US v. Trenkler
Case Date: 07/18/1995
Court: United States Court of Appeals
Docket No: 94-1301
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United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit ____________________ No. 94-1301 UNITED STATES, Appellee, v. ALFRED TRENKLER, Defendant - Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Coffin, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ Morris M. Goldings with whom Amy J. Axelrod, R. David Beck, and ___________________ ______________ ______________ Mahoney, Hawkes & Goldings were on brief for appellant. __________________________ Paul V. Kelly, Assistant United States Attorney, with whom Frank ______________ _____ A. Libby, Jr., Assistant United States Attorney and Donald K. Stern, _____________ ________________ United States Attorney, were on brief for appellee. ____________________ July 18, 1995 ____________________ STAHL, Circuit Judge. Following a lengthy criminal STAHL, Circuit Judge. _____________ trial, a jury convicted defendant Alfred Trenkler of various charges stemming from a bomb explosion in Roslindale, Massachusetts ("the Roslindale bomb"). On appeal, Trenkler challenges the admission of evidence relating to his participation in a prior bombing that occurred five years earlier in Quincy, Massachusetts ("the Quincy bomb"). Trenkler also assigns error to two evidentiary rulings admitting evidence derived from a computer database that purported to establish that Trenkler built both the Quincy and the Roslindale bombs and several out-of-court statements made by a fellow participant in the bombing. After careful review, we affirm. I. I. __ Background Background __________ On October 28, 1991, a bomb exploded at the Roslindale home of Thomas L. Shay ("Shay Sr."), killing one Boston police officer and severely injuring another. The two officers, members of the Boston Police Department Bomb Squad, had been dispatched to Shay Sr.'s home to investigate a suspicious object located in Shay Sr.'s driveway. Shay Sr. had earlier reported that, while backing his 1986 Buick Century into the street the day before, he had heard a loud noise emanating from beneath the floorboard of his -2- 2 automobile. Shay Sr. added that, subsequently, he found the suspicious object resting near the crest of his driveway. Following the explosion, a massive investigation ensued involving a variety of federal, state and local law- enforcement agencies. On June 24, 1993, this investigation culminated with the return of a three-count indictment charging Trenkler and Thomas A. Shay ("Shay Jr."), Shay Sr.'s son, with responsibility for the Roslindale bombing.1 Trenkler filed a successful severance motion, and the government tried the two defendants separately. Shay Jr. was tried first, and a jury convicted him on counts of conspiracy and malicious destruction of property by means of explosives.2 At Trenkler's trial, the thrust of the government's case was that Trenkler had built the Roslindale bomb for Shay Jr. to use against his father. To establish Trenkler's identity as the builder of the bomb, the government offered, inter alia, evidence that Trenkler had previously constructed _____ ____ ____________________ 1. The June 24, 1993, indictment specifically charged Trenkler and Shay Jr. with conspiracy, 18 U.S.C. 371; receipt of explosive materials with knowledge and intent that they would be used to kill, injure and intimidate, and cause damage to real and personal property, 18 U.S.C. 844(d); and malicious destruction of property by means of explosives; 18 U.S.C. 844(i). The indictment superseded a five-count indictment initially returned against Trenkler and Shay Jr. on December 16, 1992. 2. The district court sentenced Shay Jr. to concurrent sentences of 188 and 60 months. -3- 3 a remote-control device, the Quincy bomb, which exploded in Quincy, Massachusetts, in 1986. The government contended that unique similarities in design, choice of components, and overall modus operandi between the two bombs compelled the _____ ________ conclusion that Trenkler had designed and built both devices. Prior to trial, the government filed a motion in limine __ ______ seeking to admit the "similarity" evidence. Following a day- long evidentiary hearing, the district court ruled the evidence admissible, finding that it was relevant on the issues of identity, skill, knowledge, and intent. Although Trenkler did not testify at trial, his counsel stipulated at the evidentiary hearing that Trenkler had built the Quincy bomb.3 1986 Quincy Bomb 1986 Quincy Bomb ________________ Trenkler constructed the Quincy bomb in 1986 for a friend, Donna Shea. At the time, Shea was involved in a dispute with the owners of the Capeway Fish Market and she wanted the bomb to use as a means to intimidate them. At her request, Trenkler assembled a remote-control, radio-activated explosive device. The device was later attached to the undercarriage of a truck belonging to the Capeway Fish Market ____________________ 3. During the original 1986 investigation of the Quincy bombing, Trenkler admitted building the bomb. In 1987, the Commonwealth of Massachusetts brought charges against Trenkler for his involvement in the Quincy bombing, but the charges were dismissed. -4- 4 and detonated in the middle of the night. The resulting bomb blast caused no injuries and little property damage. In building the Quincy bomb, Trenkler used as the explosive material a military flash simulator typically utilized to mimic gunfire in combat exercises. To provide remote-control capabilities, Trenkler employed a radio- receiver he had removed from a small toy car. Trenkler wrapped the bomb in duct tape and attached a large donut- shaped speaker magnet to enable the bomb to adhere to the undercarriage of the truck. Other components Trenkler used included a "double throw" toggle switch, four AA batteries, two six-volt batteries, an electric relay, solder, various wires, and a slide switch. Testimony at trial established that Trenkler purchased some of the electrical components for the Quincy bomb from a Radio Shack store. On one occasion, Trenkler sought to obtain needed components by sending Shea's eleven- year-old nephew into a Radio Shack store with a list of items to purchase while Trenkler remained waiting outside. Shea's nephew, however, was unable to find all of the items, and Trenkler eventually came into the store to assist him. 1991 Roslindale Bomb 1991 Roslindale Bomb ____________________ The government contended that Trenkler built the Roslindale bomb at Shay Jr.'s request. At trial, the government offered evidence about Trenkler's relationship -5- 5 with Shay Jr., dating back at least two years prior to the Roslindale bombing. Several witnesses, including Trenkler's business partner, reported seeing the two together on different occasions in 1990 and 1991. Shay Jr.'s address book included an entry for Trenkler listing his current pager number. Moreover, Trenkler's roommate at the time of the Roslindale bombing testified that, during September and October of 1991, Shay Jr. left several voice-mail messages on the pager for Trenkler. Testimony from government investigators and Shay Sr. established that the Roslindale bomb was a remote- control, radio-activated device with an explosive force supplied by two or three sticks of dynamite connected to two electrical blasting caps. A black wooden box weighing two or three pounds and measuring approximately eight- to ten-inches long, five- to six-inches wide and one- to two-inches deep housed the bomb. A large donut-shaped magnet and several smaller round magnets attached to the box were used to secure the device to the underside of Shay Sr.'s automobile. Other components used in the construction of the bomb included duct tape, a "single throw" toggle switch, four AA batteries, five nine-volt batteries, a Futaba radio receiver, solder, various wires, and a slide switch. According to the government's experts and Shay Sr., the bomb was originally attached to the undercarriage of Shay -6- 6 Sr.'s automobile directly beneath the driver's seat. The government's explosives expert testified that if the bomb had exploded while still attached to the car, it probably would have killed or at least seriously injured any individual sitting in the driver's seat. The government also asserted that Trenkler used Shay Jr. to purchase the electronic components used in the bomb. In support of this assertion, the government introduced a sales receipt for a toggle switch purchased in October 1991 at a Radio Shack store located across the street from where Trenkler, at the time, was installing a satellite dish.4 Agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") recovered from the debris of the Roslindale bomb a switch identical to the one purchased. Shay Jr. admitted purchasing the switch during a taped television interview, portions of which the government introduced at trial.5 Furthermore, a sales clerk at the Radio Shack testified that, prior to purchasing the switch, the person ____________________ 4. Trenkler has an extensive background in electronics. At the time of the Roslindale bomb, he operated his own business installing satellite dishes and other electronic equipment. 5. The Radio Shack sales receipt has the letters "sahy jyt" printed in a space for the customer's address and lists the customer's "ID" number (the last four digits of the customer's phone number) as "3780." The government maintains that this corroborates Shay Jr.'s statement that he purchased components for the bomb because "sahy" is a transposition of "Shay" and "3780" is a transposition of "7380," the last four digits of Shay Sr.'s phone number. -7- 7 who bought it had browsed in the store for several minutes, appearing to shop for items written on a list. The sales clerk also testified that he recalled seeing Trenkler in the store on two or three occasions during the fall of 1991. Both the government and Trenkler elicited testimony from their respective explosives experts explaining the similarities and differences between the two bombs. Both experts testified at length concerning the electronic designs, the choice of components and the method of construction. The government's expert opined that the two incidents shared many similar traits and characteristics, evincing the "signature" of a single bomb maker. He further stated that he had no doubt "whatsoever" that the same person built both bombs. Trenkler's expert, on the other hand, stated that too many dissimilarities existed to conclude that the same person built both bombs. Moreover, Trenkler's expert testified that the similarities that existed lacked sufficient distinguishing qualities to identify the two bombs as the handiwork of a specific individual. EXIS Computer Database Evidence EXIS Computer Database Evidence _______________________________ To support the inference that Trenkler built both bombs, the government offered testimony both at the pretrial hearing and at trial concerning information retrieved from an ATF computer database of explosives and arson incidents. Stephen Scheid, an Intelligence Research Specialist with ATF, -8- 8 testified that the database, known as EXIS, contains information taken from reports submitted to ATF by various federal, state and local law-enforcement agencies. Scheid further testified that he had been personally responsible for maintaining the database since 1977. Scheid stated that he reviews submitted incident reports, culling from them information describing the characteristics of each bombing or arson episode. Scheid added that he then encodes the extracted information on a standardized worksheet, which he or a data-entry person in turn uses to enter the information into the database. Scheid testified that, through the use of a computer program, he then produces investigatory leads by retrieving all incidents entered in the database that are listed as possessing a specific component or characteristic. Scheid further testified that, in an effort to identify the builder of the Roslindale bomb, he performed a series of computer queries, focusing on characteristics of the Roslindale bomb. This series of inquiries narrowed the field of reported incidents in the database from 40,867 to seven.6 ____________________ 6. The computer queries and the total number of resulting incidents are listed below. The queries are successive. All incidents in database - 40,867 Bombings and attempted bombings - 14,252 Involving cars and trucks - 2,504 -9- 9 The seven remaining incidents included both the Roslindale and Quincy bombs. Scheid stated that he subsequently conducted a manual analysis of the remaining incidents and was able to identify several additional characteristics common to only the Roslindale and Quincy bombs.7 Scheid also testified that the report of the Quincy bomb did not come to his attention through normal procedures. Scheid did not receive information about the 1986 Quincy bomb, nor enter any information pertaining to it into the EXIS database, until after the Roslindale incident in 1991.8 Other Trial Evidence Other Trial Evidence ____________________ The government also offered the testimony of David Lindholm to establish that Trenkler had built the Roslindale bomb. Lindholm testified that he met Trenkler at the ____________________ Under vehicles - 428 Remote-control - 19 Using magnets - 7 7. Scheid testified that, of the seven remaining incidents, only the Roslindale and the Quincy bomb were reported as possessing all of the additional features: duct tape, soldering, AA batteries, toggle switches, and "round" magnets. 8. Scheid testified that, in entering information about the Quincy bombing into the EXIS database, he relied solely on a laboratory report prepared in 1986 by investigators from the Massachusetts Department of Public Safety. This report, however, does not state that the Quincy bomb was attached to the underside of the Capeway truck. It only refers to the bomb as an "[e]xplosion on truck." Nevertheless, Scheid used "under vehicle" as one of the computer queries that matched the Quincy and Roslindale bombings. -10- 10 Plymouth House of Correction where they had spent four days incarcerated together in an uncomfortable orientation holding cell in December 1992. Lindholm testified that initially the cell had held about forty-four prisoners, but that eventually the total number of prisoners in the cell dwindled to six or seven. Lindholm added that he had numerous conversations with Trenkler over the course of the four days as they gradually "bonded" upon discovering that they came from the same home town and had similar backgrounds. Lindholm testified that he gave Trenkler legal advice based on his own experience as a criminal defendant. Lindholm acknowledged that Trenkler initially asserted his innocence and had maintained that he could not understand why Shay Jr. had implicated him in the case. Lindholm testified further that Trenkler later told him that the government knew that some of the components used in the Roslindale bomb had been purchased locally and that, in response, Lindholm opined that the bomber had been careless not to have gone out of state. To this, Trenkler agreed and then stated that the local purchase was "regrettable." In addition, Lindholm recalled that at one point during the four days they discussed Trenkler's involvement with the 1986 Quincy bomb. Lindholm testified that, during this discussion, Trenkler asserted that the Roslindale bomb was much more powerful than the bomb he had built in 1986. -11- 11 Ultimately, Lindholm stated that Trenkler admitted building the Roslindale bomb, testifying that: [Lindholm:] At one point he stated, ["W]ell, even if I did build a bomb, I did not place it on the car.["] [Government:] What happened next? [Lindholm:] Then he paused for a moment and said, ["S]o, I built the bomb. I built the bomb. I don't deserve to die or spend the rest of my life in prison for building this device.["] Lindholm added further that Trenkler "stated that the two bomb squad officers were foolish and negligent for not wearing body armor at the time that they were examining this device, and in essence that it served them right for what happened to them. It wasn't his fault." At the time of trial, Lindholm was serving sentences stemming from convictions on federal drug and tax evasion charges. Lindholm testified that he had not received nor discussed receiving anything from the government in return for his testimony. On cross examination, Trenkler's counsel made only a minimal effort to impeach Lindholm, raising matters unrelated to his testimony implicating Trenkler. Primarily Trenkler's counsel attempted to challenge Lindholm's assertion that, as a small boy, he had at one time lived on the same street as Trenkler and to show that Lindholm was at the Plymouth House of Correction in December 1992 in order to provide information to the -12- 12 government on other individuals with whom he had been involved in past criminal activities. In addition to Lindholm's testimony, ATF Agents Dennis Leahy and Thomas D'Ambrosio recounted a November 6, 1991, interview they conducted with Trenkler shortly after the bombing. During this interview, Trenkler admitted building the Quincy bomb and sketched a circuit diagram describing it. After making the sketch, Agent D'Ambrosio asked Trenkler how the diagram would differ if Trenkler had used dynamite like that utilized in the Roslindale incident. Both agents testified that, in response to this question, Trenkler drew a second diagram, which featured two sticks of dynamite connected to two electrical blasting caps. Both agents added that they were surprised when they saw the diagram because the use of two electrical blasting caps was a distinctive feature of the Roslindale bomb that, at the time of the interview, had not been disclosed to the public.9 At trial, Leahy also related other conversations he had with Trenkler in which Trenkler conveyed a working knowledge of dynamite and electrical blasting caps. Leahy further testified about a statement Trenkler made to him at the ATF offices on February 4, 1992. Leahy ____________________ 9. Although the agents conducted the interview during a search of Trenkler's place of business (to which Trenkler had consented), neither agent attempted to keep the drawing and, consequently, it was not produced at trial. -13- 13 explained that Trenkler had come to the offices on his own accord to pick up previously-seized business records. Leahy stated that, during his visit, Trenkler engaged Leahy in a long discussion, lasting more than two hours, about the course of the investigation. According to Leahy's testimony, after Leahy had ended the discussion, Trenkler announced arrogantly upon leaving the ATF offices that "If we did it, then only we know about it. How will you ever find out . . . if neither one of us talk[]?" The jury returned a guilty verdict on all counts of the indictment. Subsequently, the district court sentenced Trenkler to concurrent terms of life imprisonment on the counts of receipt of explosive materials and attempted malicious destruction of property by means of explosives and sixty months on the count of conspiracy. Trenkler now appeals. II. II. ___ Discussion Discussion __________ On appeal, Trenkler assigns error to the admission of the Quincy bomb evidence, contending primarily that the incident was not sufficiently similar to the Roslindale bomb to be relevant on the issue of identity, and to the admission of the EXIS database-derived evidence that the government used to prove the similarity of the two bombs. Trenkler additionally argues that the district court erroneously -14- 14 admitted several out-of-court statements made by Shay Jr. We discuss each argument in turn.10 A. Quincy Bombing Evidence ___________________________ We begin with Trenkler's contention that the district court erred in admitting the evidence of the Quincy bombing. 1. Fed. R. Evid. 404(b): Other Act Evidence _____________________________________________ In general, Rule 404(b)11 proscribes the use of other bad-act evidence solely to establish that the defendant has a propensity towards criminal behavior. Rule 404(b)'s proscription, however, is not absolute: the rule permits the ____________________ 10. Trenkler also raises the issue of prosecutorial misconduct. Trenkler contends that counsel for the government intentionally made inflammatory remarks in the government's opening statement and introduced prohibited other-act evidence in contravention of representations previously made to the district court. We find no merit in these contentions. 11. Fed. R. Evid. 404(b) provides: (b) 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, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. -15- 15 use of such evidence if it bears on a material issue such as motive, knowledge or identity. In this Circuit, we have adopted a two-part test for determining the admissibility of Rule 404(b) evidence. E.g., United States v. Williams, 985 ____ _____________ ________ F.2d 634, 637 (1st Cir. 1993). First, the district court must determine whether the evidence has some "special relevance" independent of its tendency simply to show criminal propensity. E.g., United States v. Guyon, 27 F.3d ____ ______________ _____ 723, 728 (1st Cir. 1994). Second, if the evidence has "special relevance" on a material issue, the court must then carefully conduct a Rule 40312 analysis to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Williams, 985 ________ F.2d at 637. As with most evidentiary rulings, the district court has considerable leeway in determining whether to admit or exclude Rule 404(b) evidence. Accordingly, we review its decision only under the lens of abuse of discretion. Id.; ___ see also United States v. Fields, 871 F.2d 188, 196 (1st ___ ____ ______________ ______ Cir.), cert. denied, 493 U.S. 955 (1989). _____ ______ ____________________ 12. Fed. R. Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. -16- 16 2. Identity ____________ The government offered the evidence of the Quincy bomb, which Trenkler admitted building, primarily to prove that Trenkler also built the Roslindale bomb. The government contends that the evidence of the Quincy bomb has "special relevance" on the issue of identity because the numerous similarities surrounding the Quincy and Roslindale incidents compel the conclusion that the same individual built both bombs. Trenkler, on the other hand, argues that the Quincy incident is too dissimilar to be relevant on the issue of identity, and even if it has some relevance, the risk of unfair prejudice that it poses far outweighs its probative value. We agree with the government that the Quincy bomb evidence has "special relevance" on the issue of identity and that the district court did not abuse its considerable discretion in admitting it. a. Rule 404(b) Evidence: Special Relevance ____________________________________________ When, as in this case, Rule 404(b) evidence is offered because it has "special relevance" on the issue of identity, we have required, as a prerequisite to admission, a showing that there exists a high degree of similarity between the other act and the charged crime. See United States v. ___ ______________ Ingraham, 832 F.2d 229, 231-33 (1987), cert. denied, 486 U.S. ________ _____ ______ 1009 (1988). Indeed, the proponent must demonstrate that the two acts exhibit a commonality of distinguishing features -17- 17 sufficient to earmark them as the handiwork of the same individual. Id. at 231. This preliminary showing is ___ necessary because [a] defendant cannot be identified as the perpetrator of the charged act simply because he has at other times committed the same commonplace variety of criminal act except by reference to the forbidden inference of propensity. The question for the court[, therefore, must be] whether the characteristics relied upon are sufficiently idiosyncratic to permit ____________ _____________ an inference of pattern for purposes of proof. United States v. Pisari, 636 F.2d 855, 858-59 (1st Cir. 1981) _____________ ______ (internal quotations and citations omitted) (emphasis added). Resolving whether the prior act is sufficiently similar to the charged offense to have "special relevance" on the issue of identity, however, is essentially an issue of "preliminary" or "conditional" fact. In other words, the prior act has no tendency to prove the perpetrator's identity -- i.e., it is not relevant -- unless the proponent can first ____ establish the conditional fact: that the two acts are sufficiently idiosyncratic to support the inference that they are the handiwork of the same individual. The admissibility of evidence whose relevance turns on the resolution of a conditional fact is governed by Fed. R. Evid. 104(b). See ___ Huddleston v. United States, 485 U.S. 681, 689 (1988). Rule __________ _____________ 104(b) provides, "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit -18- 18 it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Fed. R. Evid. 104(b). Moreover, [i]n determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact . . . by a preponderance of the evidence. Huddleston, 485 U.S. at 690. Thus, as here, when a party __________ seeks to admit Rule 404(b) evidence to establish identity, the district court must condition its admission on a showing that the shared characteristics of the other act and the charged offense are sufficiently idiosyncratic that a reasonable jury could find it more likely than not that the same person performed them both.13 ____________________ 13. Huddleston involved the use of Rule 404(b) evidence to __________ prove knowledge in a case where the petitioner, charged with the knowing possession of stolen video tapes, claimed that he did not know the tapes were stolen. 485 U.S. at 683. In order to prove knowledge, the government introduced evidence of the petitioner's previous involvement in sales of allegedly stolen television sets. The Supreme Court rejected the petitioner's contention that, before admitting the evidence, the district court was required to make a preliminary finding that the government had proven that the television sets were in fact stolen. Id. at 687. ___ The Court stated that "Rule 404(b) . . . protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character. The text contains no intimation, however, that any preliminary showing is necessary before such evidence may be introduced for a proper purpose." Id. at 687-88. The Court continued, ___ -19- 19 Trenkler contends that the array of similarities between the two incidents amounts to no more than a collection of "prosaic commonalit[ies that] cannot give rise to an inference that the same person was involved in both acts without reference to propensity." United States v. _____________ Garcia-Rosa, 876 F.2d 209, 225 (1st Cir. 1989), cert. denied, ___________ _____ ______ 493 U.S. 1030, cert. granted and vacated on other grounds sub _____ _______ ___ _______ __ _____ _______ ___ nom., Rivera-Feliciano v. United States, 498 U.S. 954 (1990). ____ ________________ _____________ However, in resolving whether the evidence supports an inference that the two incidents are "sufficiently idiosyncratic," we have cautioned that "an exact match is not necessary." Ingraham, 832 F.2d at 232. The test must focus ________ on the "totality of the comparison," demanding not a "facsimile or exact replica" but rather the "`conjunction of ____________________ stating, "If offered for such a proper purpose, the evidence is subject only to general strictures limiting admissibility such as Rules 402 and 403." Id. at 688. ___ The Court then stated that evidence of the prior sales was relevant for the proper purpose of proving knowledge only if the jury could find the preliminary fact that the televisions were stolen. Id. at 689. Thus, the ___ Court held that Rule 104(b) controlled the admissibility of the evidence. Id. ___ Though the issue here arises in a slightly different context, we think that Huddleston provides the __________ appropriate framework for our analysis. Here, the government offered the Quincy bomb evidence for the proper Rule 404(b) purpose of identity. The relevance of the Quincy bomb on the issue of identity turns, however, on the factual question of whether the Roslindale and the Quincy bombings are sufficiently similar to earmark them as the handiwork of the same individual. This is analogous to whether the television sets in Huddleston were stolen, and, accordingly, Rule 104(b) __________ sets the framework for admissibility. -20- 20 several identifying characteristics or the presence of some __ highly distinctive quality.'" Id. at 232-33 (quoting Pisari, ___ ______ 636 F.2d at 859) (emphasis added); see also United States v. ___ ____ _____________ Myers, 550 F.2d 1036, 1045 (5th Cir. 1977) ("[A] number of _____ common features of lesser uniqueness, although insufficient to generate a strong inference of identity if considered separately, may be of significant probative value when considered together."). In this case, we think the balance of the evidence tilts sufficiently towards admission to satisfy the first step of the Rule 404(b) analysis. Accordingly, we believe that the district court did not abuse its discretion in determining that the numerous similarities in components, design, and technique of assembly, combined with the similar modus operandi and the closeness of _____ ________ geographic proximity between the two events, sufficiently support the inference that the same person built both bombs. We begin by noting that the government's explosives expert, Thomas Waskom, testified that his analysis of the similarities shared by the two incidents left him with no doubt "whatsoever" that the same individual built both bombs. Our own review of the record reveals that the two bombs did indeed share a number of similar components and characteristics. Both bombs were remote-controlled, radio- activated, electronic explosive devices. Both were homemade mechanisms, comprising, in general, electronic components -21- 21 easily purchased at a hobby store. Both had similar, though not identical, firing and fusing circuits with separate battery power supplies for each. Both had switches in their fusing circuits to disconnect the radio receivers. To energize their respective radio receivers, both devices utilized similar power supplies, consisting of four AA batteries. Both employed many similar components such as batteries, duct tape, toggle switches, radio receivers, antennas, solder, electrical tape, and large round speaker magnets. Moreover, both used a distinctive method (i.e., ____ twisting, soldering, and taping) to connect some, though not all, of the wires used.14 Though we hardly find any of these factors by themselves to be "highly distinctive," the coalescence of them is fairly persuasive.15 Indeed, even ____________________ 14. Though it is unclear from a close reading of the record just how many of the wires in each bomb employed this connection method, it is apparent that at least some did. More interestingly, we note that, before learning that both bombs had wires that were joined in this fashion, Trenkler's explosives expert stated that such a method is a "singularly unique method[] of assembly which individual bomb makers are very likely to repeat." 15. On the other hand, Trenkler argues that the differences between the two bombs are more significant. Some of the differences that Trenkler cites include: Roslindale Bomb Quincy Bomb Two or three sticks of Military flash simulator used dynamite rewrapped in a which produced only minor magazine page and electrical damage blasting caps which killed one officer and severely injured another -22- 22 Trenkler's expert witness, Denny Kline, testified at the pretrial hearing that, in light of these similarities, "there is a possibility, a probability, that maybe there is a ___________ _____ __ _ connection between the maker of these two bombs." (Emphasis __________ added.) Moreover, we note that, in refusing to conclude "beyond a reasonable doubt"16 that the same person built both bombs, Trenkler's expert Kline eschewed reliance on any factors except the physical evidence. The appropriate test for sufficient similarity, however, is not so limited. "[I]n assessing the sufficiency of the evidence under Rule 104(b), the trial court must consider all evidence presented to the ___ jury." Huddleston, 485 U.S. at 690-91 (emphasis added). __________ Accordingly, we believe some significance is properly attributed to the simple fact that both incidents ____________________ Futaba remote control system Radio receiver taken from toy which used a small electrical car servo motor "Single throw" toggle switch Relay allowed power to be sent used to send power to dynamite to explosives; "double throw" toggle switch used as safety Five nine-volt batteries Two six-volt batteries provided power to firing supplied power to firing system system Device was housed in a black Device was wrapped in silver wooden box duct tape 16. As the district court correctly noted in its ruling, the government is not required to establish "beyond a reasonable doubt" that the same person built the two bombs. See ___ Huddleston, 485 U.S. at 690. __________ -23- 23 are bombings. A bombing, in and of itself, is, arguably, a fairly distinctive method for intimidating or killing an individual. Cf. United States v. Patterson, 20 F.3d 809, 813 ___ _____________ _________ (10th Cir. 1994) (in a hijacking case, uniqueness of crime itself has significance in Rule 404(b) similarity analysis), cert. denied, 115 S. Ct. 128 (1994); Pisari, 636 F.2d at 858 _____ ______ ______ ("[M]uch more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive ___ ______ ____ ____ __ __ _______ ___ ___________ as to be like a signature." (quotations and citations __ __ __ ____ _ _________ omitted)). In addition, both incidents involved not simply bombs, but remote-control bombs that were placed underneath automotive vehicles. In both instances, the bombs were constructed and used to benefit a friend of the builder. Trenkler built the Quincy bomb for Donna Shea to use to intimidate the owners of the Capeway Fish Market, and the evidence supported the inference that the person who constructed the Roslindale bomb built it for Shay Jr. to use against his father. Furthermore, in both instances the builder attempted to conceal his or her participation by using a third party to purchase the electronic components used in the explosive device. In 1986, Trenkler initially waited in his car while sending Donna Shea's nephew into the electronics store with a list to purchase the needed components. Similarly, the -24- 24 evidence supports the inference that the builder of the Roslindale bomb used Shay Jr. to purchase the needed components. Finally, the fact that both bombings occurred within a relatively close geographic proximity must be given some weight in the analysis. In United States v. Pisari, 636 F.2d 855 (1st Cir. _____________ ______ 1981), we reversed the district court's decision to admit evidence of a prior robbery solely on the issue of identity, where the only similarity between it and the charged offense was that a knife was used. Similarly, in Garcia-Rosa, 876 ___________ F.2d at 224-25, we refused to sanction the admission of a prior drug transaction where the only characteristic linking it to the charged drug deal was the characteristic exchange of a sample of drugs prior to the sale. In Garcia-Rosa, we ___________ held that a single "prosaic commonality" was insufficient "to give rise to an inference that the same person was involved in both acts without reference to propensity." Id. at 225. ___ See also United States v. Benedetto, 571 F.2d 1246, 1259 (2d ___ ____ _____________ _________ Cir. 1978) (no signature where shared characteristic is merely "a similar technique for receiving the cash: the passing of folded bills by way of a handshake"). In the present case, however, the government presented more than a single "prosaic commonality." Indeed, the government propounded a laundry list of similarities in design, component selection, construction and overall modus _____ -25- 25 operandi. On the other hand, Trenkler offered a fairly ________ impressive list of differences between the two incidents. In the absence of one or more highly distinctive factors that in themselves point to idiosyncracy, we must examine the combination of all the factors. Had Trenkler been unable to point to any significant differences, we suspect he would have had little chance in establishing an abuse of discretion in allowing the evidence. Similarly, had the government found but three or four common characteristics to establish sufficient similarity, we doubt that the admission of the evidence would have been granted or sustained. Here, in the middle, with substantial evidence on either side and conflicting expert opinions, could a reasonable jury have found it more likely than not that the same person was responsible for both bombs? We think the answer is yes. See ___ Ingraham, 832 F.2d at 233 (admitting evidence)("[G]iven the ________ host of important comparables, the discrepancies -- though themselves not unimportant-- go to the weight of the challenged evidence, not to its admissibility.").17 ____________________ 17. As we explain infra in part II.A., we believe that the _____ district court erred in admitting the EXIS database evidence on the issue of idiosyncratic similarity. Our review of the record, however, convinces us that the EXIS evidence did not weigh significantly in the court's decision to admit the evidence of the Quincy bomb. Cf. Unit |