U.S. v. Nilsen, 90-5950

• Decision Date: 04 August 1992
• Docket Number: No. 90-5950,90-5950
• Citation: 967 F.2d 539
• Parties: 36 Fed. R. Evid. Serv. 355 UNITED STATES of America, Plaintiff-Appellee, v. Chris Warren NILSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 539

967 F.2d 539

36 Fed. R. Evid. Serv. 355

UNITED STATES of America, Plaintiff-Appellee, v. Chris Warren NILSEN, Defendant-Appellant.

No. 90-5950.

United States Court of Appeals Eleventh Circuit.

Aug. 4, 1992.

John R. Howes, P.A., Ft. Lauderdale, Fla., for defendant-appellant.

Michael J. Mullaney, Linda Collins Hertz, and Anne Ruth Schultz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Circuit Judge, JOHNSON ^*, and HENDERSON, Senior Circuit Judges.

PER CURIAM:

Chris Nilsen appeals from a judgment of conviction and sentence from the United States District Court for the Southern District of Florida on three counts of mailing a threatening letter with intent to extort a thing of value in violation of 18 U.S.C. § 876. The primary issue is whether the testimony of a government witness in a criminal investigation constitutes a "thing of value" within the meaning of § 876. We conclude that the statutory language of § 876 encompasses the extortion of intangible objectives such as the prevention of a witness from testifying in a criminal trial, and therefore affirm the judgment and sentence of the district court.

I.

In the early fall of 1986, Nilsen and a companion, Anita Ferullo, travelled from Ferullo's home in Fort Lauderdale, Florida to New York. On October 10, 1986, Nilsen dropped Ferullo off at a shopping mall on Long Island, New York. When he returned a few hours later, he told Ferullo that he had robbed a bank during his absence. Ferullo also noticed red stains on the interior of Nilsen's car, which later proved to have come from a red dye bomb attached to the stolen money bags. After Nilsen rejoined Ferullo, the couple used some of the stolen money to pay for lodging in a local hotel. Nilsen was arrested three days later by agents of the Federal Bureau of Investigation ("the FBI") and detectives of the Suffolk County, New York Police Department. He was charged under New York state law with the armed robbery of the Flushing Federal Savings Bank on October 10, 1986. Ferullo was also apprehended by the FBI on October 13, 1986. She immediately agreed to cooperate with their investigation of Nilsen, and several days later testified before a New York state grand jury in connection with both the October 10, 1986 bank robbery and another robbery committed by Nilsen in September 2, 1986. Ferullo was not charged in either of these crimes, and returned home to Fort Lauderdale after her appearance before the grand jury.

Following Ferullo's grand jury testimony, Nilsen was indicted on three counts bank robbery. ¹ He was incarcerated at the Suffolk County Correctional Institute on Long Island, New York while awaiting trial. In January 1988, Ferullo received an envelope in the mail bearing a Long Island postmark. The envelope contained a letter and the front cover of a greeting card. The letter contained threats of physical violence against Ferullo if she accepted a subpoena to testify in New York against an unnamed person. The letter was signed, "A friend of a friend." The greeting card was captioned, "First Annual Reunion of the 'I was hit on the head by a falling safe and lived to tell about it' club." Ferullo received two other threatening letters in March and April 1988. Both letters were postmarked from Long Island, and each warned Ferullo against testifying in an upcoming trial in New York.

On May 19, 1988, at the request of the Suffolk County District Attorney, a Special Agent of the FBI served Ferullo with a subpoena to appear and testify in the state prosecution of Nilsen for armed robbery. At that time she turned over to the FBI agent the three threatening letters she had received earlier in the mail. She did not have to appear as a witness against Nilson because he pled guilty on July 20, 1988 to three counts of bank robbery.

On January 25, 1989, a federal grand jury in the United States District Court for the Southern District of Florida returned a three-count superseding indictment against Nilsen charging him with mailing a threatening communication with intent to extort a thing of value in violation of 18 U.S.C. § 876. Each count was directed to one of the three letters mailed to Ferullo from Long Island in January, March, and April of 1988. The "thing of value" referred to in each count of the indictment was Ferullo's testimony linking Nilsen to two of the robberies for which he was prosecuted in state court. The evidence at Nilsen's federal trial disclosed that the letters were typed on two models of typewriters owned by the Suffolk County prison library. Logs from the prison library established that Nilsen used the typewriters about the time that each of the threatening letters was mailed from Long Island. Additionally, the postmark on the envelopes contained the first three digits of the post office that processed the mail from the Suffolk County prison, and his fingerprints were detected on the April 13, 1988 letter. Nilsen was convicted on all three counts. The district court departed from the sentencing guideline range and imposed a sentence of 105 months to run consecutively to the state sentence received in the bank robbery convictions.

II.

The relevant provision of § 876 under which Nilsen was prosecuted in federal court states that:

"[w]hoever, with intent to extort from any person any money or other thing of value, so deposits, or causes to be delivered [by the Postal Service] any communication containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both."

Nilsen contends that the government failed to prove an essential element of the crimes charged in the indictment because the term "thing of value" embraces only property rights, not an intangible such as the testimony of a witness. The government, on the other hand, argues that the broad language of the phrase "thing of value" encompasses intangible objectives as well as tangible property rights.

If a criminal statute is subject to two reasonable constructions, the harsher may be applied to penalize a defendant "only when Congress has spoken in clear and definite language." McNally v. United States, 483 U.S. 350, 359, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987). Thus, Nilsen's conviction can be affirmed only if the term "thing of value" unambiguously covers intangible considerations. As the Second Circuit Court of Appeals noted in United States v. Girard, 601 F.2d 69, 71 (1979), Congress' frequent use of "thing of value" in various criminal statutes has evolved the phrase into a term of art which the courts generally construe to envelope both tangibles and intangibles. This broad interpretation is based upon a recognition that monetary worth is not the sole measure of value. See United States v. Schwartz, 785 F.2d 673, 679 (9th Cir.1986). The conduct and expectations of both the defendant and the subject of the extortionate threat also can establish whether an intangible objective is a "thing of value." See United States v. Zouras, 497 F.2d 1115, 1121 (7th Cir.1974). The testimony of a key government witness has previously been held to be a "thing of value" within the meaning of § 876 based upon the contents of a threatening letter from the defendant to the witness and the witness's testimony that she valued the right to testify against the defendant. Id. We therefore hold that the phrase "thing of value" is a clearly defined term that includes intangible objectives, and that the evidence was sufficient to establish that Nilsen mailed a threatening letter with intent to extort a thing of value from Ferullo--her testimony linking him to two of the state bank robbery charges pending against him.

Nilsen's other two contentions concerning § 876 are also without merit. First, he maintains that, even if an intangible purpose can be characterized as a "thing of value," Ferullo never testified that she placed any value on the right to testify against him. However, Nilsen's letters to Ferullo make it apparent that her testimony was valuable to him. As we have stated, the conduct and expectations of a defendant can establish whether an intangible objective is a "thing of value." See Zouras, 497 F.2d at 1121. Therefore, it was not necessary for Ferullo herself to place value on her right to testify against Nilsen. Second, Nilsen claims that Ferullo's testimony was merely a contingency to which no value could be attached because it was not needed after he pled guilty to the bank robbery charges. Nilsen's subsequent actions, though, cannot vitiate the value that he placed upon her testimony at the time that he mailed the extortionate threats. His criminal offense was completed when he mailed the threatening letters with intent to extort a thing of value. Therefore, it is immaterial whether Ferullo actually testified in court against Nilsen.

III.

A.

Nilsen raises two other issues on appeal. First, he asserts that the district court abused its discretion by admitting into evidence his three bank robbery convictions. Nilsen made an oral motion in limine to exclude his prior convictions pursuant to Fed.R.Evid. 403, ² urging that the evidence would serve only to prove his bad character. ³ He agreed to stipulate that he was the object of the grand jury proceeding at which Ferullo testified and so had an interest in its outcome. He contends that the government could thereby have proven that he mailed the extortionate letters to Ferullo without introducing evidence of the specific events which pertained to her testimony. However, the government also had to prove that what Nilsen attempted to exact was a "thing of value." To do so, it had to establish the content of Ferullo's testimony respecting his involvement in two of the charged offenses. Thus, Ferullo's testimony was an " 'integral and...