                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0372n.06
                                 Filed: May 10, 2005

                                             No. 03-6586

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

                v.                                                     On Appeal from the United
                                                                       States District Court for the
GEORGE KRUSHINSKI,                                                     Eastern District of Kentucky

        Defendant-Appellant.


                                                                /

Before: GUY, BATCHELDER, and GIBSON, Circuit Judges.*

        PER CURIAM. Defendant George Krushinski was convicted by a jury of mailing

a threatening letter to a Postmaster in violation of 18 U.S.C. § 876, making harassing

telephone calls in interstate commerce in violation of 47 U.S.C. § 223(a)(1)(D), making a

destructive device or bomb in violation of 26 U.S.C. § 5861(f), possessing a destructive

device or bomb in violation of 26 U.S.C. § 5861(d), and attempted murder of a postal

employee in violation of 18 U.S.C. § 1114. In this direct appeal, he contends that the district

court erred when it denied his motion to suppress evidence and when it allowed the

prosecutor to solicit testimony about uncharged crimes. After reviewing the record, briefs,



        *
        The Honorable John R. Gibson, United States Court of Appeals Judge for the Eighth Circuit, sitting
by designation.
No. 03-6586                                                                               2

and having heard oral argument, we AFFIRM Krushinski’s convictions but VACATE his

sentences and REMAND for resentencing.

                                             I.

       Krushinski was a commercial truck driver who lived on a farm in Harrison County,

Kentucky. He normally drove routes in the eastern United States during the weekdays and

returned to his home on weekends. In 1997, Krushinski called the post office in Cynthiana,

Kentucky, to complain that his carrier was leaving his mailbox open and his mail was getting

wet. He called again in 1998, and was very angry. On September 11, 1998, someone threw

eggs inside the Cynthiana post office lobby. Store and bank videotapes revealed that

someone driving a two-toned pickup truck had purchased eggs from a convenience store near

the post office early in the morning on September 11, 1998. During 1998, Krushinski drove

a two-toned, red and white pickup truck. The Cynthiana Assistant Chief of Police identified

Krushinski as the person in the videotape purchasing eggs. Krushinski admitted to writing

a note addressed to the Postmaster on September 12, 1998, which read: “I’ve warned you

bastards many times about leaving my mailbox open, now you will pay.” He denied the

egging incident. From April to September 2001, on several occasions, someone poured eggs,

acid, gasoline, and other liquid into mail collection boxes and inside the lobby.

       During 2001 and 2002, Mary Carol Vance, a rural mail carrier, regularly delivered

mail to Krushinski’s home on White Oak Pike. Vance drove her Chevy Blazer with attached

postal signs and an orange flashing light. Vance also lived on White Oak Pike, about five

miles away from Krushinski. Early in the morning on November 18, 2001, Vance heard a

loud explosion outside her house. A pipe bomb had exploded under her Blazer, damaging
No. 03-6586                                                                                3

her car and other family cars. For the next several months, Vance received several prank

collect telephone calls early in the morning. Vance used the caller identification on her

telephone to record the originating numbers. On December 20, 2001, Vance received a call

at 4:05 a.m. from LaVergne, Tennessee. On January 11, 2002, she received a call from White

Sulphur Springs, West Virginia. The next call on January 17, 2002, was from Roanoke,

West Virginia, and the last call on January 18, 2002, was from Alabama. Vance’s mother,

who lived next to Vance, also received prank telephone calls. Krushinski’s employer’s

records indicated that his driving routes were near the locations where the calls originated.

       In February or March 2002, Krushinski complained to the post office again about his

mail carrier leaving his mailbox open. In January and April 2002, he wrote letters to his

congressman complaining that postal workers intentionally failed to deliver his property tax

bills and intentionally ruined his mail by leaving his mailbox open.

       On September 3, 2002, a boy saw a pipe bomb in his family’s mailbox on Kings Lane

in Cynthiana. This mailbox was on Vance’s delivery route. Bomb technicians were able to

disarm the bomb.

       Federal agents executed a search warrant at Krushinski’s residence on October 4,

2002. Attached to the affidavit supporting the search warrant was a photograph of

Krushinski’s home. Agents found containers of smokeless powder, tape, glue, paint, metal

pieces and shavings, welding equipment, and other tools. A laboratory analysis of the

exploded and unexploded bombs and a comparison to the items seized from Krushinski’s

residence indicated that particles in the bombs were consistent with the items seized.

Krushinski’s vise and pipe wrench produced the tool markings on the unexploded bomb.
No. 03-6586                                                                                4

       A grand jury returned a twelve-count indictment against Krushinski. The indictment

alleged that on September 12, 1998, Krushinski damaged property of the United States Post

Office at Cynthiana, Kentucky, and deposited a written threat to injure Gary Kemper, the

Cynthiana Postmaster.     The indictment further alleged that on November 18, 2001,

Krushinski maliciously damaged a vehicle used to deliver the United States mail, used a

destructive device or bomb in relation to the malicious damage to the vehicle, made a

destructive device or bomb, and possessed a destructive device or bomb which was not

registered to him. The indictment also alleged that on September 3, 2002, Krushinski made

a destructive device or bomb, possessed a destructive device or bomb which was not

registered to him, obstructed the passage of the mail, attempted to kill Mary Vance, and used

a destructive device or bomb in his attempt to kill her. He was also charged with making

telephone calls in interstate commerce to harass Mary Vance.

       Before trial, Krushinski moved to suppress evidence seized pursuant to the search

warrant because the application for the warrant was supported by a photograph that federal

agents took while allegedly on Krushinski’s property unlawfully. The district court denied

his motion.

       At trial, the prosecutor questioned Carolyn McIntosh, the retired supervisor of the

Cynthiana Post Office. The prosecutor asked whether she was “aware of any events that

happened regarding vandalism of post office property while you were supervisor?” When

defense counsel objected, the court responded: “Well, she can tell that she knows about

vandalism at the post office.” Defense counsel asked, “As it respects the defendant?” The

court replied, “That’s not the question. The question just asked generally about vandalism
No. 03-6586                                                                                    5

at the post office.”   Defense counsel objected to the “general question,” and the court

overruled the objection. McIntosh then testified about several occasions when unidentified

liquids were dumped in collection boxes, and when a liquid that smelled like gasoline was

dumped in the lobby.

       At the close of McIntosh’s direct testimony, the following exchange occurred:

              [Defense counsel:] Your Honor, the Court has, over the strenuous
       objection of the defendant, permitted this witness to go into a variety of
       vandalism acts occurring at the post office which permits, I believe, an
       impermissible inference that the defendant was somehow related to these or
       somehow involved in these, and I think there is absolutely no evidence, there
       is absolutely no basis, there is absolutely no witness that in any way connects
       the defendant to these, and I think it unduly prejudices him to the extent that
       we must feel compelled to make a motion for a mistrial.

              The Court: Okay.

       Mr. Zerhusen?

               [The prosecutor:] Well, first of all, there is a charge that specifically
       relates to the defendant, and some of the testimony that this witness gave does
       relate specifically to that event, and it will be further explored. Other events
       that were going on at that time certainly did occur. The defendant is not
       charged with those. There was nothing that was asked about linking the
       defendant to any of these particular events. It was what the situation was at the
       post office during these times.

              One of the other charges that is contained within this indictment
       concerns threatening communication to the postmaster and others. These
       events that are going on put in context what was going on at the time that this
       was happening at the post office. It is not -


                [Defense counsel:] The only incident that I’m aware of in which there
       is any testimony or an effort by the government to connect Mr. Krushinski is
       the egging. The acids, the bleaches, the things that were poured in, everything
       else, it’s as if he’s responsible for all of this, and I think it casts him in a very
       poor light impermissibly.
No. 03-6586                                                                                  6

              The Court: I understand what you’re saying, and I’ll deny your motion
       for a mistrial.

       Carrie Self, the Cynthiana Postmaster, also testified about the acts of vandalism based

on records from the postal service. Defense counsel renewed his objection, and the court

again overruled it. Self testified about ten incidents, two of which Krushinski was charged

with (the egging and the threatening letter). The other incidents occurred between April and

September 2001, and involved unknown liquids, gasoline, or eggs being dumped in mail

collection boxes and on the floor of the post office lobby. During defense counsel’s cross-

examination of Gary Smith, a special agent with the Bureau of Alcohol, Tobacco, and

Firearms (ATF), Smith conceded that he had no credible information that Krushinski was

involved with the uncharged acts of vandalism.

       At the close of the government’s case, defense counsel renewed his motion for a

mistrial, but the court denied the motion again. The parties did not request a jury instruction

regarding the uncharged acts evidence, and the court gave no such instruction.

       Krushinski testified at trial and denied egging the post office and the other acts of

vandalism, making the prank phone calls, and any involvement with the bombs. The jury

found Krushinski not guilty of egging the post office or bombing Vance’s car. It found him

guilty of depositing the 1998 letter to the postmaster, the telephone threats to Vance, and all

the counts relating to the unexploded bomb in the mailbox, including the attempted murder

of Mary Vance.

                                              II.
No. 03-6586                                                                                   7

       Krushinski raises two issues on appeal. First, he argues that the district court erred

by allowing prosecution witnesses to testify about uncharged acts of vandalism against the

post office. Second, he argues the district court erred by denying his motion to suppress.

A.     Testimony Regarding Uncharged Acts

       We review a district court’s evidentiary determinations for abuse of discretion. United

States v. Price, 329 F.3d 903, 905 (6th Cir.), cert. denied, 540 U.S. 920 (2003); United States

v. Copeland, 321 F.3d 582, 595 (6th Cir. 2003). Federal Rule of Evidence 404(b) provides:

       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 . . . .

       This court has specified four necessary steps before 404(b) evidence can be properly

considered by a jury. See United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996). First,

upon objection, the proponent of the evidence must identify the specific purpose or purposes

for which the proponent offers the evidence. Id. at 1077. Next, the district court must

determine whether the identified purpose is material or in issue in the case. Id. If it is, then

the court must weigh the evidence’s probative value against its prejudicial value pursuant to

Rule 403. Id. Finally, after receiving the evidence, the district court must instruct the jury

as to what limited purpose they may consider the evidence. Id.

       Krushinski contends that the testimony regarding the uncharged acts of vandalism

falls under Fed. R. Evid. 404(b), and that none of the four steps above were satisfied. If the

testimony was offered as 404(b) evidence, we would agree that neither the prosecutor nor the

district court complied with the steps outlined above. The prosecutor did not indicate a
No. 03-6586                                                                                                      8

specific purpose for the evidence, rather he stated that the evidence was intended to show the

situation at the post office at the time Krushinski allegedly committed the offenses charged

in the indictment. Moreover, the district court did not decide whether this background

information was relevant to the case, or whether it was outweighed by its prejudicial value.

Finally, the district court failed to give a limiting instruction concerning the uncharged acts

of vandalism.

        The government disputes that the testimony is 404(b) evidence because it is

inextricably intertwined with the charged crimes, and therefore argues that the fact that the

court did not satisfy the four steps above is irrelevant.1 Whether or not the testimony is

404(b) evidence, it should not have been admitted. At trial, the government did not attempt


        1
          In Price, 329 F.3d at 904-05, the defendant was charged with being a felon in possession of a
firearm and ammunition. At trial, the defendant stipulated to being a felon but disputed ownership of the
firearms and ammunition. He argued that they belonged to his wife and that he stayed at her home only on
weekends. Officers found evidence in the bedroom that tended to show the defendant lived there. One piece
of that evidence that the government sought to introduce was a certificate of completion of a handgun safety
course issued to the defendant. The defendant objected, arguing that the certificate was evidence of another
crime, because the certificate specified that he possessed and used a firearm as part of the course, and because
he was a felon at the time he took the course, the certificate was evidence that he committed another count
of being a felon in possession of a firearm. This court rejected the defendant’s argument, holding: “Rule
404(b), however, does not apply to evidence that itself is probative of the crime charged, without regard to
whether any ‘other act’ occurred. . . . Here, as the district court found, the certificate itself is circumstantial
evidence that Price possessed the firearms and ammunition found on May 5, 2001 [the date agents searched
the home], regardless of whether Price possessed a Glock firearm on April 17, 2001 [the date the certificate
was issued].” Id. at 906.

         Similarly, in United States v. DeClue, 899 F.2d 1465, 1472 (6th Cir. 1990), we held that evidence
of a defendant’s evasion of corporate taxes was not 404(b) evidence because it directly implicated whether
he properly reported income for the tax years at issue in the indictment. We stated that “[e]vidence which
is probative of the crime charged and does not solely concern uncharged crimes is not ‘other crimes’
evidence.” Id.

        The government now argues that Krushinski was circumstantially linked to the uncharged acts of
vandalism, and that those acts were inextricably intertwined with the evidence regarding the charged offenses
and therefore not 404(b) evidence. We disagree. There was absolutely no evidence linking Krushinski to
the uncharged acts of vandalism. Furthermore, unlike Price and DeClue, the uncharged acts were not
evidence directly relating to whether Krushinski was guilty of the crimes charged.
No. 03-6586                                                                                 9

to link the other acts of vandalism to Krushinski, nor to any of the crimes for which he was

charged. It was simply irrelevant.

       Although we find the admission of this evidence to be error, we also conclude the

error was harmless. “An error is harmless unless one can say, with fair assurance that the

error materially affected the defendant’s substantial rights—that the judgment was

substantially swayed by the error.” United States v. Mack, 258 F.3d 548, 555 (6th Cir. 2001)

(internal quotation marks and citations omitted). An evidentiary error is harmless “unless

it is more probable than not that the error materially affected the verdict.” United States v.

Fountain, 2 F.3d 656, 668 (6th Cir. 1993). Therefore, we examine whether “it [was] more

probable than not that the jury would have reached the same verdict based on the evidence

properly admitted at trial, without regard to [the improperly admitted] testimony.” Id. “In

determining whether an error is harmless, the reviewing court must take account of what the

error meant to the jury, not singled out and standing alone, but in relation to all else that

happened.” United States v. Hardy, 228 F.3d 745, 751 (6th Cir. 2000) (internal quotation

marks, brackets, and citation omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 764

(1946)).

       The error here was harmless because the jury acquitted Krushinski of the crimes most

closely related to the uncharged acts, the egging of the post office and the bombing of

Vance’s truck just months after the uncharged acts, and because there was other strong

evidence linking Krushinski to the crimes of which he was convicted. He admitted to writing

the threatening letter to the postmaster. His trucking company’s dispatch record revealed that

he was dispatched to the locations from where the harassing calls originated. Finally, the
No. 03-6586                                                                                10

charges relating to the unexploded pipe bomb were supported by evidence that Krushinski’s

tools made the bomb.

B.     Motion to Suppress

       On an appeal of a motion to suppress evidence, we review the district court’s

conclusions of facts for clear error and its conclusions of law de novo. United States v.

Williams, 962 F.2d 1218, 1221 (6th Cir. 1992). Prior to trial, Krushinski moved to suppress

evidence found at his home as a result of the search warrant. He alleged that the federal

authorities illegally trespassed onto his property to obtain a photograph and description of

his home, and that the description and photograph were used to obtain the warrant. In

support of his motion, Krushinski included his own affidavit which stated that his house was

not visible from the road or any adjoining property because the property surrounding his

house was hilly. He averred that the only way a person could have taken the photograph

attached to the warrant application was to be on his property. In its response to Krushinksi’s

motion, the government conceded that Smith, the ATF agent, walked onto Krushinski’s

property and from there observed and photographed the house. The district court denied

Krushinski’s motion, stating that even if the officer trespassed to take the photograph, the

photograph was not required to establish probable cause. On appeal, Kruskinski argues that

the warrant was unlawful because it was the fruit of the unlawful trespass.

       The independent source rule holds that evidence obtained through sources wholly

independent from any information collected illegally should be admitted. United States v.

Leake, 95 F.3d 409, 412 (6th Cir. 1996). This circuit recently joined others in holding that

when a search warrant application includes information obtained from an illegal search, the
No. 03-6586                                                                                      11

fruits of the search warrant are not excluded unless the tainted information affected the

judge’s decision to issue the warrant in a substantive, meaningful way. United States v.

Jenkins, 396 F.3d 751 (6th Cir. 2005). In Jenkins, a search warrant for a hotel room was

issued upon consideration of an affidavit and information officers conveyed to the judge

orally. One of the officers told the judge that a bag in the room contained “bricks” of drugs.

Another officer had discovered the bricks through an illegal search. Applying Murray v.

United States, 487 U.S. 533 (1988)2, we held that “the simple fact that an application for a

warrant contains information obtained from an illegal search does not by itself signify that

the independent source doctrine does not apply. If the application for a warrant ‘contains

probable cause apart from the improper information, then the warrant is lawful and the

independent source doctrine applies, providing that the officers were not prompted to obtain

the warrant by what they observed during the initial entry.’” Id. (quoting United States v.

Herrold, 962 F.2d 1131, 1141-42 (3d Cir. 1992) (internal citation omitted)). Applying this

standard, we concluded that the affidavit on its own created probable cause sufficient to

support the search warrant, and therefore the fruits of the search conducted under the search

warrant should not have been suppressed. Jenkins, 396 F.3d at 760.

       This case is analogous to Jenkins. Even if a trespass on Krushinski’s property

produced the photograph, the affidavit otherwise sufficiently described Krushinski’s

property. “The test for determining whether a search warrant describes the premises to be



       2
       Murray held that a search pursuant to a warrant would not be an independent source of
evidence if the magistrate issuing the warrant considered information obtained by an illegal search.
487 U.S. at 542.
No. 03-6586                                                                                12

searched with sufficient particularity ‘is not whether the description is technically accurate

in every detail,’ but rather whether the description is sufficient ‘to enable the executing

officer to locate and identify the premises with reasonable effort, and whether there is any

reasonable probability that another premises might be mistakenly searched.’” United States

v. Durk, 149 F.3d 464, 465 (6th Cir. 1998) (quoting United States v. Prout, 526 F.2d 380,

387-88 (5th Cir. 1976) and United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989))

(internal citation omitted). Here, the affidavit described the property as “[t]he residence,

property, outbuildings and/or structures and any vehicles located on the property which are

registered to George and/or Geneva Krushinski, located at 8549 Highway 356, Cynthiana,

Harrison County, Kentucky, specifically described in Exhibit “B”, attached hereto and made

part thereof.” Krushinski’s mailbox announced his street address. The correct address on

the warrant was sufficient for officers to locate his home without a reasonable probability

that another house would be searched accidentally.

C.     Sentencing

       After the parties filed their briefs, Krushinski submitted a letter pursuant to Fed. R.

App. P. 28(j), in which he argues for the first time that United States v. Booker, 125 S. Ct.

738 (2005), requires us to vacate his sentence and remand for resentencing. Krushinski was

sentenced to a total of 495 months, which included a statutory mandatory minimum of 360

months for using a destructive device during a crime of violence. He was sentenced to an

additional 135 months on the other six counts, each of those counts to run concurrently with

each other. The federal sentencing guidelines provide that multiple counts be separated into

groups of closely related counts, and the offense level applicable to the group with the
No. 03-6586                                                                                  13

highest offense level becomes the combined offense level, after it is adjusted for the

seriousness of the counts in the other groups. U.S.S.G. § 3D1.2, § 3D1.3. The group with

the attempted murder count carried the highest offense level. Attempted murder carries a

base level of 28, and the other groups were sufficiently less serious that they did not increase

the combined offense level above 28. Accordingly, the combined offense level was 28

before any enhancements. The district court added three points to the base offense level

because the offense was allegedly motivated by the victim’s official status, and added two

points for obstruction of justice because it concluded that Krushinski’s testimony in his own

defense was false. The guideline range for a base offense level of 33 with a criminal history

category of I was 135-168 months. If the court had not added those five points, the guideline

range would have been 78-97.

       In Booker, the Supreme Court reaffirmed the principle that a district court violates the

Sixth Amendment if it bases a defendant’s sentence at least in part on a judge-found fact, and

held that the federal sentencing guidelines are now advisory rather than mandatory. In

United States v. Barnett, 398 F.3d 516 (6th Cir.), reh’g denied, 400 F.3d 481 (2005), we

determined that when a defendant was sentenced under the mandatory sentencing guidelines

regime, we should vacate the defendant’s sentence and remand for resentencing consistent

with Booker. The government concedes that the district court engaged in judicial fact-

finding when it added points to Krushinski’s offense level for obstruction of justice and

official status motivation. The government also concedes that pursuant to Barnett, vacating

Krushinski’s sentence and remanding for resentencing is appropriate. Accordingly, for the
No. 03-6586                                                                   14

reasons stated above, we AFFIRM Krushinski’s convictions but VACATE his sentences

and REMAND to the district court for resentencing consistent with Booker.
