that he has a tendency to be
violent or vengeful are prejudicial. The question is whether
this prejudice is unfair. In a threats prosecution, the general
factual context in which the statement was made bears
significantly on whether an ambiguous statement could reasonably
be read as a threat. Given that the interaction between Fulmer
-37-
and Egan is related directly to Fulmer's relationship with his
family, indeed that their interaction arose from that
relationship, admitting evidence regarding the family
relationship was not likely to unfairly prejudice Fulmer and any
prejudice certainly did not substantially outweigh any probative
value.
The district court was careful to exclude other
evidence of Fulmer's prior acts as overly prejudicial. Given the
district court's careful weighing of the "other acts" evidence,
we find no abuse of discretion here.7
One nuance of Fulmer's argument remains. While Fulmer
concedes that the context of a statement is relevant to the
inquiry under the objective standard of a "true threat," he
contends that the evidence should focus exclusively on the
context of the statement itself and on the interaction between
the parties to the statement, here Fulmer and Egan. He maintains
that any evidence from sources other than Fulmer are not relevant
to the inquiry under the objective standard. We find that the
evidence of Fulmer's other acts from sources other than Fulmer so
closely mirrors statements from Fulmer to Egan that it is
cumulative of Fulmer's statements. We find that, if their
admission was error, that error could not have been anything
____________________
7 Fulmer argues that evidence that he had been arrested for or
even convicted of assault was improperly placed before the jury.
Fulmer fails to cite where in the transcript such evidence may be
found. Having reviewed the trial transcript as well as the trial
exhibits, we find no indication that such evidence was placed
before the jury.
-38-
other than harmless. United States v. Cudlitz, 72 F.3d 992, 999 _____________ _______
(1st Cir. 1996) ("Under the harmless error doctrine . . . we are
instructed to ask whether it is 'highly probable' that the error
did not 'contribute to the verdict.'" (citations omitted)).
F. Government's admission of newspapers that depicted F. Government's admission of newspapers that depicted
murders, shootings, and threats murders, shootings, and threats
On direct examination, Erika Liem, a paralegal in
defense counsel's office, testified that she had found only one
article in a search of both the Boston Globe and the New York
Times for 1995 in which the term "silver bullets" referred to
actual ammunition. She further testified that, in several of the
articles, "silver bullets" referred to a solution to a problem.
On cross-examination, the government asked Liem whether she had
found several articles, in which the phrase "silver bullets"
appeared, that depicted murders and shootings. She testified
that she had not found these articles, all of which were from
newspapers outside the Northeast and all but one of which were
published before 1995. The prosecutor then read a sentence from
one of the articles and asked Liem about other facts discussed in
the article. Each of the articles was admitted into evidence.
On redirect-examination, defense counsel introduced into evidence
the articles found in Liem's search.
On appeal, Fulmer contends that the government's use of
these articles was outside the scope of the use of the phrase
"silver bullets." The government responds that the evidence was
proper rebuttal to Fulmer's implication that the term typically
is used in a benign manner. We find that, because Fulmer opened
-39-
the door to introducing evidence from newspapers reports of the
different usages of the term "silver bullets," the court did not
abuse its discretion by allowing the government to provide
evidence from similar sources to rebut Fulmer's evidence.
CONCLUSION CONCLUSION
This appeal presents a variety of claims of error, most
of which concern difficult decisions made by the district court
that we are wary to reverse. We find, however, that three
evidentiary rulings by the district court were errors that cannot
be deemed harmless because of the unacceptable risk of unfair
prejudice they created. Specifically, we find that the district
court erred in admitting into evidence: actual bullets;
testimony regarding ammunition in Egan's car on the night he
received the alleged threat; and testimony regarding the Oklahoma
City bombing. Therefore, Fulmer's conviction is vacated and the vacated _______
case remanded for further proceedings consistent with the remanded ________
discussion in this opinion.
-40-
United States v. Fulmer, (1st Cir. 1997).
United States v. Fulmer (United States v. Fulmer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
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