United States v. Tomkins, 13–2234.

• Decision Date: 30 March 2015
• Docket Number: No. 13–2234.,13–2234.
• Citation: 782 F.3d 338
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John P. TOMKINS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

782 F.3d 338

UNITED STATES of America, Plaintiff–Appellee

v.John P. TOMKINS, Defendant–Appellant.

No. 13–2234.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 2, 2014.

Decided March 30, 2015.

Patrick Christopher Pope, Paul H. Tzur, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Francis C. Lipuma, Law Offices of Francis C. Lipuma, Chicago, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

Opinion

TINDER, Circuit Judge.

John Tomkins sent a series of threatening letters to investment firms and their employees and then mailed packages to two investment managers containing what appeared to be pipe bombs. The homemade devices consisted of a plastic pipe holding gunpowder, lead pellets, and an igniter connected to live batteries. Letters in each package warned that the recipients were only alive because Tomkins left one wire on each device unattached. After a two-week trial, a jury found Tomkins guilty of mailing threatening communications, 18 U.S.C. § 876(b), illegally possessing firearms, 26 U.S.C. § 5861(d), and using a firearm in connection with a crime of violence, 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(B)(ii). The district court imposed a prison sentence of 37 years. Tomkins now seeks a new trial, arguing that the district court erred by (1) barring his defense that the devices were meant as hoaxes, (2) admitting an x-ray of one of his devices that the government failed to turn over until mid-trial, and (3) refusing to suppress evidence from a search of his home and storage lockers. We affirm.

I. BACKGROUND

Tomkins began sending his threatening letters in 2005, demanding that his targets purchase sufficient shares of certain stock he owned to drive up the price. If his demands were not met, Tomkins threatened that something “very tragic” would happen to his victims' loved ones, cautioning that “it is so easy to hurt somebody it is almost scary” and “it could be as simple as mailing a package just like The Un-ibomber [sic] use[d] to do.” As the return address on some of these letters, Tomkins included his victims' home addresses. At least one letter also included a photograph of the victim's home. He signed each letter as “The BISHOP.”

In January 2007, Tomkins mailed the packages containing his homemade devices. One went to Kansas City; the other went to Colorado but was rerouted to Chicago. Letters in each package stated “BANG!! YOU'RE DEAD” and warned: “The only reason you are still alive is because I did not attach one wire. If you do not believe me then go ahead and touch that red wire to the top of the battery pack. There is enough gunpowder and steel shot in that tube to kill anyone in a ten foot radius when it goes off.” Investment firm employees opened the Chicago package and contacted the police, and Officer Danny McGuire, an explosives specialist with the Chicago Police Bomb Squad, came to the office, cut the wires connecting the batteries to the pipe, and recovered the device for further analysis.

In the following months, investigators identified Tomkins as a suspect using purchasing records for the stocks referred to in his letters, and postal inspectors obtained search warrants for his home and storage lockers. The searches revealed two additional pipe bombs (one ready to be mailed), drafts of the threat letters, bomb-making materials, information about Tomkins's targets and their residences, and financial records related to the stocks mentioned in his threats. Tomkins was then arrested and charged with ten counts of mailing threatening communications, two counts of illegally possessing firearms (with each count corresponding to one of the two mailed pipe bombs), and one count of using a firearm in connection with a crime of violence. The final charge, Count 13, related to the Chicago device alone; the government did not charge Tomkins with violating § 924(c)(1)(A) in regard to the Kansas City device, even though it was the subject of one of the § 5861(d) charges.

The case was heavily litigated leading up to trial, with one point of contention being Tomkins's effort to suppress the evidence from the searches. The district court acknowledged that the warrants had failed to impose a time limit for financial records to be seized and concluded that seizure of a filing cabinet containing documents related to Tomkins's role as treasurer of his local union exceeded the scope of the warrant. The court reasoned, however, that the lack of particularity in some parts of the warrants did not turn them into impermissible general warrants because attachments to the warrants contained detailed categories of evidence and the warrants were supported by thorough affidavits. Moreover, the court concluded that the good-faith exception permitted seizure of the items at issue.

Another pretrial concern was Tomkins's request to represent himself. In 2010, the court granted that request and allowed Tomkins to proceed pro se, with stand-by counsel, during pretrial litigation and trial.

Tomkins's trial began on April 23, 2012, five years after his arrest. The government's case-in-chief took up the first week and a half of trial and included nearly forty witnesses, most of whom were either employees of investment firms that had received Tomkins's mailings or government investigators who had a role in tracking him down. The government also introduced the threatening letters, handwriting samples, the draft letters and devices recovered from Tomkins's property, and photographs of his devices. All of the photographic evidence (save for the x-ray discussed later) showed the devices after investigators had broken open the pipes by blasting them with a water cannon, rendering them safe and revealing the gunpowder and lead shot inside.

Other government witnesses testified about the design of Tomkins's devices. Raymond Voorhees, an explosives expert, determined that the devices had the components of improvised explosive devices but that he could not be certain whether the devices would have exploded if the loose wires were attached because he had examined the devices after they had been rendered safe. In his opinion, the Chicago device was not functional without the wire attached. Officer McGuire of the Chicago Police Bomb Squad also testified that the Chicago device would not function with the wire left unattached. But another explosives expert, John Winslow, testified that the devices would have functioned if the unattached wire had made contact with the positive terminal of the battery in the package. Even if the wire never connected to the battery, he added, the devices could have ignited due to physical shock, friction, heat, or static electricity—even possibly as a result of being improperly handled during shipping. He described each device as a “dangerous weapon” and “explosive bomb.”

During Officer McGuire's testimony, he mentioned that he had taken an x-ray of the Chicago device before the pipe had been broken open. The government then displayed a copy of the x-ray (shown below), on a monitor in front of McGuire. Tomkins objected that this was the first time he had seen the exhibit. After a side bar discussion, the district court allowed McGuire to discuss having taken the x-ray but forbade admission of the x-ray at that time. The government later conceded that it could not find the x-ray in the exhibits given to Tomkins, and the court prohibited the government from introducing the x-ray during its case-in-chief. The court warned Tomkins, however, that the x-ray might come in as rebuttal evidence.

On the morning of May 2, 2012, the seventh day of trial, the government moved before resting its case to bar Tomkins from testifying about his subjective intent in creating his devices. The government noted the similarity of this case to United States v. Johnson, 152 F.3d 618 (7th Cir.1998), which affirmed the preclusion of evidence that a defendant intended pipe bombs he created to serve only as hoaxes when the devices lacked any legitimate social purpose. Tomkins objected that the government was raising the issue “at the last-minute” and argued that he could show that his devices were useful for purposes other than as weapons. Stand-by counsel pointed to United States v. Fleischli, 305 F.3d 643, 656–57 (7th Cir.2002), in which a defendant was allowed to present the defense that his devices were fireworks rather than destructive devices.

After the government rested, but before Tomkins called any witnesses, the district court informed the parties of its conclusion that “Johnson is controlling, Fleischli is distinguishable, and therefore, the ruling in this case will be that subjective evidence of intent is irrelevant and therefore inadmissible.” The court later issued a written decision emphasizing that Johnson is squarely on point.

Tomkins then presented three character witnesses before taking the stand himself. During his testimony, Tomkins admitted to creating and sending the threatening letters and packages containing explosive materials but testified that his devices were not designed to explode. He asserted that “certain design features” in each device “made them nondestructive devices,” including that there was a gap between the batteries in the devices and that in some of his devices—he could not remember which ones—the lead shot “was loaded into the end where the electric match was and the gunpowder was clear on the other end.” Additionally, he 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 prosecutor objected to this testimony, citing Johnson, but the district court overruled the objection.

After Tomkins's testimony, the government moved to introduce the x-ray as rebuttal to Tomkins's statements about separating the gunpowder from the igniter. The district court allowed admission of the x-ray, but...