A. An Individual Dubbed the "Unabomber"
2. The Epstein (#13) and Gelernter (#14) Bombs
1. University of Illinois. Chicago Bomb (#1)
2. Northwestern University Bomb (#2)
3. American Airlines Flight 444 (#3)
5. University of Utah Bomb (#5)
III. ELEMENTS OF THE CHARGED OFFENSES
1. Transportation in Interstate Commerce
2. During and in Relation To A Crime of Violence
A. Admissibility of the Government's Evidence
B. Admissibility of Testimonial Evidence
1. Questions Regarding Authentication Are Governed By Evidence Rules 901(a) and 104(b)
2. A Pretrial Hearing Is a Proper Method of Resolving the Preliminary Question of Admissibility
3. A Pretrial Hearing Is Appropriate in this Case
5. Psychiatric Evidence Is Not Admissible on The § 924 (c) (1) Offenses
PAUL L. SEAVE
United States Attorney
ROBERT J. CLEARY
STEPHEN P. FRECCERO
BERNARD F. HUBLEY
R. STEVEN LAPHAN
J. DOUGLAS WILSON
Special Attorneys to the
United States Attorney General
650 Capitol Mall
Sacramento, California 95814
Telephone: (916) 554-2700
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
V.
THEODORE JOHN KACZYNSKI,
Defendant.
CR NO. S-96-0259 GEB
GOVERNMENT'S TRIAL BRIEF
(REDACTED VERSION)
DATE: November 12, 1997
TIME: 9:00 a.m.
COURT: Hon. Garland E. Burrell
I. INTRODUCTION
II. FACTS
A. An Individual Dubbed the "Unabomber"
B. Summary of Charged Bombs
The Scrutton Bomb (#11)
The Epstein (#13) and Gelernter (#14) Bombs
The Murray Bomb (#16)
C. Summary of Uncharged Bombs
University of Illinois, Chicago Bomb (#1)
Northwestern University Bomb (#2)
American Airlines Flight 444 (#3)
Percy Wood Bomb (#4)
University of Utah Bomb (#5)
The Fischer Bomb (#6)
The Angelakos Bomb (#7)
The Hauser Bomb (#8)
The Boeing Bomb (#9)
The McConnell Bomb #10)
The Wright Bomb (#12)
The Mosser Bomb (#15)
III. ELEMENTS OF THE CHARGED OFFENSES
A. 18 U.S.C. § 844(d)
Transportation in Interstate Commerce
An Explosive
Intent to Kill
B. U.S.C. § 1716
Mailing
Intent to Kill
C. 18 U.S.C. § 924(c) (1)
Use/Carry A Bomb
a. Definition of Use
b. Definition of Carry
c. Definition of Bomb
During and in Relation to a Crime of Violence
IV. EVIDENTIARY ISSUES
A. Admissibility of the Government's Evidence
Authentication Generally
Photographic Evidence
a. Witness Verification May Authenticate A Photograph
b. Content and Circumstantial Evidence May Authenticate a Photograph
c. Graphic Photographs are Not Inadmissible
Crime Scene Photographs
Autopsy Photographs
Photographs Are Admissible Even If Matter In Issue Is Not Controverted
Bombing Cases
Physical Evidence
a. Physical Evidence May Be Authenticated By Its Readily Identifiable Characteristics
b. Physical Evidence May Be Authenticated By Establishing a Chain of Custody
Documentary Evidence
a. Proffered Writing Has Distinctive Characteristics
Foundation For Spanish Documents
Foundation For Coded Documents
Demonstrative Evidence
a. Models and Diagrams
b. Summary Charts
B. Admissibility of Testimonial Evidence
Expert Opinion
a. Foundation for Admissibility of Expert Opinion
b. An Expert May Rely Upon Otherwise Inadmissible Evidence
Cause of Death Testimony
Use of Summary Witness
C. Foundational Questions Regarding Admissibility May Be Resolved Outside the Presence of the Jury Pursuant to FRE 104
Questions Regarding Authentication Are Governed By Evidence Rules 901(a) and 104(b)
A Pretrial Hearing Is a Proper Method of Resolving the Preliminary Question of Admissibility
A Pretrial Hearing Is Appropriate in This Case
V. DEFENSE CASE
A. Mental Defense
The Insanity Defense Reform Act Prohibits The Use of Psychiatric Evidence Short of Insanity to Excuse or Mitigate the Offense
Psychiatric Evidence Short of Insanity Is Inadmissible Unless It Supports A Legally Acceptable Theory Negating Mens Rea
The Government Is Entitled To A Hearing To Determine The Admissibility Of The Defendant's Psychiatric Evidence
Defendant's Expert's May Not State An Opinion On Whether The Defendant Did Or Did Not Form An Intent To Kill At The Time Of The Offense
Psychiatric Evidence Is Not Admissible On The § 924(c) (1) Offenses
B. Allegations Regarding The FBI Laboratory Are Not Admissible to Impeach the Government's Expert Witnesses
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United States v. Naranjo, 710 F.2d 1465 (l0th Cir. 1983)
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United States v. Osum, 943 F.2d 1394 (5th Cir. 1991)
United States v. Paulino, 13 F.3d 20 (1st Cir. 1994)
United States v. Pelullo, 961 F. Supp. 736 (D. N.J. 1997)
United States v. Peralta, 930 F. Supp. 1523 (S.D. Fla. 1996)
United States v. Peterson, 475 F.2d 806 (9th air. 1973)
United States v. Phillips, 640 F.2d 87 (7th Cir. 1981)
United States v. Pohiot, 827 F.2d 889 (3d Cir. 1987)
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United States v. Ricco, 52 F.3d 58 (4th Cir. 1995)
United States v. Robinson, 804 F. Supp. 830 (W.D. Va. 1992)
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18 U.S.C. § 844(d)
18 U.S.C. § 924(c) (1)
18 U.S.C. § 924(c) (3)
18 U.S.C. § 1716
18 U.S.C. § 1716(a)
18 U.S.C.A. § 17(a)
Fed. R. Crim. P. 17.1
Fed. R. Evid. 702
Fed. R. Evid. 704(b)
Fed. R. Evid. 1006
Fed. R. Evid. 901(a)
Fed. R. Evid. 901(b) (1)
The Insanity Defense Reform Act of 1984, 18 U.S.C.A. § 17 ("IDRA")
Weinstein § 901.02(3] at 901-14
Weinstein § 901.06[1] at 901-26
5 Weinstein § 901.02[4] at 901-15
5 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 532 at 125 (2nd ed. 1994)
1 JACK B. WEINSTEIN & M. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 104.30(3] at 104-68 (Joseph M. McLaughlin ed., 2d ed. 1997)
H.R. REP. No. 98-177, 98th Cong. 1st Sess. 14 (1983)
H.R. REP. No. 98-177 at 15 n.23
Peter Arenella, The Diminished Capacity and Diminished Responsibilitv Defenses: Children of a Doomed Marriage, 77 COLUM. L. REV. 827, 829 (1977)
Mulroy & Rychlak, Use of Real and Demonstrative Evidence at Trial, 33 Trial Law Guide 550 (1980)
The defendant, Theodore Kaczynski, is charged in this district with offenses arising out of four bombings between 1985 and 1995. These bombings formed part of an 18-year scheme in which the defendant mailed or placed 16 bombs in an effort, as Kaczynski himself phrased it, to "kill someone I hate" and to gain "revenge on society". Throughout this scheme, Kaczynski sought to build increasingly lethal bombs by improving his bomb design and his bombmaking techniques. Kaczynski achieved success in his eleventh bomb, which resulted in the death of Hugh Scrutton and which forms the basis for Count One of the indictment. The bombs charged in the remaining counts were the thirteenth, fourteenth, and sixteenth bombs mailed or placed by Kaczynski and resulted in the death of Gilbert Murray and serious injuries to Drs. David Gelernter and Charles Epstein. A seventeenth, fully functional bomb was discovered during the search of Kaczynski's cabin in April, 1996.
In Section II, the government summarizes the 18 year reign of the "Unabomber" and provides details regarding each of the bombings and the type of proof which the government intends to present for each one.
In Section III, the government has attempted to set forth the elements of the charged crimes and to provide the Court with relevant authority pertaining to those elements and the necessary proof at trial.
In Section IV, the government has attempted to identify and provide the Court with authority for evidentiary issues which may arise with respect to the government's proof.
In Section V, the government has attempted to identify issues that may arise in the defense portion of the case or in the defendant's cross-examination of government witnesses.
Between May 25, 1978 and April 24, 1995 an individual dubbed the "Unabomber" was responsible for 16 bombings throughout the United States. The bombings, which are set forth below, resulted in 3 deaths and 29 injuries:
| No. | Date | Location of Explosion | Injuries |
| 1 | 5/26/78 | Chicago, IL | Minor injury to police officer |
| 2 | 5/9/79 | Chicago, IL | Moderate injury to student |
| 3 | 11/15/79 | Chicago, IL | 18 cases of smoke inhalation after emergency landing of jetliner |
| 4 | 6/10/80 | Chicago, IL | Major injury to UAL President |
| 5 | 10/8/81 | Salt Lake City | Device failed to explode |
| 6 | 5/5/82 | Nashville, TN | Major injuries to secretary |
| 7 | 7/2/82 | Berkeley, CA | Major injuries to professor |
| 8 | 5/15/85 | Berkeley, CA | Major injuries to student |
| 9 | 6/13/85 | Auburn, WA | Device disarmed |
| 10 | 11/15/85 | Ann Arbor, MI | Moderate injuries to graduate student |
| 11 | 12/11/85 | Sacramento, CA | Death of Hugh Scrutton |
| 12 | 2/20/87 | Salt Lake City | Moderate injury to businessman |
| 13 | 6/22/93 | Tiburon, CA | Major injuries to professor |
| 14 | 6/24/93 | New Haven, CT | Major injuries to professor |
| 15 | 12/10/94 | No. Caldwell, NJ | Death of Thomas J. Mosser |
| 16 | 4/24/95 | Sacramento, CA | Death of Gilbert B. Murray |
Although the defendant is only charged with four of the devices in this district, the government will seek to prove that the defendant is responsible for all sixteen devices. The government will also seek to introduce evidence that, during the search of Kaczynski's cabin, agents found a fully functional bomb. As explained in the government's 404(b) motion, due to the interlocking nature of the evidence, proof that the defendant was responsible for any one of the bombs tends to strengthen and reinforce the evidence with respect to other bombs.
In each of the 16 bombings an improvised explosive and/or incendiary device was used. Eight of the devices contained the initials "FC" stamped on a piece of metal or on the end plug of the pipe bomb. Prior to Kaczynski's arrest, experts in the field of bomb construction and forensics, identified significant similarities among the bombs and concluded that all of the bombings had been carried out by the same individual or group of individuals acting in concert. Experts also concluded that the same typewriter had been used to type all the mailing labels and correspondence from the Unabomber since 1982.
In June, 1993, the New York Times received a letter from an individual claiming to represent an anarchist group known as "FC". The letter, which was mailed at the same time and from the same location as Devices 13 and 14, stated that it preceded a "newsworthy event". The writer of the letter provided "an identifying number that will ensure the authenticity of any future communication from us.
On April 20, 1995, the Unabomber mailed Device 16 which killed Gilbert B. Murray, the president of the California Forestry Association. At the same time and from the same location "FC" mailed four letters. A letter from "FC" to the New York Times commenced: "We blew up Thomas Mosser last December . . . " and claimed responsibility for Devices 5, 13, 14 and 15 and generally described a 17 year history of bombing. The letter explained that the author could now make more deadly bombs but proposed to desist from further terrorist activities if the Times agreed to publish a 29,000 to 37,000 word article written by him. A letter from "FC" to David Gelernter, the victim of Device 14, taunts Gelernter for opening "an unexpected package from an unknown source." Finally, letters to nobel prize winning geneticists Phillip Sharp and Richard Roberts contained the following "warning from FC": "It would be beneficial to your health to stop your research in genetics."
On June 27, 1995, the San Francisco Chronicle received a letter from "the terrorist group FC, called unabomer by the FBI" which stated that the group was planning to "blow up an airliner out of Los Angeles International Airport some time during the next six days". The letter had the effect of paralyzing nationwide air travel over the long Fourth of July weekend.
On June 28, 1995, the New York Times, received a "message from FC", which supplied the secret identifying number referred to in previous correspondence. In the letter, the author claimed responsibility for Devices 3, 6 and 16. In a postscript, the author states that the threat to bring down an airliner was a "prank". Enclosed with the letter was the original of the promised manifesto, a 67 page diatribe entitled "Industrial Society and It's Future by FC", which argues that the "industrial revolution and its consequences have been a disaster for the human race." At the same time, "FC" sent carbon copies of the manuscript with different cover letters to the Washington Post, Penthouse Magazine and UC Berkeley Professor Tom Tyler. The Unabomber also sent a letter to Scientific American further expounding on his anti-technology views.
Commencing on April 3, 1996, the FBI conducted a search of Kaczynski's one-room cabin. Among other things the agents located:
The typewriter used to type all identifiable Unabomber correspondence since 1982. This typewriter ties Kaczynski to mailing labels and correspondence which accompanied Devices 6, 7, 9, 10, 13, 14 and 15. The typewriter also connects Kaczynski to the letters to the New York Times in which "FC" claims responsibility for Devices 3, 5, 6, 13, 14, 15 and 16 and a seventeen year history of bombing. It also connects Kaczynski to the manifesto and the threat to bring down an airliner.
A carbon copy of the manifesto (the original was sent to the New York Times).
A handwritten draft of the manifesto.
Handwritten or carbon copies of several of the letters that were sent by the "Unabomber", including those that accompanied bombs, letters to the New York Times, and cover letters which accompanied the manifesto to the New York Times, Washington Post, Penthouse Magazine and Professor Tyler and the letter to Scientific American.
A handwritten autobiography written around 1979 which contains the statement that Kaczynski intends to start killing people and that the purpose of the autobiography is to explain that he is not sick.
Notebooks written largely in Spanish or in code (together with the key to the code) and a journals written in English which together contain admissions or inculpatory statements to each of the 16 bombing incidents. (1. Defense counsel have entered into a written stipulation that virtually all of the handwritten documents found in the cabin, including the autobiography, the journals and the Spanish and coded notebooks, were written by the defendant. The government intends to present this stipulation in open court so that the court may assure that the stipulation was knowingly and voluntarily made by the defendant. See United States V. Miller, 588 F.2d 1256, 1263 (9th Cir. 1978) ("It is the responsibility of the trial judge when accepting a stipulation or waiver to assure that it is voluntarily made."); United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980) ("[W]hen a stipulation to a crucial fact is entered into the record in open court in the presence of the defendant, and is agreed to by defendant's acknowledged counsel, the trial court may reasonably assume that the defendant is aware of the content of the stipulation and agrees to it through his or her attorney.")
Three-ring binders which memorialize Kaczynski's experiments over the years with various types of bombs and explosive chemical compounds. These experiments show a clear progression in Kaczynski's bomb-making capabilities, describe the construction of several of the Unabom devices and how each was deployed. Kaczynski's coded notes also occasionally refer to a particular device as being the product of a particular experiment.
A piece of paper on which was written the secret ten-digit identifying number used by the Unabomer.
Green paneling nails which have been forensically matched to green paneling nails used as shrapnel in the Murray (#16) and Mosser (#15) bombs.
A fully functional improvised explosive device which is similar in design and construction to the Murray bomb (#16) and components of which can be forensically associated with components of Epstein (#13) and Gelernter (#14) bombs.
Various bomb components including triggers, initiators, pipes and chemicals.
Shortly before noon on December 11, 1985, Hugh Scrutton exited the rear of his Sacramento computer store, Rentech. A short distance from the back door, he came upon an object in the parking lot that appeared to be a road hazard - a piece of wood with nails sticking out of it. When Scrutton bent over to remove the object, it exploded, killing him.
Forensic analysis of the bomb revealed, among other things, that one of end plugs of the bomb contained the initials "FC".
During the search of the defendant's cabin the government found numerous entries in the defendant's journal that were written in numeric code. (2. Since the searchers also found among the documents the key to the code, the government was able to easily decode the documents and will present testimony to that effect prior to the introduction of these documents.) One such coded entry states simply:
EXPERIMENT 97. DEC. 11, 1985 I PLANTED BOMB DISGUISED TO LOOK LIKE SCRAP OF LUMBER BEHIND RENTECH COMPUTE STORE IN SACRAMENTO. ACCORDING TO SAN FRANCISIO EXAMINER, DEC.20, THE "OPERATOR" (OWNER? MANAGER?) OF THE STORE WAS KILLED, "BLOWN TO BITS", ON DEC.12.
(REDACTED TEXT)
In Experiment 97, which is referenced in the above coded entry, Kaczynski describes constructing a bomb during October and November, 1985. According to the notes the bomb is completed on December 8, 1985. The passage then concludes:
"The device was hidden inside a hollow piece of wood, so that when the wood were to be grabbed or picked up, the bolts in the trigger would come out. The device was deployed on December 11th, 1985. December 27th.
(REDACTED TEXT)
On June 22, 1993, Dr. Charles Epstein opened a padded envelope that he had received in the mail at his home in Tiburon, California. When Dr. Epstein pulled the zipcord on the envelope, the package exploded causing him severe injuries including the loss of several fingers, permanent nerve damage, multiple fractures and shrapnel wounds to his face and torso.
On June 24, 1993, Dr. David Gelernter, a professor of computer science at Yale University, opened a similar padded envelope which he had received at his office. As with the Tiburon bomb, when Professor Gelernter pulled the envelope's zipcord, the package exploded causing him severe injuries including the loss of several fingers, multiple serious wounds to his torso, partial blindness in one eye and multiple bone fractures.
Both the Epstein and Gelernter bombs were postmarked June 18, 1993, from Sacramento, California. As previously noted, they were preceded by a letter to the New York Times from "FC", stating that the letter preceded a "newsworthy event".
In a letter to the New York Times dated April 20, 1995, the "Unabomber" declared:
"[A]fter a long period of experimentation we developed a type of bomb that does not require a pipe, but is set off by a detonating cap that consists of a chlorate explosive packed into a piece of small diameter copper tubing. (The detonating cap is a miniature pipe bomb.) We used bombs of this type to blow up the genetic engineer Charles Epstein and the computer engineer David Gelernter."
(3. The translator did not attempt to correct errors in grammar or usage.)
As previously noted, a carbon copy of this letter was found in the defendant's cabin. Moreover, the defendant's experiment binders confirm the statements made in the Times letter in several respects. They reflect a long period of experimentation which culminates in the development of a bomb of the type described in the Times letter. Then, in Experiment 225, Kaczynski describes constructing twin bombs between January and June, 1993, and states:
"I sent these devices during June, 1993. They detonated as they should have.
(REDACTED TEXT)
During the search of Kaczynski's cabin, searchers also discovered numerous articles pertaining to Drs. Epstein and Gelernter as well as to the bombings.
3. The Murray Bomb (#16)
On April 24, 1995, a package was delivered by mail to the California Forestry Association in Sacramento. The package, which was addressed to William Dennison, the former president of CFA, had a return address of Closet Dimensions, Oakland, California. It also bore an Oakland postmarked and $10 in postage including "Old Glory" and "Eugene O'Neill" $1.00 stamps. The package was given to the current CFA president Gilbert Murray. When Murray opened the package it exploded, killing him.
At the same time that the Murray bomb was mailed from Oakland, four other letters were sent by the "Unabomber" from Oakland. One was sent to the New York Times and offered to "desist from terrorism" if the newspaper published his 35,000 word manifesto. A second letter was sent to Dr. David Gelernter and taunted him for being "dumb enough to open an unexpected package". The third and fourth letters contained "a warning from FC" and were sent to Drs. Richard Roberts and Philip Sharp who jointly won the 1993 Nobel Prize in genetics. The letters stated that the doctors should stop their research in genetics.
In a letter to the New York Times dated June 24, 1995, the "Unabomber" declared:
(REDACTED TEXT)
"It was reported that the bomb that killed Gilbert Murray was a pipe bomb. It was not a pipe bomb but was set off by a home made detonating cap. (The FBI's so-called experts should have been able to determine this quickly and easily, especially because we indicated in an unpublished part of our last letter to the NY times that the majority of our bombs are no longer pipe bombs.) It was also reported that the address label on this same bomb gave the name of the California Forestry Association incorrectly. This is false. The name was given correctly."
During the search of Kaczynski's cabin, searchers found a handwritten draft of the foregoing letter as well as carbon copies of the Sharp, Roberts, Gelernter and New York Times letters. The cabin searchers also found a copy of a letter to the radical environmental group Earth First! which began:
"This is a message from FC. The FBI calls us "unabom". We are the people who recently assassinated the president of the California Forestry Association."
The letter was typewritten but contained a marginal notation which Kaczynski has stipulated was written in his hand.
The cabin searchers also found handwritten notes accurately setting forth bus schedules for a trip from Montana to the Bay Area for the March, 1995 time period.
Finally, Experiment 245 partially chronicles the construction of the Murray bomb.
On May 25, 1978, Mary Gutierrez, a local resident, discovered a package in a parking lot on the campus of the University of Illinois, Chicago Circle Campus. The package was addressed to:
Prof. E.J. Smith
School of Engineering
Rensselaer Polytechnic
Troy, NY 12181
The return address was:
Prof. Buckley Crist, Jr.
Northwestern U. Tech. Inst.
Evanston, IL 60301
The package also had $10 in postage, consisting of ten $1.00 "Eugene O'Neill" stamps, and otherwise appeared to be ready for mailing.
After first attempting to mail the package at a nearby post box and finding that the package was too big to fit in the box, Ms. Gutierrez took the package home and placed a call to Professor Crist at Northwestern University. Although Professor Crist knew nothing about the package, he sent a messenger to pick it up and deliver it to him at the University. After initially attempting to open the package himself, Professor Crist thought better of it and called for a University public safety officer. As the officer opened the package in Professor Crist's presence it exploded, somewhat ineffectively, causing minor injuries to the officer.
During the search of the defendant's cabin the government found a document written by the defendant in which he states, in part:
"August 21, 1978: I came back to the Chicago area in May, mainly for one reason: So that I could more safely attempt to murder a scientist, businessman, or the like. Before leaving Montana I made a bomb in a kind of box, designed to explode when the box was opened. . . I picked the name of an electrical engineering professor out of the catalogue of the Rensselaer Polytechnic Institute and addressed the bomb - a package to him."
The document goes on to describe how, after being unable to fit it in the mail box, he left it in a parking lot near the science and technology building at the University of Illinois.
On May 9, 1979, Northwestern University graduate student, John Harris, returned from a lecture to his office at the NWU Technological Institute. When he entered the common area outside his and several other graduate student offices, Harris observed a cigar box on a table. The box, which had been there for a few days, had a doubled over piece of tape which served as a tab. When Harris picked up the box and used the tab to lift the lid, the box exploded causing Harris several cuts and burns and momentary blindness from the flash of light.
During the search of the defendant's cabin the government found a handwritten document in which the defendant states, in part:
"May 31, 1979: Earlier this month I left (a bomb] in a room marked 'graduate student research' at the Technological Institute of Northwestern University. The bomb was in a cigar box and was arranged to go off when the box was opened. I did it this way instead of mailing the bomb to someone because an unexpected package in the mail might arouse suspicion . . . . According to the newspaper, a 'graduate researcher' at Northwestern was 'hospitalized with cuts and burns around the eyes' as a result of my bomb. (Tribune May 9)"
On November 15, 1979, a fire occurred during American Airlines flight 444 from Chicago to Washington, D.C. The fire caused smoke to fill the cabin and cockpit areas of the Boeing 727 and caused the pilot to declare an emergency and to divert from National Airport to Dulles. After landing at Dulles, the fire was found to have been caused by a bomb which detonated in a mail pod located in the forward cargo area. The bomb had been set to go off when the plane reached a certain altitude. The package containing the bomb had been mailed from Chicago and contained $9.00 in postage including two $1.00 "Eugene O'Neill" stamps and three $1.00 "America's Light Fueled By Truth and Reason" stamps.
In a coded journal entry dated December 29, 1979, the defendant states, in part:
IN SOME OF MY NOTES I MENTIONED A PLAN FOR REVENGE ON SOCIETY. PLAN WAS TO BLOW UP AIRLINER IN FLIGHT. LATE SUMMER AND EARLY AUTUMN I CONSTRUCTED DEVICE. MUCH EXPENSE, BECAUSE HAD TO GO TO GR.FALLS TO BUY MATERIALS,INCLUDING BAROMETER AND MANY BOXES CARTRIDGES FOR THE POWDER. I PUT MORE THAN A QUART OF SMOKELESS POWDER IN A CAN, RIGGED BAROMETER SO DEVICE WOULD EXPLODE AT 2OOOFT. OR CONCEIVABLY AS HIGR AS 35OOFT. DUE TO VARIATION OF ATMOSPHERIC PRESSURE. LATE OCT. MAILED PACKAGE FROM CHICAGO PRIORITY MAIL SO IT WOULD GO BY AIR.
(REDACTED TEXT)
The searchers also located the defendant's handwritten notes and calculations referring to the cruising altitude and cabin pressure of most airplanes and a chart showing "atmospheric pressure vs. altitude".
Also, in a letter to the New York Times dated April 20, 1995, the "Unabomber" stated: "[I]n one case we attempted unsuccessfully to blow up an airliner.
(REDACTED TEXT)
A carbon copy of that letter was found in the defendant's cabin.
On June 10, 1980, Percy Wood, then the president of United Airlines, opened a package which he had received in the mail the previous day. The package was postmarked from Chicago and contained $1.40 in postage include one $1.00 "America's Light Fueled By Truth and Reason" stamp. On the mailing label, the words "Parcel Post" and "Contents merchandise" were crossed out and replaced with "Book rate". Approximately a week before Wood had received a letter from "Enoch Fischer" stating that he would be sending Wood a book entitled Ice Brothers by Sloan Wilson which "Fischer" stated was "a book that should be read by all who make important decisions affecting the public welfare". When Wood opened the package which he had received in the mail he found the expected Ice Brothers. When he opened the cover of the book, however, it exploded.
In a coded passage dated August 18, 1980, the defendant states, in part:
"IN JUNE NINETEEN EIGHTY, I SENT A BOMB TO P.A. WOOD, PSES. OF UNITED AIR LINES. . . "
In the remainder of the passage, the defendant notes that the device failed to perform as desired and speculates about the cause of the failure. In another partially coded entry dated September 15, 1980, the defendant expresses his anger over jet noise and states:
After complicated preparation I succeeded in INJURING THE PRES. OF UNITED A.L. BUT HE WAS ONLY ONE OF A VAST ARMY OF PEEPLE WHO directly and indirectly are responsible for the JETS.
Searchers also found in the cabin a handwritten document entitled: "How to hit an Exxon Exec" which discussed sending a book-like package to the target's home preceded by a letter.
Forensic examination of the bomb revealed, among other things, that the bomb contained a metal tag stamped with the initials "FC".
On October 8, 1981, a student at the University of Utah exited his typing class in the Business Classroom Building and observed a large package in the hallway. The student picked up the package and held it at roughly eye level as he examined it. He noted that as he did so a stick dropped part way out of the bottom of the package. Thinking that the package might contain a bomb, the student notified campus personnel who ultimately called the bomb squad. Upon examining the package the bomb squad determined that it was indeed a bomb and "disrupted" it in the women's bathroom down the hall from where it was first located. The device consisted of a partially filled metal gas can in which a pipe bomb was suspended.
In a coded journal entry dated February 22, 1982, the defendant states, in part:
"LAST FALL I ATTEMPTED A BOMBING AND SPENT NEARLY THREE HUNDRED BUCKS JUST FOR TRAVEL EXPENSES, MOTEL, CLOTHING FOR DISGUISE, ETC. ASIDE FROM COST OF MATERIALS FOR BOMB. AND THEN THE THING FAILED TO EXPLODE. DAMN, THIS WAS THE FIREBOMB FOUND IN U. OF UTAH BUSINESS SCHOOL OUTSIDE DOOR OF ROOM CONTAINING SOME COMPUTER STUFF."
In his April 20, 1995 letter to the New York Times the "Unabomber" stated:
"As for the bomb planted at the Business School of the U. Of Utah, that was a botched operation. We won't say how or why it was botched because we don't want to give the FBI any clues. No one was hurt by that bomb."
A carbon copy of this letter was found in the defendant's cabin.
Searchers also found a carbon copy of the letter which the "Unabomber" sent to Penthouse publisher Bob Guiccione together with the manifesto. In that letter, the "Unabomber" references a letter explaining the origin of the initials "FC" ("Freedom Club"), which he claims to have sent to the San Francisco Examiner in 1985. Although the Examiner had no record of receiving such a letter, a copy of a letter to the "S.F. Examiner" from "The Freedom Club" was found in the defendant's cabin with the defendant's handwritten notation indicating that he had mailed it in December, 1985. The letter states, in part:
"We are also responsible for some earlier bombing attempts; among others . . . the fire bomb planted at the Business School of the U. Of Utah, which never went off."
On May 5, 1982, Janet Smith, Secretary to Patrick Fischer, a professor at Vanderbilt University, opened a parcel that had been addressed to Fischer. The package was postmarked from Provo, Utah, and contained at least seven $1.00 "Eugene O'Neill" stamps. On the mailing label, the words "Parcel Post" and "Contents Merchandise" were crossed out and replaced with "Priority Mail". When Smith opened the package, it exploded causing serious injuries to her upper body and face. Forensic examination of the bomb revealed, among other things, a metal tag bearing the initials "FC" and a mailing label which had been typed on the typewriter found in the cabin.
An undated coded entry from the defendant's journal states:
"MAY ABOUT 1982 I SENT A BOMB TO A COMPUTER EXPERT NAMED PATRICK FISVER. HIS SECRETARY OPENED IT. ONE NEWSPAPER SAID SHE WAS IN HOSPITAL?
(REDACTED TEXT)
Also, in the previously referenced letter to the San Francisco Examiner, supra at , a copy of which was found in the cabin, the "Unabomber" wrote:
"We are also responsible for some earlier bombing attempts; among others . . . the mail bomb that injured the secretary of computer expert Patrick Fischer of Vanderbilt University 3 1/2 years ago."
In the June 24, 1995 letter that the "Unabomber" sent to the New York Times, a handwritten version of which was found in the cabin, the defendant again claimed credit for the Patrick Fischer device:
"A bomb package we mailed to computer scientist Patrick Fischer injured his secretary when she opened it. We certainly regret that. When we were young and comparatively reckless we were much more careless in selecting targets than we are now."
One of the defendant's experiments also describes this bomb and again claims credit for the device.
On July 2, 1982, Diogenes Angelakos, Director of the Electronics Research Laboratory at the University of California at Berkeley, found a device in Room 411 of Cory Hall which resembled construction testing equipment. When he lifted the device by its handle, however, the device exploded causing Angelakos serious injuries. Like the University of Utah device (#5), this bomb consisted of a partially filled gas can in which a pipe bomb had been suspended. On top of the device was a note which stated: "Wu -- It works! I told you it would. -- RV". The typing on this note was consistent with the typewriter found in the cabin.
In a coded journal entry which immediately follows the entry relating to the May, 1982, Fischer bomb, the defendant states:
NOT LONG AFTER FOREGOING, I THINK IN JUNE OR JULY, I WENT TO U. OF CALIFORNIA BERKELEY AND PLACED IN COMPUTER SCIENCE BUILDING A BOMB CONSISTING OF A PIPEBOMB IN GALLON CAN OF GASOLINE. ACCORDING TO NEWSPAPER, VICE CHAIRMAN OF COMPUTER SCI. DEPT. PICKED IT UP.
(REDACTED TEXT)
In the 1985 letter to the San Francisco Examiner, the defendant again claimed responsibility for the Angelakos bomb:
"We are also responsible for some earlier bombing attempts; among others, the bomb that injured a professor in the computer science building of the U. Of Cal. . . ."
On May 15, 1985, UC Berkeley graduate student John Hauser noticed a black vinyl three ring binder on top of a plastic file box located in Room 264 of Cory Hall. When Hauser attempted to lift the binder cover to view the contents the device exploded causing serious injuries to Hauser including the loss of four fingers on his right hand and serious damage to his right arm. Forensic examination of the bomb revealed, among other things, a metal end plug to the pipe bomb bearing the initials "FC".
In a quite lengthy coded journal entry dated June 1, 1985, all of which pertains to this bomb, the defendant states, in part:
(REDACTED TEXT)
MAY 8 I PLANTED A SMALL BOMB (LESS THAN 2 OZ.OF EXPLOSIVE) IN THE COMPUTER SCI. DEPT. AT BERKELEY. THIS IS APARATO NO.2, EXP.83 IN MY NOTEBOOKS. AT SAME TIME I MAILED A LARGER BOMB (APARATO NO.1 EXP.82) TO BOEING CORP., AUBURN, WA. OUTCOME OF BOEING BOMB UNKNOWN.
(REDACTED TEXT)
In Experiment 83, which is referenced in the above coded entry, the defendant describes assembling the Hauser bomb during March and April, 1985, (REDACTED TEXT).
Elsewhere in the experiments the defendant sets forth an idea for placing a bomb "in Cory Hall at UCB" which consists of a looseleaf binder on top of a plastic box.
In the 1985 San Francisco Examiner letter, which is also referenced in the above coded entry, the defendant again claimed credit for the Hauser bomb:
"The bomb that crippled the right arm of a graduate. student in electrical engineering and damaged a computer lab at U. Of Cal. Berkeley last May was planted by a terrorist group called Freedom Club... To prove that we are the ones who planted the bomb at U. Of Cal. last May we will mention a few details that could be known only to us and the FBI who investigated the incident."
The letter then goes on to describe in detail specific characteristics of the device including the location of the end plug bearing the initials "FC".
On May 16, 1985, Boeing Aircraft received a parcel at its Auburn, Washington, Fabrication Division. The parcel was postmarked May 8, 1985 from Oakland, California, and contained over $8.00 in postage including eight $1.00 "America's Light Fueled By Truth and Reason" stamps. Correctly suspecting that the parcel might contain a bomb, Boeing employees contacted local law enforcement who successfully "disrupted" the device. Forensic analysis revealed, among other things, that the bomb contained an end plug bearing the initials "FC".
The Boeing bomb is briefly referred to in the lengthy coded journal entry that is quoted with reference to the Hauser bomb supra at ,:
AT SAME TIME [AS THE HAUSER BOMB] I MAILED A LARGER BOMB(APARATO NO.1 EXP.82) TO BOEING CORP., AUBURN, WA. OUTCOME OF BOEING BOMB UNKNOWN. . . SEARCHED OTHER NEWSPAPERS. FOUND NO REFERENCE TO BOEING BOMB. SEEMS INEXPLICABLE IT WAS DESIGNED AND BUILT WITH SU DOWN OF ARE THAT MALFUNCTION SEEMS HIGHLY IMPROBABLE.
In Experiment 82, which is referenced in the above coded entry, the defendant describes assembling the Boeing bomb between February and April, 1985, but states "Result unknown". In a later passage, however, the defendant records: "Now (1993) I know that this device was discovered and disassembled before the triggers were released." (4. A trigger is a device that closes the electrical circuit in the bomb. When the circuit closes, a charge passes from the energy source (consisting of batteries in all but one of Kaczynski's bombs) to the explosive powder, thereby initiating an explosion. As long as it serves this purpose, the trigger can take any number of forms, and, in fact, Kaczynski used several different kinds of triggers in his bombs.)
On November 15, 1985, Dr. James McConnell, a professor at the University of Michigan, received a package in the mail which was postmarked November 12, 1985, from Salt Lake City, and contained over $8.00 in postage including eight $1.00 "America's Light Fueled by Truth and Reason" stamps. Prior to opening the package, Professor McConnell opened the envelope attached to the outside of the parcel and read the enclosed letter. The letter purported to be from "Ralph C. Kloppenburg" and explained that the parcel contained a manuscript of his doctoral dissertation. When Professor McConnell's teaching assistant, Nick Suino, opened the parcel it exploded injuring both Suino and McConnell.
Forensic analysis of the bomb revealed, among other things, that the initials "FC" were stamped on one of the metal end plugs and that the mailing label, envelope and Kloppenburg letter were all typed on the typewriter found in the defendant's cabin. One of the defendant's coded journal entries states:
EXPERIMENT 100. MID NOVEMBER 1985 I SENT BOMB IN MAIL TO JAMES V. MCCONNELL, BEHAVIOR MODIFICATION RESEARCHER AT UNIV. OF MICHIGAN. ONLY MINOR INJURIES TO MCCONNLLS ASSISTANT. DEFLAGRATED, DID NOT DETONATE. MUST BE EITHER PIPE WAS A LITTLE WEAK OR LOADING DENSITY OF EXPLOSIVO A SHADE TOO HIGH AT FAILURE.
In Experiment 100, the defendant describes constructibn of the McConnell bomb in October, 1985, and concludes:
"We placed enough postage on the package for zone 8 and for 7 lbs. We sent the package on Nov. 12, 1985.
Dec.17. We have learned that the package was received and opened, and that the device ignited.
(REDACTED TEXT)
A carbon copy of the Kloppenburg letter was also found in the defendant's cabin. On the letter the defendant had handwritten the following note in Spanish:
"Letter mailed with the exp. 100 package. The letter was in an envelope taped to the package. The envelope was addressed but had no postage. The package itself had enough postage for the package and the letter."
References to Professor McConnell were also found elsewhere among the defendant's personal effects in the cabin.
On February 20, 1987, Gary Wright pulled into the parking lot behind CAAMS, the small computer stored which he owned with his family in Salt Lake City. As he did so he noticed an object which appeared to be a piece of wood with nails sticking out of it. When Wright attempted to lift the object to throw it away, the device exploded. The blast lifted Wright off his feet and hurled him several feet backwards, causing him moderate injuries.
Forensic analysis of the bomb revealed, among other things, that the initials "FC" were stamped into one of the metal end plugs. In conception and placement, the device was also a near twin to the bomb placed at Rentech (#11) which killed Hugh Scrutton in Sacramento and which was also made to look like a road hazard.
In Experiment 121, the defendant describes constructing a bomb in November and December, 1986 and January, 1987. According to the notes, the bomb is completed on February 8, 1987. Another passage then states:
"The device was placed Feb. 20 and worked the same day; it exploded and probably detonated
(REDACTED TEXT)
An article pertaining to the Wright bomb was also found among the defendant's other personal effects in the cabin.
On December 10, 1994, Thomas Mosser, an executive with the national advertising firm Burson-Marsteller, opened his mail in the kitchen of his North Caldwell, New Jersey home. One of the items was a parcel postmarked December 3, 1994, from San Francisco and bearing four $1.00 "Eugene O'Neill" stamps. As he was opening the parcel it exploded, killing him.
In Experiment 244, the defendant describes constructing the Mosser bomb over a period of approximately five months, completing the device around October 14, 1994. The experiment concludes:
"The device in experiment 244 was used in December, 1994,
(REDACTED TEXT)
In a letter to the New York Times dated April 20, 1995, the "Unabomber" stated, in part:
"We blew up Thomas Mosser last December because he was a Burston-Marsteller (sic) executive. Among other misdeeds, Burston-Marsteller helped Exxon clean up its public image after the Exxon Valdez incident. But we attacked Burston-Marsteller (sic) less for its specific misdeeds than on general principles. Burston-Marsteller (sic) is about the biggest organization in the public relations field. This means that its business is the development of techniques for manipulating people's attitudes. It was for this more than for its actions in specific cases that we sent a bomb to an executive of this company."
A carbon copy of this letter was found in Kaczynski's cabin.
Kaczynski qua "Unabomber" was incorrect when he stated in the April 20 New York Times letter that "Burston-Marsteller (sic) helped Exxon clean up its public image after the 'Exxon Valdez incident." In fact, Burson-Marsteller did not handle that matter. However, that misinformation was reported, in the June 21, 1993 issue of the Earth First! Journal, a copy of which was found in Kaczynski's cabin. The Earth First! Article also misspelled Burson-Marsteller in the same manner as Kaczynski. Furthermore, in a handwritten document entitled "Suggestions For Earth First!ers from FC" which was found in the cabin, Kaczynski wrote:
"As for the Mosser bombing, our attention was called to Burson-Marsteller by an article that appeared in Earth First!, Litha, June 21, 1993, page 4."
(REDACTED TEXT)
The cabin searchers also found handwritten notes accurately setting forth bus schedules for a trip from Montana to the Bay Area for the December, 1994 time period, and a copy of the San Francisco Examiner dated December 2, 1994, the day before the Mosser bomb was mailed from San Francisco.
Counts 1, 2, 5 and 8 charge violations of 18 U.S.C. § 844 (d). That section provides in pertinent part:
Whoever transports . . .in interstate ...commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual . . . shall be [guilty of a federal offense].
To obtain a conviction under § 844(d) the government must prove the following elements: (1) transportation in interstate commerce; (2) of an explosive; (3) "with the knowledge or intent that it would be used to kill, injure, or intimidate any individual." United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986); United States v. Carlson, 561 F.2d 105, 108 (1st Cir. 1977).
The obvious way for the government to satisfy its burden under this element is to prove that the defendant constructed the bomb in Montana and transported it to California to be placed (Scrutton) or mailed (Gelernter, Epstein, Murray), as the case may be. Indeed, that is what the government intends to prove with respect to each of the charged bombs. However, this element may also be satisfied by proving that the bombs were mailed. United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986) ("When a defendant places [a bomb] in an authorized mail depository, to be sent and delivered according to the directions thereon by the Postal Service of the United States, he has placed the [bomb] in interstate commerce.") Accordingly, with respect to the Gelernter, Epstein and Murray bombs, the government will satisfy its burden by showing both that the bombs were transported from Montana to California and that, once in California, they were again placed in interstate commerce when they were mailed.
It is not necessary for the government to prove that the defendant had his bombing targets in mind during his interstate travel. United States V. Carlson, 561 F.2d 105, 108-09 (1st Cir. 1977). This proposition will impact at least two of the charged bombs. Being a placed device, the government believes the evidence will show that the bomb that killed Hugh Scrutton was not intended for a specific individual but was intended to kill anyone in the computer field. The government also believes the evidence will show that the decision to place the bomb behind Rentech was a last minute change of plans. The bomb which killed Gilbert Murray was addressed to another individual and therefore could not be said to have been intended for Murray.
Title 18, section 844(j) defines the term "explosive" to include:
"any . . . device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion."
Evidence of intent to kill can come from a variety of sources. See United States v. Collins, 109 F.3d 1413, 1420-21 (9th Cir. 1997) (Evidence of stalking, that the bomb was constructed to explode upon opening, that it was an "enhanced fragmentation" device containing staples, screws and nails was relevant to proving defendant's intent to kill); See also United States v. Matthews, 36 F.3d 821, 824 (9th Cir. 1994) (Concurring/dissenting opinion of Wiggins, J.) ("As any soldier can tell you, pre-fragmented shrapnel is the hallmark of antipersonnel munitions because the projectiles penetrate soft human tissue and kill by internal injuries . . . "); United States v. Kikamura, __ F.Supp. __, 1997 WL 583246 at *4 (D.N.J., August 28, 1997) ("Because lead shot has no utility in an explosive device used merely to cause damage to property, its existence was found to further demonstrate an intent by Kikumura to create anti-personnel bombs.")
In this case, the government will draw upon the defendant's writings to prove that he formed a desire to kill as early as 1966 and that this desire remained unabated to the day of his arrest. We will also draw upon his experiments to show that the defendant spent a great detail of time attempting to perfect a consistently lethal bomb and that this experimentation included close examination of the effects of fragmentation and various efforts to improve it. Finally, the government will prove through x-rays, photographs and medical testimony, that the defendant's bombs were, in fact, enhanced fragmentation devices which resulted in death or potentially lethal injury to their victims.
Counts 3, 6, and 9 charge violations of 18 U.S.C. § 1716. That section provides in pertinent part:
Whoever knowingly deposits for mailing . . anything declared nonmailable by this section with intent to kill, or injure another shall be [guilty of a federal offense].
Nonmailable matter is defined in the statute as including "all explosives, inflammable materials, infernal machines, and mechanical, chemical or other devices or compositions which may ignite or explode." 18 U.S.C. § 1716(a).
To obtain a conviction under § 1716 the government must prove the following elements: (1) that the defendant knowingly deposited for mailing or knowingly caused to be delivered by mail a device or composition that could ignite or explode; and (2) that the defendant acted with the intent to kill or injure another.
Proof that the defendant used the mails may be made by direct or circumstantial evidence. United States v. Keplinger, 776 F.2d 678, 690-91 (9th Cir. 1985); United States v. Miller, 676 F.2d 359, 362 (9th Cir. 1982) (Testimony that all documents that are hand delivered were marked "delivered" was sufficient to enable jury to find that letter not marked "delivered" had been mailed). If the government produces evidence that the defendant used the mails, the matter is one for the jury. United States v. Green, 745 F.2d 1205, 1208 (9th Cir. 1985).
In this case, the government will present testimony with respect to the Epstein, Gelernter and Murray bombs, that the packages containing the bombs contained canceled postage, postmarks and other indicia of mailing. In the case of the Murray bomb, the government will present eyewitness testimony that the parcel was delivered by mail.
The government's evidence with respect to intent to kill under §1716 will be much the same as for intent to kill under §844(d). See supra at pp. 28-29.
Counts 4, 7, and 10 charge violations of 18 U.S.C. § 924(c) (1). That section provides in pertinent part:
Whoever, during and in relation to any crime of violence . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence . . . be [be guilty of a federal offense]
To obtain a conviction under 18 U.S.C. § 924(c) (1) the government must prove the following two elements: (1) that the defendant used or carried a bomb (5. Section 924(c) uses the term firearm. However, as explained below, firearm includes a bomb.); and (2) that he did so during and in relation to a crime of violence. Smith v. United States, 508 U.S. 223, 228 (1993).
a. Definition of Use
To satisfy the "use" prong of § 924(c) (1) the government must prove more than mere possession of a bomb, but rather "active employment". Bailey v. United States, 116 S.Ct. 501, 506 (1995). Active employment includes "brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire a firearm." Id. at 508.
b. Definition of Carry
To satisfy the "carry" prong of § 924(c) (1) the government must prove the defendant "transported [the bomb] on or about his or her person." United States v. Hernandez, 80 F.3d 1253, 1258 (9th Cir. 1996).
c. Definition of Bomb
Section 924(c) makes it a crime to use or carry a "firearm" during and in relation to a crime of violence. Firearm is defined in § 921(a) (3) (D) as including "any destructive device". A destructive device is further defined in § 921 (a) (4) as including "any explosive [or] incendiary . . . bomb". Accordingly, the Ninth Circuit has approved the following jury instruction with respect to a prosecution under § 924 (c):
A destructive device includes any incendiary device be it a military-type weapon or a homemade incendiary product, or components thereof, the function of which is to ignite and destroy property. It must be similar to an explosive or incendiary bomb, grenade, missile, or firebomb, but need not be identical.
Any device composed of a combustible material capable of producing sufficient heat to destroy property of any kind and having components designed to ignite that combustible material is under the law an incendiary device similar to a fire or incendiary bomb.
The term "destructive device" does not include any device which is not designed or redesigned as a weapon for the destruction of property.
United States v. Hedgcorth, 873 F.2d 1307, 1311 (9th Cir. 1989); United States v. Peterson, 475 F.2d 806, 811-12 (9th Cir. 1973) (approving virtually identical instruction). Both of the foregoing cases concerned an incendiary device that was used to destroy property and are cited for illustrative purposes only.
In determining whether the device in question was "designed or re-designed for use as a weapon", the court should consider "(1) the nature of the device and (2) the intent with which it was constructed and used." United States v. Hedgcorth, 873 F.2d at 1311. Here again, proof that the defendant's bombs were of an anti-personnel type and proof of the defendant's intent as expressed through his writings are relevant to prove that his bombs were designed for use as weapons within the meaning of § 924 (c).
The fact that a device cannot be "thrown, aimed or wielded" does not prevent it from being considered a weapon for these purposes. Id.. at 1312. Moreover, where it is self evident from the facts of the case that the defendant intended to and did blow up and destroy property and that the device used was both a destructive device and a bomb within the meaning of the statute, the composition of the explosive charge is immaterial. United States v Wilson, 546 F.2d 1175, 1177 (5th Cir. 1977)
The term crime of violence is defined in the statute as follows:
An offense that is a felony, and
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 924(c) (3). Mailing a bomb in violation of 18 U.S.C. § 1716 is a crime of violence for the purpose of 18 U.S.C. § 924(c) (1). United States v. Collins, 109 F.2d 1413, 1418-19 (9th Cir. 1997).
The term "in relation to" was intended to be "deliberately expansive" and "broad" in its application. Smith v. United States, 508 U.S. 223, 237 (1993). "The phrase 'in relation to' thus, at a minimum clarifies that the firearm must have some purpose or effect with respect to the [crime of violence]; its presence or involvement cannot be the result of accident or coincidence." Id.. at 238. Interpreting the "during and in relation to" language, the Ninth Circuit has held:
If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, . . . then there is a violation of the statute.
United States v. Loaiza-Diaz, 96 F.3d 13335, 1336-37 (9th Cir. 1996); United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985).
As set forth in more detail below, the government intends to introduce a variety of documentary, photographic, scientific, demonstrative and other types of evidence in its case in chief. In subsection one, the government discusses a foundational requirement common to each of these types of evidence: authentication. In the sections which follow we discuss specific issues related to each category of evidence.
In seeking to authenticate an item of evidence, the government must merely present proof that the evidence is what the government claims it is. Federal Rules of Evidence, Rule 901(a). Rule 901(a) states: "The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, the government need not prove the authenticity of its proffered evidence outright. Rather, for an item of evidence to be admissible, FRE 901(a) requires that "[t]he government need only make a prima facie showing of authenticity so that a reasonable juror could find in favor of authenticity or identification.'" United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996); United States V. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir. 1991); United States V. Blackwood, 878 F.2d 1200, 1202 (9th Cir. 1989). Therefore, the test for authenticity is "whether the proponent has presented sufficient evidence to support a rational jury finding that[, for example,] the letter is genuine, or the photograph is accurate. The trial judge looks to only the proponent's evidence and asks that question of law." EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS 35 (3rd ed. 1995). See United States v. Johnson, 637 F.2d 1224, 1247 (9th Cir. 1980) ("The terms of the Rule are thus satisfied, and the proffered evidence should ordinarily be admitted, once a prima facie case has been made on the issue").
"Once the government meets this burden [of showing prima facie authenticity,] 'the ... probative force of the evidence offered is, ultimately, an issue for the jury.'" Workinger at 1415; Chu Kong Yin at 996; Blackwood, 878 F.2d at 1202. Johnson, 637 F.2d at 1247 ("At that point the matter is committed to the trier of fact to determine the evidence's credibility and probative force"). The requirement of authentication is thus the paradigm of a preliminary question under Rule 104(b). 1 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 104.30[3] at 104-68 (Joseph M. Mclaughlin ed., 2nd ed. 1997); 5 WEINSTEIN § 901.02[4] at 901-15. See IMWINKELRIED at 35 ("[A]s is generally true under Rule 104(b), there is a two-step procedure; the judge initially plays a limited, screening role, and the jury then makes the final decisions on the question of fact") . See also United States v. Browne, 829 F.2d 760, 766 (9th Cir. 1987) , cert. denied, 485 U.S. 991 (1988) (holding gun properly authenticated as being linked to robbery by witness testimony, jury should decide whether gun admitted was actually used in robbery). (6. The issue of a preliminary hearing pursuant to FRE 104 (a) is addressed in more detail at pages 71-75, infra.)
The government intends to introduce photographs of most of the Unabom crime scenes, including the cabin, and laboratory photographs of bomb components and other crime scene evidence and autopsy photographs. The foundation for photographic evidence may be laid in a variety of ways.
a. Witness verification may authenticate a photograph
Photographs may be authenticated by witness testimony. FRE 901(b) (1), (4). See WEINSTEIN § 901.02[3] at 901-14. In Guam v. Ojeda, 758 F.2d 403, 407-08 (9th Cir. 1985), the Ninth Circuit set forth its standard for witness authentication of photographs. Noting a presumption of regularity in the handling of photographs by public officials, the court held that under Rule 901(b) (1), "the witness identifying the item in a photograph need only establish that the photograph is an accurate portrayal of the item in question." Id. Accordingly, the Ojeda court rejected the defendant's claim that, in order to admit photographs, the government must establish chain of custody for the items depicted in the photos. Id.; see also United States v. Flores, 63 F.3d 1342, 1363 (9th Cir. 1995) (holding that photograph depicting evidence misplaced by government before trial was properly admitted as accurate representation of what investigator saw when he looked inside defendant's car).
Photographs are thus authenticated, and should be admitted, if the jury can reasonably conclude that the photos depict what the government claims they do. United States v. Blackwell, 694 F.2d 1325 (D.C. Cir. 1982). The government is not required to establish when or by whom the photo was taken. Banghart v. Origoverken, 49 F.3d 1302, 1304 (9th Cir. 1995). Nor is the government required to show that the photograph duplicates the conditions which existed at the time the crime was committed. United States v. Crockett, 49 F.3d 1357, 1360 (8th Cir. 1995) (photo of crime scene taken during daytime properly admitted even though crime occurred at night); United States V. Dombrowski, 877 F.2d 520, 525 (7th Cir. 1989) (crime scene photograph properly admitted even though photo did not accurately depict lighting conditions on night in question) . See also United States v. Mojica, 746 F.2d 242, 245 (5th Cir. 1984) ("[i]n the absence of a showing to the contrary, we presume that the government did not deliberately alter the scene before photographing it to cause the photograph to misrepresent the facts"), citing United States v. Stearns, 550 F.2d 1167, 1170 (9th Cir. 1977) (noting presumption of regularity in the handling of photographs by public officials).
The foundational elements for witness authentication of a photograph are:
1. The witness is familiar with the object or scene.
2. The witness explains the basis for his or her
familiarity with the object or scene.
3. The witness recognizes the object or scene in the photograph.
4. The photograph is a "fair," "accurate," "true," or "good" depiction of the object or scene.
IMWINKELRIED at 75.
b. Content and circumstantial evidence may authenticate a photograph
Photographs may also be authenticated by their content and supporting circumstantial evidence. FRE 901(b) (1), (4). See WEINSTEIN § 901.02[3] at 901-14. In United States v. Englebrecht, 917 F.2d 376, 378 (9th Cir. 1990), the defendant claimed that the trial court abused its discretion in admitting certain photographs. Pictures of the defendant posing next to marijuana plants had been admitted into evidence during the defendant's trial. The defendant argued that the government did not adequately establish the time at which or place where photographs of him posing next to marijuana plants were taken, and that the photos were thus not properly authenticated. Id. The Ninth Circuit rejected the defendant's claim, holding that the contents of the photograph and corroborative witness testimony adequately established that the photographs pictured what the government claimed. (7. The court noted the following circumstantial evidence: l)The photos were found in the defendant's home on the day of his arrest, 2) one of the defendant's drug customers testified that the defendant had shown him the photos and boasted that he owned the pictured marijuana crop, 3) a detective testified that the background in the photos matched an area of the farm next to the defendant's property, and 4) another one of the defendant's customers testified that the marijuana in the pictures was grown in 1988, and that 1988 was the only year during which the defendant grew marijuana. Englebrecht, 917 F.2d at 378.) Id., citing Blackwell, 694 F.2d at 1330 (holding circumstantial evidence made photographs seized from defendant's hotel room admissible even though no witness could testify as to when, where, or by what process they were taken, or whether they fairly and accurately depicted any particular scene on any particular date).
c. Graphic photographs are not inadmissible
The government intends to introduce autopsy photographs and x-rays of Hugh Scrutton, crime scene and autopsy photographs and x-rays of Gilbert Murray, and crime scene and hospital photographs of Drs. Charles Epstein and David Gelernter. These photographs and x-rays will be offered to depict the crime scene, the identity of the victim, the manner of death or nature of the injuries, the destructive power of the bomb and thus the defendant's lethal intent, and other issues relevant to the government's burden of proof.
Crime scene and autopsy photographs in homicide cases are frequently unpleasant, however, "gruesomeness alone does not make photographs inadmissible." United States v. Naranjo, 710 F.2d 1465, 1468-69 (10th Cir. 1983). In United States v. Yahweh, 792 F.Supp. 104, 105 (S.D. Fla. 1992), which the court described as "arguably the most violent case ever tried in federal court", the court explained its admission of particularly gruesome photographs:
The subject matter of the photographs in question -- decapitation, slit throat, removed ears, repeated stabbing, gunshot wounds - - is both difficult to view as well as disturbing and distasteful. However, so were the crimes alleged. Murder, especially "murder most foul" by methods such as decapitation or stabbing and the removal of body parts, is inherently offensive. However, these exhibits are not flagrantly or deliberately gruesome depictions of the crimes.
The Court in United States v. Naranjo, 710 F.2d at 1468-69, expressed a similar view when it upheld the admissibility of graphic photographs of a murder victim who had been shot in the face:
In our court system, juries are entrusted with the weighty obligation to find the facts in criminal cases of grave importance, such as the one before us. We think it is incompatible with that degree of trust to attempt to "protect" them from the evidence questioned here. It was part of the surroundings of the scene of the crime.
See also United States v. Kaiser, 545 F.2d 467, 476 (5th Cir. 1977) (admitting photographs of murder victim which were "upsetting" but which were not "in any respect more gruesome than is inherent in any visual record of a murder."); and Walle v. Sigler, 456 F.2d 1153, 1155 (8th Cir. 1972) (while photograph of murder victim was "gruesome", "this condition is an inherent and inseparable part of the crime with which the defendant was charged").
As with other types of evidence, the trial court must balance the probative value of the graphic photographs against their prejudicial effect and the exercise of such discretion is "rarely disturbed." United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986); United States v. Brady, 579 F.2d 1121, 1129 (9th Cir. 1978); United States v. Sides, 944 F.2d 1544, 1562 (10th Cir. 1991). In United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979), where the court upheld the admission of graphic photographs of the murder victim, the Court explained the reason for a restrained use Rule 403:
Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the occasion, the application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. As to such, Rule 403 is meant to relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the proceedings by exclusion despite relevance. It is not designed to "even out" the weight of the evidence, to mitigate a crime, or to make a contest where there is little or none.
See also United States v. De Parias, 805 F.2d 1447, 1454 (11th Cir. 1986) (noting that "Rule 403 is to be very sparingly used").
(1) Crime Scene Photographs
Photographs of homicide victims are relevant to show the identity of the victim, the manner of death, the murder weapon and any other element of the crime. United States v. De Parias, 805 F.2d at 1453; United States v. Yahweh, 792 F.Supp. 104, 105 (S.D. Fla. 1992); United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986). Such photographs also enable witnesses to better describe and the jury to better understand testimony concerning the description and identity of the place where the crime occurred, the atmoshere in which the crime was committed, the identity of the victim and the degree of the crime committed. Walle v. Sigler, 456 F.2d 1153, 1155 (8th Cir. 1972); United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991).
Photographs of the murder victim taken at the crime scene have been admitted despite their graphic content. See, e.g., United States v. McRae, 593 F.2d at 707 (admitting photograph of back of victim's head "so as to display an exit wound in the back of her skull produced by part of McRae's dum-dum bullet, which exploded in her brain" and a photograph showing "a front view of her body, seated in the chair where she died, her left eye disfigured by the bullet's entry and her head broken by its force".); United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991) (admitting photographs of elderly couple bound and gagged with gunshot wounds to the head); United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10th Cir. 1993) (admitting photographs depicting stab wounds to neck); United States v. Naranjo, 710 F.2d 1465, 1468-69 (10th Cir. 1983) (admitting photographs depicting victim on the bed with gunshot wound to face and a great deal of blood on pillow and bedsheets); United States v. Fleming, 594 F.2d 598, 607-08 (7th Cir. 1979) (admitting photograph of gunshot victim's nude and bound body); United States v. Brady, 579 F.2d 1121, 1129 (9th Cir. 1978) (admitting photographs of victims battered, bloodied and bruised face which "were not for the faint hearted"); Walle v. Sigler, 456 F.2d 1153, 1154 (8th Cir 1972) (admitting photographs of clothed and bloodied body of gunshot victim).
(2) Autopsy Photographs
Autopsy photographs of the murder victim have been admitted despite their graphic content where they will assist in explaining or illustrating the testimony of the pathologist. See, e.g., United States v. Stifel, 433 F.2d 431, 441-42 (6th Cir. 1970) (death caused by mail bomb which "tore open his abdomen and tore off his arms") ; United States v. Lewis, 92 F.3d 1371, 1383 (5th Cir. 1996) (battered child) ; United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10th Cir. 1993) (death by stab wounds to the neck); United States v. Boise, 916 F.2d 497, 504 (9th Cir. 1990) (battered child); United States v. Soundingsides, 820 F.2d 1232, 1243 (10th Cir. 1987) (beating death); Walle v. Sigler, 496 F.2d 1153, 1154 (8th Cir. 1972) (nude photographs of gunshot victim); United States v. Yahweh, 792 F.Supp 104, 105 (S.D. Fla 1992) (14 deaths caused by beheading, stabbing, pistol shots, plus severing of body parts).
Because of the different purposes for which they are introduced, the prosecution's use of crime scene photographs of the victim does not render its use of autopsy photographs cumulative. United States v. De Parias, 805 F.2d at 1454. As the DeParias court explained: "Rule 403 does not mandate exclusion merely because some overlap exists between the photographs and other evidence." Indeed, in many of the cases cited above the government admitted both crime scene and autopsy photographs.
(3) Photographs Are Admissible Even If Matter in Issue Is Not Controverted
A plea of not guilty puts the prosecution to its proof as to all elements of the crime charged. United States v. Mathews, 485 U.S. 58, 64-65 (1988). Further, a defendant's tactical decision not to contest an essential element of the crime does not remove the government's burden to prove that element. Estelle v. McGuire, 502 U.S. 62, 69 (1991). As a consequence, in a homicide case, the government is required to prove the cause of death even though the defendant does not controvert, or even stipulates, to the cause of death.
In Walle v. Sigler, 456 F.2d at 1154, the defendant was charged with murdering his wife. Because his defense was limited to alibi and a general denial, and because he did not seek to controvert the manner or cause of death, the defendant objected to the introduction of crime scene and autopsy photographs of the victim on the ground that they had no probative value and were intended to prejudice the jury. The Court rejected that argument.
Even where the defendant stipulates to the cause of death that fact does not preclude the prosecution from offering photographic evidence on that issue. United States v. Bowers, 660 F.2d 527, 530 (5th Cir. 1981).
(4) Bombing Cases
Bombing cases present no special issues regarding the admission of graphic photographs of the victims. In bombing cases, graphic photographs of post-blast injuries have been admitted to prove a statutory enhancement, United States v. Moton, 493 F.2d 30, 31 (5th Cir. 1974) (photograph of child who had been burned by explosive device admitted to prove injury occurred under 18 U.S.C. §844(d)), to show the force of the explosion and the lethal intent, United States v. Stifel, 433 F.2d 43l, 442 (6th Cir. 1970) , and to assist the government pathologist in explaining and illustrating his findings. United States v. Cheely, 1997 WL 265000 (9th Cir. 1997) (unpublished opinion). Photographs of the scene of the explosion have also been admitted as probative of the crime scene. United States v. Sanchez, 992 F.2d 1143, 1160 (11th Cir. 1993). See also United States v. Stifel, 433 F.2d 431, 442 (6th Cir. 1970) (admitting two photos of bombing victim whose abdomen was "torn open" and both arms "torn off"; "the unanimous view of our panel [is] that under no circumstances could the horror of this crime have been kept from the jury").
The government will also seek to introduce physical evidence consisting primarily of bomb components from some of the Unabom crime scenes, bomb components (including the cabin bomb) and bomb-making tools taken from the cabin, and other items of physical evidence taken from the cabin such as stamps, address labels and books. Some of these items are readily identifiable by a unique or distinctive feature such as a bomb component containing the initials or a mailing label bearing the address of the intended victim. Other items which are not unique or distinctive will be identified by establishing a chain of custody.
In United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir. 1992), the Court set forth the standard for authentication of physical evidence. Physical evidence may be authenticated by establishing ready identifiability, or in the alternative, chain of custody:
The evidence in question is properly admitted if it is readily identifiable by a unique feature or other identifying mark. On the other hand, if the offered evidence is of the type that is not readily identifiable or is susceptible to alteration, a testimonial tracing of the chain of custody is necessary. Id.
a. Physical evidence may be authenticated by its readily identifiable characteristics
Rule 901(b) expressly permits authentication of an object by its distinctive characteristics. FRE 901(b) (4). Hence, if the proffered evidence is unique, readily identifiable and relatively resistant to change, the foundation need only consist of testimony that the evidence is what the proponent claims. United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989); United States v. Clonts, 966 F.2d 1366, 1368 (10th Cir. 1992); United States v. Hernandez-Herrera, 952 F.2d 342, 344 (10th Cir. 1991). The foundational elements for witness authentication of an object based on its ready identifiability are:
1. The object has a unique characteristic.
2. The witness observed the characteristic on a previous occasion.
3. The witness identifies the exhibit as the object.
4. The witness bases his or her identification of the object on his or her present recognition of the characteristic.
5. As best as the witness can tell, the exhibit is in the same condition as it was when he or she initially observed the object.
IMWINKELRIED at 71. See, e.g., United States v. Phillips, 640 F.2d 87, 94 (7th Cir. 1981) (chain of custody not required where witness positively identified clothing she was wearing on day of kidnaping); United States v. McFadden, 458 F.2d 440, 441 (6th Cir. 1972) (chain of custody not required where bank teller identified robber's demand note) ; Scruggs v. United States, 450 F.2d 359, 361 (8th Cir. 1971) (chain of custody not required where officer identified metal tube as the one he seized from defendant's apartment); United States v. Blue, 440 F.2d 300, 303 (7th Cir. 1971) (chain of custody not required where witness identified 22 silver dollars as ones which he had previously purchased). Furthermore, an otherwise non-unique item may become distinctive for identification purposes by the addition of an evidence tag bearing the initials of the officer who seized the item. See, e.g., United States v. Abreu, 952 F.2d 1458, 1461 (1st Cir. 1992) (Shotgun with evidence tag); United States V. Barker, 27 F.3d 1287, 1292 (7th Cir. 1994) (chain of custody not required given officer's testimony that he recognized gun based on its make, model, serial number and evidence tag).
b. Physical evidence may be authenticated by establishing a chain of custody
Absent unique or readily identifiable characteristics an item of physical evidence is admissible if the trial court determines that "a reasonable probability exists that the evidence has not been changed or altered." United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996); United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997). The factors to be considered by the trial judge in deciding whether this criterion has been met include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of intermeddlers having tampered with it. Gallego V. United States, 276 F.2d 914, 917 (9th Cir. 1960); United States v. Mora, 845 F.2d 233, 236 (10th Cir. 1988); United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973).
Merely raising the possibility of tampering is insufficient to render evidence inadmissible. United States v. Allen, 106 F.3d at 700; United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991). Where there is no evidence indicating that tampering with the exhibits occurred, courts presume public officials have discharged their duties properly. Id.; United States v. Johnson, 977 F.2d 1360, 1367-68 (10th Cir. 1992) (no evidence that exhibits had been tampered with); United States v. Cannon, 88 F.3d at 1503 (defendant adduced no facts rebutting the presumption of integrity of physical evidence); United States v. Aviles, 623 F.2d 1192, 1197-98 (7th Cir. 1980). Accordingly, in order to make a sufficient showing of an object's authenticity, the government must establish chain of custody only to the extent that it renders it unlikely that the object has been altered. See Abreu, 952 F.2d at 1467 ("The purpose of testimonial tracing [of the chain of custody] is to render it improbable that the original item either has been exchanged with another or has been tampered with or contaminated"). Once this prima facie showing has been made, the preliminary issue of admissibility has been determined. United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir. 1994) ("All the government must show is that reasonable precautions were taken to preserve the original condition of evidence; an adequate chain of custody can be shown even if all possibilities of tampering are not excluded.") . See United States v. Blackwood, 878 F.2d 1200, 1202 (9th Cir. 1989). Any subsequent challenges as to weaknesses or breaks in the chain of custody go to the weight rather than the admissibility of the evidence. United States v. Robinson, 967 F.2d 287, 292-92 (9th Cir. 1992) (discrepancy between dates on bags of cocaine introduced into evidence and testimony concerning date of seizure went to weight not admissibility); United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997) (failure to identify every individual who handled or conceivably had access to marijuana did not defeat chain of custody); United States v. Crawford, 52 F.3d 1303, 1310-11 (5th Cir. 1995); United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir. 1985); United States v. Washington, 11 F.3d 1510, 1514 (10th Cir. 1993); United States v. Boykins, 9 F.3d 1278, 1284-85 (7th Cir. 1993) (evidence admissible despite the fact that supervising officer could not recall from which officers he had received the two bags of cocaine). Accordingly, the adequacy of the proof relating to the chain of custody is not a proper ground to challenge the admissibility of the evidence. United States v. Lopez, 758 F.2d at 1521.
The presence or possibility of a "missing link," or break in the chain of custody does not preclude authentication of physical evidence. See United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996) (Defendant's argument that government failed to show what happened to cocaine between time it was mailed to DEA lab and the time it was tested by a DEA chemist did not rebut presumption of integrity of evidence); United States v. Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995) (chain of custody evidence was sufficient despite "missing link," since there was adequate proof that evidence was what it purported to be and had not been altered); United States v. Gelzer, 50 F.3d 1133, 1141 (2d Cir. 1995) (prosecution's decision not to call every witness who handled gun before trial did not call into question authenticity of gun); United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir.), cert. denied, 459 U.S. 874 (1982) (failure of one agent in chain of custody to testify at trial not fatal to admissibility of seized marijuana). See also United States v. Jardina, 747 F.2d 945, 951 (5th Cir. 1984) (evidence that bank employee found counterfeit bill in gas station deposit, that bill had same coloration as other counterfeit bills, that bill had identical serial number as 20 of 21 counterfeit bills found in defendant's car, and that only one counterfeit bill was found in gas station deposits, was sufficient to establish chain of custody for bill in question).
For physical evidence, the foundational elements for establishing chain of custody sufficient for a prima facie showing of authenticity are:
1. The witness (link in the chain) initially received the object at a certain time and place.
2. The witness safeguarded the object; the witness testifies to circumstances making it unlikely that substitution or tampering occurred.
3. The witness ultimately disposed of the object (retention, destruction, or transfer to another person).
4. As best as he or she can tell, the exhibit is the object he or she previously handled.
5. As best as he or she can tell, the exhibit is in the same condition as it was when he or she ultimately received the object.
IMWINKELRIED at 71-72.
In United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991), the Court held the foundation sufficiently established where an officer testified that he was present when the criminalist placed the recovered items into a bag, that the bag which he examined at the time of trial contained all of the recovered items and that a record attached to the bag indicated where the bag had been from its seizure until the time of trial, and who had viewed or possessed the bag.
A large component of the government's evidence will be private writings seized from the defendant's cabin. Some of these documents are handwritten and others are typewritten.
With respect to the handwritten documents, the defendant has stipulated that all of the writings that the government will seek to introduce were written by the defendant. With two exceptions, the government submits that these documents are admissible without further foundation. The two exceptions are for documents that were written in code and those which were written in Spanish. With respect to these documents the government will offer expert testimony regarding the translation and decoding of these documents.
With respect to the typewritten documents, the government will show that, in addition to being seized from the defendant's cabin, these documents were typed on a typewriter found in the defendant's cabin and, in some cases, also bear the defendant's handwriting.
For ease of discussion, the documents can be roughly divided into a few broad categories: (1) diaries or journals, (2) notes of scientific experimentation, (3) correspondence, (4) Unabom documents found in the cabin (e.g., the manifesto and accompanying letters, copies of letters sent with bombs, etc.), and (5) notes, lists, bus schedules and other writings pertaining to issues in the case such as actual or potential bomb victims, Unabom themes (e.g., hatred of people, anti-technology views) , and travel associated with specific Unabom events.
The documents, whether handwritten or typewritten, will be offered for a variety of purposes. The diaries and journals reflect, in both words and deeds, the defendant's hatred of anyone who interferes with the way he wants to live his life and his antitechnology views. They also reflect travel and familiarity with locations associated with Unabom events. Coded portions of the journals contain direct admissions to several of the bombings. The notes of scientific experimentation, which are written almost entirely in Spanish, chronicle the defendant's efforts to construct ever more lethal bombs. Among other things, the notes reflect the defendant's experimentation with various bomb components, the progression of his bomb making skills and his testing of bombs for proper detonation and fragmentation. The notes also record the defendant's construction of at least seven of the Unabom devices and, in most cases, contain direct admissions and the defendant's commentary on the success of the device.
The correspondence will also be offered for a variety of purposes including further proof of the defendant's hatred of people and anti-technology views, the defendant's familiarity with books and other material referenced by the Unabomber, and as evidence of the defendant's presence in a particular location when a Unabom event occurred. Some of the letters contain admissions to being "FO" or the "Unabomber". (8. Some of the correspondence consisted of letters which the defendant had written to his family over the years and which his family had saved and eventually returned to him. The defendant was also in the habit of copying letters which he sent to others.)
The defendant's writings of all types will also be offered to rebut the defendant's "mental defect" defense. That defense is only valid if it negates an element of the offense, such as intent to kill. See infra at pp. 75-86. The defendant's writings, with their repeated statements of the defendant's desire to kill, his joy when he does so and his frustration when he does not, spanning more than 25 years, belie any inability to form the requisite intent.
a. Proffered writing has distinctive characteristics
As previously noted, at least with respect to the handwritten documents to which the defendant has stipulated, the government submits that no further foundation is required. It is perhaps worth mentioning however that, even without this stipulation and whether handwritten or not, many of the documents, would be admissible based on a combination of factors including their content (e.g., daily accounts of life in and around the cabin) and the fact that they were found in the defendant's cabin.
A writing may be authenticated by its contents, substance, format, or physical appearance. FRE 901(b) (4). See WEINSTEIN § 901.06[l] at 901-26. See also Alexander Dawson. Inc. v. National Labor Relations Board, 586 F.2d 1300, 1302 (9th Cir. 1978) ("The content of a document, when considered with the circumstances surrounding its discovery, is an adequate basis for a ruling admitting it into evidence") ; United States v. One 56-Foot Yacht named Tahuna, 702 F.2d 1276, 1284-85 (9th Cir. 1983) (holding diary properly admitted when contents demonstrated that diary was what government claimed it to be) ; United States v. Huguez-Ibarra, 954 F.2d 546, 952 (9th Cir. 1992) (notebooks were authenticated because they were found in defendant's home and were further corroborated by their contents and the fact that they were corroborated by the testimony of government agents) ; United States v. Spetz, 721 F.2d 1457, 1476 (9th Cir. 1983) (holding father's testimony that he had read book written by son and that he recognized proffered writing as that book sufficient authentication) ; United States v. Manning, 56 F.3d 1188, 1198-99 (9th Cir. 1995) (holding government's proffered letter properly authenticated by evidence that it was similar in format to another already authenticated letter) ; United States v. Whitworth, 856 F.2d 1268, 1282 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989) (holding postmarks corresponding to defendant's location on day letters mailed helped authenticate anonymous letter).
The Ninth Circuit has twice upheld district court admissions of documents authenticated only by the location where they were found. See Burgess v. Premier Corporation, 727 F.2d 826, 835 (9th Cir. 1984) (holding trial court could properly find various documents authenticated only by fact that they were found in defendant's warehouse); E.W. French & Sons. Inc. v. General Portland Inc., 885 F.2d 1392, 1398 (9th Cir. 1989) citing Burgess, 727 F.2d at 835 (holding documents sufficiently authenticated by fact that they were found in defendant's files, trial court erred in limiting document's probative value once proponent made prima facie showing of authenticity).
(1) Foundation for Spanish Documents
As previously indicated a large number of documents which the government will seek to introduce were written by the defendant in Spanish. These documents have been translated for the government by a certified court interpreter. An untranslated copy of these documents was provided to the defense on the day of indictment. A draft translation of the documents was provided to the defense on July 29, 1996, and a final translation was provided on July 30, 1997. (9. The government has sought a stipulation from the defense as to the accuracy of its translation. Although the defendant has not identified any disagreement with the government's translation he has refused to stipulate stating: "At this point we expect the government to lay the proper foundation, including authentication and chain of custody for each item of evidence offered. This would include producing the translator for the spanish and coded documents." Letter from Judy Clarke dated September 18, 1997.)
Where a certified court interpreter testifies under oath that her translation of a document is accurate and where the defendant has been given a draft and final translation prior to trial but chooses not to submit his own translation or to present his own expert to contest the accuracy of the government's translation, the translation is admissible. See United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir. 1993) (admitting translation of taped conversation in Spanish).
Where the translation is admitted and the jury may contain one or more bilingual jurors, it is appropriate for the court to instruct the jury that it is not free to interpret the documents differently than the translation provided by the certified court interpreter. United States v. Fuentes-Montijo, 68 F.3d 352, 354-55 (9th Cir. 1995) ("The rules of evidence and the expert testimony would prove of little use if a self-styled expert were free to give his or her opinion on this crucial issue, unknown to the parties.")
(2) Foundation for Coded Documents
The government intends to call Michael Birch, a cryptanalyst assigned to the FBI, to "translate" the coded documents. Although Mr. Birch's expertise is breaking codes, in this case the key to the defendant's code was found in the cabin. Therefore, Mr. Birch's expertise will be directed to explaining to the jury how to apply the code to the defendant's coded writings and the admission into evidence of his completed translation. A complete set of the coded documents was provided to the defense on the day of indictment. A complete set of the decoded translation of the documents was provided to the defense on July 29, 1996. To date, the defendant has not identified any disagreement with the government's decoded translation.
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The government has found no case specifically admitting expert testimony regarding a numeric code. However, courts have for years routinely admitted expert testimony regarding other types of coded communications. See, e.g. United States v. Boissoneault, 926 F.2d 230, 232 (2d Cir. 1991); United States v. Theodoropoulos, 866 F.2d 587, 590-92 (3d Cir. 1989); United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir. 1988). In permitting the use of experts in this context, the Court's explanation in United States v. Zanin, 831 F.2d 740, 744 (7th Cir.1987) is typical:
In this case the jury was confronted with conversations which contained 'code words' that when considered in isolation, might seem unclear, veiled and almost nonsensical, but when analyzed properly, in the context of the totality of the evidence, can clearly be seen to be 'code words' for drugs.
As was the case in Zanin, without Mr. Birch's testimony the jury would have no way to decipher what would otherwise be a series of meaningless numbers. However, because Birch is relying primarily on the key to the code rather than his codebreaking ability, his testimony is more akin to that of a foreign language translator than to the drug agents who testified in Zanin and the other cases cited above. It therefore appears more appropriate to apply the procedure for foreign language translations set forth in United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir. l993), supra at p. 54. Paraphrasing Armijo, the rule would then be, where an expert cryptanalyst testifies under oath that his translation of a coded document is accurate and where the defendant has been given a draft and final translation prior to trial but chooses not to submit his own translation or to present his own expert to contest the accuracy of the government's translation, the translation is admissible.
The government will seek to introduce a scale model of the defendant's cabin and mockups of bombs 11, 13, 14, 15 and 16. Wynn Warren, Special Projects Section of the FBI, will testify that he constructed the cabin mockup from measurements he took of the actual cabin. The mockups of the bombs were made based on instructions from the explosive experts who examined the remains of the exploded bombs and eyewitness testimony regarding their approximate size and shape. Mr. Warren will also describe his procedure for building the devices and how long it took him.
"Demonstrative aids are regularly used to clarify or illustrate testimony." United States v. Salerno, 108 F.3d 730, 744 (7th Cir. 1997). Since demonstrative evidence is not "real" evidence, (10. See Mulroy & Rychlak, Use of Real and Demonstrative Evidence at Trial, 33 TRIAL LAW. GUIDE 550, 555 (1989) (demonstrative evidence "has no probative value in itself, but serves only as an aid to the jury in comprehending testimony").) it need not be formally admitted. See Rogers v. Raymark Industries. Inc., 922 F.2d 1426, 1429 (9th Cir. 1991). In Rogers, the Ninth Circuit has held that where the government only uses demonstrative evidence to illustrate testimony, and does not request its admission, the Rule 901(a) authentication standard need not apply. Id. Instead, use of such evidence is entirely within the discretion of the trial judge. Id.
The court may formally admit demonstrative aids into evidence. See United States v. Marchini, 797 F.2d 759, 765 (9th Cir.) , cert. denied, 479 U.S. 1085 (1986). However, the Rule 901 (a) foundation is easier to lay than for substantive evidence. The proponent of demonstrative evidence need only show that the item is a "fair depiction" or "reasonable facsimile." 5 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 532 at 125 (2nd ed. 1994); See Roland v. Langlois, 945 F.2d 956, 963 (7th Cir. 1991) ("There is no requirement that demonstrative evidence be completely accurate").
a. Models and Diagrams
Models and diagrams are common examples of demonstrative evidence used to help the jury visualize scenes or follow along with descriptions by a witness. MUELLER § 534 at 131. See Re Air Crash Disaster at John F. Kennedy Airport, 635 F.2d 67, 72-73 (2d Cir. 1980) (upholding use of diagram to illustrate glide path of aircraft); United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980) (upholding admission of mockup bombs into evidence for illustrative purposes, even where officer had to "fill in the blanks" in constructing models since real devices in question had exploded); United States v. Sanchez, 992 F.2d 1143, 1160 (11th Cir. 1993) (admitting expert's demonstration of the operation of the bomb with replica of the device). Possible differences between the mockup and the actual device go to weight not admissibility. United States v. Metzger, 778 F.2d 1195, 1204-05 (6th Cir. 1985) (possible difference between test vehicle blown up by government and actual vehicle which defendant was charged with blowing up went to weight not admissibility).
Whether or not the government seeks to formally admit this type of evidence, the foundation for authentication is the same. The foundational elements for a prima facie showing of authenticity of a diagram or model are:
1. A visual aid would help the witness explain his or her testimony.
2. The aid depicts a certain area or object.
3. The witness is familiar with that area or object.
4. The witness explains the basis for his or her familiarity with the area or object.
5. In the witness's opinion, the aid is a "true," "accurate," good," or fair," depiction of that area or object.
See IMWINKELRIED at 66, 68.
b. Summary Charts
Federal Rule of Evidence 1006 specifically provides for the use of summary charts in cases involving voluminous material:
The contents of voluminous writings recordings, or photographs which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation.
The purpose of Rule 1006 is to allow the use of summaries when the volume of documents being summarized is so large as to make their use impractical or impossible; summaries may also prove more meaningful to the judge and jury. United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir. 1979). Such charts can "contribute[] to the clarity of the presentation to the jury, avoid[] needless consumption of time and [is] a reasonable method of presenting the evidence." United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980).
A summary chart may be based on testimony of witnesses or on documents which have been admitted into evidence or which are admissible. Johnson, 847 F.2d at 1412. Under the rule, the summary chart is the evidence which the trier of fact may consider. Gardner, 611 F.2d at 776. While the rule only requires that the summary chart be based on admissible documents that have been previously made available to the defendant at a reasonable time and place, United States v. Foley, 598 F.2d 1323, 1338 (4th Cir. 1979) the court may require production of the underlying documents in court. Fed.R.Evid. 1006. The foundation for the admission of a chart or summary can be laid through the testimony of the witness who supervised the preparation of the exhibit. United States v. Behrens, 689 F.2d 154, 161 (10th Cir. 1982); United States v. Scales, 594 F.2d 558, 563 (6th Cir. 1979).
Summary charts must, of course, fairly and accurately reflect the contents of the documents or testimony upon which they are based. Halland v. United States, 348 U.S. 121 (1954). There is, however, no requirement that a prosecution summary chart include the defendant's version of the facts. United States v. Radseck, 718 F.2d 233, 239 (7th Cir. 1983); United States v. Ambrosiani, 610 F.2d 65, 68 (1st Cir. 1979); Myers v. United States, 356 F.2d 469, 470 (5th Cir. 1966). Summary charts need not be devoid of assumptions. "[T]he essential requirement is not that the charts be free from reliance on any assumptions, but rather that these assumptions be supported by evidence in the record." United States v. Diez, 515 F.2d 892, 905 (5th Cir. 1975); United States v. Norton, 867 F.2d 354, 1363 (11th Cir. 1989); United States v. Lewis, 759 F.2d 1316, 1329 (8th Cir. 1985).
The government intends to call several witnesses who will provide expert testimony on matters of scientific or technical knowledge. These witnesses will include experts in the fields of explosives, materials analysis, toolmarks, chemical analysis, cryptanalysis, foreign language translation and questioned documents including typewriting comparison.
Where scientific or technical knowledge will help the jury understand certain evidence or determine a relevant fact, the government may elicit testimony from a qualified expert. Federal Rule of Evidence 702 provides:
If scientific, technical or other specialized knowledge will assist a trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
When faced with a proffer of expert testimony the Court must first determine whether the expert witness is qualified and has specialized knowledge that will "assist a trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. McKendall v. Crown Control Corp., 122 F.3d 803, 805 (9th Cir. 1997). Next, the Court must decide if the proposed subject matter of the expert opinion properly concerns "scientific, technical, or other specialized knowledge under Rule 702. Id. at 806. Finally, the Court must acsertain whether the testimony "rests on a reliable foundation and is relevant to the facts ofthe case." Id.
a. Foundation for Scientific Expert Opinion
In Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 589-90 (1993) , the United States Supreme Court set forth the standard for evidentiary reliability of scientific expert testimony. (11. Daubert applies only to the admission of "scientific" expert testimony. Daubert at 590 n.8 ("Our discussion is limited the scientific context because that is the nature of the expertise offered here."); McKendall v. Crown Control Corp., 122 F.3d 803, 806 (9th Cir. 1997) (declining to apply Daubert to testimony based on experience, not scientific knowledge) ; United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997) (declining to apply Daubert to testimony based on non-scientific specialized knowledge)). The Court held that a proponent of scientific expert testimony must demonstrate that the theory or technique upon which the witness relies in forming his or her expert opinion or conclusion qualifies as "scientific knowledge." Id. "[I]n order to qualify as scientific knowledge, ' an inference or assertion must be derived by the scientific method. (12. The Court defined scientific methodology as the process of formulating hypotheses and then proving, disproving or refining those hypotheses through testing. Daubert, 509 U.S. at 590.) Proposed testimony must be supported by appropriate validation--i.e., 'good grounds,' based on what is known." Id. at 590.
A determination as to the admissibility of scientific expert testimony therefore requires "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid...." Id. at 592-93. Theories that are so firmly established so as to be considered scientific law, such as the laws of thermodynamics, are properly subject to judicial notice. Id. at 593 n.11. For less established theories or methods, the Court declined to set out an exclusive test, noting that many factors bear on the inquiry. Id. at 593 ("The inquiry ... is, we emphasize, a flexible one") . Nevertheless, the Court suggested that, in assessing the validity of a scientific theory, federal judges should consider (1) whether it can be (and has been) tested, (2) whether it has been subjected to peer review and publication, (3) the known or potential rate of error, (4) the existence and maintenance of standards controlling the technique's operation, and (5) whether the technique is generally accepted in the relevant scientific community. Id. at 593-94. See United States v. Cordoba, 104 F.3d 225, 227-28 (9th Cir. 1997) (holding Daubert overruled per se rule excluding polygraph evidence); United States v. Hicks, 103 F.3d 837, 845-46 (9th Cir. 1996) (government's DNA evidence and expert testimony admissible under Daubert, where evidence introduced in order to show that none of three defendant's could be excluded as a perpetrator); United States v. Chischilly, 30 F.3d 1144, 1152-56 (9th Cir. 1994) (DNA evidence of match between defendant's blood sample and semen found on victim's clothing, and testimony regarding probability of coincidental match were admissible under Daubert); United States v. Amador-Galvan, 9 F.3d 1414, 1417-18 (9th Cir. 1993) (holding Daubert overruled per se rule excluding expert testimony regarding reliability of eyewitness identification) . The factors set forth in Daubert were not intended to be a definitive checklist or test but rather a guide for the trial court to determine whether testimony is scientifically valid. United States v. Cruz, ___ F.3d ___ 1997 WL 578418 (9th Cir. 1997). Accordingly, the government need not elicit testimony on each of the Daubert factors. Id.
The validation of scientific evidence thus requires more than authentication under Rule 901. Scientific evidence must also conform with the requirements of Rule 702. See Daubert, 509 U.S. at 588. The foundational elements for validation of scientific evidence are:
1. Witness is qualified to establish the theory's validity and the instruments reliability.
2. The underlying theory is valid; witness testifies about the empirical validation of the theory (proof of general acceptance is not required, but may be a relevant factor).
3. The instrument or technique is reliable (again, general acceptance is relevant, but not required).
4. Witness (not necessarily the same witness as for elements 1-3) is qualified to conduct and interpret the test results.
5. The instrument was in good working condition.
6. The witness used the instrument in the test.
7. The witness states the test results.
IMWINKELRIED at 91-92.
The Ninth Circuit has held that questions as to whether or not the expert witness used proper test procedures do not affect admissibility. Rather, objections regarding potential mistakes in the testing processes go to the weight of the evidence. See Hicks, 103 F.3d at 846 (holding defendant's claim that polymerase chain reaction method of testing DNA sample was susceptible to contamination went only to the weight of the evidence and did not affect its admissibility) ; Chischilly, 30 F.3d at 1153 (holding defendant's challenge that other laboratories would have declared nonmatch when comparing defendant's DNA sample with evidentiary sample went to weight, rather than admissibility of FBI test results).
b. An Expert May Rely Upon Otherwise Inadmissible Evidence
Federal Rule of Evidence 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Under Rule 703, "an expert is permitted wide latitude to offer opinions, including those that are not based on first-hand knowledge or observation . . . [T]his relaxation of the usual requirement of first-hand knowledge . . . is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Daubert, 509 U.S. at 592. In United States v. Williams, 447 F.2d 1285, 1290 (5th Cir.1971) , the Court explained the basis for the rule as follows:
The rationale for this exception to the rule against hearsay is that the expert, because of his professional knowledge and ability, is competent to judge for himself the reliability of the records and statements on which he bases his expert opinion... An expert's opinion is derived not only from records and data, but from education and from a lifetime of experience. Thus, when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not hearsay in disguise.
The Advisory Committee Notes give the following illustration:
Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.
Rule 703 thus permits an expert to testify about otherwise inadmissible evidence upon which he has relied in forming his opinion. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir.1984); United States v. Abbas, 74 F.3d 506, 512 (4th Cir. 1996) (DEA chemist's conclusion that substance was heroin was admissible despite fact that it was based, in part, on known standards developed by other chemists); Minner v. Kirby, 30 F.3d 1353, 1360 (8th Cir. 1988) (Lab supervisor could testify from chemist's notes regarding results of "mechanically objective" drug test); Sherman v. Scott, 62 F.3d 136, 140 (5th Cir. 1995) (Same) United States v. Locascio, 6 F.3d 924, 938 (2d Cir. 1993) (FBI agent permitted to testify as an expert on the inner workings of the Gambino organized crime family despite the fact that testimony was based in part on hearsay).
When an expert is permitted to testify about inadmissible evidence used by him to support his opinion, it is appropriate for the court to instruct the jury that the otherwise inadmissible evidence is to be considered solely as a basis for the expert opinion and not as substantive evidence." Paddack v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir.1984)
In homicide cases, the prosecution must establish the cause of death and may generally do so through the coroner or other qualified expert who conducted the autopsy or examined the body. See Hughes v. Borg, 898 F.2d 695, 697 (9th Cir. 1989) (coroner who performed autopsy testified that murder victim died from bullet wound in head); United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1984) (coroner permitted to answer hypothetical question requesting his opinion as to likely result of defendant's alleged assault on victim, even though coroner was unsure of cause of victim's death at time of autopsy); Medina v. United States, 254 F.2d 228, 230 (9th Cir. 1958) (coroner testified that victim died from stab wound) . See also State v. Schneider, 921 P.2d 759, 762-63 (Idaho Sup. Ct. 1996) (expert testimony that murder victim's death was probably caused by blows to head, but possibly could have been due to suffocation, was relevant and admissible); Kills On Top v. Montana, 928 P.2d 182, 197 (Mont. Sup. Ct. 1996) (pathologist who performed autopsy on murder victim expressed opinion that cause of death was a crushed skull caused by a stick or bat); In re Sixto, 774 P.2d 164, 167 (Cal. Sup. Ct. 1989) (in bank) (coroner testified that cause of victim's death was asphyxia as a result of manual strangulation); Arizona v. Girdler, 675 P.2d 1301, 1303 (Ariz. Sup. Ct. 1983) (in banc) (coroner testified as to condition of arson/murder victims' bodies and the cause of death).
With respect to graphic details, cause of death evidence should be limited only where its prejudicial effect substantially outweighs its probative value. Federal Rules of Evidence, Rule 403. See United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986) (holding district court did not err in admitting evidence of massive injuries relevant to cause of death); United States v. Lowrimore, 923 F.2d 590, 592 (8th Cir. 1990) (rejecting defendant's claim that autopsy report showing victim's cause of death resulted in prejudice which outweighed the evidence's probative value); United States v. Bowers, 660 F.2d 527, 529-30 (5th Cir. 1981) (holding district court did not abuse its discretion in admitting evidence relevant to cause of death, despite its potential to inflame jury). See also Montana v. Doll, 692 P.2d 473, 478 (Mont. Sup. Ct. 1985) (noting that in this era of modern media, it is quite difficult to show that the inflammatory nature of relevant evidence substantially outweighs its probative value).
Kaczynski is charged with four counts of transportation of an explosive with intent to kill or injure, in violation of 18 U.S.C. §§ 844(d) and 2(b), and three counts of mailing an explosive device with intent to kill or injure, in violation of 18 U.S.C. § 1716. The government thus has the burden of proving Kaczynski's intent to kill or injure for each of these seven counts. Testimony or other evidence showing the precise causes and circumstances of his victims' injuries or deaths is highly relevant to establishing this element.
The District of Columbia Circuit addressed this issue in United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980). In Sampol, seven defendants were charged with the first-degree murder of a foreign official. Id. at 629. The defendants used explosives to blow up a vehicle in which the Chilean ambassador to the United States and an American associate were passengers. Id. At trial, the government introduced the testimony of four eyewitnesses to the explosion, and the testimony of two medical examiners who performed autopsies on the victims' bodies. Id. at 679. The defendants objected to this testimony, arguing that the purpose of the government's evidence was merely to inflame the jury. Id. The District of Columbia Circuit held that the evidence was admissible. Id.
To sustain the charge of murder in the first degree the government was required to prove that the killer or killers . . .acted with deliberation and premeditation. Proof of the precise nature of the explosion and its results was relevant to this issue. Although gruesome, this evidence demonstrated that whoever fashioned and placed the bomb in [the victim's] automobile had the deliberated and premeditated intent to kill him... Sampol, 636 F.2d at 679.
The Ninth Circuit has similarly held that cause of death evidence is admissible to show specific intent. See Guam v. Reyes, 879 F.2d 646, 649 (9th Cir. 1989) (holding chief medical examiner's testimony that bruise on decedent's chest was in close proximity to bullet's entry point and was probably caused by poking gun barrel against decedent was relevant to defendant's intent to kill); United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986) (holding photographic evidence of cause of death relevant to the willful, deliberate, and premeditated nature of the murder); United States v. Brady, 579 F.2d 1121, 1127 n.l (9th Cir. 1978) cert. denied, 439 U.S. 1074 ("[i]ntent may be proved by circumstantial evidence") Moreover, where it is relevant to establishing intent, state courts routinely admit cause of death evidence. See Arizona v. Anzivino, 716 P.2d 50, 54 (Ariz. Ct. App. 1985) (citing coroner's determination as to cause of victim's death as factor supporting trial court's finding of malicious intent by appellant); Commonwealth v. Miller, 634 A.2d 614, 618 (Penn. Super. Ct. 1993) (holding coroner's conclusion that stab wound through the heart caused victim's death gave rise to an inference of malice); Louisiana v. Pettle, 286 So.2d 625, 631 (La. Sup. Ct. 1973) (holding that coroner's opinion as to cause of victim's death was relevant to the issue of defendant's intent). In fact, in some cases, cause of death evidence may be necessary for a finding of intent to kill. See California v. Hamilton, 710 P.2d 981, 995-96 (Cal. Sup. Ct. 1985) (holding that since precise cause of death not determined, court did not have enough evidence to conclude that intent to kill was established as a matter of law).
Due to the voluminous nature of the documentary evidence seized from the cabin, the government intends to call an FBI agent to summarize the contents of these documents and to read to the jury selected passages. The government contemplates that each of the documents in issue will have been previDusly admitted into evidence before the agent takes the stand.
Federal Rule of Evidence 1006 provides that "the contents of voluminous writings, recordings or photographs which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation". The Ninth Circuit has recognized that summary evidence "can help the jury organize and evaluate evidence which is factually complex and fragmentally revealed in the testimony of the multitude of witnesses." United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989), quoting United States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983); see also United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988) (Approving the use of a summary witness where the sequence of events was confusing and the chart contributed to the clarity of presentation).
Although the underlying materials upon which the summary testimony is based must be "admissible", they need not be actually admitted into evidence. United States v. Meyers, 847 F.2d at 1412 The foundation for admission of such a summary is simply that the records are voluminous and that in-court examination would be inconvenient. United States v. Duncan, 919 F.2d 981, 988 (5th Cir. 1990) , cert. denied 500 U.S. 926 (1991). In Duncan, several individuals who were charged with defrauding insurance companies over a period of years by staging accidents and submitting numerous false claims. At trial, an FBI agent summarized the voluminous insurance company records pertaining to claims submitted by the defendants. The Court ruled that the agent's testimony, and accompanying summary charts, were properly admitted under Rule 1006. Id. at 988.
Similarly, in United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991), the defendant was charged with conspiring to commit mail fraud in a scheme involving fraudulent accident claims while he was employed as a bus driver for the New Orleans Regional Transit Authority. At trial, a government witness "synthesized various documentary information from the three accidents" including bus company files, drivers' reports, supervisors' reports, claim adjustors' reports, and medical reports. The Court held that admission of the testimony of such a summary witness was well within the trial court's discretion under FRE 1006. See also Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir. 1986) (Summary testimony of IRS agent concerning voluminous records admissible).
As the government indicated in its Trial Confirmation Hearing Statement, due to the large volume of evidence taken from the crime scenes and from the cabin, it will take a substantial amount of Court time in the jury's presence just to identify each specific item of evidence for the record, before the authentication testimony is adduced. This will also be the most tedious testimony that the jury will hear. In order to expedite the process and to spare the jury from listening to the identification testimony, the government proposes that identification of the evidence from the cabin and from the larger bombing crime scenes take place at a hearing outside the jury's presence, at a time when it would not otherwise be sitting. As we explain below, such a procedure is consistent with the Federal Rules of Criminal Procedure, as well as the Federal Rules of Evidence, which provide that: "Preliminary questions concerning .. . the admissibility of evidence shall be determined by the court...." FRE 104 (a).
Authentication of evidence involves a preliminary question in which the court must determine whether the jury could conclude the evidence is authentic. See FRE 104(b), 901(a). Rule 901(a) provides that the "requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims."
This requirement of authentication or identification is the paradigm of a preliminary question under Rule 104 (b) . The judge is first required to determine whether a reasonable jury could conclude that evidence was authentic, then the ultimate question of authenticity is for the jury. However, it is the rare trial lawyer who requests that the question of authenticity be included in the jury charge.
1 J. WEINSTEIN & M. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 104.30[3] at 104-68 (Joseph M. McLaughlin ed., 2d ed. 1997). See Ricketts v. City of Hartford, 74 F.3d 1397, 1409-10 (2d Cir. 1996) (holding trial judge makes preliminary determination as to authenticity of evidence under Rule 104(b)); United States v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994), citing FRE 104(b), ("In respect to matters of authentication, the trial court serves a gatekeeping function. If the court discerns enough support in the record to warrant a reasonable person in determining that the evidence is what it purports to be, then Rule 901(a) is satisfied and the weight to be given to the evidence is left to the jury"); United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir. 1991) (Once trial court makes preliminary determination that a jury could reasonably conclude that the disputed authenticity of physical evidence has been established court may admit the evidence).
Rule 17.1 of the Federal Rules of Criminal Procedure pertains to pretrial conferences. It states that "the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial." Fed.R.Crim.P. 17.1. "The rule is cast in broad language so as to accommodate all types of pretrial conferences." Id., Advisory Committee Notes.
Questions as to the authenticity of evidence for purposes of admissibility may be resolved via pretrial conference. See United States v. Pelullo, 961 F.Supp. 736, 742 (D. N.J. 1997) (Debevoise, J.) (extended in limine evidentiary hearing pursuant to Rule 104 held at government's request to determine authenticity of evidence; various custodians identified documents and testified about manner in which they were maintained); Kam Fui Trust v. Brandhorst, 884 P.2d 383, 389 n.2 (Haw. Ct. App. 1994) quoting M GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENcE § 6821 at 851 (Interim Ed. 1992) ("[P]retrial disposition of authentication issues . . . may be accomplished through a pleading, by a request to admit, ... or as a result of an agreement reached at the pretrial conference'"); United States v. Smith, 65 F.R.D. 464 (N.D. Ga. 1974) (government's request for pretrial conference granted, with directions to counsel for both parties to explore possibilities for stipulating to authenticity and admissibility of documents) . Indeed, a pretrial conference may be preferable. See United States v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992) (holding in camera hearing addressing authenticity appropriate because it insures that jury will not be tainted by hearing prejudicial evidence until proponent demonstrates an adequate foundation for admission).
With regard to admissibility of evidence, Rule 104 excuses "time-consuming compliance with a superfluous formality." United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir. 1977) (en banc), cert. denied sub nom., Stewart v. United States, 431 U.S. 932. See United States v. Brewer, 947 F.2d 404, 410 (9th Cir. 1991) (quoting De La Fuente) . A jury can be adequately apprised of authenticating proof, and thus properly determine the weight of the evidence without being subject to the exact same authenticating proof considered by the judge in making a preliminary determination of admissibility under Rule 104 (b)
Removing factual issues related to determining whether evidence is competent from the jury is based on recognition that the typical juror is intent mainly on reaching a verdict- in accord with what he believes to be true in the case he is called upon to decide, and is not concerned with the long term policies of evidence law.
Ricketts, 74 F.3d at 1409-10.
In this case, addressing evidence identification at a pretrial hearing would not compromise the jury's ability to weigh the evidence. At trial, the seizing agent could testify, in the presence of the jury, that an entire box (or several boxes) of evidence came from a particular location without specifically identifying each item. (13. The government would reserve the right to have certain specific items identified before the jury.) In authorizing this procedure, the Court could thus spare the jury from identification testimony as to each and every bomb fragment, bomb component, et cetera, and still enable the jury to adequately determine the weight of the government's evidence. In light of this alternative, such painstaking detail in the presence of the jury is indeed "time-consuming compliance with a superfluous formality," and is therefore unnecessary under Rule 104. See De La Fuente, 548 F.2d at 533.
For the reasons stated above, the government respectfully requests this court to grant the government's motion for a pretrial hearing for evidence identification pursuant to Rule 104.
On June 24, 1997, Kaczynski served notice of his intent to introduce expert psychiatric testimony pursuant to Rule 12.2 (b) Pursuant to this Court's order requiring further clarification of the notice, on October 9, 1997, Kaczynski informed the government that the previously noticed expert testimony will relate to schizophrenia, paranoid type. The notice does not state how this testimony will bear upon the issue of guilt. The government submits that unless the defendant makes a preliminary showing that the alleged condition would negate an element of the offense such testimony is inadmissible.
The Insanity Defense Reform Act of 1984, 18 U.S.C.A. § 17 ("IDRA") , redefined the insanity defense under federal law, and placed significant restrictions on the use of mental defect evidence. Section 17 provides:
(a) It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease does not otherwise constitute a defense.
(b) The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
The IDRA effected existing insanity law in at least three ways. First, it deleted the "volitional prong of the commonly accepted Model Penal Code approach which permitted acquittal if the defendant "as a result of mental disease or defect . . . lacks substantial capacity . . . to conform his conduct to the requirements of law." United States v. Pohlot, 827 F.2d 889, 896 (3d Cir. 1987) (quoting Model Penal Code § 4.01 (1962). This change had the effect of returning insanity law to the familiar McNaghten rule. United States v. Twine, 853 F.2d 676, 678 (9th Cir. 1988). Second, insanity became an affirmative defense, shifting the burden of proof to the defendant by clear and convincing evidence. Pohlot, 827 F.2d at 896. Third, § 17 provides that, beyond insanity, "[m]ental disease or defect does not otherwise constitute a defense." Twine, 853 F.2d at 679. See also United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990) (Listing these three changes as well as two others).
Therefore, with the IDRA, "Congress intended to restrict a defendant's ability to excuse guilt with mental defect evidence, curtailing the insanity defense." United States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988) (emphasis added) . The Report of the Senate Judiciary Committee explained that the language stating that "mental disease or defect does not otherwise constitute a defense" was "intended to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had a 'diminished responsibility'' (14. "Diminished responsibility" raises a claim of justification or excuse to mitigate crimes based on a mental abnormality of the accused that substantially impaired his mental responsibility. Frisbee, 623 F.Supp. at 1221 n.2. It is a "pure defense" that allows a sane, but mentally disabled, defendant to be held "less culpable than his normal counterpart who commits the same criminal act." Peter Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Children of a Doomed Marriage, 77 COLUM. L. REV. 827, 829 (1977).) or some similarly asserted state of mind which would serve to excuse the offense and open the door . . . to needlessly confusing psychiatric testimony." Frisbee, 623 F.Supp. at 1220, quoting S REP. No. 225, 98th Cong., 2nd Sess. 229, reprinted in 1984 U.S.C.C.A.N. 3182, 3411; see United States v. Cameron, 907 F.2d 1051, 1066 (11th Cir. 1990) ("Congress meant to preclude the use of 'non-insanity' psychiatric evidence that points toward 'exoneration or mitigation of an offense...'"), quoting United States v. Pohlot, 827 F.2d 889, 890 (3rd Cir. 1987), cert. denied, 484 U.S. 1011 (1988). The Act and its legislative history thus explicitly prohibit psychiatric evidence that amounts to an affirmative defense other than insanity. 18 U.S.C.A. § 17(a); 5. REP. No. 225; H.R. REP. No. 98-177, 98th Cong. 1st Sess. 14 (1983) ("Since ... the Committee is concerned that additional defenses based on mental disorders could be developed by the courts in order to circumvent the tighter requirements developed by Congress ... the bill provides that the Committee's test constitutes the only affirmative defense that will be applicable in Federal courts"); see United States v. Westcott, 83 F.3d 1354, 1358 (11th Cir. 1996) , cert. denied, 117 S.Ct. 269, ("Through the Act, Congress intended to prohibit the presentation of mental disease, short of insanity, to excuse conduct").
Despite its stated purpose to restrict the insanity defense the IDRA does not bar psychiatric evidence to negate an element of the offense. As the Court observed in Pohlot: "Both the wording of the statute and the legislative history leave no doubt that Congress intended, as the Senate Report stated, to bar only alternative 'affirmative defenses' that 'excuse' misconduct not evidence that disproves an element of the crime itself." 827 F.2d at 897, citing United States v. Gold, 661 F.Supp. 1127, 1130-31 (D.C. Cir. 1987) and United States v. Frisbee, 623 F.Supp. 1217 (N.D.Cal.1985) . The Ninth Circuit has adopted Pohlot's reasoning. United States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988) citing Pohlot, Gold and Frisbee. In Twine, the Court explained:
Unlike insanity, [the diminished capacity] defense is not an excuse. Diminished capacity is directly concerned with whether the defendant possessed the ability to attain the culpable state of mind which defines the crime. Successful defendants simply are not guilty of the offense charged, although they are usually guilty of a lesser included offense.
853 F.2d at 678. See also United States v. Fazzini, 871 F.2d .635, 641 (7th Cir. 1989) (distinguishing "diminished responsibility" from "diminished capacity") (15. In Pohlot, the Court identified three variants of the "diminished capacity" defense. First, admission of evidence of mental abnormality to negate mens rea. Second, admission of evidence that the defendant not only lacked mens rea in the particular case but also that he lacked the capacity to form the mens rea. Third, "partially diminished capacity . . . which permits the jury to mitigate punishment of a mentally disabled but sane offender in any case where the jury believes that the defendant is less culpable than his normal counterpart who commits the same criminal act." 827 F.2d at 903-04. Only the first of these variants survives the IDRA. Id. at 905.)
Nevertheless, courts have cautioned that the prohibition of diminished responsibility defenses requires courts to carefully scrutinize psychiatric defense theories based on mens rea. In Pohlot, the court observed:
Psychiatrists are capable of applying elastic descriptions of mental states that appear to but do not truly negate the legal requirements of mens rea. Presenting defense theories or psychiatric testimony to juries that do not truly negate mens rea may cause confusion about what the law requires.
827 F.2d at 890. The Court made a similar observation in Cameron:
Because psychiatric testimony (1) will rarely negate specific intent, (2) presents an inherent danger that it will distract the jury[] from focusing on the actual presence or absence of mens rea, and 'may easily slide into wider usage that opens up the jury to theories of defense more akin to justification,' . . . district courts must examine such psychiatric evidence carefully to ascertain whether it would, if believed, "support a legally defensible theory of lack of mens rea.
907 F.2d at 1067; United States v. Westcott, 83 F.3d 1354, 1358 (11th Cir. 1996) (only psychiatric evidence which supports a legally acceptable theory of lack of mens rea should be admitted); United States v. Fishman, 743 F.Supp. 713, 721 (N.D. Cal. 1990) (because "psychiatric testimony raises a strong danger of misuse, courts must carefully weigh whether the proof offered ... would aid the jury in deciding the ultimate issues.") (16. In making this determination, the court should focus on "the proffered link or relationship between the psychiatric evidence offered and the mens rea issue in the case." Cameron, 907 F.2d at 1067 n.31.) Accordingly, as the Court pointed out in Frisbee, "while the Ninth Circuit allows the admission of expert testimony on the issue of specific intent, the admission of such testimony is not automatic." 623 F.Supp. at 1224, citing United States v. Byers, 730 F.2d 568, 570 (9th Cir. 1984) ("Even assuming specific intent is required and . . . the psychiatric testimony could in the court's discretion have been admitted to negate specific intent, [the defendant] was not automatically entitled to present that testimony").
In this case, there is a great danger of jury confusion. The evidence will show that the defendant is responsible for 16 bombings committed over an 18 year period. For each of these bombs there is a wealth of evidence showing the defendant's planning and premeditation as well as written admissions of his desire to kill, his frustration at not being able to kill with consistency and his feelings of success when he does kill. Against this evidence the defendant seeks to put on psychiatric testimony, the details of which are not currently known, which relates to paranoid schizophrenia. However, expert witness summaries which the defendant provided to the government on October 20, 1997, do not even address whether the defendant's alleged mental defect could have prevented him from forming the requisite mens rea for the charged crimes. (17. Fed.R.Evid. 16(b) (1) (C) requires the defendant to inform the government of all conclusions reached by their experts. The absence from the expert witness summaries of any conclusion relating to negation of mens rea suggests that none of the defendant's experts reach such an conclusion.) As previously noted, to be relevant this evidence must somehow negate specific intent for each of the four charged bombs. Otherwise, the defendant's proffered testimony is merely a back door attempt to resurrect the "diminished responsibility" defense which Congress has prohibited.
Many courts and commentators have noted that psychiatric evidence will only rarely negate specific intent. Cameron, 907 F.2d at 1067; See H.R. REP. No. 98-177 at 15 n.23 ("Mental illness rarely, if ever, renders a person incapable of understanding what he or she is doing"); Pohlot, 827 F.2d at 900 ("Only in the rare case, however, will even a legally insane defendant actually lack the requisite mens rea purely because of a mental defect").
Generally, psychiatric evidence attempting to show that the defendant lacked the capacity to form the requisite mens rea is not admissible to show that he lacked the mens rea in a particular case. As the Court in Pohlot explained:
Whether a defendant had the capacity to form mens rea is, of course, logically connected to whether the defendant possessed the requisite mens rea. Commentators have agreed, however, that only in the most extraordinary circumstances could a defendant actually lack the capacity to form mens rea as it is normally understood in American law. [citation omitted] Even the most psychiatrically ill have the capacity to form intentions, and the existence of intent usually satisfies any mens rea requirement. Commentators have therefore argued that permitting evidence and arguments about a defendant's capacity to form mens rea distracts and confuses the jury from focusing on the actual presence or absence of mens rea.
827 F.2d at 903-04. In Pohlot, the defendant proffered evidence that he suffered from compulsive personality disorder, passive dependent personality disorder and passive aggressive personality disorder, and as a consequence, did not have the capacity to form the requisite mens rea for the crime of attempting to hire a professional killer to murder his wife. In finding that such evidence did not support a legally acceptable theory to negate mens rea the Court observed:
[P] sychiatric testimony suggesting that a defendant lacks mens rea may often focus not on the defendant's intent but on the defendant's awareness of intent . . . [but] a lack of self reflection does not mean a lack of intent and does not negate mens rea. . . Criminal responsibility must be judged at the level of the conscious. If a person thinks, plans and executes that plan at [a conscious] level, the criminality of his act cannot be denied, wholly or partially, because, although he did not realize it, his conscious was influenced to think, to plan and to execute the plan by unconscious influences which were the product of his genes and his lifelong environment.
827 F.2d at 906. The Court concluded:
We often act intending to accomplish the immediate goal of our activity, while not fully appreciating the consequences of our acts. But purposeful activity is all the law requires. When one spouse intentionally kills the other in the heat of a dispute, he or she will rarely at that moment fully appreciate the consequences of the murder. The spouse is guilty of homicide nonetheless. . . Pohlot therefore offered his evidence of mental abnormality in support of a legally unacceptable theory of lack of mens rea that amounts covertly to a variation of the partially diminished capacity defense precluded by § 17(a).
827 F.2d at 907. See Cameron, 907 F.2d at 1061 ("Psychiatric evidence of ... inability to reflect on the ultimate consequences of one's conduct is inadmissible whether offered to support an insanity defense or for any other purpose"); Westcott, 83 F.3d at 1358 (holding evidence showing defendant lacked capacity to form mens rea, as opposed to evidence showing defendant actually lacked mens rea, is inadmissible)
Psychiatric evidence indicating an inability to control the behavior that produced the criminal conduct is also not sufficient to negate specific intent and should not be admitted. As the Court explained in Cameron:
[I]t is clear that [by passage of the IDRA] Congress meant to eliminate any form of legal excuse based upon one's lack of volitional control. This includes a diminished ability or failure to reflect adequately on the consequences or nature of one's actions. While scholars might debate the subtle distinctions in moral culpability occasioned by a person's relative capacity to consider her actions or resist unconscious motivation, Congress chose to eliminate any form of legal excuse based on psychological impairment that does not come within the carefully tailored definition of insanity in section 17 (a) Psychiatric evidence of impaired volitional control or inability to reflect on the ultimate consequences of one's conduct is inadmissible whether offered in support of an insanity defense or for any other purpose.
907 F.2d at 1066 (barring evidence that defendant suffered from schizophrenia where she failed to show how it negated specific intent to distribute drugs) ; see United States v. Peralta, 930 F.Supp. 1523, 1531 (S.D. Fla. 1996) (barring evidence that defendant suffered from persecution mania and was given to violent outbursts as not supporting a legally acceptable theory of lack of mens rea).
In United States v. Robinson, 804 F.Supp. 830, 833 (W.D. Va. 1992) , the defendant sought to introduce expert testimony that he suffered from paranoid schizophrenia, the symptoms of which can include a tendency toward compulsive behavior. Defendant argued that this testimony negated the premeditation element for first degree murder. Id. The district court found, first, that testimony regarding defendant's schizophrenia, by itself, stated nothing relevant to his ability to premeditate. Id. Second, the court found that although the defendant was not legally insane, he was attempting to introduce, "by a sort of back door route, " evidence that his mental disease caused him to act in a compulsive manner that the law must excuse. Id. The court held that the proffered testimony went inevitably toward an affirmative defense that the defendant was not "fully responsible" for his actions, and was thus precluded under the Act. Id.
Even where psychiatric evidence is potentially probative of the defendant's mental state, the court may still bar such evidence if its probative value is substantially outweighed by its capacity to confuse or mislead the jury. Fed. R. Evid. 403, 702. That was the case in United States v. Schneider, 111 F.3d 197 (1st Cir. 1997). Schneider was charged with mail and wire fraud and did not dispute the core events supporting the charges. However, Schneider proffered evidence that at the time of the crime his capacity and judgment were significantly impaired by "chemical dependency and major depression with probable mania" and that, as a consequence, he did not have the requisite intent to deceive. Id.at 199. The Court responded as follows:
This might not appear at first to go very far in negating his capacity to deceive, especially as Schneider's scheme continued over several months...Still, evidence may be "relevant under Rule 401's definition, even if it fails to prove or disprove the fact at issue -- whether taken alone or in combination with all other helpful evidence on that issue . . . Schneider's best argument is, therefore, that his medical evidence did go some distance to negate intent to deceive and so was relevant. Where evidence goes "some distance" it may be tempting to say that it is not relevant. But we have some doubt that this usage comports with Rule 401's definition quoted above. . . Yet the evidence offered, both here and in Pohlot, suggests that the defendant was temporarily out of his mind (even though not insane under section 17(a)) and that his crime was mitigated by his psychological condition. Such evidence tends to reintroduce the very concepts Congress wanted to exclude and thereby to mislead the jury.
Id. at 202-03. See also Twine, 853 F.2d at 679 n.l (court has "wide latitude" to admit or exclude psychiatric testimony on the question of defendant's specific intent); Frisbee, 623 F.Supp. at 1224 (court may exclude expert psychiatric testimony that is unduly confusing, misleading or will not be of assistance to the jury in determining the issue of specific intent); United States v. Sewards, 879 F.Supp. 502, 514 (E.D. Pa. 1995) citing United States v. Moran, 937 F.2d 604 (4th Cir. 1991) (unpublished) (excluding expert testimony that defendant's cocaine addiction caused mental condition which negated specific intent because of "great danger" that evidence would distract jury from focusing on actual presence or absence of mens rea).
Finally, to be admissible, psychiatric evidence offered to negate mens rea must meet the further requisites of scientific reliability. Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-91 (1993). See Fishman, 743 F.Supp. at 721 (holding defendant's psychiatric evidence inadmissible under Rule 702).
For the above reasons, psychiatric evidence should be evaluated outside the presence of the jury to determine if it supports a legally acceptable theory. United States v. Cameron, 907 F.2d 1951, 1067 (11th Cir. 1990); United States v. Pohlot, 827 F.2d 889, 906 (3d Cir. 1987); United States v. Brawner, 471 F.2d 969, 1002 (D.C. Cir. 1972); See also United States v. Schneider, 111 F.3d 197, 201-02 (1st Cir. 1997). As the Court said in Pohlot:
Notions of intent, purpose and premeditation are malleable and at their margins imprecise. But the limits of these concepts are questions of law. District courts should admit evidence of mental abnormality on the issue of mens rea only when, if believed, it would support a legally acceptable theory of lack of mens rea. In deciding such a question, courts should evaluate the testimony outside the presence of the jury.
827 F.2d at 905-06.
One of the changes brought about by the IDRA was to limit the use of expert psychological testimony on ultimate legal issue. Thus, Federal Rule of Evidence 704(b) now provides:
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are for the trier of fact alone.
The legislative history of Rule 704(b) states that the rule is intended to limit experts to "presenting and explaining their diagnoses, such as whether the defendant had a severe mental disease or defect, and what the characteristics of such a disease or defect, if any, may have been." See United States v. Frisbee, 623 F.Supp. 1217, 1223-24 (N.D.Cal. 1985) (quoting legislative history and limiting expert's testimony accordingly).
Because psychiatric evidence is only admissible to negate the specific mental element required for the offense, it has no application to general intent crimes. United States v. Twine, 353 F.2d 676, 679 (9th Cir. 1988); United States v. Cameron, 907 F.2d 1051, 1063 n.20 (11th Cir. 1990); United States v. Fazzini, 871 F.2d 635, 641 (7th Cir. 1989).
The crime described in 18 U.S.C. § 924(c) (1) is a general intent crime. United States v. Brown, 915 F.2d 219, 224-26 (6th Cir. 1990); United States v. Peralta, 930 F.Supp. 1523, 1529 (S.D. Fla. 1996); United States v. Meader, 914 F.Supp. 656, 660 (D.Me. 1996). Accordingly, if evidence to negate mens rea is admitted at trial, the jury should be instructed that such evidence is not a defense to the § 924(c) charges.
Earlier this year the Department of Justice Office of the Inspector General released its report of investigation concerning allegations of wrongdoing and improper practices within certain sections of the FBI Laboratory. A copy of this report together with certain supporting documentation has been provided to the defense.
The allegations were brought to the attention of the OIG by Dr. Frederic Whitehurst, a scientist employed in the FBI Laboratory. According to the Executive Summary to the report: "Most of Whitehurst's allegations were not substantiated; some important one's were." GIG Report at 1. (18. Due to the length of the GIG Report and the fact that it is not certain that the defendant will even raise this issue at trial, the government has not provided the court with a copy of the report at this time. Citations to the report at this Stage are principally for the benefit of the defense so they may verify the source and accuracy of the government's factual statements. The government will provide the Court with a copy of the GIG's report if this matter becomes an issue at trial, or earlier if the Court requests.) Although the report is quite extensive and touches upon some of the most significant prosecutions in recent history, only one allegation relates to the Unabom case and with respect to that allegation, Whitehurst's claims were not substantiated. The allegation is against Thomas J. Mohnal, an explosives examiner whom the government intends to call as a witness in its case in chief. (19. Whitehurst's allegations relate to an article which Mohnal published in the July, 1994, issue of Crime Laboratory Digest, a forensic science journal published by the FBI Laboratory in cooperation with the American Society of Crime Laboratory Directors. The article described 14 explosive devices attributed to the "Unabomber". OIG Report at 302. The article was published in an effort to develop investigative leads by describing the devices and disseminating the information to crime laboratories throughout the world. Id. Whitehurst claimed that the article contained false information and that before the article was published Mohnal should have checked the work of a previous explosives examiner who had performed work on the case. Id. As noted, the OIG concluded that Mohnal did not act improperly in publishing the article nor did they find any other misconduct by Mohnal. Id. at 302, 473. Whitehurst also made general allegations against Terry Rudolph, an explosives residue examiner who performed work on some of the earlier Unabom devices. The allegations do not relate specifically to any work Rudolph performed in the Unabom case. Furthermore, Rudolph left the Laboratory in 1988, long before Whitehurst's allegations surfaced and Mohnal will not be relying on any of his conclusions.) Furthermore, with the exception of Mohnal, no allegations were made in the report about any Laboratory employee whom the government intends to call as a witness at trial.
The government submits that Whitehurst's allegations including general allegations about the FBI Laboratory and the specific allegation relating to the Mohnal - are inadmissible for any purpose, and that the defendant should be barred from inquiring into the matter either in cross-examination of the government's witnesses or in his case in chief.
The government relies principally on United States v. Gonzalez, 938 F.Supp. 1199 (D. Del. 1996), which was a bombing case wherein the defendant sought to impeach an FBI explosives expert based on Whitehurst's allegations. Following conviction but before sentencing, the Assistant U.S. Attorney who prosecuted the case turned over documents which he had recently obtained from the Department of Justice relating to Whitehurst's allegations of "unprofessional workplace conduct and unscientific analyses" by certain personnel at the FBI Laboratory. One of these individuals had been the explosives expert who testified at the trial. Based on these documents the defendant moved for a new trial based on alleged Brady violations. Id. at 1201.
In denying the motion for new trial, the district court determined that there had been no Brady violation because the evidence disclosed in the Whitehurst documents were inadmissible. Id. at 1207 (citing Wood v. Bartholomew, 116 S.Ct. 7, 10 (1995)). The allegations included:
(1) Failing to follow FBI Materials Analysis Protocol.
(2) Keeping an inordinately sloppy and dirty work environment.
(3) Failing to wash and sterilize laboratory glassware.
(4) Rendering scientific opinions without a proper empirical basis for his conclusions.
(5) Failing to label instrumental output from testing.
(6) Being personally incompetent to testify as an expert in explosives analysis.
(7) Making racial remarks in the workplace.
(8) Using racist and sexist remarks in the workplace.
(9) Fabricating information and conclusions with no basis.
Id. at 1208-09.
The district court concluded that application of Federal Rule of Evidence 608 precluded admission of all nine categories, either because the evidence was not probative of the witness truthfulness or untruthfulness under 608 (a) (categories six, seven and eight) or they constituted specific instances of misconduct prohibited by 608(b) (remaining categories). Id. at 1209-10.
The government submits that Whitehurst's allegations against Mohnal pale in comparison to the allegations at issue in Gonzalez and are inadmissible for the same reasons identified by that Court. See United States v. Phibbs, 999 F.2d 1053, 1070-71 (6th Cir. 1993) (Probative value of FBI internal disciplinary investigation was substantially outweighed by threat of prejudice to government in light of resolution in favor of agent); see also United States v. Gonzalez, 71 F.3d 819, 835-36 (11th Cir. 1996) (district court properly excluded cross-examination regarding internal investigation of deputy marshal who was cleared of wrongdoing).
The government also submits that general allegations against the FBI Laboratory and allegations which do not implicate any witness who testifies for the government are simply not relevant and would risk confusing the jury with collateral issues. In United States v. Millan-Colon, 836 F.Supp. 1007 (S.D.N.Y. 1993) , an internal government investigation revealed corruption by members of the New York Drug Enforcement Task Force that had investigated and arrested the defendants for conspiracy to distribute heroin. At trial, the government sought an order to preclude the defendants from mentioning any aspect of the corruption investigation in their opening statements or cross-examining any witness regarding the investigation or the alleged corruption. In support of its motion, the government proffered that it did not ntend to call any of the corrupt officers to testify nor seek to admit any evidence seized by them or for which they were in the chain of custody. Id. at 1011, 1013. In granting the government's motion, the Court ruled:
The Court finds that cross-examination of the Government's witnesses regarding the Task Force corruption investigation . . . would pose a serious Rule 403 problem as such cross-examination is clearly more prejudicial than probative. First, as the Government does not intend to offer any evidence seized by the corrupt officers and as the officers will not be in the chain of custody, the defendants' proposed cross-examination regarding the corruption investigation would clearly be beyond the scope of direct examination. ..
Second, . . . any testimony regarding [the officer's] corrupt acts has no bearing on the credibility of the Government's other witnesses and is completely collateral to the issue of the other witnesses' veracity. .
Third, as the Government indicates that it will not offer evidence seized by any officer implicated in the corruption investigation and that those officers will not be in the chain of custody, any testimony regarding their misdeeds would be substantially more prejudicial than probative.
Id. at 1013. The Court also found that permitting evidence of the corruption investigation would cause jury confusion and would delay the trial. Id.
Based on the foregoing reasoning the government submits that permitting evidence of alleged improprieties in the FBI Laboratory regarding cases other than Unabom and alleged misconduct by persons who the government does not intend to call at trial is irrelevant, has no bearing on the credibility, competence or expertise of witnesses the government does call, and is only intended to confuse the jury.
DATED:10/23/97
Respectfully Submitted,
PAUL L. SEAVE
United States Attorney
By: (signature)
ROBERT J. CLEARY
STEVEN LAPHAM
STEPHEN P. FRECCERO
BERNARD HUBLEY
J. DOUGLAS WILSON
Special Attorneys to the
United States Attorney General
The undersigned hereby certifies that she is an employee in the Office of the United States Attorney for the Eastern District of California and is a person of such age and discretion to be competent to serve papers.
That on October 22, 1997, she served a copy of the GOVERNMENT'S TRIAL BRIEF (REDACTED VERSION) by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s) and address(es) stated below, which is/are the last known address (es) , and by depositing said envelope and contents in the United States Mail at Sacramento, California or by depositing said envelope and contents in the inter-office mailbox at the Clerk's office, Federal Building, Sacramento, California.
Addressee(s)
Quin Denvir
Federal Defender
801 K Street, Suite 1024
Sacramento, CA 95814
Judy Clarke
Executive Director of Federal Defenders of Eastern Washington & Idaho
10 North Post, Suite 700
Spokane, WA 99201
(signature)
SANDRA CALLAHAN