Tomkins v. United States
| Decision Date | 23 April 2018 |
| Docket Number | Case No. 16-cv-7073 |
| Parties | JOHN P. TOMKINS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner John P. Tomkins's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 [1]. Also before the Court are Petitioner's motion regarding supplemental authorities [16], motion for release on bond [5], motion for a status report [17], motion for an expedited ruling [18], and motion for the Court to take judicial notice [28]. The Court considered the additional authorities identified in Petitioner's motion regarding supplemental authorities [16] and motion for the Court to take judicial notice [28], and thus the motions [16; 28] are granted.1 For the reasons set forth below, the Court denies Petitioner's habeas corpus petition [1] and declines to issue a certificate of appealability. The Clerk is directed to enter judgment in favor of the United States. Petitioner's motion for release on bond [5], motion for a status report [17], and motion for an expedited ruling [18] are stricken as moot. Petitioner's motion [27] to strike the government's memorandum concerning Teague v. Lane is denied.
In 2009, a grand jury returned a thirteen-count superseding indictment charging Petitioner with mailing threatening communications in violation of 18 U.S.C. § 876(b) (Counts 1-10), unlawful possession of destructive devices in violation of 26 U.S.C § 5861(d) (Count 11-12), and using, carrying, and possessing a destructive device in in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii) (Count 13).
In 2005, Petitioner began sending threatening letter to targets, demanding that they purchase sufficient shares of certain stock he owned to drive up the price. Petitioner threatened that something "very tragic" would happen to the targets' loved ones if Petitioner's demands were not met. In 2007, Petitioner sent victims packages containing homemade devices that appeared to be pipe bombs with a letter that stated and warned "[t]he only reason you are still alive is because I did not attach one wire * * * There is enough gunpowder and steel shot in that tube to kill anyone in a ten foot radius when it goes off."
Investigators identified Petitioner as a suspect using purchasing records for the stocks referred to in his letters. Searches conducted on Petitioner's home and Petitioner's storage lockers revealed two additional pipe bombs, drafts of the threatening letters, bomb-making materials, information about the targets and their residences, and financial records related to the stocks mentioned in his threats.
As noted by the Seventh Circuit on direct appeal, the case was heavily litigated leading up to trial. United States v. Tomkins, 782 F.3d 338, 348 (7th Cir. 2016). One point of contention was Petitioner's effort to suppress evidence from the government's searches. The warrants obtained in connection with the searches failed to impose a time limit for the financial records tobe seized. Accordingly, the Court concluded that the seizure of a filing cabinet containing documents relating to Petitioner's role as treasurer of his local union exceeded the scope of the warrant. Still, the Court concluded that even though the warrants were deficient in some respects, this did not mean that the warrants were impermissible general warrants. The warrants and the attachments to the warrants contained detailed categories of evidence and were supported by thorough affidavits. Furthermore, the good-faith exception permitted seizure of the items Petitioner sought to exclude.
Petitioner also requested to represent himself. The Court granted that request and allowed Petitioner to proceed pro se, with stand-by counsel. However, the Court denied Petitioner's request for hybrid counsel.
Petitioner's trial began on April 23, 2012. In its case-in-chief—which took up the first week and a half of Petitioner's trial—the government presented the testimony of nearly 40 witnesses, including employees of the investment firms that received Petitioner's mailings and government investigators involved in identifying Petitioner. The government also introduced extensive physical evidence, including the threatening letters, handwriting samples, the draft letters and devices recovered from Petitioner's property, and photographs of the devices at issue. Finally, the government introduced the expert testimony of Raymond Voorhees and John Winslow, who testified as explosives experts, and Officer McGuire of the Chicago Police Bomb Squad.
Mr. Voorhees testified that the devices had components of improvised explosive devices. However, he could not be certain whether the devices would have exploded if the loose wires were attached, because the devices had been rendered safe by blasting them with a water cannon beforeMr. Voorhees examined the devices. He further testified that—in his opinion—the Chicago device was not functional without the wire attached.
Mr. Winslow testified that the devices would have functioned if the unattached wire had made contact with the positive terminal of the battery. He further testified that the devices also could have ignited due to physical shock, friction, heat, static electricity, and even possibly as a result of being handled improperly during shipping.
Like Mr. Voorhees, Officer McGuire also testified that the Chicago device was not functional without the wire attached. During his testimony, Officer McGuire mentioned that he had taken an x-ray of the Chicago device before the pipe had been broken open. When the government displayed a copy of the x-ray on a monitor in front of Officer McGuire, Petitioner objected that it was the first time he had seen the x-ray. The government admitted that the x-ray was not in the materials provided to Petitioner. The Court prohibited the government from introducing the x-ray in its case-in-chief. However, the Court warned Petitioner that the x-ray might come in as rebuttal evidence.
Before resting its case, the government moved to bar Petitioner from testifying about his subjective intent in creating his devices. The Court concluded that Petitioner's subjective intent was irrelevant for determining whether the devices constituted "destructive devices" in Petitioner's case. In reaching this conclusion, the Court relied upon United States v. David Johnson, 152 F.3d 618 (7th Cir. 1998), which held that subjective intent is irrelevant for determining whether something constitutes a "destructive device" when there is no legitimate social or commercial purpose for the device.
In his case, Petitioner introduced the testimony of three character witness before testifying himself. During his testimony, Petitioner admitted to creating and sending the threatening lettersand packages containing explosive materials, but testified that the devices were not designed to explode. Specifically, Petitioner claimed that "certain design features" in each device "made them nondestructive devices." Petitioner also testified that the unattached wire was fully insulated so that it could not connect with the battery and that he tested each device with a voltmeter "to make sure that no electricity was flowing through them." The government moved to introduce the x-ray to rebut Petitioner's claim that he separated the igniter from the gunpowder. The Court allowed the government to introduce the x-ray as rebuttal evidence.
After a jury found Petitioner guilty on all but one count, Petitioner moved for a mistrial, raising (among other arguments) the argument that the Court erred by allowing the government to introduce the x-ray that it failed to disclose as required by Rule 16, and the argument that the Court improperly instructed the jury based on David Johnson. The Court denied Petitioner's motions for a new trial.
The Court sentenced Petitioner to 37 years in prison, which included 7 years on Counts 1 through 6 and 8 through 12 (to run concurrently) and a 30 year mandatory minimum for using a destructive device in relation to a crime of violence. At sentencing, the Court noted "if I had discretion to do so, I might have imposed a shorter sentence [on Counts 1 through 6 and 8 through 12] in view of the mandatory sentence." [Tomkins, No. 07-cr-00227, Dkt. 450, at 44.]
On direct appeal, Petitioner argued that this Court erred by (1) barring Petitioner from arguing that the devices were meant as hoaxes, (2) admitting the x-ray that the government failed to turn over to defense before trial, and (3) refusing to suppress evidence from a search of his home and storage lockers.
With respect to Petitioner's argument that the devices were meant as hoaxes, Petitioner argued that he should have been allowed to introduce evidence regarding how he intended the devices to function. Petitioner argued evidence of his subjective intent was necessary to rebut testimony from the government's witnesses regarding how his devices were designed and intended to function. The Seventh Circuit concluded that this Court properly applied the holding of United States v. David Johnson, 152 F.3d 618 (7th Cir. 1998), which held that subjective intent is irrelevant for determining whether something constitutes a "destructive device" when there is no legitimate social or commercial purpose. Although the Seventh Circuit indicated that the jury instructions should not have asked the jury to determine whether Petitioner "intended" to create a bomb, the court concluded that this error was harmless because there was ample evidence to prove beyond a reasonable doubt that the devices were destructive devices.
With respect to Petitioner's argument that the district court erred in admitting the x-ray that the government failed to turn over before...
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