USA v. Worman, s. 09-2334, 09-2594.

Citation622 F.3d 969
Decision Date05 November 2010
Docket NumberNos. 09-2334, 09-2594.,s. 09-2334, 09-2594.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John WORMAN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

OPINION TEXT STARTS HERE

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Richard Scott Rhinehart, argued, Sioux City, IA, for appellant.

Charles J. Williams, AUSA, argued, Cedar Rapids, IA, for appellee.

Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.

BENTON, Circuit Judge.

John Clark Worman challenges his conviction for mailing, possessing, and transporting a pipe bomb, citing certain inadmissible hearsay testimony and attacking the sufficiency of the evidence to support the verdict. The government cross-appeals, arguing that the district court abused its discretion by granting Worman's motion for a downward variance. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms in part, reverses in part, and remands for resentencing.

I.

On June 29, 2005, someone left a package in the lobby of a rural Iowa post office. It was addressed to Paulette Torkelson, with no return address. The label displayed the name of a local antique shop she frequented. The postal clerk tried to call the shop, but the number on the label was not a working number. She then called Torkelson, who said she was not expecting a package. A postal inspector told the clerk to send the package to Des Moines for investigation. Inspecting the package, the investigator saw what appeared to be an old radio, and called the police. The police determined the package contained a bomb, which they detonated. No fingerprints were recovered from the package, radio, or bomb.

Interviewing Torkelson's coworkers at Winnebago Industries, agents focused on Worman. Torkelson was his supervisor there in the 1990s. Her negative reviews of him led to his 1994 departure after nearly 19 years with Winnebago. Just before he left Winnebago, Worman complained to company officials about Torkelson, but they dismissed his complaints (which he had kept on index cards).

Leaving Winnebago, Worman started his own business, building trailers and metal shipping racks. In 2002, he began manufacturing racks for Stitchcraft, a division of Winnebago. Worman's spouse, Shirley, was an employee of the division, and had recommended her husband to Stitchcraft's manager.

In 2004, Torkelson became a manager at Stitchcraft, supervising Shirley Worman. A year later, Stitchcraft stopped purchasing racks from Worman. One of Worman's good friends, a Stitchcraft employee, told him about rumors that Torkelson cancelled his rack-manufacturing arrangement with Stitchcraft. Two other employees had conversations about Torkelson's role in cancelling the arrangement that were likely overheard by Shirley Worman. The bomb was mailed three months after the arrangement ended.

Days after the bomb's discovery, authorities searched Worman's property. They found postage stamps matching those on the package. They recovered electronic devices, radio components, soldering guns, and drill bits. Material found in one drill bit exhibited similar physical and chemical characteristics to the back of the radio used in the bomb. Agents also seized gunpowder matching that recovered from the bomb and a small notebook with complaints about Torkelson written in 2004.

The label on the package and a self-inking stamp kit used on the package were available at a Staples store in Mason City, Iowa. According to store records, an individual shopped at the store five days before the bomb appeared at the post office, purchasing only the labels and stamp kit. Surveillance cameras showed a white truck with a topper entering the Staples parking lot before the purchase. A large white dog was inside the truck. Worman owned a white dog and large white truck with a topper.

Investigators seized Worman's truck. A fire destroyed his other vehicle the next day. He took the remains of the vehicle to a salvage yard, telling the yard's weighmaster that an electrical short caused the fire. The weighmaster relayed Worman's explanation to another salvage-yard employee. Worman told his son that the fire started after he drained the vehicle of motor oil and ran the engine to test how long the motor would last.

Investigators questioned Worman and his wife for two hours outside his home. He admitted buying labels like the one on the package and taking his dog with him on trips around town. He repeated the explanation he gave his son for the fire, adding he removed the battery and tires after the fire began and then pushed the vehicle on its side before it was engulfed in flames. A neighbor saw the vehicle engulfed in flames while it was upright. Worman also claimed no knowledge of Torkelson's involvement in cancelling his rack-manufacturing arrangement, but did not respond when his wife said that “everything had been going fine in her department until Miss Torkelson came ... and then the racks ended.”

Worman was tried for mailing, possessing, and transporting a pipe bomb, and for possessing it in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2, 1716; 26 U.S.C. §§ 5861(d), 5845(f), 5871; 18 U.S.C. § 844(d); and 18 U.S.C. § 924(c)(1)(B)(ii). Over his objections, the court admitted hearsay testimony from Stitchcraft employees that most employees at the company believed that Torkelson caused the cancellation of his agreement. The district court also admitted Shirley Worman's statement to investigators, although the court had previously denied a government request to offer evidence that she blamed Torkelson for the cancellation. Finally, the court admitted testimony by the salvage-yard employee describing Worman's explanation for the vehicle fire to the weighmaster.

The jury convicted Worman on all counts. The district court rejected his motion for a new trial. Worman appeals his conviction. The government challenges the sentence of one-month imprisonment for the first three counts and 360 months for the fourth count of the indictment.

II.

Worman contends that the district court improperly admitted hearsay evidence, and, alternatively, that the admitted testimony was unduly prejudicial. This court reviews de novo the district court's interpretation and application of the rules of evidence, and reviews the factual findings supporting evidentiary rulings for abuse of discretion. United States v. Barraza, 576 F.3d 798, 804 (8th Cir.2009). To the extent Worman failed to assert any objections under Rule 403, this court reviews for plain error. United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir.2005); United States v. Parker, 364 F.3d 934, 942-43 n. 2 (8th Cir.2004). Under plain error review, Worman must show an error, that is plain, and affects substantial rights. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). A plain error will not be corrected unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

The district court admitted, over objection: (1) the testimony of two Stitchcraft employees about rumors at the company regarding the cancellation of Worman's arrangement; (2) the testimony of the salvage-yard employee who had heard Worman's explanation for the vehicle fire from the weighmaster; and (3) Shirley Worman's out-of-court statements, made to the investigators, about Torkelson.

Hearsay is a statement, other than one made by a declarant testifying at trial, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Hearsay is generally inadmissible unless it falls within an exception. United States v. Eagle, 515 F.3d 794, 801 (8th Cir.2008).

A.

Worman first challenges the testimony of two employees about rumors of Torkelson's involvement in cancelling the rack-manufacturing arrangement. The government did not offer the testimony to establish Torkelson's actual involvement. Rather, it was introduced to show that Shirley Worman knew of Torkelson's alleged role in the termination (and lay the foundation for testimony by the good friend). 1 Because the statement was not offered to prove the truth of the matter asserted, it is not hearsay. See Fed.R.Evid. 801(c).

Worman contends that the testimony was highly prejudicial because it allowed jurors to attribute to him his wife's negative feelings toward Torkelson. Relevant evidence is generally admissible, but may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needlessly cumulative evidence. Fed.R.Evid. 403. This court gives deference to a district court's Rule 403 determination and reverses only for a clear abuse of discretion. United States v. Nadeau, 598 F.3d 966, 969 (8th Cir.2010).

Before trial, the district court denied a government motion in limine to admit statements by witnesses that Shirley Worman blamed Torkelson for the termination. The court then reasoned that the statements were substantially more prejudicial than probative because Shirley Worman's thoughts provided little insight into what Worman thought or believed, invited unfair bias against him based on his wife's purported animosity, and distracted jurors from evidence that was more probative of Worman's own mental state and involvement in the offense. The district court erred when it abandoned this logic at trial. See Fed.R.Evid. 403 advisory committee's note (“ ‘Unfair prejudice’ ... means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”).

Because Worman no longer worked at Winnebago, testimony about rumors there showed only that Winnebago employees, including Shirley Worman, may have believed that Torkelson helped...

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