U.S. v. Gilbert, 98-1563
| Decision Date | 03 March 1999 |
| Docket Number | No. 98-1563,98-1563 |
| Citation | 181 F.3d 152 |
| Parties | (1st Cir. 1999) UNITED STATES, Appellee, v. KRISTEN GILBERT, Defendant, Appellant. Heard |
| Court | U.S. Court of Appeals — First Circuit |
Harry L. Miles, with whom Green, Miles, Lipton, White & Fitz-Gibbon, were on brief for appellant.
William M. Welch, II, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, were on brief for appellee.
Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.
Defendant-appellant Kristen Gilbert was charged in a single-count indictment with making a telephone bomb threat on September 26, 1996, to the Department of Veteran's Affairs Medical Center (VAMC) in Leeds, Massachusetts, in violation of 18 U.S.C. 844(e). Gilbert was found guilty by a jury and was sentenced to imprisonment for fifteen months and three years of supervised release. We affirm.
There are three issues for review: (1) Was there subject matter jurisdiction under the interstate commerce clause; (2) Did the district court commit reversible error in the exclusion and allowance of certain evidence; (3) Was the evidence sufficient under the reasonable doubt standard to sustain the jury's finding of guilt.
We state the facts as they could have been found by the jury.
Gilbert, a registered nurse, worked the 3:30 p.m. to midnight shift on Ward C, an acute medical ward at the VAMC. James Perrault was a VAMC police officer who worked the 3:00 p.m. to 11:00 p.m. shift at the medical center. In the summer of 1995 Gilbert and Perrault became friendly. The friendship blossomed into a full-blown affair in September and October of 1995. At the time Gilbert was married. In November, 1995, Gilbert filed for divorce against her husband, Glenn Gilbert, and moved out of their home.
In February, 1996, an investigation was launched at the VAMC because of some suspicious occurrences at the hospital. The investigation became an official criminal investigation in a few months. Gilbert was one of the targets of the investigation. Many employees at the VAMC were interviewed and grand jury subpoenas were served on some employees.
Gilbert was photographed and handwriting samples were taken from her. Gilbert was upset by the investigation and made her feelings known. She told her former husband (the divorce had become final) that he had the right not to speak to the investigators. After he had spoken to them anyway, she became angry and upset. She disparaged him to several people by belittling him and using epithets to denigrate him. Gilbert also expressed anger and resentment against those of her co-workers who cooperated with the investigation. She told a co-worker that "maybe they ought to investigate" Gilbert's nursing supervisor. Gilbert became upset and angry with some of her co-workers on the evening shift because they would not talk to a private investigator she had retained.
Gilbert talked about the investigation with Perrault. She told him that three nurses who worked in Ward C were responsible for starting the investigation and she "couldn't understand why they were trying to do this to me." Perrault suggested leaving the area, but Gilbert refused, saying she "wanted everybody here to see what they had done to ruin her life." Perrault tried to end their relationship in June of 1996, but she begged him not to do so. In late July, 1996, Gilbert told a friend of hers that if Perrault "dumped her, she probably would start stalking him." Perrault tried again in late August of 1996 to break his relationship with Gilbert. She became upset and blamed the investigation for this.
In September, 1996, Perrault told Gilbert of the day and time he had agreed to be interviewed in Springfield, Massachusetts, by investigators from the United States Attorney's Office. Gilbert became upset and begged Perrault not to attend the interview. On the day of the interview, Gilbert blocked Perrault's car with her car as he attempted to drive out of his driveway. She asked Perrault to talk to her and not to go to the interview. When Perrault made it clear that he would not do as she wished, she returned to her car and drove off. On arriving at Springfield, Perrault used a parking garage that he and Gilbert had used on prior occasions. When Perrault returned to his car after the interview he found that air had been let out of his right front tire.
During the next several days Perrault's car was stained by egg yolks from eggs that had been thrown at it, the windshield was spray-painted, scratches were made on the exterior by keys, and the front license plate was damaged. After the damage to the license plate, Perrault saw a car similar in appearance to Gilbert's enter the parking lot that Perrault used.
Gilbert denied that she was responsible for the damage to Perrault's car, but admitted she had been in the parking lot prior to and after the bomb threat to the VAMC on September 26, 1996. Gilbert called a neighbor of hers on two occasions to ask if Perrault had been checking on her. When told that Perrault had inquired about her, the neighbor testified that Gilbert became very angry and said, "Twit, fucking twit," in what the neighbor described as a deep controlled tone of voice.
Starting in mid-September Perrault received a number of phone calls at his residence. There was no voice communication, only heavy breathing or hang-ups. Perrault unsuccessfully tried to trace the calls. He contacted NYNEX which traced seven of the calls to Gilbert's telephone number. A pen register was installed on Gilbert's phone on September 26, after the bomb threat. The pen register showed that, between September 26 and October 1, 1996, about one half of Gilbert's phone calls to Perrault used a method (called the " *67 function") which prevented Perrault from tracing her calls from his own telephone.
On September 26, the day of the bomb threat that was the basis of the indictment, Gilbert purchased a "Talkgirl Jr." with her VISA credit card at Toys-R-Us. She also bought several packages of Energizer batteries from a Thrifty Drug Store about an hour after the "Talkgirl Jr." purchase. The batteries could be used to activate the "Talkgirl Jr." The toy is a hand-held voice changer that records a statement which can be played back at a higher or lower speed than the original recording. Words recorded by a woman played back at a lower speed make them sound like a man's voice.
On September 26, the following message was received at 3:34 p.m. on the telephone answering machine of Glenn Gilbert, divorced husband of defendant-appellant: Glenn Gilbert described the voice as "an altered voice, an almost haunting voice."
On September 26, Perrault was on patrol for two hours at the VAMC and then took over the security desk at 5:00 p.m. Gilbert's neighbor saw her leave her apartment about 5:00 p.m. Gilbert knew that Perrault would be at the security desk for two hours starting at 5:00 p.m. She also knew the direct dial telephone number for the security desk.
Perrault answered a security desk phone call at 5:11 p.m. A recorded message from an unidentified caller stated: "This message is for all Persian Gulf veterans who were exposed to chemical weapons." Perrault was a Persian Gulf War veteran and Gilbert knew it. Perrault described the telephone voice as "staticky, almost like there was a mechanical ring to it." Perrault dismissed the call as a prank.
From 5:22 p.m. through 7:07 p.m. during the evening of September 26, Perrault received a series of unidentified phone calls at the security desk. He described the voice as being exactly the same as the one directed to Persian Gulf veterans. The messages received were as follows:
Content of Messages Time
"There are three explosive devices
in Building One. You have two hours." 5:22
"Nothing will compare as to what is
going to happen tonight." 5:30
"I want those patients out on time.
Remember." 5:36
Would you like to know where to locate
the devices?" 5:40
Undiscernable 5:45
Undiscernable (small plane heard) 5:50
"You sound dumb or you would go . . ." 5:55
"You mustn't think this is very
serious, just sitting in your office
answering the phone." 6:10
"You must be pretty stupid . . ." 6:18
Undiscernable. 6:25
"You find this exciting, don't you?" 6:48
"This is my last call. In twenty-five
minutes, I'll see you in hell." 6:51
"It's your job to think about the
patients. I do care, but the Government
needs a message." 7:07
All of the phone calls had the same ring pattern, indicating that they were made from outside the VAMC. An officer, other than Perrault, answered the 5:30 call. He described the voice as distorted, not a normal voice - "like some kind of tape recorder."
As a result of the bomb threat, fifty acutely ill patients were moved by wheelchairs and stretchers from the building containing Ward C and Ward C Annex to another building several hundred yards away. No explosive devices were found in the building.
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