                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-1994

United States v. Himelwright
Precedential or Non-Precedential:

Docket 94-7206




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                           ___________

                           No. 94-7206
                           ___________


          UNITED STATES OF AMERICA

                         vs.

          RICHARD C. HIMELWRIGHT

                                Appellant.

                           ___________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 93-cr-00222)

                           ___________

                    ARGUED SEPTEMBER 12, 1994

      BEFORE:   STAPLETON, ALITO and LEWIS, Circuit Judges.

                    (Filed November 25, 1994)
                            ___________


GREGORY L. LENSBOWER (ARGUED)
Stonesifer & Kelley
209 Broadway
Hanover, PA 17331

          Attorney for Appellant


KIM D. DANIEL (ARGUED)
Office of the United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
          Attorney for Appellee


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

          Richard Himelwright was indicted on September 7, 1993,

and charged with two counts of Interstate Threats and

Extortionate Demands, in violation of 18 U.S.C. § 875(b),1

(Counts I and II), and one count of Interstate Threats, in

violation of 18 U.S.C. § 875(c),2 (Count III).   Prior to trial,

Himelwright filed a motion in limine seeking to bar testimony
regarding his purchase and possession of two firearms, claiming

that their admission would violate Rule 404(b) of the Federal

Rules of Evidence and would be unduly prejudicial under Rule 403.

By Memorandum Opinion dated November 12, 1993, the district court
1
.    18 U.S.C. § 875(b) provides:

          Whoever, with intent to extort from any person,
          firm, association, or corporation, any money or
          other thing of value, transmits in interstate
          commerce any communication containing any threat
          to kidnap any person or any threat to injure the
          person of another, shall be fined not more than
          $5,000 or imprisoned not more than twenty years,
          or both.
2
.    18 U.S.C. § 875(c) provides:

          Whoever transmits in interstate commerce and
          communication containing any threat to kidnap any
          person or any threat to injure the person of
          another, shall be fined not more than $1,000 or
          imprisoned for more than five years, or both.
denied the motion, finding that the firearms evidence was

admissible under Rule 404(b) as proof of Himelwright's intent to

commit the crimes charged or, in the alternative, as indicative

of his plan or preparation.     Memorandum Opinion at 5.

Himelwright was subsequently convicted and sentenced to 18 months

imprisonment,3 to be followed by three years supervised release.

Himelwright appeals.

                                  I.

          We have jurisdiction over this appeal pursuant to

28 U.S.C. § 1291.   Because we believe that the district court

erred in admitting testimony concerning Himelwright's purchase

and possession of firearms, as well as the firearms themselves,

we will reverse the district court's denial of the in limine

motion and vacate Himelwright's conviction.

                                 II.

          Prior to his arrest on September 8, 1993, Himelwright

had been employed as a truck driver with the United States Post

Office in York, Pennsylvania.    Several months before the events

which lead to his arrest occurred, Himelwright had been found

guilty of driving under the influence of alcohol, a conviction

which, because of the mandatory one-year suspension of driving

privileges, jeopardized his continued employment as a truck

3
 .   The 18 month sentence was imposed after the district court
downwardly departed from the 37-46 month guideline range. The
downward departure was based on the fact that Himelwright "made
threatening phone calls to an answering machine, not an actual
person, and the answering machine was for a[] . . . hotline
designed to assist employees." United States v. Himelwright, No.
93-222-01 (M.D. Pa. March 30, 1994)(order of judgment).
driver.    In anticipation of having his license suspended,

Himelwright applied for several non-driving jobs with the Postal

Service.    Because he had two daughters who lived with their

mother in Moorhead City, North Carolina, Himelwright focussed his

efforts on openings in the Mid-Carolina's District.

            One of the positions Himelwright sought was in

Florence, South Carolina.4   The Florence postal facility had a

maintenance position which would be held open until July 1, 1993.

In order to qualify for the position, Himelwright was required to

take and pass an aptitude test.   In early June, Himelwright was

advised that the test was only conducted twice a year, in

February and August.    He contacted the Postal Service's Employee

Assistance Program (EAP) Hotline, and requested help in obtaining

an earlier test date.   A test was scheduled for July 9, 1993, at

the post office in Lancaster, Pennsylvania.   Either because he

was approximately two hours late, or because the Postal Service

did not accurately inform him of the time for the test,

Himelwright was not able to take the test on July 9.   The test

was then rescheduled for July 12, 1993, and Himelwright completed

the exam that day.   When he was finally notified on July 24 that

he had passed the test, however, the Florence position apparently

was no longer an option.

           Almost one week later, on the evening of August 30,

1993, Himelwright placed several telephone calls to two Postal

4
 .   Himelwright also applied for custodial position in Raleigh,
North Carolina, where his transfer reassignment form was received
on August 30, 1993.
Service hotlines in Washington, D.C., from his home in York.    He

had been drinking and was fearful that a hurricane was going to

hit the town where his two daughters lived.   The first call,

placed at approximately 8:20 p.m., was to the EAP Hotline.

Because it was received after business hours, his call was

answered by an answering machine.   Himelwright made the following

statement:
          Hello, my name is Richard C. Himelwright, 866
          Tioga Street, York, PA. Case No. 1610. I
          requested y'all to give me a letter from
          Lancaster where they stated they were going
          to give me the test by July 1st. Y'all won't
          respond to that. That's fine and dandy. Now
          this is August 30th, 8:20 p.m., the hurricane
          is gonna hit in the next four hours, where my
          daughters live in Moorhead City, North
          Carolina, and y'all ain't doing shit about
          getting my transfer. Now I'm very, very,
          irate here, this ain't a threat, but I shot
          on too many rifle teams, and I'm tired of
          being jerked around. Now you all ain't
          giving me no help at all, none whatsoever.
          You won't return no phone call all of a
          sudden, nobody's doing nothing. You told me
          that Lancaster said, "Oh yeah, you gonna have
          the test by July 1st." Wrong. I didn't get
          it until July 9th and then it was postponed
          'til July 12th. Oh, that's not your fault,
          that's my fault, right? Wrong. I lost that
          transfer to Florence. Now I'm trying for
          Raleigh, North Carolina. Now I'm tellin'
          y'all right now, if I don't get that
          transfer, there's gonna be some shit! Cause
          I'm tired of playing games with y'all. I'm
          tired of playin', I don't even know if my
          daughters is gonna make it through the night.
          I can't even get through. The lines are
          dead. I don't even know where my daughters
          are right now. They live in Moorhead City,
          North Carolina, where the storm is supposed
          to hit between now and midnight, and y'all
          ain't done shit for me. You got me so (sob)
          freakin' upset. Oh, never mind, you ain't no
          help.
            Himelwright then called the Postal Inspection Service

Crimes Hotline and left a message for a duty officer to return

his call.    At about 8:30 p.m., Postal Service Police Officer

Roberto S. Lloyd contacted Himelwright, who explained his

predicament and, in the process, stated:
          I am irate and upset because I'm getting
          shafted. Someone better do something now
          because I'm getting tired of it now. . . . I
          want to be with my daughters but the Postal
          Service is saying, "Fuck You!" . . . If
          something happens to these children, someone
          is going down the tubes. . . . I was a
          policeman in North Carolina and a weapons
          specialist in the Marine Corps. Why is
          everybody messing with me? They worry about
          shootings in the Post Office, they should
          worry about me if anything happens to my
          children because of the hurricane. Shit will
          hit the fan; this is not a threat but a
          promise.


            About one-half hour later, Himelwright called the EAP

Hotline again and left another lengthy message.    He once again

made threatening remarks and expressed his frustration about the

Florence position as well as his concern that his children might

be in danger.   He then called his friend and Local Union

President, Henry P. Dennis, Jr. Himelwright told Dennis:
          Henry, I really blew it this time. I really
          blew it big time. My job's down the tubes.
          I just called the Postal Inspectors and
          spilled my guts. I told them everything from
          Bill Runkel to them screwing around with my
          transfer to North Carolina. I feel like
          coming in there and blowing everybody away.
          You don't have to worry, I don't want you.
Dennis called the York Post Office receptionist and warned her

that if Himelwright were to appear at the Post Office, she should

call 911.

            The next day, a group of Postal Inspectors gathered at

the York Post Office.    They contacted Himelwright and asked him

to come into the Post Office to be questioned.     Himelwright

refused.    Later that day, the inspectors went to his home

accompanied by a uniformed police officer.     After he executed a

written waiver of his Miranda rights, the inspectors asked

Himelwright whether he owned any firearms.     He produced two

weapons -- a .38 caliber Smith and Wesson revolver and a

Thompson-Center Contender pistol.      The inspectors confiscated the

weapons and asked Himelwright if he had placed any calls to the

EAP and Crimes hotlines the night before.     Himelwright admitted

placing the calls, but denied making any threats.     He also told

the inspectors that he had made the calls after consuming alcohol

and taking the drug diazepam.    His arrest and indictment on the

charges mentioned above followed.

                                III.

            When deciding whether to admit "other acts" evidence

under Rule 404(b), a trial court initially must consider two

issues:    first, whether the evidence is logically relevant, under

Rules 404(b) and Rule 402, to any issue other than the

defendant's propensity to commit the crime; and second, whether

under Rule 403 the probative value of the evidence outweighs its

prejudicial effect.   United States v. Sampson, 980 F.2d 883, 886
(3d Cir. 1992).    The trial court has significant leeway in making
both determinations.   Id. at 886.   We, therefore, would

ordinarily review the district court's evidentiary rulings for an

abuse of discretion.   Id.   Where, however, the district court

fails to explain its grounds for denying a Rule 403 objection and

its reasons for doing so are not otherwise apparent from the

record, there is no way to review its discretion.   Id. at 889

(citing Government of the Virgin Islands v. Pinney, 967 F.2d 912,

918 (3d Cir. 1992)).   In such cases, we need not defer to the

reasoning of the district court, and we may undertake to examine

the record and perform the required balancing ourselves.

Government of the Virgin Islands v. Archibald, 987 F.2d 180, 186

(3d Cir. 1993).

          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 that he acted 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.


          Despite our characterization of Rule 404(b) as a rule

of admissibility, United States v. Scarfo, 850 F.2d 1015, 1019
(3d Cir. 1988), we have expressed our concern that, although the

proponents of Rule 404(b) evidence "will hardly admit it, the

reasons proffered to admit prior act evidence may often be

potemkin village, because the motive, we suspect, is often mixed

between an urge to show some other consequential fact as well as

to impugn the defendant's character."   United States v. Jemal, 26

F.3d 1267, 1272 (3d Cir. 1994) (quoting Sampson, 980 F.2d at
886).   Thus, when evidence of prior bad acts is offered, the

proponent must clearly articulate how that evidence fits into a

chain of logical inferences, no link of which can be the

inference that the defendant has the propensity to commit the

crime charged.    Jemal, 26 F.3d at 1272.   But even where the

proffered evidence tends to prove some fact besides character,

admissibility depends upon whether its probative value outweighs

its prejudicial effect.5   As a result, once the proponent

articulates a permissible purpose under Rule 404(b), the district

court must weigh the probative value of the evidence against its

potential to cause undue prejudice.    Id. at 1272.

            With these familiar principles of admissibility and

review in mind, we turn our attention to the district court's

denial of Himelwright's motion in limine and the introduction of

Himelwright's possession and purchase of the firearms in

question.

                                 IV.

            The district court found that Himelwright's purchase

and possession of firearms clearly constituted "other acts,"

whose admissibility is governed by Rule 404(b). Memorandum
Opinion at 3.    The government offered two theories of

5
.    Fed.R.Evid. 403 provides:

            Although relevant, evidence may be excluded
            if its probative value is substantially
            outweighed by the danger of unfair prejudice,
            confusion of the issues, or misleading the
            jury, or by considerations of undue delay,
            waste of time, or needless presentation of
            cumulative evidence.
admissibility:    first, to rebut any claim by Himelwright that he

lacked the requisite mens rea; and second, to show that

Himelwright not only planned to carry out his threats, but that

he was prepared to do so.    We will address these two theories in

turn.

                                  A.

          In order to admit evidence under the "intent" component

of Rule 404(b), intent must be an element of the crime charged

and the evidence offered must cast light upon the defendant's

intent to commit the crime.    United States v. Kirk, 528 F.2d

1057, 1060 (5th Cir. 1976).

                                  1.

          In Count III of the indictment, Himelwright was charged

with transmitting a wire communication with the intent to injure

another, in violation of 18 U.S.C. § 875(c).    The district court

correctly determined that to establish a violation of this

section, the government bore only the burden of proving that

Himelwright acted knowingly and willfully when he placed the

threatening telephone calls and that those calls were reasonably

perceived as threatening bodily injury.     The government bore no

burden of proving that Himelwright intended his calls to be

threatening or that he had an ability at the time to carry out

the threats.     United States v. Cox, 957 F.2d 264, 266 (6th Cir.
1992); United States v. DeAndino, 958 F.2d 146, 148-49 (6th Cir.

1992); Cf. United States v. Orozco-Santillan, 903 F.2d 1262, 1265

n.3 (9th Cir. 1990) (applying 18 U.S.C. § 115, governing threats

made to federal law enforcement officer).    Himelwright's
possession of the two firearms the morning after placing the

calls, the government argued, could permissibly lead the jury not

only to conclude that he possessed the guns at the time he placed

the calls, but that his possession was evidence of his knowledge

and willfulness.

          On its face, this might appear to be a plausible basis

for admissibility under Rule 404(b), at least to the extent that

the government attempted to connect one of the exceptions

delineated in the Rule (intent) to an element of the offense with

which Himelwright was charged.   To appreciate the error in this

position, however, and in the district court's acceptance of it,

one must look deeper, for the problem with the government's

argument lies in the unavoidable distinction between the general

intent to make a threat to injure another, on the one hand, and a

subjective intention to carry out the threats, on the other.    We

believe the government's true aim in offering the firearms

evidence was to prove the latter.   Significantly, section 875(c)

requires proof of a defendant's general intent to threaten

injury, but does not require proof of a specific intent to injure

another or the present ability to carry out the threat.   United
States v. Holder, 302 F. Supp. 296, 300 (D. Montana 1969), aff'd

by, 427 F.2d 715 (9th Cir. 1970).   Cf. United States v. Cooper,

523 F.2d 8, 10 (6th Cir. 1975) (applying 18 U.S.C. § 875(b)).

The government, however, offered no evidence showing a connection

between Himelwright's possession of the firearms and his "intent"

to place the telephone calls and say the things he did.

Moreover, we cannot agree that Himelwright's possession of the
firearms constituted evidence of his intent because the

government did not need to establish that Himelwright had the

specific intent to injure or the present ability to carry out the

threats in order to establish a violation of section 875(c).

Himelwright's intention to accomplish these things, which the

government sought to establish through his possession of the

firearms, simply was not an element of the crime charged and did

not cast light upon his intention to commit the crime charged.

          At best, the fact that Himelwright was found in

possession of the firearms the day after he placed the calls is

indicative of his capability to carry out the threats.    Evidence

of capability, however, is not only unnecessary to satisfy the

elements of section 875(c); it is likewise not included among the

categories of admissibility to which Rule 404(b) is addressed.

Although evidence can be admitted even if it does not fit one of

the specific exceptions listed in the Rule, character evidence

which is offered to prove the likelihood that the defendant

committed the particular crime is nevertheless inadmissible.

Jemal, 26 F.3d at 1272 (citing Scarfo, 850 F.2d at 1019).   Here,

the government sought to convince the jury that Himelwright's

capability to carry out the threats or to injure, demonstrated

through his possession of the firearms, made it more likely that

he intended to do so.   Thus, while the government's argument was

cloaked in terms of Himelwright's intent, the goal here was

actually something different; it was to portray Himelwright as a

person who possessed the wherewithal to do what he said he would

do in order to demonstrate that it was more than likely that he
intended the threats and had, therefore, committed the crime

charged.

           Accordingly, we conclude that the forbidden purpose

which lay barely beneath the surface of the government's argument

-- the likelihood that Himelwright committed the offense based on

an inference of his intent drawn from evidence pertaining to his

character (his possession of two firearms) -- renders the

evidence inadmissible under Rule 404(b).   Id.   See also

Archibald, 987 F.2d at 185; cf. Huddleston v. United States, 485

U.S. 681, 691 (1988).   In so concluding, we emphasize the

important distinction between the use of character evidence to

show Himelwright's intention to make the threatening calls, as

charged under section 875(c), which might have been permissible

under Rule 404(b) had the government connected it to his

possession of the firearms, and the use of such evidence to show

that he had the capability to act upon the threats.   The latter

may easily be seen as a disguised attempt to accomplish precisely

what is disallowed, namely, to show that "more than likely" the

defendant intended to do that with which he or she stands

charged.

                                2.

           We reach a different conclusion -- applying a somewhat

different rationale -- with respect to Counts I and II (the 18

U.S.C. § 875(b) counts).   Under § 875(b), the government was not

only required to prove that Himelwright knowingly and willfully

made the calls, but that he acted with the specific intent to

extort a thing of value from the Postal Service.    The government
argued that evidence of Himelwright's possession of the two

handguns entitled the jury to conclude that he acted with the

specific intent to extort a job transfer when he communicated the

threats.

           We agree that a plausible argument could be made that

the fact that Himelwright was capable of carrying out the threats

might be relevant to his intent to extort a job transfer; that

is, we do not discount the contention that one's capacity to do

violence to another could bear some relevance to one's intent in

conveying an extortionate threat.   Conceivably, despite the fact

that the recipients of the calls were hundreds of miles away, the

jury could have (1) inferred from the presence of the two

handguns in his house that Himelwright was more likely to have

had the capacity to carry out a threat of violence than if he had

no handguns in his house,6 (2) inferred from the fact that he may

have had the capacity to carry out a threat of violence that

Himelwright was more likely to have wished to make a threat of

violence than if he had no such capacity, and (3) inferred from

the fact that he may have had a wish to make a threat of violence

that Himelwright was more likely to have understood his

communication to be a threat of violence.
6
 .   The jury may have regarded this link in the chain of logic
as being foreclosed by the judge's instructions. While he told
the jury that it could consider whether the presence of the
handguns was "probative as to whether defendant intended to make
threats," he also instructed that the presence of the handguns
"may not be used to conclude that the defendant had the ability
to carry out his alleged threat." We have been unable to
perceive any chain of logic from the presence of the handguns to
the required intent that does not involve this apparently
prohibited link.
          But even assuming arguendo that Himelwright's gun

possession is marginally relevant to the specific intent to

extort, we nevertheless find that the probative value of the

firearms evidence was substantially outweighed by the resulting

prejudice to Himelwright.   In Part V, below, we set forth a full

and detailed analysis with respect to the Rule 403 violation, as

well as our views concerning the district court's failure to

conduct the requisite balancing of interests under the Rule.     For

present purposes, however, because we conclude that the evidence

should have been excluded by Rule 403, we will assume, without

deciding, that Himelwright's possession of the firearms was

relevant to his intent to extort and, therefore, admissible under

Rule 404(b).

                                B.

          In addition to arguing that the firearms evidence was

admissible as proof of intent, the government contended that the

firearms evidence was admissible under the "plan" and

"preparation" exceptions to Rule 404(b).   It argued that

Himelwright's purchase of the Smith and Wesson revolver on or

about June 20, 1993, less than one week after he made the first

call to the EAP Hotline to inquire about getting an earlier test

date, tended to establish a pre-conceived plan to threaten

violence in the event that the Postal Service did not meet his

transfer demands.   But this argument fails to acknowledge that at

the time Himelwright initiated the purchase of the revolver, he

had no way of knowing that he would experience difficulty in

securing a transfer.   This is a significant missing "link" in the
chain of logical inferences which the government must clearly

articulate as the very foundation for admissibility of prior bad

act evidence, rendering the links which remain inherently and

inevitably flawed.   To carry the metaphor further, it is

important to note again that no link in the chain may contain an

inference that because the defendant committed the prior act, it

is, therefore, more likely that he or she committed this one,

too.   Jemal, 26 F.3d at 1272 (citing Sampson, 980 F.2d at 887).

But that is precisely what we are left with here, for as we

discuss below, we can find no demonstrable link -- not even a

remote one -- between, on the one hand, the purchase of the

revolver in June (at a time when Himelwright was just beginning

to pursue a transfer), and his "planning" or "preparing" to carry

out threats of violence because he was, over a month later,

unsuccessful in obtaining the transfer.

           We believe the relevant time frame with respect to a

plan or preparation is the time between the purchase of the

revolver on or about June 20, 1993, and the August 30 telephone

calls.7   The government did not present any evidence of

7
 .   See United States v. Philibert, 947 F.2d 1467 (11th Cir.
1991). In reviewing a district court's admission of evidence
concerning Philibert's purchases of weapons and ammunition two
months prior to making threatening telephone calls to his
supervisor, the Eleventh Circuit stated:

           . . . we fail to perceive, any possible relevance,
           on the question of whether appellant did or did
           not place a threatening phone call . . . on
           August 11, 1989, of the fact that two months
           earlier he had purchased certain firearms.

Philibert, 947 F.2d at 1470.
Himelwright's actions during this time period which could be

construed as part of a plan or scheme to threaten anyone, let

alone to extort a transfer from the Postal Service.    Nor did the

government offer any evidence connecting the purchase of the

weapon in June to the threats Himelwright issued at the end of

August.   Indeed, a fair reading of the transcripts suggests that

the impetus for the calls was a hurricane which Himelwright

perceived as a threat to the safety of his children in North

Carolina, and his perception that by failing to transfer him, the

Postal Service was responsible for his inability to respond to an

imminent danger to his children.    While we in no way mean to

imply that this constituted any justification for Himelwright's

actions, that is the thrust of his profanity-laced, threatening

diatribes.    The transcripts may also fairly be read to evince an

intent on the part of Himelwright to retaliate through the use of

firearms.    The meaning to be ascribed to the transcripts,

however, in light of the other evidence in this case, is for a

jury to determine if this case is to be retried.    But the point

here is that there is no evidence to suggest that the threats

flowed from a plan Himelwright had concocted in June -- again,

before he even knew whether he would be transferred -- when he

purchased the revolver.    While such a conjectural leap might

support the government's theory, the two events are far too

attenuated and devoid of evidence of any connection to one

another to fall within the ambit of Rule 404(b).
(..continued)
                                V.

           Even if we were to accept that the government's

proffered purposes were somehow proper under Rule 404(b), our

inquiry would not end there because the trial court failed to

determine and to articulate whether the probative value of the

firearms evidence outweighed its prejudicial effect under Rule

403.   Sampson, 980 F.2d at 889 (citing United States v.

Echeverri, 854 F.2d 638, 644 (3d Cir. 1988)).   Once again, when a

court engages in a Rule 403 balancing and articulates on the

record a rational explanation for its determination, we will

rarely disturb its ruling.   Id. at 889 (citing Government of

Virgin Islands v. Harris, 938 F.2d 401, 420 (3d Cir. 1991)).

Where, as here, the court fails to perform this analysis, the

measure of deference we might otherwise accord is lessened, and

we may undertake to examine the record ourselves and conduct the

appropriate weighing test.   Archibald, 987 F.2d at 186.

           Our review of the record compels us to conclude that

even if the firearms evidence had been admissible under Rule

404(b), a proper balancing of its probative value against its

prejudicial effect under Rule 403 would have rendered it

inadmissible in any event.

           Initially, it is impossible to overlook the powerful

impact of this type of evidence on the questions whether the

telephone calls were, indeed, sufficiently threatening to satisfy

the elements of section 875(c) beyond a reasonable doubt, and

whether Himelwright made them with the intent to extort a job

transfer from the Postal Service, in violation of section 875(b).
The words Himelwright uttered to the answering machines; the

statements he made to Dennis; the statements he made to Officer

Lloyd; the statements he made to the Postal Inspectors; and the

circumstances surrounding his failed attempt to secure a transfer

all speak for themselves.    Without question, a rational chain of

inferences could be drawn from these evidentiary links, each of

which bore some logical relevance to the criminal charges

Himelwright faced.    But to compound that evidence by asking the

jury to draw inferences as to Himelwright's intent from his

purchase and possession of the two firearms was, we think, to

invite a degree of prejudice which outweighed the probative value

of that evidence under a proper balancing pursuant to Rule 403.

          The government dwelled upon the guns at great length

when presenting its evidence and making its closing argument.        At

trial, the man who sold Himelwright the revolver on June 22 was

called by the government to testify about the transaction.      He

indicated that Himelwright was "very nervous" and that his hand

was "shaking" when he bought the gun.    Appellant's App. 64a.    The

government also tendered testimony from the man who helped

complete the paperwork associated with the sale of the revolver.

He testified that Himelwright did not take possession of the

revolver until approximately July 1, when all background checks

had been completed.    Then, the government called one of the

postal inspectors who visited Himelwright the day after the

telephone calls and solicited testimony that the two handguns

were in Himelwright's home at the time of his visit.    The

government concluded its closing argument to the jury with the
following comments, which contained all of its argument

concerning the handguns:
               We know, ladies and gentlemen, that less
          than a week [after telephoning the EAP
          Hotline for assistance in arranging a
          custodial worker's examination], Mr.
          Himelwright bought a gun. He bought a .38
          caliber revolver. He bought it from William
          Kiehl.

               Mr. Kiehl testified and the firearms
          dealer that was involved in the transfer,
          Greg Flinchbaugh, testified. They told about
          how Mr. Himelwright inspected the gun and
          bought it that night for $120.00 cash. He
          told you how the paperwork was filled out so
          that Mr. Himelwright could get legal
          ownership of that gun. But for some reason,
          Mr. Himelwright never personally appeared
          before Mr. Flinchbaugh.

               The question has been raised why a .38
          caliber revolver? Several explanations have
          been offered. One, Mr. Himelwright wanted to
          use it for target practice. Two, he was a
          gun collector. Three, he wanted to give the
          gun as a gift to Bonnie, his girlfriend.

               But you heard the testimony. Is a short
          barrel, a two and a half inch barrel .38
          caliber revolver a gun that is normally used
          for target shooting? No, it is too
          inaccurate. It is not a gun used by target
          shooters.

               A gun collector? Mr. Himelwright wasn't
          a gun collector. He had two guns, but he
          wasn't a gun collector.

               And giving it as a gift to Bonnie Irvin
          [his girlfriend]? You heard her testimony.
          Bonnie Irvin never shot that gun. In fact,
          she told you she never even held it.

               Why a .38 caliber? We know Mr.
          Himelwright was a police officer for six
          years in North Carolina. Thirty-eight
          caliber revolvers are handguns that are
          normally used by police departments. As Mr.
          Himelwright repeatedly told you, he was a
          weapons specialist. He was a cop. He knew
          about guns. He knew how to handle them. He
          went out and bought a .38 caliber revolver.
          That gun wasn't for anybody else except for
          Richard Himelwright's use.


Appellant's App. 99a-100a.

          The object, or at least effect, of this

disproportionate emphasis by the prosecution, we believe, was to

portray Himelwright as a violence-prone postal worker who was a

danger to society and who needed to be removed for the protection

of the public.8

          Moreover, the manner in which this evidence was used at

trial exacerbated the error of its admission:   the prosecutor was

permitted to introduce into evidence, and display before the

8
 .   Himelwright's two-day trial took place on November 15 and
16, 1993, following a series of well publicized shooting sprees
by postal workers. See, e.g., Workers Kill Workers; Yet Again,
Violence in the Post Office, New York Times, May 9, 1993, Sec. 4,
at 2; Inside Post Offices, the Mail is Only Part of the Pressure,
New York Times, May 15, 1993, at A1; Postal Study Aims to Spot
Violence-Prone Workers, New York Times, July 1, 1993, at A9. As
reported in the New York Times on August 3, 1993, "There have
been at least 11 shooting incidents involving aggrieved
emotionally disturbed postal workers in the United States in the
last decade with 35 people killed and 18 wounded." Police Arrest
Postal Worker in Pistol Threat to His Wife, New York Times,
Aug. 3, 1993, at B5.

     We believe the government's portrait of Himelwright as the
stereotypical violence-prone postal worker had serious potential
for prejudice to him in two different ways. First, it had the
potential for frightening the jury into ignoring evidence that
otherwise might have raised a reasonable doubt about whether he
intended a serious threat. Second, if the jury was persuaded
that Himelwright was violence-prone by character, it might have
inferred that he intended violence in this particular instance.
That inference is precisely what Rule 404(b) prohibits.
jury, the firearms themselves.    Such a method of introduction is

not proscribed.   But because of the remote connection between the

possession (or purchase) of the firearms and telephone calls, the

display of weaponry was far more prejudicial than probative under

the circumstances of this case.    We believe that this enabled, if

not invited, the jury to draw impermissible inferences which

might well have deprived Himelwright of a fair trial.9

                                 VI.

          For the reasons set forth above, we conclude that

evidence of Himelwright's purchase and possession of firearms

should not have been admitted under Rule 404(b) as evidence of a

9
 .   We note that the district court gave the following
precautionary instruction:

          Ladies and gentlemen, the mere fact that the
          defendant had purchased or possessed firearms may
          not be used to conclude that the defendant had the
          ability to carry out his alleged threat. You will
          recall I said that is not an element of the
          offense.

          Nor may you conclude from the fact of the purchase
          or possession that the recipient of the
          defendant's statements took them as threats. You
          may consider whether these facts are probative as
          to whether defendant intended to make threats.

Government's App. 45-46.

     Although this instruction reflect's the district court's
apparent understanding of the potential for undue prejudice to
Himelwright, it does not cure the error in the first instance in
not conducting the balancing of interests which Rule 403
requires, and which should have lead to the exclusion of
Himelwright's possession and purchase of the firearms. United
States v. Sampson, 980 F.2d 886, 889 (3d Cir. 1992) (Rule 403
requires the district court to evaluate evidence in the context
of the developing case).
plan or preparation to commit the crimes charged, or of

Himelwright's intent with respect to section 875(c).   Assuming,

as we do, that Himelwright's gun possession was marginally

relevant to his intent to extort, we nevertheless conclude that

the admission of the firearms evidence violated Rule 403.    We

further find that the district court erred by not performing the

balancing analysis in response to the Rule 403 objection.

Accordingly, we will reverse the district court's denial of

Himelwright's motion in limine, vacate Himelwright's conviction

and remand for further proceedings consistent with this opinion.
