832 F.2d 229 (1st Cir. 1987), 86-1993, United States v. Ingraham

Docket Nº:86-1993.
Citation:832 F.2d 229
Party Name:UNITED STATES of America, Appellee, v. Robert Christopher INGRAHAM a/k/a Arthur Robert MacKeil, Defendant, Appellant.
Case Date:October 29, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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832 F.2d 229 (1st Cir. 1987)

UNITED STATES of America, Appellee,

v.

Robert Christopher INGRAHAM a/k/a Arthur Robert MacKeil,

Defendant, Appellant.

No. 86-1993.

United States Court of Appeals, First Circuit

October 29, 1987

Argued July 28, 1987.

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A. Clayton Spencer with whom Janis M. Berry, by Appointment of the Court, and Ropes & Gray, Boston, Mass., were on brief for appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., and James L. McCarthy, Asst. U.S. Atty., were on brief for appellee.

Before CAMPBELL, Chief Judge, NOONAN [*] and SELYA, Circuit Judges.

SELYA, Circuit Judge.

It has been written that, "when Fortune means to men most good, she looks upon them with a threat'ning eye." W. Shakespeare, King John, Act III (1597). Whether or not the casting of black glances comprises an auspicious augury, giving voice to the menace may catalyze 18 U.S.C. Sec. 875(c), a federal criminal statute which makes it a crime to transmit "in interstate commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." And therein lies the rub.

I. BACKGROUND

Defendant-appellant Robert Christopher Ingraham was convicted by a jury in the United States District Court for the District of Maine for transgressing the mandate of Sec. 875(c). Ingraham asks us to overturn the judgment. Inasmuch as his appeal challenges the sufficiency of the government's proof, we present the facts in the light most favorable to the prosecution, drawing all reasonable inferences supportive of the government's position. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Cintolo, 818 F.2d 980, 983 (1st Cir.1987); United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981).

On October 30, 1985, Glenn Adams, a reporter in the Augusta, Maine office of the Associated Press (A.P.), answered the telephone. The anonymous caller, who we will refer to for the time being as "X", identified himself as representing the American Revolutionary Democratic Front (Front), an organization of which nothing was known. Adams described the voice as being that of a youthful male bereft of any discernible accent. X proceeded to threaten the lives of a prominent foursome: Governor Joseph Brennan; James Tierney, Maine's attorney general; United States Senator George Mitchell; United States District Judge Gene Carter. The disembodied voice indicated that these officials would be killed unless Governor Brennan ordered the arrest of some of the defendants in what was described as an "an on-again, off-again" lawsuit brought by "a person by the name of Ingraham." The reporter was told that the suit stemmed from the harassment of "a person named MacKeil or MacTeil" by a Penobscot County plenipotentiary, and that money was needed to continue it. X stated that he had made similar calls to newspapers such as the Boston Globe and the New York Times, and to a major television network. Although X refused to divulge his identity, he

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did reveal that he was calling from New York.

An investigation ensued. Ingraham, born Arthur Robert MacKeil, was subsequently indicted and charged with making the threatening call. Ingraham was a young man who spoke with no particular inflection. Since 1979, he had carried on a running dispute with the University of Maine, prescinding in part from measures taken by the school following appellant's repeated trespasses at the Orono campus. Believing that the university had violated his civil rights, Ingraham filed a series of suits against university officials in both state and federal courts. While this legal donnybrook was in full swing, appellant sent some thirty letters to public officials. Virtually all of them made reference to the suits which Ingraham had initiated. Many--but not all--contained threats of violence, overt or veiled. At least one, sent to Tierney, specifically threatened Brennan, Mitchell, and Carter. The missives were posted on various dates between 1980 and 1985, and a number of them demanded payment of huge sums of money in settlement of Ingraham's litigation.

At trial on the instant indictment, Ingraham's letters were admitted as evidence, as was testimony concerning two anonymous telephone calls made on October 1, 1985 to news outlets in Boston, Massachusetts: one to a journalist at the A.P. office there, and the other to an anchorman at Channel 5, the Boston affiliate of a major television network. The government also introduced statements made by Ingraham at his bail hearing. While the defendant stipulated that he had authored the letters, he offered no comparable stipulation as to the October 1 calls. On the basis of this and other evidence, the jury returned a guilty verdict.

Ingraham's counsel have spared no effort in their vigorous attack upon this verdict. The principal challenge is to the evidentiary rulings made below. Appellant theorizes that certain evidence--the letters, the early October calls, and the bail hearing statements--should have been excluded by the district court. As the defense sees things, once this improper material is dropped by the wayside, the evidence which remains is insufficient to support a finding of guilt. We disagree both with the exclusionary premise and with the exculpatory conclusion.

II. THE PRECURSORY COMMUNICATIONS

Under Fed.R.Evid. 404(b), 1 extrinsic offense evidence, though inadmissible to show an individual's (evil) proclivities, may properly be used at trial if it has some special relevance in establishing a disputed material issue (such as "identity" in this case), provided that its probative value is not overbalanced by the danger of unfair prejudice to the defendant. United States v. Lau, 828 F.2d 871, 874 (1st Cir.1987); United States v. Gonzalez-Sanchez, 825 F.2d 572, 579 (1st Cir.1987). The latter segment of the test is to be conducted in light of the considerations undergirding Fed.R.Evid. 403, 2 and is committed to the trial court's sound discretion.

Other acts may have special relevance anent an issue like identity, for instance, if they are methodologically so reminiscent of the charged crime as to earmark them as the defendant's handiwork. United States v. Pisari, 636 F.2d 855, 858 (1st Cir.1981). Because of the emphasis on special (identifying) characteristics and distinctive touches, we have said that, for a practice to be attributable to the accused, it must contain what amounts to his "signature." Id.

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But the required signature need be but a fair congener, not a facsimile or exact replica. See United States v. Scelzo, 810 F.2d 2, 5 (1st Cir.1987) (requirement is that the evidence "must have a similarity sufficient to be probative"); United States v. O'Brien, 618 F.2d 1234, 1238 (7th Cir.1980) ("similar [wrongful] acts need not be duplicates"). In the last analysis, the court must make a reasoned determination as to "whether the characteristics relied upon are sufficiently idiosyncratic to permit an inference of pattern for purposes of proof." Pisari, 636 F.2d at 859 (quoting 3 Weinstein's Evidence at 404-92 to -94 (1978)).

The appellant, it will be recalled, stipulated that he had authored the thirty letters. He nevertheless contests the propriety of their introduction into evidence, branding them as so far afield as to fall beyond the reach of Fed.R.Evid. 404(b). He contends, as well, that mention of the two anonymous telephone calls made on October 1, 1985 was improperly allowed at trial. Ingraham denies that any of these pieces of evidence have "special relevance" within the ambit of Rule 404(b). And, he makes a fallback argument; if and to the extent the first prong of the rule has been satisfied, his imprecation runs, the evidence remains inadmissible because its probative value is greatly outweighed by the combined dangers of unfair prejudice and jury confusion. Inasmuch as the letters and the October 1 telephone calls have somewhat different nuances, we will consider them separately.

A. The Letters. Appellant asserts that the letters are entirely dissimilar from the menacing October 30 call which comprised the centerpiece of his indictment. He points out that the modi operandi (mail versus telecommunications) were completely different, and that the content of the letters, on the one hand, and the content of X's call, on the second hand, varied so substantially that they could not be found to bear the common signature which Rule 404(b) requires.

Broadly defined, letter writing and telephone talk are both means of communication, expression, and petition. To be sure, the former involves a different method of outreach than the latter, but that difference, standing alone, is not dispositive. In Rule 404(b) parlance, similarity can be defined on various levels. If the law required that, as a condition of admissibility, one act be a carbon copy of another, then the rule would be robbed of all vitality. Like an exercise in tracking heredity, an exact match is not necessary; if there is a sufficiently striking family resemblance, the fact that a feature here or a mark there may vary is not enough to destroy the requisite degree of probability. In this case, contrasting the written communiques to the charged call yields numerous substantial and distinctive points of agreement which, in our view, are more than ample to constitute the requisite signature notwithstanding the deviant modes of communication.

First of all, the subject of both the letters and of X's call was Ingraham's litigation against the University of Maine, a topic which a jury could easily infer was of extremely limited interest to the public at large. Indeed, the subject strays so far from the beaten path that the...

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