U.S. v. Fulmer

• Citation: 108 F.3d 1486
• Decision Date: 07 October 1996
• Docket Number: No. 96-1331,96-1331
• Parties: 46 Fed. R. Evid. Serv. 411 UNITED STATES, Appellee, v. Kevan FULMER, Defendant--Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1486

108 F.3d 1486

46 Fed. R. Evid. Serv. 411

UNITED STATES, Appellee, v. Kevan FULMER, Defendant--Appellant.

No. 96-1331.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 1996.

Decided March 28, 1997.

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.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

On April 28, 1995, Defendant-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

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 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 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.:

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.

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 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

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)).

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 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 circuits by holding that the appropriate Fulmer contends that the statement was at most ambiguous and could not have been a "true threat." Fulmer cites United States v. Andjar, which states that

                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 other 1 federal threat statutes agree that 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 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

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