Opinion
Case No. 04-Cr-235.
March 16, 2006
DECISION AND ORDER
NATURE OF CASE
The defendant, Steven J. Parr, was initially charged in a criminal complaint. On October 4, 2004, a federal grand jury in this district returned a one count indictment against the defendant, charging him with unlawfully threatening to use a weapon of mass destruction against property leased and used by the United States and its departments and agencies, specifically the Reuss Federal Plaza In Milwaukee, Wisconsin, in violation of 18 U.S.C. § 2332a. The defendant pled not guilty to the charge.
Pursuant to the pretrial scheduling order issued at the arraignment and plea, the defendant filed several motions which have been addressed by the court, with the exception of the Defendant's Motion to Exclude 404(b) Evidence. (Document #78). This motion is ready for resolution and will be addressed herein.
MOTION TO EXCLUDE RULE 404(b) EVIDENCE
The defendant moves to exclude all evidence which the government seeks to present pursuant of Fed.R.Evid. 404(b). He asserts that, given the nature of the charge and the current focus on national security in this country, all such evidence should be excluded. Citing the recent terrorist attacks in the United States, including the horrific events of September 11, 2001, and the Oklahoma City bombing, as well as suicide attacks in other countries, the defendant asserts that there is a compelling need to evaluate all "bad acts evidence" within this special context. The defendant maintains that all of the individual statements and acts which the government seeks to introduce as Rule 404(b) evidence at trial are outside of the scope of admissible Rule 404(b) evidence and are also excludable under Fed.R.Evid. 403.
The defendant further maintains that the exhaustive nature of the government's proffer renders much of it cumulative and that there exists other means of proof for much, if not all, of the proffered evidence. Additionally, the defendant contends that no limiting instruction will adequately and effectively address the unfair prejudice which will result from the admission of such evidence.
The government disputes the defendant's contention that its proffered Rule 404(b) evidence is inadmissible and that the probative value of such evidence is outweighed by its potential prejudicial effect. According to the government, its theory of the case is that:
the threat manifested by [the defendant] on or about August 17, 2004, and September 20, 2004, was a continuation of two driving forces: (1) his desire to emulate Timothy McVeigh (the bomber of the federal building in Oklahoma City) and Ted Kaczynski (the Unabomber); and (2) [the defendant's] own building rage against governmental systems, including the federal government and individuals who had participated in bringing criminal charges against him.
(Government's Notice of Intent to Rely upon 404[b] Evidence [Government's Rule 404(b) Notice] at 1-2).
The government asserts that, given its theory of the case, much of the evidence sought to be introduced is direct, intrinsic evidence of the defendant's acts in furtherance of the elements of a § 2332a violation. It further maintains that to the extent any of the evidence is not considered direct evidence of the crime charged, the acts are admissible under Rule 404(b) to establish proof of motive, opportunity, intent, preparation, plan, knowledge, identity and absence of mistake.
In its Rule 404(b) Notice, the government sets forth an evidentiary summary of the evidence it seeks to present relating to: 1) the defendant's knowledge of chemicals/explosives; 2) his actual and/or stated intention to use chemical/explosive devices; 3) his possession of chemical/bomb making books and paraphernalia; 4) his threats against others; 5) his threats regarding the Rock County Courthouse; 6) his desire to emulate Timothy McVeigh and Ted Kaczinski, the Unabomber; and 7) his actual physical harm to others.
ANALYSIS
Rule 404(b) of the Federal Rules of Evidence provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To be admissible under Rule 404(b), extrinsic evidence must satisfy two criteria: 1) "it must be relevant under Federal Rule of Evidence 401 to an issue other than the defendant's character; and 2) it must have probative value that substantially outweighs its prejudicial impact under Federal Rule of Evidence 403."United States v. Walters, 351 F.3d 159, 165 (5th Cir. 2003) (citing United States v. Beechum, 582 F.2d 898, 911-13 [5th Cir. 1978] [en banc]).
Evidence of prior convictions or of other misconduct is not admissible under Rule 404(b) to show that a defendant has a propensity to commit crime and that he acted in conformity with that propensity on the occasion in question. United States v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005); United States v. Best, 250 F.3d 1084, 1090 (7th Cir. 2001) (internal citations omitted). However, evidence of other acts "may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, or identity." Best, 250 F.3d at 1090 (quoting United States v. Wash, 231 F.3d 366, 370 [7th Cir. 2000] [citation omitted]).
To determine the admissibility of other acts evidence, the court must employ a four-part test. Evidence of other crimes, wrongs or acts is admissible under Rule 404(b) if: "1) it is directed toward establishing a matter other than the defendant's propensity to commit the crime, 2) the evidence was sufficient to support a jury finding that the defendant committed the similar act, 3) the other act is similar enough and close enough in time to be relevant to the matter in issue, and 4) the probative value is not substantially outweighed by the danger of unfair prejudice." United States v. Coleman, 179 F.3d 1056, 1061 (7th Cir. 1999) (quoting United States v. Emenogha, 1 F.3d 473, 478 [7th Cir. 1993]); see also, Chavis, 429 F.3d at 667.
Courts have recognized that "all probative evidence is prejudicial to the party against whom it is introduced."Coleman, 179 F.3d at 1062 (quoting United States v. Adames, 56 F.3d 737, 742 [7th Cir. 1995]). Therefore, the focus must be on unfair prejudice. Id. Unfair prejudice refers to "the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Coleman, 179 F.3d at 1062.
When a defendant is charged with a specific intent crime, intent is a specific element of the crime which the government must prove. Chavis, 429 F.3d at 667. The government is permitted to present evidence of other acts to establish intent.United States v. Gellene, 182 F.3d 578, 595 (7th Cir. 1999);United States v. Lewis, 110 F.3d 417, 420 (7th Cir. 1997).
At the outset, the court notes that Rule 404(b) pertains to evidence of "other crimes, wrongs or acts." However, much of the evidence which the government lists as Rule 404(b) evidence involves statements made by the defendant to various individuals and, therefore, does not fall within the ambit of "other crimes" evidence. Some statements, such as the defendant's statement to his cooperating cell mate that his goal was to cause damage to the targeted federal building and the injury and death to the people within and around the federal building, constitute direct evidence of the charged crime. Other statements by the defendant could be admissible under Fed.R.Evid. 801(d)(2) as statements against interest, while others may lack relevance to the charge or are unduly prejudicial under Fed.R.Evid. 403.
In addition, the court is cognizant of several problems inherent in ruling on the Rule 404(b) motion. The court is making a decision on the admissibility of certain evidence in a relative vacuum and without knowledge of the larger context of the particular testimony. The court's decision on the motion necessarily is based on the spartan information currently before it. As more information is provided to the trial court during the course of the trial, this court's ruling on particular evidence may no longer be appropriate. Nonetheless, this court's decision is based on the information currently before it.
In an attempt to coherently address the government's purported Rule 404(b) evidence, the court will analyze such evidence using the seven categories of evidence delineated by the government.
1. The Defendant's Knowledge of Chemicals and Explosives
The government seeks to introduce testimony from numerous persons about the defendant's knowledge and use of chemicals. According to the government, Louise Olson has testified that during the time she lived with the defendant from March to May 2001, she saw him with chemicals, including sulfuric and nitric acid. He also showed her an experiment using chemicals.
Jeanine Pankhurst, who lived with the defendant intermittently from the Spring of 1999 until 2001, has testified that the defendant possessed chemistry books and "thought of himself to be like a chemist." (Government's Appendix to Notice of Intent to Rely upon 404(b) Evidence, [Appendix] Tab B at 5). James M. Tiedeman, who met the defendant at a drug treatment center in the Fall of 2002, has testified that the defendant liked to be called "The Chemist." (Appendix, Tab. C at 172).
Chad Olm met the defendant in prison in June of 2003, and lied to the defendant about the reason he was incarcerated. Mr. Olm told the defendant that he had operated a methamphetamine laboratory and thought that the defendant would discover the lie because the defendant had extensive knowledge of chemistry.
The government also seeks to introduce "The Anarchist Cookbook" and a notebook with chemistry notations obtained during a search of the defendant's residence on July 21, 2001. In addition, a cooperating inmate has stated that the defendant told him that he learned how to use explosives by reading books and utilizing other resource materials, like "The Anarchist Cookbook", and from college courses.
As part of its Rule 404(b) notice, the government lists the testimony of Special Agent Daniel Hickey with the Explosives Unit of the Federal Bureau of Investigation (FBI). Special Agent Hickey reviewed the transcript of the defendant's recorded conversation with his Oshkosh cell mate, who is cooperating with the government. Based on that review, Special Agent Hickey concluded that the defendant possesses sufficient knowledge in chemistry and explosives to be capable of producing a vehicle-born explosive device which could cause damage to the targeted federal building and injury and death to persons in the target area. The government plans to offer this testimony as evidence of the defendant's knowledge, planning and intent to carrying out his threat.
With respect to the proffered testimony of Ms. Olson, the court concludes that evidence of the defendant's possession of nitric acid and sulfuric acid would be admissible. However, the record is devoid of any evidence as to what kind of chemicals, if any, the defendant planned to use at the targeted federal building. Thus, there is no information that shows that the defendant's possession of these chemicals is similar to or related to chemicals that he planned to use at the federal building.
The testimony of Ms. Pankhurst and Mr. Tiedeman that the defendant thought of himself as a chemist and possessed chemistry books does not fall within the ambit of Rule 404(b) evidence. Regardless, the evidence would show the defendant's knowledge of chemistry and potential ability to carry out his alleged plan.
It appears that Mr. Olm's statement about the defendant's extensive knowledge of chemistry is based on Mr. Olm's personal conclusions about the defendant. Based on the information before it, the court is unable to ascertain if Mr. Olm based his conclusion about the defendant's interest in chemistry on conversations with the defendant or whether he based his conclusion on some other factors. There is no indication that Mr. Olm possessed the background necessary to support his conclusion about the defendant's knowledge of chemistry. Although other information may be available to support the basis for his conclusion, at this juncture and on this limited record, Mr. Olm's unsupported conclusion about the defendant's extensive knowledge of chemistry is not admissible at trial.
Special Agent Hickey's opinion about the defendant's knowledge of chemistry is based on his review of the defendant's notebook with its drawings and notations and his review of the transcript of the defendant's conversation with the cooperating witness. His testimony is based on his expertise in the area of explosives. The defendant has not challenged Special Agent Hickey's qualifications as an expert, but rather he contends that the agent's opinions are speculative, without proper foundation and constitute inadmissible comments upon the defendant's state of mind. It appears that the defendant is objecting to the statements in the agent's report that: "Mr. Parr displays an understanding of the concept of an `explosive train.' He understands that to initiate a high explosive one must generate a shock wave using a primary explosive." (Appendix, Tab C at 301).
Such statements are not comments on the defendant's state of mind, but rather are an assessment of the defendant's knowledge based on the statements he made. Rule 702 of the Federal Rules of Evidence provides that a witness qualified as an expert by knowledge, skill, experience, training or education may offer opinion testimony if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."
Here, the defendant's notebook with chemical formulas, drawings and names of various chemicals is relevant to the charged crime. The agent's opinion about the chemical formulae, drawings and names of various oxidizers, fuels and explosives in the defendant's notebook will provide assistance to the trier of fact in understanding the evidence. Such testimony does not constitute Rule 404(b) evidence. The defendant's notebook is also admissible as evidence of the defendant's knowledge. Therefore, the defendant's motion to exclude such evidence will be denied.
The defendant's statements to a cooperating inmate about how he learned to use explosives is relevant to the crime charge. Therefore, such testimony is admissible at trial.
In its Rule 404(b) Notice, the government seeks admission of "The Anarchist Cookbook," without stating any limitations. The book contains information about a variety of topics, including information about various drugs, methods for growing marijuana, ways to build a silencer for a pistol or submachine gun, how to make tear gas at home, as well as information on explosives and booby traps. Thus, much of the information in the cookbook is irrelevant to the charge facing the defendant. However, in the Government's Reply on Rule 404(b) Filing [Government's Reply], the government states in a footnote that "the portions of the book dealing with bomb making and threats against the government should be admitted." (Government's Reply at 7, n. 3). Thus, the government apparently is seeking only to introduce those portions of the book which relate to bomb making and threats against the government.
The admission of "The Anarchist Cookbook" was addressed inUnited States v. Rogers, 270 F.3d 1076 (2001). In that case, the court affirmed the defendant's conviction for possession of a unregistered firearm despite the fact that the trial court had admitted "The Anarchist Cookbook" in its entirety into evidence. The appeals court found that the prosecutor should have been limited to using those portions of the book pertinent to the charge. The court stated: "There is no problem under either the law of evidence or the first amendment, in presenting to the jury written material in the defendant's possession that shows how to commit the crime, for this makes it more likely that the defendant rather than someone else was culpable." Id. at 1081. The court cautioned, however, that "the judge had an obligation to keep the prosecutor from suggesting that Rogers should be convicted because he owned seditious literature, that anyone who would read a book called The Anarchist's Cookbook must hold his legal obligations in contempt, or that possession of the book implied that Rogers wanted to become a sniper." Id. Nonetheless, the court concluded that, given the weight of the evidence against Rogers and the proper use at trial of the construction plans in the book, reversal was not warranted under the plain error doctrine.
In United States v. Walters, 351 F.3d 159 (5th Cir. 2003), the admission of "The Anarchist Cookbook" was also addressed. Defendant Walters was charged with several offenses, including two counts of using a destructive device during a crime of violence, stemming from delivery of an explosive package to an Air Force officer. The trial court permitted certain portions of "The Anarchist Cookbook" to be admitted into evidence. The appeals court held that portions of the book were admissible as extrinsic evidence, noting that intent was an element of the offenses charged. The jury was allowed to see only the chapter containing the description of building explosives with features similar to the bomb the defendant allegedly assembled. The court explained: "The portions of the Cookbook pertinent to making a bomb with features similar to the one that exploded at the base were relevant to show Walters's (sic) knowledge and ability to make such a device." Id. at 168.
In this case, the defendant is charged with unlawfully threatening to use a weapon of mass destruction against property leased and used by the United States. A weapon of mass destruction is broadly defined to include any explosive or incendiary device, such as bombs, grenades, and missiles, and weapons designed to cause death or serious bodily injury through the release of toxic or poisonous chemicals, biological toxins or radiation at a level dangerous to human life. See 18 U.S.C. 23321(c)(2).
In its submissions, the government does not delineate the type of weapon of mass destruction which the defendant allegedly threatened to use. Thus, the facts are distinguishable from the facts in Rogers and Walters, which involved actual destructive devices. Nonetheless, from the information available to the court, it appears that the parts of "The Anarchist Cookbook" which relate to explosives (Chapter Four) are admissible in evidence to show the defendant's knowledge and ability to make an explosive device. See Rogers, 270 F.3d at 1081; Walters, 351 F.3d at 168. However, not all the information in this chapter is pertinent to or probative of the charged crime. Therefore, the government will need to carefully delineate only those portions of chapter four which are relevant to the charge against the defendant.
2. The Defendant's Actual And/or Stated Intention to Use Chemical/Explosive Devices
The government seeks to introduce evidence from various witnesses about the defendant's making and detonation of pipe bombs, his possession of chemicals and his statements about explosives. The government submits a lengthy list of statements allegedly made and acts committed by the defendant.
According to the government, Ms. Olson would testify that the defendant "talked a lot about building bombs, and that was a great interest to him." (Appendix, Tab A at 4). She would also testify that the defendant mixed some chemicals which reacted with water and "made a big flash bang, a lot of smoke and blew brown stains across the ceiling of the kitchen that couldn't be removed." Id. at 5. According to Ms. Olson, the defendant set up a lab in the basement, had chemicals and tubes in the house, and showed her how to make pipe bombs. He also showed her an island in the Rock River where he told her he used to detonate pipe bombs and other explosives. Ms Olson also heard the defendant order explosives on the telephone.
Ms. Pankhurst would testify that the defendant possessed chemicals and that she saw him make and possess between six and twelve pipe bombs during the summer of either 2000 or 2001. She also was with him when he detonated a pipe bomb and blew up a log on an island in the Rock River. According to Nora Cornelison, a former neighbor of the defendant, he said that he had enough explosives in the basement to blow the whole place up and that he had big round barrels in his garage and basement.
Ron Buss, the defendant's boss at Custom Granular in approximately 1999 or 2000, reported that during his employment, the defendant ordered a small amount of unknown chemicals on two occasions — once with permission and once without permission. Jeremiah Buss, the defendant's immediate supervisor at the company, stated that the defendant "liked to blow things up," although he never saw the defendant detonate any explosive devices. (Appendix, Tab C at 190).
Gina Rae Castro, who was in a relationship with the defendant from 1989 to 1993, stated that she saw the defendant detonate an improvised bomb and that the rear wall of her residence started on fire in 1993 or 1994. According to the government, the defendant admitted on recordings made of conversations in his jail cell that he committed an arson at his ex-girlfriend's house.
Elizabeth Wuensch-Byrd, the defendant's next-door neighbor between early 1998 to 2001, would testify that the defendant told her he liked to make bombs. She also reported that the defendant showed her a barrel which he said contained chemicals that only farmers were supposed to have. There is no indication that she was told what chemicals the barrels contained.
Chad Olm would testify that the defendant often discussed his views on society and had knowledge of bomb making. The defendant also reportedly told Mr. Olm that he "would seek vengeance against the government." (Appendix, Tab C at 1). According to the government, the defendant told the cooperating witness how he used, or planned to use, explosives and incendiary devices.
The defendant's statements about how he liked to build bombs, his making and detonating of bombs, and his views about the government are relevant to the charges in the indictment. Thus, the following witnesses' testimony on these issues are probative of the charged crime and admissible at trial: Ms. Olson, Ms. Pankhurst, Mr. Olm and the cooperating inmate. The testimony of Ms. Castro about the defendant's detonation of a bomb in her presence is also admissible evidence. However, her testimony about the arson to her residence is not relevant to the charge against the defendant and does not meet the requirements for admissibility under Rule 404(b). Moreover, even if such testimony had some probative value, such value is clearly outweighed by the danger of unfair prejudice to the defendant.
Ms. Wuensch-Byrd's testimony that the defendant told her he liked to make bombs is relevant and admissible, as is Ms. Cornelison's testimony about the defendant's statement regarding the explosives he possessed. However, with respect to the barrels the defendant had in his basement, Ms. Cornelison had no knowledge of what they contained because the defendant never told her. Similarly, there is no indication in the record as to the contents of the barrels which the defendant showed to Ms. Wuensch-Byrd. Therefore, based on the information before it, the court concludes that there is insufficient evidence to conclude that testimony about the defendant's possession of large barrels in his garage and basement is relevant to the charge against the defendant. Accordingly, at this stage of the proceedings, such testimony is not admissible at trial.
The testimony of Ron Buss is not admissible, especially given the fact that he has no knowledge of the type of chemicals the defendant purchased several years ago. As such, the court cannot conclude that such testimony would be relevant to the charge in this case. The basis of Jeremiah Buss' testimony that the defendant liked to blow things up is also unknown, especially since Mr. Buss acknowledged that he never witnessed any such conduct by the defendant. Accordingly, the testimony of both Ron and Jeremiah Buss does not meet the requirements for admissibility at trial.
3. Possession of Chemical/Bomb Making Books and Paraphernalia
The government seeks to introduce testimony about the defendant's possession of various chemistry and other books, as well as the books and documents obtained from Steven Parr, the defendant's brother, Ms. Williamson and the Janesville Police Department. The defendant asserts that possession of these items and discussion about chemistry and chemical equipment is not probative of any exceptions to Rule 404(b). He further maintains that the information is cumulative and that its probative value is outweighed by its prejudicial effect.
In support of its position, the government states that Ms. Olson would testify that the defendant possessed "The Anarchist Cookbook" and "Terrorist Handbook" and that Ms. Pankhurst would testify that the defendant possessed chemistry books and books on bomb making. The court lacks information about the nature of the "Terrorist Handbook." Therefore, while the "Terrorist Handbook" may be probative, the court is unable to make that determination based on the record before it. Accordingly, at this juncture, the government has not established that such testimony is admissible. Thus, testimony about the defendant's possession of "Terrorist Handbook" will not be permitted at trial.
Testimony about the defendant's possession of "The Anarchist Cookbook" is probative of the defendant's knowledge about explosive devices. Any testimony should be limited to the relevant portions of the book.
The defendant's alleged statements to the cooperating inmate about how he obtained chemicals and related equipment is evidence related to the charged crime. Therefore, such evidence is admissible.
The government specifically lists the following items relating to the defendant's possession of chemical and bomb-making books and related materials which it seeks to introduce at trial as Rule 404(b) evidence:
Items obtained from David Parr:
— a chemistry textbook;
— the Merck Index, an Encyclopedia of Chemicals, Drugs and Biologicals;
— lab supply book; and
— Army counterintelligence, terrorism counter action and urban guerilla manuals.Items obtained from Linda Williamson:
— Fighting in the Streets: A Manual of Urban Guerilla Warfare;
— the Outlaw's Bible;
— The Black Book of Revenge;
— The Complete Manual of Hard-Core Dirty Tricks and Schemes;
— the Handy Physics Answer Book;
— the Addison-Wesley Science Handbook for Students, Writers and Science Buffs; and
— the Handy Science Answer Book.
Items obtained from the Janesville Police Department:
— "The Anarchist Cookbook;"
— notebook with chemistry equations, including "Mustard Gas." (bates stamp 297).
The books and documents relating to chemistry, science, physics, the chemistry notations and lab supply book are probative of the defendant's knowledge of chemistry and explosives, his preparation and intent. Therefore, these items are admissible at trial. With respect to "The Anarchist Cookbook," as noted, only those portions of the book which are probative of the charged crimes are admissible at trial.
However, based on the currently-available information, the court concludes that the following items are not relevant to the crime charged:
Army counterintelligence, terrorism counter action and urban guerilla manuals,
"Fighting in the Streets: A Manual of Urban Guerilla Warfare";
the "Outlaw's Bible";
"The Black Book of Revenge"; and
"The Complete Manual of Hard-Core Dirty Tricks and Schemes"
Rather, it appears that such evidence is directed at establishing that the defendant is a person of questionable character who possessed violent and seditious books. It is not directed toward establishing a matter other than the defendant's propensity to commit the violent crime charged in the indictment.
Moreover, even if the court were to conclude that these books had some probative value, the court concludes, based on the information now before it, that the probative value of books like "Fighting in the Streets: A Manual of Urban Warfare, the "Outlaw's Bible" and "The Black Book of Revenge" is outweighed by the clear danger of unfair prejudice to the defendant. Therefore, the defendant's motion to exclude Rule 404(b) evidence of the defendant's possession of chemical and bomb-making books will be granted in part and denied in part as stated herein.
4. The Defendant's Threats Against Others
The government seeks to introduce testimony about threats the defendant made to Ms. Olson and Gina Mae Castro and the threats and statements to harm others that he made to Nola Cornelison and Helen Homan. It also seeks the admission of statements in writings seized in 2004 from the defendant's Oshkosh jail cell. The defendant asserts that such statements fail to meet the requirements for admissibility as an exception to Rule 404(b) and merely "are offered to show a propensity for violence in a prohibitive fashion." (Defendant's Response to Government's 404[b] Proffer [Defendant's Response] at 19).
According to the government, the defendant threatened to kill Ms. Olson using a gun he had hidden, threatened to blow up her house if she returned to her husband and threatened to kill Ms. Pankhurst and blow up her car because she left him. Ms. Olson also would testify that the defendant said he had killed someone who had pressed charges against him and had tossed the body in the river. Further, she would testify that the defendant said he had a hit list and was going to kill one person for every year he served in jail.
The government also seeks to introduce the testimony of the defendant's former neighbor, Nola Cornelison, that the defendant talked about beating people up. She also would testify that he had enough explosives in his basement and garage "to blow the whole place up." (Appendix, Tab C at 185). She also would testify that the defendant said that he hated the government and the police and that he would "do everyone of them in" if he could get away with it. Id. at 186. Ms. Homan would provide similar testimony. Although there is no indication as to when the defendant made such statements, as of October 2004, Ms. Cornelison had not seen the defendant for two years. Id. Ms. Castro, one of the defendant's former girlfriends, told the FBI that the defendant threatened to bring chemicals home from a fertilizer store and poison her.
The government also seeks to introduce the following writings seized from the defendant's jail cell in 2004:
— "gov. makes me angry"
— "I'm sorry for scaring you into staying with me.
"that I put a gun to your head
"I threatened you
". . . . your family
I broke up your dysfunctional family
I couldn't let go
— "the success of any given operation is directly proportional to the procurement of accurate and reliabe (sic) information relating tot he opposing force:"
— "the success of any given operation is dependent upon accurate and reliable information about the enemy."See Government's Rule 404(b) Notice at 8.
Several of these threats are grounded in the defendant's domestic relationships with his girlfriends and are not probative of the crime charged. These statements of the defendant appear to be proffered to show the defendant's propensity for violence and not to show motive, opportunity, intent or any other exception recognized under Rule 404(b). Moreover, any arguably probative value these statements are outweighed by their prejudicial effect. See Fed.R.Civ.P. 403. Therefore, the court finds that these statements about the defendant's alleged threats are not admissible.
Similarly, the statements contained in writings seized in 2004 from the defendant's Oshkosh jail cell, with the exception of the statement, "gov. makes me angry," appeared to be related to the defendant's personal, domestic relationships. Such writings are not relevant to the charges and appear to be designed to show the defendant's bad character. Therefore, they are not admissible at trial.
The defendant's statements about his anger and hatred of the government are relevant to the charged crime and are probative of the defendant's motive and intent. These statements were made to Ms. Cornelison and her daughter, Helen Homan. The court finds that such statements are admissible at trial.
The admissibility of the defendant's alleged statements to Ms. Homan and Ms. Cornelison that he could make a bomb and blow everyone up is problematic given the lack of context and the limited information before the court at this juncture. There is no indication of when this statement was made and under what circumstances. Therefore, based on the current information, the court concludes that the statement would not be admissible. However, the final determination of the admissibility of this statement may be addressed more appropriately at the time of trial when it might be presented with further information and in context.
5. Threats to the Rock County Courthouse
The government wants to introduce testimony from Ms. Olson about the defendant's plans to destroy the Rock County Courthouse and his "severe animosity" toward the judge and the district attorney. (Government Rule 404[b] Notice at 9). The defendant asserts that such evidence is offered to show a propensity for violence in a prohibitive manner. The defendant further maintains that none of this evidence is probative of intent, preparation, plan, knowledge or any other exception under Rule 404(b).
It is not entirely clear when and under what circumstances the defendant made these statements to Ms. Olson. However, the action the defendant allegedly considered has similarity to the charges which the defendant is currently facing. Such testimony would be relevant to show intent, plan, motive and knowledge. Therefore, the testimony is admissible.
According to the government, Ms. Olson lived with the defendant from March to May of 2001, at 1121 Milton. See Government's Notice of Intent at 2.
6. Defendant's Desire to Emulate Timothy McVeigh and the Unabomber
According to the government, the defendant admired Timothy McVeigh and the Unabomber and talked about emulating them. The government states that the cooperating inmate would testify about the defendant's knowledge of, and admiration for, Mr. McVeigh and Mr. Kaczinski and his intent to follow their examples. He would also testify that the defendant stated that the federal government is to blame and that "the states are subservient to the feds." (Appendix, Tab D at 99). The cooperating inmate would also testify that the defendant said he wanted to be "the next McVeigh. Id. at 101.
Specifically with respect to Timothy McVeigh, Ms. Olson would testify that the defendant watched CNN nonstop for two days before the execution of Mr. McVeigh and that "the only emotion I ever saw in him, he had a sad look and he almost was tearful because he thought the guy was getting a raw deal, that he shouldn't have been put to death." (Appendix, Tab A at 10). Ms. Pankhurst would testify that the defendant had a kind of hero worship of Mr. McVeigh. (Appendix, Tab B at 5).
According to the government, Chad Olm would testify that the defendant often spoke favorably about Mr. McVeigh and how he could have inflicted more damage. He also spoke about a T-shirt worn by Mr. McVeigh which bore a quotation from Thomas Jefferson.
The record does not reflect the quote from Thom as Jefferson that allegedly was on the T-shirt.
Regarding Ted Kaczynski, the Unabomber, Ms. Pankhurst would testify that the defendant's nickname was "Uni" after the Unabomber and that he stated the Unabomber "was just a wonderful guy" and "was his hero and he would like to be like him." (Appendix, Tab B at 5). She also would testify that the defendant had a Unabomber T-shirt and that he checked out "an autobiography" of the Unabomber from the public library. (Appendix, Tab. C at 43).
The government refers to this book as a "biography" in its submission. (Government's Notice of Intent at 10).
The government also seeks to introduce testimony that items seized from the defendant's Oshkosh jail cell including a Uni-"bomb" drawing, and various handwritten notes. One note specifically highlighted by the government states: "I am angry, resentful, vengeful, perfectionist, loving, possessive." (Appendix, Tab C at 53). It also seeks to present the observations of Special Agent Hammen who would testify that the defendant has a tattoo on his arm which states "Uni" followed by a picture of a bomb, "thereby signifying "Unabomber." (Government's Rule 404[b] Notice at 10).
The testimony of the cooperating inmate is relevant to the charged crime and is admissible at trial. Similarly, testimony about the defendant's desire to emulate the actions of Mr. McVeigh and Mr. Kaczinski is relevant and probative of the defendant's knowledge and intent to commit the crime charged.
The relevance of the defendant's statement to Mr. Olm about Mr. Kaczinski's T-shirt escapes this court, especially since the record contains no indication of the quote on the T-shirt. Therefore, without more, this testimony is not admissible.
Based on the information before the court, the government has not established what, if any, relevance the defendant's reading of a book about the Unabomber has to this case. Therefore, at this juncture, such testimony is not admissible. This conclusion may be subject to reconsideration at the time of trial, if information showing the relevance of such testimony is presented to the court.
The handwritten notes of the defendant, which were seized from the Oshkosh jail, appear to be random writings not relevant to the charged conduct. Therefore, the court concludes that, at this stage, these notes are not admissible.
Finally, the testimony about the tattoos which the defendant has would be admissible to arguably show the defendant's state of mind. However, Special Agent Hammen's conclusory statement that the tattoos signify the Unabomber is not admissible, absent a showing that Agent Hammen has expertise in interpreting tattoos. Even if he has such expertise, in this court's opinion, the jury is perfectly capable of drawing its own conclusion about the meaning of the tattoos without further assistance.
7. The Defendant's Physical Harm of Others
The government seeks to introduce evidence that the defendant beat up Ms. Olson on October 2, 2001, because she would not go back to him. In addition, the government seeks to introduce the testimony of Ms. Pankhurst that the defendant held a gun to her head, hit her several times, gave her a black eye and raped her. The defendant contends that such testimony fails to meet the four-part test for admission of Rule 404(b) evidence and is unduly prejudicial. The court agrees.
Evidence of the defendant's actions and purported violence in domestic relationships has little, if any, relevance to the defendant's intent to commit the charged crime. Such acts are not similar enough to be relevant to a matter in issue. Moreover, evidence of the defendant's prior violent acts against women in his life, including rape, is not directed toward establishing a matter in issue. Rather, such evidence of violent behavior merely serves to cast the defendant as a "bad person." The court concludes that this testimony is inadmissible because it is being introduced to prove the defendant's character as a violent person "in order to show that he acted in conformity therewith." Fed.R.Civ.P. 404(b).
Furthermore, to the extent that such evidence may have any probative value, on balance, the court concludes that such probative value is clearly outweighed by the danger of unfair prejudice. See Chavis, 429 F.3d at 667. Accordingly, the defendant's motion to exclude Rule 404(b) evidence of the defendant's past actual physical harm to others will be granted.
In sum, the court concludes that not all evidence which the government seeks to introduce as other acts, crimes or wrongs evidence is properly admissible pursuant to Fed.R.Evid. 404(b). Some evidence does not meet the criteria of "other acts, crimes or wrongs" evidence. Other evidence that does fall within the parameters of "other acts, crimes, or wrongs evidence is not relevant to the charged crime or its probative value is outweighed by the danger of unfair prejudice to the defendant. Therefore, for the reasons stated herein, the defendant's motion to exclude Rule 404(b) evidence will be granted in part and denied in part.
ORDER
NOW, THEREFORE, IT IS ORDERED that defendant Steven J. Parr's motion to exclude 404(b) evidence (Docket #78) be and hereby is granted in part and denied in part as stated herein.
Your attention is directed to 28 U.S.C. § 636(b)(1)(A) and General Local Rule 72.3 (E.D. Wis.), whereby written objections to any order herein or part thereof may be filed within ten days of service of this order. Objections are to be filed in accordance with the Eastern District of Wisconsin's electronic case filing procedures. Courtesy paper copies of any objections shall be sent directly to the chambers of the district judge assigned to the case. Failure to file a timely objection with the district court shall result in a waiver of your right to appeal.