United States v. Fulmer

USCA1 Opinion











UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 96-1331

UNITED STATES,

Appellee,

v.

KEVAN FULMER,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________

Bownes, Senior Circuit Judge, ____________________

and Stahl, Circuit Judge. _____________

_____________________

Miriam Conrad, Federal Defender Office, for appellant. _____________
Paul G. Levenson, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, was on brief for _______________
appellee.



____________________

March 28, 1997
____________________

















TORRUELLA, Chief Judge. On April 28, 1995, Defendant- TORRUELLA, Chief Judge. ___________

Appellant Kevan Fulmer ("Fulmer") was indicted for threatening a

federal agent in violation of 18 U.S.C. 115(a)(1)(B).

Following a jury trial, Fulmer was convicted on November 3, 1995,

of threatening Richard Egan ("Egan"), a special agent with the

Federal Bureau of Investigation ("FBI"). Fulmer was sentenced to

a term of five months imprisonment to be followed by two years of

supervised release. On appeal, Fulmer challenges his conviction,

a number of evidentiary rulings, and the jury instructions. We

find that several improper evidentiary rulings were not harmless

error, and, accordingly, we vacate Fulmer's conviction and remand

for a new trial.

BACKGROUND BACKGROUND

We sketch the facts presented at trial, providing

further details as they become relevant to the discussion. In

May 1994, the Office of the United States Trustee referred to

Egan a complaint in which Fulmer alleged that his former father-

in-law, Antonio Boschetti ("Boschetti"), and his brother, David

Fulmer, had failed to disclose assets in bankruptcy and had

committed pension fraud and income tax fraud. Egan arranged to

meet Fulmer in August or September of 1994. At the meeting,

Fulmer explained to Egan that he and his brother had married

Boschetti's daughters, and that Fulmer had since been divorced.

Fulmer indicated that Boschetti and David Fulmer had engaged in

illegal business activities. Fulmer explained that these were

"vicious" people and that they had "used the courts to keep him


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away from his family." Egan described Fulmer's demeanor as

"polite, articulate" and "tense." Egan noted that, although he

tried repeatedly to steer the conversation toward the alleged

concealment of assets, Fulmer would return to his strained

relationship with his family.

Over the next three months, Fulmer contacted Egan

"every week or ten days." Fulmer delivered documents to Egan's

office and stopped by to inquire about the investigation. Fulmer

also sent letters and faxes to Egan and called Egan on the

telephone, leaving messages when he did not reach Egan.

Throughout this interaction, Fulmer continued to comment on his

poor relationship with his family.

Egan interviewed Boschetti and David Fulmer, and

obtained and reviewed documents related to the bankruptcy. After

Egan investigated Fulmer's allegations, Egan consulted with an

Assistant United States Attorney. In January 1995, the United

States Attorney's office advised Egan that it would not prosecute

the case. Egan in turn informed Fulmer that the records did not

support prosecution. Fulmer protested the decision, but said

"good-bye" and hung up after Egan told him there was nothing

further to discuss. Fulmer may have asked Egan whether he could

provide further information to make a stronger case against

Boschetti and David Fulmer.

There were no further interactions between Egan and

Fulmer until April 25, 1995, when Egan received the following

voicemail message from Fulmer at approximately 5:40 p.m.:


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Hi Dick, Kevan Fulmer. Hope things are well,
hope you had an enjoyable Easter and all the
other holidays since I've spoken with you
last. I want you to look something up. It's
known as misprision. Just think of it in
terms of misprision of a felony. Hope all is
well. The silver bullets are coming. I'll
talk to you. Enjoy the intriguing unraveling
of what I said to you. Talk to you, Dick.
It's been a pleasure. Take care.

At Fulmer's trial, Egan testified that he was "shocked"

by the message, which he found "chilling" and "scary." He

testified that he had never heard the term "silver bullets"

before and believed that the term indicated a threat. He stated

that he intended to report the message to the United States

Attorney's office. Egan's supervisor, Robert Schlabach,

testified that Egan played the message for him the next morning

and told Schlabach that he believed the message was a threat and

intended to take it to the United States Attorney's office.

Schlabach also testified that Egan appeared "clearly upset,

concerned, [and] agitated." Trial Transcript, vol. 2, at 130.

Fulmer presented two witnesses who testified to the

meaning Fulmer associated with the term "silver bullets." The

first, John Noonan, a lawyer and former federal investigator,

testified that he had heard Fulmer use the phrase "silver

bullets" to describe "a clear-cut simple violation of law."

Noonan stated that Fulmer used the phrase to describe specific

evidence, including an $8,200 check from a bankruptcy estate that

never reached its intended recipient.

The second witness, David Tremblay, testified that he

had known Fulmer for more than twenty years and that Fulmer had

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used the phrase "silver bullets" to mean "information that he was

going to provide to banks proving the illegality of some of David

Fulmer's transactions."

David Baarlaer, a portfolio analyst for GE Capital,

testified that in April 1995 Fulmer prompted Baarlaer to

investigate whether GE Capital had received a check for

approximately $8,300 from the Boschettis. Baarlaer found that

the check had not been received. In April, David Fulmer sent

Baarlaer a copy of the check, which showed no signs of having

been canceled, endorsed, or deposited. Sometime before April 25,

1995, Baarlaer told Fulmer about the check.

DISCUSSION DISCUSSION

I. Sufficiency of the Evidence I. Sufficiency of the Evidence

Fulmer contests the sufficiency of the evidence

supporting his conviction on two grounds, first, that an

ambiguous statement cannot be considered a "true threat," and

second, that the evidence did not support a finding that Fulmer

had the requisite intent. We begin with the now-familiar

standard of review:

In assessing a challenge to the sufficiency
of the evidence, we "review the record to
determine whether the evidence and reasonable
inferences therefrom, taken as a whole and in
the light most favorable to the prosecution,
would allow a rational jury to determine
beyond a reasonable doubt that the defendant[
was] guilty as charged."

United States v. Sullivan, 85 F.3d 743, 747 (1st Cir. 1996) ______________ ________

(quoting United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st ______________ ___________

Cir. 1993)).

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A. "True threat" A. "True threat"

Fulmer argues that the appropriate standard for

determining a true threat is whether "a reasonable person would

foresee that the statement would be interpreted by those to whom

the maker communicates the statement as a serious expression of

intent to harm or assault." United States v. Orozco-Santillan, _____________ ________________

903 F.2d 1262, 1265 (9th Cir. 1990). The government argues that

the proper standard is whether an "ordinary, reasonable recipient

who is familiar with the context of the [statement] would

interpret it as a threat of injury." United States v. Maisonet, _____________ ________

484 F.2d 1356, 1358 (4th Cir. 1973). This circuit has not yet

ruled on the appropriate standard regarding the nature of a "true

threat." Although our sister circuits that have reviewed the

standard under this and other1 federal threat statutes agree that
____________________

1 18 U.S.C. 871 provides, in part:

Threats against President and successors to the
Presidency

(a) Whoever knowingly and willfully deposits for
conveyance in the mail or for a delivery from any post
office or by any letter carrier any letter, paper,
writing, print, missive, or document containing any
threat to take the life of, to kidnap, or to inflict
bodily harm upon the President of the United States,
the President-elect, the Vice President or other
officer next in the order of succession to the office
of President of the United States, or the Vice
President-elect, or knowingly and willfully otherwise
makes any such threat against the President, President-
elect, Vice President or other officer next in the
order of succession to the office of President, or Vice
President-elect, shall be fined under this title or
imprisoned not more than five years, or both.

18 U.S.C. 875 provides, in part:


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an objective standard is required, they disagree regarding the

appropriate vantage point -- what a person making the statement

should have reasonably foreseen or what a reasonable person

receiving the statement would believe. Compare United States v. _______ _____________

Malik, 16 F.3d 45, 48 (2d Cir. 1994) ("The test is an objective _____

one -- namely, whether 'an ordinary, reasonable recipient who is

familiar with the context of the letter would interpret it as a

threat of injury.'" (quoting Maisonet, 484 F.2d at 1358)), and ________ ___

United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) _____________ _________

("The test for whether a statement is a threat is an objective

one; it is not what the defendant intended but whether the

recipient could reasonably have regarded the defendant's

statement as a threat.") with Orozco-Santillan, 903 F.2d at 1265 ____ ________________

("Whether a particular statement may properly be considered to be

a threat is governed by an objective standard -- whether a

____________________

Interstate communications

(c) Whoever transmits in interstate or foreign
commerce any communication containing any threat to
kidnap any person or any threat to injure the person of
another, shall be fined under this title or imprisoned
not more than five years, or both.

18 U.S.C. 876 provides, in part:

Mailing threatening communication

Whoever knowingly so deposits or causes to be
delivered as aforesaid, any communication with or
without a name or designating mark subscribed thereto,
addressed to any other person and containing any threat
to kidnap any person or any threat to injure the person
of the addressee or of another, shall be fined under
this title or imprisoned not more than five years, or
both.

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reasonable person would foresee that the statement would be

interpreted by those to whom the maker communicates the statement

as a serious expression of intent to harm or assault.") and ___

United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984) ______________ _____

(maintaining that the test is "whether a reasonable person would

foresee that the statement would be interpreted by persons

hearing it as a serious expression of an intention to inflict

bodily harm upon or to take the life of the President of the

United States." (internal quotations omitted)). See also United ________ ______

States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) ("[T]he ______ ________

standard . . . is an objective standard, i.e., would a reasonable ____

person consider the statement to be a threat.").

We believe that the appropriate standard under which a

defendant may be convicted for making a threat is whether he

should have reasonably foreseen that the statement he uttered

would be taken as a threat by those to whom it is made. This

standard not only takes into account the factual context in which

the statement was made, but also better avoids the perils that

inhere in the "reasonable-recipient standard," namely that the

jury will consider the unique sensitivity of the recipient. We

find it particularly untenable that, were we to apply a standard

guided from the perspective of the recipient, a defendant may be

convicted for making an ambiguous statement that the recipient

may find threatening because of events not within the knowledge

of the defendant. Therefore, we follow the approach of several




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circuits by holding that the appropriate focus is on what the

defendant reasonably should have foreseen.

Fulmer contends that the statement was at most

ambiguous and could not have been a "true threat." Fulmer cites

United States v. And jar, which states that _____________ _______

[i]f the evidence viewed in the light most
favorable to the prosecution gives equal or
nearly equal circumstantial support to a
theory of guilt and a theory of innocence of
the crime charged, this court must reverse
the conviction. This is so because . . .
where an equal or nearly equal theory of
guilt and a theory of innocence is supported
by the evidence viewed in the light most
favorable to the verdict, a reasonable jury
must necessarily entertain a reasonable
doubt.

49 F.3d 16, 20 (1st Cir. 1995) (citation, internal quotation

marks, and emphasis omitted).

Although Fulmer properly recites the law, we find that

And jar's wisdom does not apply here. A reasonable jury could _______

have found the following. A bankruptcy trustee referred Fulmer's

complaint to Egan in May 1994. In August or September, Egan met

with Fulmer, and found his demeanor regarding his family

"intense." Fulmer expressed his belief that Boschetti and David

Fulmer had engaged in illegal activities and further claimed that

they were "vicious" people who had used the courts to keep Fulmer

away from his family. Thereafter, Egan had conversations with

Boschetti and David Fulmer who reiterated the ill feelings Fulmer

bore toward them. Fulmer contacted Egan frequently, by letter

and by telephone, leaving voicemail messages when Egan was not

available.

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After a thorough investigation, Egan and an Assistant

United States Attorney determined that the evidence was

insufficient to support a prosecution. Fulmer protested, but

when Egan told him there was nothing further to discuss, he said

"goodbye" and hung up. Egan's next interaction with Fulmer

occurred three months later, when Fulmer left the voicemail

message at issue.

The jury could have also found that, although the usage

of the term "silver bullets" varies, the phrase may be used as a

threat.

Reviewing all of these facts, and drawing all

inferences in favor of the verdict, we cannot say that no

rational jury could have found beyond a reasonable doubt that

Fulmer's statement was a threat. "Whether a given [statement]

constitutes a threat is an issue of fact for the trial jury."

Malik, 16 F.3d at 49. The use of ambiguous language does not _____

preclude a statement from being a threat. See id.; Schneider, ___ ___ _________

910 F.2d at 1570 ("The threat in this case was ambiguous, but the

task of interpretation was for the jury."); Orozco-Santillan, 903 ________________

F.2d at 1265 ("The fact that a threat is subtle does not make it

less of a threat." (citation and quotation marks omitted));

Maisonet, 484 F.2d at 1358 (finding determination of whether ________

statement constitutes a threat a jury question); see also United ________ ______

States v. Barcley, 452 F.2d 930, 934 (8th Cir. 1971) (Aldrich, ______ _______

J., sitting by designation, dissenting) (contending that the

interpretation of an ambiguous statement is a factual question to


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be resolved by a jury). While the statement on its face may be

susceptible to more than one interpretation, some factors not

discernable from the record, such as the tone of the defendant's

voice or the credibility of the government's and Fulmer's

witnesses, may legitimately lead a rational jury to find that

this statement was a threat.

Fulmer further suggests that we must strictly apply the

"true threat" standard in order to avoid trampling on his First

Amendment rights, citing Watts v. United States, 394 U.S. 705 _____ ______________

(1969). Watts involved a statement made against the president in _____

the context of a political rally against a war. The Court was

concerned with punishing Watts' constitutionally protected

political speech. See id. at 1401 ("The language of the ___ ___

political arena, like the language used in labor disputes, . . .

is often vituperative, abusive and inexact. . . . Taken in

context, and regarding the expressly conditional nature of the

statement and the reaction of the listeners, we do not see how it

could be interpreted otherwise."). In this case, Fulmer does not

argue his message was one criticizing either Egan or any other

government figure. Moreover, a true threat is unprotected by the

First Amendment. Orozco-Santillan, 903 F.2d at 1265. Thus, a ________________

conviction under this statute, based on a finding that the

statement was a true threat, would not violate Fulmer's

constitutionally protected right to speech.

B. Intent to impede, intimidate, interfere with, or B. Intent to impede, intimidate, interfere with, or
retaliate retaliate



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The jury was entitled to infer Fulmer's intent from the

circumstances surrounding the statement. See United States v. ___ ______________

DiMarzo, 80 F.3d 656, 661 (1st Cir.) ("The jury was entitled to _______

rely upon circumstantial evidence . . . to infer essential

elements of the crime . . . ."), cert. denied, 117 S. Ct. 259 ____________

(1996); United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995) _____________ ______

(noting that a showing of criminal intent "may be made wholly on

the basis of circumstantial evidence"). Drawing all inferences

and credibility determinations in favor of the government's case,

we find that a rational jury could have found that Fulmer

knowingly made the statement alleged to be a threat, and that he

did so with the intent to "impede, intimidate, or interfere with"

Egan in the performance of his duties, or to "retaliate" against

him, within the meaning of 18 U.S.C. 115(a)(1)(B).

Although we find that the evidence was not

insufficient as a matter of law, we come to this conclusion by

viewing the properly admitted evidence in the light most

favorable to the verdict and by drawing all credibility

determinations in favor of the verdict. As we discuss in section

III, we believe that the improperly admitted evidence was so

inflammatory that it may have prompted the jury at the outset to

weigh the properly admitted evidence in the government's favor.

This sort of taint we cannot condone, and justifies a reversal

even where Fulmer's argument as to the sufficiency of the

evidence fails.

II. Jury Instructions II. Jury Instructions


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A. Intent to Threaten Egan A. Intent to Threaten Egan

Fulmer argues that the district court erred when it

failed to instruct the jury that the statute requires both the

statutory intent and an intent "to put Mr. Egan in fear of being

assaulted or murdered." He also claims that the district court

erred when it declined to instruct "to say or do something that

would cause a person of ordinary sensibilities to be fearful of

harm to himself or another."

The district court set forth the jury instruction

regarding the elements of the statute2 as follows:

To prove the defendant committed this
crime, the Government must prove that the
defendant knowingly threatened the officer.
The term "knowingly," as used in these
instructions, means that the defendant was
conscious and aware of his actions, realized
what he was doing, and did not act out of
ignorance, mistake, or accident.


____________________

2 18 U.S.C. 115(a)(1)(B) states:

(a)(1) Whoever --

* * *

(B) threatens to assault, kidnap, or
murder, a United States official, judge, a
Federal law enforcement officer, or an
official whose killing would be a crime under
such section,

with intent to impede, intimidate, or
interfere with such official, judge, or law
enforcement officer while engaged in the
performance of official duties, or with
intent to retaliate against such person on
account of the performance of official duties
during the term of service of such person,
shall be punished . . . .

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Now, what is a threat for purposes of this
statute? A threat is a statement that
expresses an intent to inflict bodily harm on
someone. To be a threat, a statement must be
of such a nature as can reasonably induce
fear. You must determine whether a statement
was a true threat when judged in this context
-- in its context.

Among other things, you should consider
whether on its face and in the circumstances
in which the statement is made, a reasonable
person would foresee that the statement would
convey to the recipient a seriousness of
purpose and the apparent prospect of
execution. Whether a particular statement is
a threat is governed by an objective standard
whether a reasonable person in the
circumstances would foresee that the
statement would be interpreted by the person
to whom it is made as a serious expression of
intent to harm or assault.

This means that you should consider the
statement in light of its entire factual
context, including the surrounding events,
reaction of the listeners, and the manner and
tone in which it is made -- was made.
Sometimes the tone or the way something is
expressed can make a difference between a
threat and something that is not a threat.

Keep in mind that the Government must prove
its case beyond a reasonable doubt. So if
there is something ambiguous about the way
the statement is made and you think that the
statement can be reasonably interpreted under
the circumstances, either as threatening or
nonthreatening, the case has not been proven.
However, the fact that a threat is subtle or
lacks explicitly threatening language does
not make it less of a threat.

Now, a threat can be made in person, in a
phone call, or in a letter. To be a threat,
it's not necessary that the statement be made
face to face. The Government does not have
to prove that the defendant actually intended
to carry out the threat or that he was able
to. That is not a part of the definition of
threat.


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If the Government proves that a threat was
made by the defendant, then you must decide
whether the person threatened was a federal
law enforcement officer and whether at the
time the threat was made, the officer was
engaged in the performance of his official
duties.

* * *

If you find that a threat to assault or
murder a federal law enforcement officer was
made, then you must consider the next element
of the offense. The indictment says that the
threat was made with intent to impede,
intimidate, and interfere with Agent Egan
while engaged in the performance of his
official duties and to retaliate against him
on account of the performance of those
duties.

Even though the indictment uses the word
"and," you must determine whether the
defendant made the threat with the intent to
impede or intimidate or interfere with the
federal law enforcement officer's performance
of his other official duties or whether the
defendant made the threat with the intent to
retaliate against the law enforcement officer
because of his performance of his official
duties.

The Government may satisfy this element of
the offense by proving any of these
intentions. It is not necessary that the
Government prove that the defendant intended
all of these things. If you find that the
Government has proven any of these intentions
beyond a reasonable doubt and you agree
unanimously as to which one it is, then the
Government would have proven the element of
intent.

When we talk about a defendant's -- about
the defendant's intent, we are talking about
what he meant to do and what was in his mind.
This is difficult to prove directly, because
there is no way directly to scrutinize the
works of someone else's mind or his state of
mind. But you may infer . . . the
defendant's intent from the surrounding
circumstances, that is to say, you may rely

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on circumstantial evidence in determining the
defendant's intent. You may consider any
statement made, act done, or omitted by the
defendant and all other facts and
circumstances in evidence which indicate his
intent.

Trial Transcript, vol. 4, at 84-87.

"We review allegedly erroneous jury instructions de __

novo to determine [whether] the instructions, taken as a whole, ____

show a tendency to confuse or mislead the jury with respect to

the applicable principles of law." Tatro v. Kervin, 41 F.3d 9, _____ ______

14 (1st Cir. 1994).

We find that the instructions, in their entirety,

accurately reflect the elements, including the required intent,

necessary to convict under 18 U.S.C. 115(a)(1)(B). "The only

intent requirement is that the defendant intentionally or

knowingly communicates his threat, not that he intended or was

able to carry out his threat." Orozco-Santillan, 903 F.2d at ________________

1265 n.3. The district court's instruction accurately reflects

this standard and, thus, there was no error.

Regarding Fulmer's contention that the district court

erred in failing to adopt Fulmer's definition of "intimidate," we

note that his trial counsel failed to state an objection to the

definition of "intimidate." Therefore, we review only for plain

error. And jar, 49 F.3d at 22. _______

Beyond stating that the court did not include this

instruction, Fulmer fails to state why this omission would

constitute error. We believe that the meaning of the word

"intimidate" is not outside of the juror's understanding such

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that the district court's failure to define the word could

constitute an error that threatens to "undermine the fundamental

fairness of the trial." United States v. Joselyn, 99 F.3d 1182, _____________ _______

1197 (1st Cir. 1996) (citing United States v. Young, 470 U.S. 1 _____________ _____

(1985)). We thus find no plain error here.












































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B. Definition of "threat" B. Definition of "threat"

Fulmer states his objections to the district court's

definition of threat as:

1) to the absence of an instruction that a
threat is "a serious expression of intent to
inflict injury and not merely a vehement or
emotional expression of political opinion,
hyperbole, or arguments against Government
officials"; 2) that the instruction should
not define a threat as an expression of
intent to harm or assault, since the threat ____
charged was one to assault or murder; 3) to
the phrase "reasonably induce fear"; 4) to
the instruction that the tone could make the
difference between a threat and a
nonthreatening statement; and 5) to the
instruction that the absence of explicitly
threatening language or the use of subtle
words does not make a statement less of a
threat.

Appellant's Brief at 44-45.

Regarding Fulmer's first argument, that an instruction

that the statement was not "merely . . . arguments against a

government official," exclusion of this language was proper.

Although a defendant is entitled to an instruction on a defense

theory that is "sufficiently supported by both the evidence and

the law," United States v. Olmstead, 832 F.2d 642, 647 (1st Cir. _____________ ________

1987), there is no evidence in the record to support a theory

that Fulmer intended any statement in this message to register

his displeasure with the manner in which Egan was conducting his

official duties. No such argument was presented to the jury in

Fulmer's closing arguments. Furthermore, the statutory

requirement of an intent to impede, intimidate, or interfere

with, or to retaliate against a federal law enforcement officer


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"serves to insulate the statute from unconstitutional application

to protect speech." United States v. Gilbert, 813 F.2d 1523, ______________ _______

1529 (9th Cir. 1987). We find that there is a risk that

including such language would serve to confuse the jury in its

review of the facts in the case and its exclusion was not error.

Fulmer next argues that the district court's

instruction that a threat could mean an intent to harm creates a

risk that the jury would convict Fulmer for making a "threat of

nonphysical harm, such as harm to the agent's reputation or

career." Appellant's Brief at 46. Fulmer's argument obfuscates

the actual instruction, which creates no such risk. The court

instructed that "[a] threat is a statement that expresses an

intent to inflict bodily harm on someone." The district court's

limitation of the jury's attention to only bodily harm protects ______

Fulmer from the situation against which he protests. There was

no error in the district court's use of the word "harm" to define

"threat."

Fulmer fails to present any further argument, let alone

developed argument, regarding the term "reasonably induce fear,"

and thus the argument is waived. See United States v. Tracy, 989 ___ _____________ _____

F.2d 1279, 1286 (1st Cir. 1993) ("It is well settled that issues

are deemed waived when 'adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation.'"

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. ______________ _______

1990)).




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Fulmer's next two contentions, that the court's

"emphasis" on tone diminished the standard of proof, and that the

court's instruction that the absence of explicitly threatening

language or the use of subtle language does not rule out a

finding of a true threat misstates the law, are without support.

Where a statement may be ambiguous, the entire context, including

the tone used, may assist the jury in determining whether that

ambiguous statement was a threat. See Malik, 16 F.3d at 50 ___ _____

("[R]igid adherence to the literal meaning of a communication

without regard to its reasonable connotations derived from its

ambience would render the statute powerless against the ingenuity

of threateners who can instill in the victim's mind as clear an

apprehension of impending injury by an implied menace as by a

literal threat."); see also United States v. Sciolino, 505 F.2d ________ ______________ ________

586, 588 (2d Cir. 1974) ("Since the question of whether subtle

conduct can amount to a threat of force depends greatly upon all

of the surrounding circumstances, including not only the words

used but the facial expressions and gestures of the accused, it

is peculiarly one for resolution by the jury."). There was

nothing improper with so instructing the jury, and, given the

district court's repeated admonitions that the jury must find all

of the elements beyond a reasonable doubt in order to convict

Fulmer, to do so did not diminish the standard the jury was

required to apply.

C. Supplemental instruction on "assault" C. Supplemental instruction on "assault"




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Fulmer's final argument is that the district court's

supplemental jury instruction defining assault "tended to confuse

or mislead the jury on the controlling issues." United States v. _____________

Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995), cert. denied, 116 S. _______ ____________

Ct. 909 (1996). "[T]he giving, or withholding, of a supplemental

instruction, or the contents of it if given, are matters

committed to the trial court's sound discretion." United States _____________

v. Parent, 954 F.2d 23, 25 (1st Cir. 1992). ______

A few hours into their deliberations, the jury sent a

note to the district judge stating, "We have would [sic] like a

definition of the word 'assault' used in the complaint or legal

definition." After a bench conference on the appropriate

definition, the district court instructed the jury, over Fulmer's

objection, that assault means:

any deliberate and intentional attempt or
threat to inflict physical injury upon
another with force or strength when that
attempt or threat is coupled with an apparent
present ability to do so. . . . An assault
may be committed by a defendant without
actually touching, striking, or doing bodily
harm to another.

Trial Transcript, vol. 4, at 113-14.

We can see how this wording, by defining the overall

offense at issue as a threat to threaten to harm another, could

confuse a jury and we believe that a more logical instruction,

considering the offense in its entirety, probably ought to have

been given. Even when we consider the supplemental instruction

in the light of the instructions in their entirety, see United ___ ______

States v. Femia, 57 F.3d 43, 46 (1st Cir. 1995), we believe that ______ _____

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the instructions conflicted with the court's earlier instruction

that a threat expressed an intent to inflict bodily harm. ______

Compare Trial Transcript, vol. 4, at 84 ("A threat is a statement _______

that expresses an intent to inflict bodily harm on someone."),

with id. at 114 ("An assault may be committed by a defendant ____ ___

without actually touching, striking, or doing bodily harm to

another."). The instructions in their entirety may have had a

tendency to confuse the jury regarding the definition of

"assault" in the context of a threat to assault and the court's

provision of such conflicting instructions was error. Because we

are remanding on other grounds, we need not venture into the

weighing necessary to determine whether any error in the

instructions was harmless. It is sufficient that we note the

potentially confusing nature of the instructions and the need to

tailor them so as to avoid any such confusion.

III. Evidentiary Issues III. Evidentiary Issues

A. Admission of Egan's testimony regarding the A. Admission of Egan's testimony regarding the
Oklahoma City bombing and subsequent bomb threats Oklahoma City bombing and subsequent bomb threats

Fulmer argues that the prejudicial effect of the

following colloquy substantially outweighed any probative value

and thus it should have been excluded under Federal Rule of

Evidence 403.3


____________________

3 Federal Rule of Evidence 403 states:

Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair prejudice
. . . .

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Q. Now, apart from what you knew and had
learned about Kevan Fulmer, was there
anything else that affected the way you
interpreted the message that you received on
April 25, 1995?

A. Yes.

Q. What was that?

A. There had been a series of recent events
. . . that involved threats to federal law
enforcement officials and, in fact, a bombing
of the federal building in Oklahoma.

Q. And what did you understand about the
bombing of the federal building in Oklahoma
City?

* * *

THE WITNESS: I understand that 169 federal
employees died.

Q. And when had the Oklahoma City bombing
occurred in relation to your hearing the
message on April 25?

A. One week before.

* * *

Q. And after the bombing in Oklahoma City of
the federal building and the time that you
heard the message, had anything happened in
the interim that affected your interpretation
of the statement?

* * *

THE WITNESS: I think we are at -- yes,
there were incidents in Oklahoma City that
concerned me.

Q. Were those local incidents?

A. There had been a series of bomb threats
and evacuations of buildings to include
specific bomb threats to the FBI, bomb
threats to the JFK Federal Building which is
across the street which was evacuated, and a
bunch of other ones around the city.

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Q. Directed at different Government offices?

A. Yes.

Q. And had your own office, the FBI office,
been evacuated because of the [sic] threat?

A. Yes.

Trial Transcript, vol. 2, at 113-15. The government referred to

the bombing in both its opening statement and its closing

argument. In the opening statement, the prosecutor stated that

Fulmer's statement occurred

just one week after someone apparently
unhappy with the way the Federal Government
was doing its business had killed hundreds of
federal agents, federal employees, and
civilians. And in the week after that
threat, came threats near Boston to various
federal buildings including the FBI Building,
and the need to evacuate those buildings
based on those threats.

Id. at 46. The government returned to this topic in its closing ___

argument:

One week after the Oklahoma City bombing,
bomb [sic] that can turn the federal building
out there into rubble, killing hundreds of
federal law enforcement agents, employees and
civilians, an event that so dominated the
airways, it [was] almost the only thing in
almost a year, [to] take the O.J. Simpson
trial off the page.

Id., vol. 4, at 41. ___

We review a trial court's on-the-spot weighing under

Rule 403 for abuse of discretion, reversing only in

extraordinarily compelling circumstances. United States v. ______________

Lewis, 40 F.3d 1325, 1339 (1st Cir. 1994). The district court _____

admitted the evidence as "relevant to the agent's state of mind


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at the time he received the communication and to why he might

have considered it threatening." Order on Motions in Limine,

October 24, 1995, at 2. Fulmer challenges this assessment,

arguing that, "[w]hile the context of a statement may well cast

light on its meaning, that fact does not permit, without

limitation, any and all facts to be bootstrapped into the trial."

Appellant's Brief at 28. The government, on the other hand,

argues that the testimony was properly admissible as evidence of

the context in which Fulmer's statement was made. The government

suggests that there was no risk of prejudice to Fulmer because

"there was no suggestion of, and no serious risk that the jury

would infer, any link between Fulmer and the Oklahoma City

bombing." Appellee's Brief at 29. We agree with Fulmer.

The probative value of this evidence was, at best,

slight. Fulmer's "silver bullets" statement did not make

reference to Oklahoma City, bomb threats, or the use of bombs or

any other type of explosive. The statement could not be read as

related to the events that took place in Oklahoma City, nor to

the bomb threats in Boston. True, such evidence may have shed

light on what the person making the statement reasonably should

have foreseen. The danger of unfair prejudice, however, is

tremendous. Undue focus on evidence of the Oklahoma City bombing

and resulting deaths, as well as subsequent bomb threats and

evacuations, serves only to evoke an improper emotional response

from the jury, distracting the jury from careful consideration of

the relevant issues before it and thereby prejudicing Fulmer.


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While some reference to the bombing may have been permissible,

the scope of the evidence admitted constituted an abuse of

discretion.

We turn to consider whether the error was harmless.

"In determining whether or not error was harmless, a reviewing

court must assess the record as a whole to determine the probable

impact of the improper evidence upon the jury." United States v. _____________

Melvin, 27 F.3d 703, 708 (1st Cir. 1994) (citation and quotation ______

marks omitted). "An error will be treated as harmless only if it

is 'highly probable' that the error did not contribute to the

verdict." Id. Considering all of the evidence submitted in this ___

trial, including other improperly admitted evidence, see infra ___ _____

sections III.B. & III.C, and the fact that Fulmer's statement is

certainly not without ambiguity, we cannot find that reference to

the Oklahoma City bombing to be harmless. See Melvin, 27 F.3d at ___ ______

708; see also United States v. Sep lveda, 15 F.3d 1161, 1182 (1st ________ _____________ _________

Cir. 1993) ("[A] harmlessness determination demands a panoramic,

case-specific inquiry considering, among other things, the

centrality of the tainted material, its uniqueness, its

prejudicial impact, the uses to which it was put during the

trial, the relative strengths of the parties' cases, and any

telltales that furnish clues to the likelihood that error

affected the factfinder's resolution of a material issue.").

B. Admission of actual bullets B. Admission of actual bullets

During a pre-trial conference, the government sought

permission to introduce bullets obtained from Egan to rebut


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Fulmer's suggestion that a silver bullet is a solution to a

problem. The district court allowed the introduction of four .38

caliber bullet taken from Egan's desk and two 9-millimeter

bullets taken from his handgun, instructing the jury that the

ammunition was admitted

to demonstrate what it is Mr. Egan had in his
desk drawer. So far there is no evidence in ______
this case that the defendant knew anything
about this exhibit at all.

Trial Transcript, vol. 2, at 104 (emphasis added).

On appeal, Fulmer contends that the district court's

admission of this ammunition was "grossly improper." He argues

that the introduction of these bullets could not have assisted

the jury in understanding the phrase "silver bullets," that the

court's suggestion that they were offered "to demonstrate what .

. . Mr. Egan had in his desk" bears no relevance to any issue in

the case, and that the presence of live ammunition in the jury

room only served to inflame the jury and provoke an improper

response.

The government supports the admission of the bullets as

a means of showing that a reasonable person would interpret the

term "silver bullets" to mean actual bullets that are silvery in

color. The government suggests that there was no danger of

prejudice here because the bullets were clearly identified in the

limiting instruction as belonging to Egan rather than Fulmer. We

find this distinction unconvincing.

The probative value of actual bullets in this case is

minimal. If the jury were in need of the suggestion that actual

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bullets may be silvery in color, a proposition that we find

dubious, the government could have presented testimonial evidence

to that effect. The introduction of ammunition was certainly

unnecessary. We also find that the risk of prejudice or

confusion to the jury substantially outweighed any minimal

probative value this evidence may have had. Notwithstanding the

district court's admonition that the ammunition was intended to

show what was in Egan's desk, the jury may have been confused as

to the significance and role of the ammunition in this threats

case.4 Furthermore, more central to the issue of the relevancy

of this evidence and, consequentially, to its potential to unduly

influence the jury improperly, we fail to see what possession by

the victim of these bullets has to do with whether the ______

defendant's statement constituted a threat, particularly since he

was unaware of their existence.

In light of the entire case and the significance of

actual bullets in evidence, we cannot find that this error was

harmless. See supra Section III.A; see also Melvin, 27 F.3d at ___ _____ ________ ______

708 ("An error will only be treated as harmless if it is 'highly

probable' that the error did not contribute to the verdict.").

C. Admission of evidence regarding Agent Egan's C. Admission of evidence regarding Agent Egan's
reactions to the telephone message reactions to the telephone message

Fulmer contends that the district court made various

errors in allowing Egan to testify about his reaction to Fulmer's

____________________

4 We note as well that the limiting instruction carried the risk
of confusing the jury by suggesting that evidence that Fulmer
knew of the bullets in Egan's drawer would be forthcoming.

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voicemail message. During this testimony, Egan stated that he

believed that Fulmer's initial pleasantries were "dripping with

sarcasm." He also indicated that he believed Fulmer's reference

to "misprision of a felony" meant that Fulmer believed Egan had

committed the crime of misprision by failing to pursue the case

against Fulmer's family. Egan stated that he interpreted

Fulmer's use of the term "silver bullets" as a death threat.

Egan testified that he found the message "chilling" and "scary,"

and that he was "shocked, couldn't believe he would do it."

Trial Transcript, vol. 2, at 97. In response to the question,

"Did you do anything different in going home that night than you

ordinarily did," Egan responded that he "[t]ook some comfort out

of the fact that I could hear an extra magazine. There was an

extra magazine in my car, and I took some comfort out of the fact

that it was in there." Fulmer's trial counsel objected that the

statement was both non-responsive and should have been excluded

under Federal Rule of Evidence 403. The district court overruled

the objection, and Egan continued to testify:

Q. Special Agent Egan, what do you mean
there was an extra magazine in your car?

A. Magazine is for . . . my semiautomatic
pistol, held an extra 18 rounds.

Q. A magazine is something that holds an
extra 18 rounds of ammunition --

A. Yes.

Q. -- that was in your car that night after
you heard the message?

A. I could hear it rattling. It was in the
glove box.

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Id. at 98. ___

On appeal, Fulmer raises three arguments regarding this

testimony. First, he claims that such reaction evidence is not

relevant to determining whether, under an objective standard,

Fulmer made a threat. Second, Fulmer objects to portions of

Egan's testimony in which he interpreted each portion of the

message. Third, Fulmer claims that even if it were relevant, the

reaction evidence was unfairly prejudicial.

Those circuits that have considered the issue have

found evidence of the recipient's reactions to the alleged threat

relevant to the determination of whether the statement is a "true

threat." See Malik, 16 F.3d at 49 ("In making this ___ _____

determination, proof of the effect of the alleged threat upon the

addressee is highly relevant."); United States v. Roberts, 915 _____________ _______

F.2d 889, 890-91 (4th Cir. 1990) (noting that evidence of

recipient's state of mind and actions taken in response are

relevant to determination of true threat); Schneider, 910 F.2d _________

at 1571 ("The fact that the victim acts as if he believed the

threat is evidence that he did believe it, and the fact that he

believed it is evidence that it could be believed and therefore

that it is a threat. By this chain of inference, the relevance

of the [recipient's] testimony is established."); Orozco- _______

Santillan, 903 F.2d at 1265 ("Alleged threats should be _________

considered in light of their entire factual context, including

the surrounding events and reaction of the listeners."); United ______

States v. Davis, 876 F.2d 71, 72 (9th Cir. 1989) ("A recipient's ______ _____


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state of mind, as well as his actions taken in response to the

letter, are highly relevant in establishing . . . whether the

letter could reasonably be read as containing a threat of

injury."); Maisonet, 484 F.2d at 1358 ("Whether a letter that is ________

susceptible of more than one meaning -- one of which is a threat

of physical injury -- constitutes a threat must be determined in

the light of the context in which it was written.").

Moreover, in the context of an attempted extortion

case, we have held the recipient's reactions to a threat to be

relevant and admissible. United States v. Goodoak, 836 F.2d 708, _____________ _______

712 (1st Cir. 1988). We determined that the "state-of-mind

evidence will be most relevant to th[e] question [of whether

there was an attempt to frighten] where the defendant knew or

reasonably should have known that his actions would produce such

a state of mind in the victim." Id. Thus, even when, in the ___

extortion context, we have employed the legal standard advocated

by Fulmer -- determining a "true threat" from the perspective of

the person who makes the statement -- we have found that evidence

of the effect of the threat upon its listener is relevant to what

a reasonable person in the position of the speaker should have

foreseen. Therefore, although the proper standard is what a

person making the statement should have reasonably foreseen, we

find that evidence of the recipient's reactions is relevant to

that inquiry. Because Egan's interpretation of the message

provided the basis for his reactions thereto, it is also relevant




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under the same analysis as his reaction and was properly

admitted.

Fulmer further contends that, even if Egan's reaction

is relevant, its relevance was substantially outweighed by its

prejudicial impact and it should have been excluded. It is well

established that "[i]f the evidence brings unwanted baggage, say,

unfair prejudice or a cognizable risk of confusing the jury, and

if the baggage's weight substantially overbalances any probative

value, then the evidence must be excluded." United States v. _____________

Rodr guez-Estrada, 877 F.2d 153, 155 (1st Cir. 1989). We _________________

recognize that all evidence mustered by the government is meant

to prejudice the defendant. Rule 403 is meant only to exclude

that evidence that poses a danger of unfair prejudice. United ______ ______

States v. Wood, 982 F.2d 1, 4 (1st Cir. 1992). ______ ____

The actual recipient's reaction to the statement shows

that the recipient did perceive the message as a threat. This

reaction is probative of whether one who makes such a statement

might reasonably foresee that such a statement would be taken as

a threat. On the other side of the equation, any prejudice, let

alone unfair prejudice, did not substantially outweigh the

probative value of much of the proffered evidence. Egan's

reaction to and interpretation of the message did not infect the

proceedings with unfair prejudice.

The weighing of Egan's testimony regarding the extra

magazine of ammunition "rattling" around in his glove

compartment, however, is a closer call. Although this evidence


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may have been probative of Egan's reaction to receiving Fulmer's

message, and may have indicated the extent of Egan's fear, there

is a risk that it may also have aroused an emotional or biased

response in the jury that may have confused the issues in the

case. This risk was increased by the government's

mischaracterization of Egan's testimony in its closing, when it

erroneously stated that Egan made sure to take home an extra

eighteen rounds of ammunition the night he received the message.

Finally, the prejudicial effect of this testimony is compounded

when we view it in light of the contested evidence discussed in

sections I.A and I.B. We find that its use could have evoked an

emotional response in the jury, and that this likely prejudicial

effect substantially outweighed any probative value. We find the

district court abused its discretion by admitting evidence as to

the ammunition carried by Egan on the night he received the

threat.

D. Admission of discussion between Egan and his D. Admission of discussion between Egan and his
supervisor supervisor

Fulmer next contests the introduction of testimony from

both Egan and his supervisor, Schlabach, regarding a conversation

that took place between them the morning after Egan received the

message. Egan testified that he played the tape for Schlabach,

and told Schlabach that he thought the message was a threat and

intended to bring it to the attention of the United States

Attorney.

Schlabach testified that Egan said that he considered

the message a threat, particularly the statement "[t]he silver

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bullets are coming for you."5 Schlabach stated that Egan was

"clearly upset, concerned, agitated. His motions were somewhat

exaggerated. Typical reaction you would see under those

circumstances." Trial Transcript, vol. 2, at 130. Schlabach

indicated that Egan intended to discuss the message with the

United States Attorney's office and with a squad in the FBI unit

responsible for investigating threatening matters.

In a pre-trial conference, the district court ruled

that these statements were admissible as either statements of

present sense impression or of then-existing state of mind. See ___

Fed. R. Evid. 803(1), 803(3). Fulmer argues that the district

court misinterpreted and/or misapplied these two hearsay

exceptions. He further argues that the introduction of this

testimony was grossly prejudicial because it emphasized Egan's

conclusion on the ultimate issue, that the statement was a

threat, and should have been excluded on those grounds.

We have already noted that a victim's reactions and

actions taken in response to an alleged threat are relevant to

the determination of whether a statement is a "true threat." See ___

supra section I.C. The statements made by Egan in the context of _____

this conversation are not offered for the truth of the matter

asserted, that the statements were a threat and that Egan would

bring the message to the attention of the United States

Attorney's office. Rather, Egan's statements relate to the

____________________

5 The actual statement in the message was "[t]he silver bullets
are coming."

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nature and extent of the impact of Fulmer's statement upon Egan.

They, thus, are not hearsay.

Regarding Schlabach's testimony, we find that his

testimony as to Egan's statements are cumulative and that his

comments regarding Egan's demeanor during the course of this

conversation were not hearsay at all. The district court did not

err in admitting this evidence.

E. Admission of bad character evidence E. Admission of bad character evidence

Egan testified at trial that, at their first meeting,

Fulmer indicated that Boschetti and David Fulmer "had used the

courts against him, . . . to keep him away from the family."

Trial Transcript, vol. 2, at 59-60. Egan also testified that

Fulmer told Egan that he had been restrained from seeing his

family by the court. Id. at 108-09. Egan further testified that ___

Boschetti informed him that Fulmer's allegations were "vengeance"

on Fulmer's part. Id. at 77. Egan stated that David Fulmer told ___

Egan that "this is the last episode in a continuing series of

hard feelings between Kevan Fulmer and his family." Id. at 79. ___

Fulmer first contends that these statements were

hearsay. We agree with the district court's assessment that

these statements were not hearsay, but were offered to show the

context in which Fulmer's statement was made.

Fulmer also contends that introduction of both his own

statements and those of others violates Federal Rules of Evidence






-35-












404(b),6 because the acts mentioned had a tendency to show a

propensity toward bad acts, and Rule 403, because the prejudicial

effect of the evidence substantially outweighed its probative

value. Rule 404(b) is intended to "forbid judging a person on

the basis of innuendo arising from conduct [that] is irrelevant

to the charges for which he or she is presently standing trial,

i.e., against finding present guilt based on a 'bad character ____

profile.'" United States v. Cortijo-D az, 875 F.2d 13, 15 (1st _____________ ____________

Cir. 1989). We employ a two-pronged test to determine whether

evidence of a defendant's "other acts" is admissible.

First the evidence must overcome the
"absolute bar" of Fed. R. Evid. 404(b) by
being specially probative of an issue in the
case -- such as intent or knowledge --
without including bad character or propensity
as a necessary link in the inferential chain.
Probative value "must be considered in light
of the remoteness in time of the other act
and the degree of resemblance to the crime
charged." If the proffered evidence has
"special relevance," it is nonetheless
inadmissible if its probative value is
"substantially outweighed by the danger of,"
inter alia, "unfair prejudice, confusion of
the issues, or misleading the jury."

United States v. Frankhauser, 80 F.3d 641, 648-49 (1st Cir. 1996) _____________ ___________

(citations omitted).

____________________

6 Federal Rule of Evidence 404(b) provides:

Other crimes, wrongs, or acts. 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, preparation, plan, knowledge,
identity, or absence of mistake or accident.

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We find first that the evidence did have "special

relevance" to an issue in this case, namely, whether a person

making the statement should have reasonably foreseen that his

statement, viewed in light of the factual context in which it was

made, was a "true threat." Whether Fulmer's family relationship

was strained, whether he had been restrained from seeing his

family, whether he harbored ill feelings toward his former

father-in-law and brother -- all of these things are especially

relevant to understanding Fulmer's motivation in his pursuit of

sanctions against his former family and perhaps the extent of his

potential disappointment at the government's failure to prosecute

Boschetti and David Fulmer. We find that the district court did

not abuse its discretion in finding that this evidence fell

outside the prohibitions of Rule 404(b) because the evidence

could go both to Fulmer's possible motive and to his intent to

threaten Egan.

Under Rule 403, the district court is to exclude

evidence that creates unfair prejudice or a risk of confusing or

misleading the jury that substantially outweighs any probative

value. Id. at 649. Certainly evidence that Fulmer had engaged ___

in other acts that might show that he has a tendency to be

violent or vengeful are prejudicial. The question is whether

this prejudice is unfair. In a threats prosecution, the general

factual context in which the statement was made bears

significantly on whether an ambiguous statement could reasonably

be read as a threat. Given that the interaction between Fulmer


-37-












and Egan is related directly to Fulmer's relationship with his

family, indeed that their interaction arose from that

relationship, admitting evidence regarding the family

relationship was not likely to unfairly prejudice Fulmer and any

prejudice certainly did not substantially outweigh any probative

value.

The district court was careful to exclude other

evidence of Fulmer's prior acts as overly prejudicial. Given the

district court's careful weighing of the "other acts" evidence,

we find no abuse of discretion here.7

One nuance of Fulmer's argument remains. While Fulmer

concedes that the context of a statement is relevant to the

inquiry under the objective standard of a "true threat," he

contends that the evidence should focus exclusively on the

context of the statement itself and on the interaction between

the parties to the statement, here Fulmer and Egan. He maintains

that any evidence from sources other than Fulmer are not relevant

to the inquiry under the objective standard. We find that the

evidence of Fulmer's other acts from sources other than Fulmer so

closely mirrors statements from Fulmer to Egan that it is

cumulative of Fulmer's statements. We find that, if their

admission was error, that error could not have been anything

____________________

7 Fulmer argues that evidence that he had been arrested for or
even convicted of assault was improperly placed before the jury.
Fulmer fails to cite where in the transcript such evidence may be
found. Having reviewed the trial transcript as well as the trial
exhibits, we find no indication that such evidence was placed
before the jury.

-38-












other than harmless. United States v. Cudlitz, 72 F.3d 992, 999 _____________ _______

(1st Cir. 1996) ("Under the harmless error doctrine . . . we are

instructed to ask whether it is 'highly probable' that the error

did not 'contribute to the verdict.'" (citations omitted)).

F. Government's admission of newspapers that depicted F. Government's admission of newspapers that depicted
murders, shootings, and threats murders, shootings, and threats

On direct examination, Erika Liem, a paralegal in

defense counsel's office, testified that she had found only one

article in a search of both the Boston Globe and the New York

Times for 1995 in which the term "silver bullets" referred to

actual ammunition. She further testified that, in several of the

articles, "silver bullets" referred to a solution to a problem.

On cross-examination, the government asked Liem whether she had

found several articles, in which the phrase "silver bullets"

appeared, that depicted murders and shootings. She testified

that she had not found these articles, all of which were from

newspapers outside the Northeast and all but one of which were

published before 1995. The prosecutor then read a sentence from

one of the articles and asked Liem about other facts discussed in

the article. Each of the articles was admitted into evidence.

On redirect-examination, defense counsel introduced into evidence

the articles found in Liem's search.

On appeal, Fulmer contends that the government's use of

these articles was outside the scope of the use of the phrase

"silver bullets." The government responds that the evidence was

proper rebuttal to Fulmer's implication that the term typically

is used in a benign manner. We find that, because Fulmer opened

-39-












the door to introducing evidence from newspapers reports of the

different usages of the term "silver bullets," the court did not

abuse its discretion by allowing the government to provide

evidence from similar sources to rebut Fulmer's evidence.

CONCLUSION CONCLUSION

This appeal presents a variety of claims of error, most

of which concern difficult decisions made by the district court

that we are wary to reverse. We find, however, that three

evidentiary rulings by the district court were errors that cannot

be deemed harmless because of the unacceptable risk of unfair

prejudice they created. Specifically, we find that the district

court erred in admitting into evidence: actual bullets;

testimony regarding ammunition in Egan's car on the night he

received the alleged threat; and testimony regarding the Oklahoma

City bombing. Therefore, Fulmer's conviction is vacated and the vacated _______

case remanded for further proceedings consistent with the remanded ________

discussion in this opinion.




















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