US v. Fulmer
Case Date: 03/28/1997
Court: United States Court of Appeals
Docket No: 96-1331
|
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 |