Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2006

USA v. Gorko
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1597




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"USA v. Gorko" (2006). 2006 Decisions. Paper 1453.
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NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                             Case Nos: 03-1597 and 04-4142

                           UNITED STATES OF AMERICA

                                           v.

                               JOSEPH A. GORKO, JR.,

                                           Appellant


                      On Appeal for the United States District Court
                         for the Middle District of Pennsylvania
                            District Court No.: 00-CR-00259
            District Judge: The Honorable Thomas I. Vanaskie, Chief Judge


                                Argued February 2, 2006

          Before: McKEE, SMITH, and VAN ANTWERPEN, Circuit Judges

                                (Filed: March 13, 2006)

Joseph A. O’Brien (argued)
Oliver, Price & Rhodes
1212 South Abington Road
P.O. Box 240
Clarks Summit, PA 18411
Counsel for Appellant

John C. Gurganus, Jr. (argued)
Office of the United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
                                         OPINION


SMITH, Circuit Judge.

       Joseph Gorko, Jr., D.V.M., appeals from his conviction on thirteen counts of

mailing threatening communications in violation of 18 U.S.C. § 876. The District Court

had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise final order jurisdiction under

28 U.S.C. § 1291. For the reasons set forth below, we will affirm the judgment of the

District Court.

                                              I.

       On September 19, 2000, a grand jury returned an eleven count indictment against

Gorko charging him with mailing threatening communications in violation of 18 U.S.C. §

876. Counts One through Seven alleged that Gorko mailed seven threatening

communications to Peter Paul Olszewski, Jr., with the intent to extort money. Counts

Eight, Nine and Ten alleged that Gorko caused to be delivered by the United States Postal

Service communications containing a threat to injure to his father, Joseph A. Gorko, Sr.

Count Eleven averred that Gorko caused to be delivered another communication

containing a threat to injure to Olszewski.

       On February 14, 2001, Gorko was indicted on two additional counts in the

Northern District of Ohio of causing to be delivered to his father communications

containing a threat to injure in violation of 18 U.S.C. § 876. These charges were

                                              2
transferred to the Middle District of Pennsylvania and consolidated for trial with the other

eleven counts.

       At trial, the evidence established that Gorko signed his name to the communication

on which Count Eleven was based. The other communications, however, were only

circumstantially attributed to Gorko. The government linked the other communications to

Gorko by demonstrating that they were consistent with the plan set out in a book titled

Your Revenge Is In The Mail, which provided information on how “to destroy the

underpinnings” of the target of your revenge. This book, which was found in a bedroom

Gorko had previously occupied at his father’s house, contained a “primer” on how to

accomplish this “mail order revenge.” Because some of the revenge was to be extracted

by sending letters from third parties, the primer suggested making letterhead and

envelopes for the third parties by cutting and pasting parts of letterhead, signatures and

other portions of documents onto a blank sheet of paper, and then photocopying it to

produce a “good, quality letterhead.” The evidence established that some of the

threatening communications were created using this cut-and-paste technique. To

demonstrate Gorko’s ability to utilize this cut-and-paste technique, as well as his identity

as the author of some of the threatening communications, the government admitted other

documents constructed by Gorko, which used the cut-and-paste technique and which were

consistent with the plan set out in Your Revenge Is In The Mail.

       On April 5, 2002, a jury convicted Gorko of each of the thirteen counts.     The



                                              3
District Court sentenced Gorko, inter alia, to ninety-seven months of imprisonment. This

timely appeal followed. Gorko contends that his convictions should be vacated because:

(1) the District Court erred by allowing the admission of certain “other act” evidence in

violation of Federal Rule of Evidence 404(b); (2) the evidence was insufficient to support

his convictions; and (3) the District Court erred in refusing to include a requested

instruction to the jury regarding Olszewski’s opinion testimony that Gorko was the author

of certain communications.

                                             II.

       Gorko challenges the propriety of the District Court’s decision to allow the

admission of three groups of “other act” evidence in violation of Federal Rule of

Evidence 404(b), specifically: (1) a letter purportedly sent to the Governor of

Pennsylvania by then Pennsylvania Attorney General Thomas Corbett; (2) several

documents relating to Duffy & Associates, a law firm; and (3) various documents

supposedly authored by Amy Kellogg. Gorko asserts that this evidence should not have

been admitted because it was not so unusual and distinctive as to be like a signature, and

because this evidence was more prejudicial than probative. We review the District

Court’s decision to admit this evidence for abuse of discretion. United States v. Givan,

, 460 (3d Cir. 2003).




                                              4
       Federal Rule of Evidence 404(b)1 is “inclusive, not exclusive, and [it] emphasizes

admissibility.” United States v. Sampson, 

, 886 (3d Cir. 1992). It “generally

prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the

actor’s character, unless that evidence bears upon a relevant issue in the case . . . .”

Huddleston v. United States, 

, 685 (1988). In Huddleston, the Supreme

Court gave

       four guidelines on the admissibility of prior bad act evidence: (1) the
       evidence must have a proper purpose; (2) it must be relevant under Rules
       401 and 402; (3) its probative value must outweigh its prejudicial effect
       under Rule 403; and (4) the court must charge the jury to consider the
       evidence only for the limited purpose for which it was admitted.

United States v. Sampson, 

, 886 (3d Cir. 1992) (citing 

); see also United States v. Vega, 

, 261 (3d Cir. 2002) (reiterating

the four guidelines enumerated by the Supreme Court in Huddleston). Thus, “the

proponent must clearly articulate how that evidence fits into a chain of logical inferences,

no link of which may be the inference that the defendant has the propensity to commit the

crime charged.” United States v. Himelwright, 

, 782 (3d Cir. 1994).

       The government opposed Gorko’s motion in limine to exclude the Attorney



  1
       Federal Rule of Evidence 404(b) states, in pertinent part:

       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, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident . . . .

                                               5
General letter, arguing that it was critical because it showed that Gorko, “despite what he

claims, engages in cut and paste and making - using other people’s signatures and their

letterhead to send mail.” In addition, the government asserted that the exhibit was

consistent with the plan laid out in the book Your Revenge Is In The Mail, found in

Gorko’s former bedroom at his father’s house. The record as a whole, including the

handwritten rough draft of the Attorney General letter, which Gorko admitted was in his

handwriting, the typed draft of that letter, and the results of the examination of the

typewriter ribbon, establishes Gorko’s authorship of the Attorney General letter. The

references in the Attorney General letter to the alleged arson and insurance fraud by

Olszewski’s father-in-law, corruption in local politics, Olszewski’s brother’s conviction

of bank robbery, and other alleged personal misdeeds, also connect Gorko to the letters

sent to Olszewski. Moreover, this evidence demonstrated that Gorko used both the plan

set out in the book Your Revenge Is In The Mail and the same grammatical error – the

erroneous “it’s” for the possessive pronoun – that appeared in several of the

communications to Olszewski and Gorko’s father. Because the purpose of the Attorney

General letter was to establish that it was authored by the same person that authored the

Olszewski communications, the purpose was proper, the evidence was clearly relevant,

and there was no abuse of discretion by the District Court in concluding that it was more

probative than prejudicial. Inasmuch as the District Court provided the jury with a

general limiting instruction in the charge, the District Court did not err by denying the



                                              6
motion in limine to exclude the admission of the Attorney General letter.

       Nor do we find any abuse of discretion in the admission of the documents found

during a consent search bearing the letterhead “Duffy & Associates.” We agree with the

government that the documents demonstrated Gorko’s ability to utilize the cut-and-paste

technique that was used on one of the letters to Olszewski. Moreover, the return address

on the letter, as the government pointed out to the District Court, was actually used by

Gorko for business purposes. Accordingly, there was a proper purpose for the admission

of these documents. Indeed, Gorko does not dispute that this evidence was relevant, and

an instruction by the District Judge appropriately limited the purpose for which this

evidence was admitted.

       Gorko contends, however, that the Duffy & Associates documents were more

prejudicial than probative in light of their bizarre content. To be sure, the documents

were bizarre because of their sensational allegations of improper and illegal conduct, but

they were no more bizarre than the communications to Olszewski. As a result, the Duffy

& Associates cut-and-paste documents, which were clearly linked to Gorko, were

consistent with his adherence to the book’s plan for exacting revenge and were more

probative than prejudicial. For that reason, we conclude that the District Court did not

abuse its discretion by allowing this evidence to be admitted.

       Finally, Gorko cites as error the admission of various letters allegedly authored by

Amy Kellogg, a television news reporter who once worked with Gorko and was



                                             7
subsequently affiliated with a station in New Jersey. The government argued that the

Kellogg documents, some of which were found in Gorko’s bedroom at his father’s house,

were necessary to show: (1) that Gorko used the cut-and-paste technique that was used in

a letter to Olszewski; (2) that Gorko followed the plan laid out in the Your Revenge Is In

The Mail book; (3) that Gorko erroneously used the contraction “it’s” for the possessive

pronoun, as he did in several of the communications; and (4) that Gorko used the term the

“avenging angel,” which is also contained in a threatening communication to his father.

       After reviewing the record, we conclude that there was a proper purpose under

Rule 404(b) for admitting the Kellogg documents. The cumulative evidence was clearly

relevant and a limiting instruction was given by the Court before these exhibits were

presented. Again, Gorko argues that these documents were more prejudicial than

probative. We find no abuse by the District Court in concluding that the Kellogg

documents were more probative. This evidence was important to the prosecution and we

note that any unfair prejudice was eliminated by the redaction of the author’s opposition

to President Clinton and his prediction of Clinton’s death.

                                            III.

       Gorko also challenged the sufficiency of the evidence on each count of mailing

threatening communications. We “review[] the sufficiency of the evidence in the light

most favorable to the government and must credit all available inferences in favor of the

government.” United States v. Riddick, 

, 509 (3d Cir. 1998). In light of our



                                             8
conclusion that the “other acts” evidence was appropriately admitted under Rule 404(b),

we conclude that there is more than sufficient evidence to support Gorko’s conviction on

each count in the indictments.

       Gorko submits, however, that Count Eleven cannot stand because the letter, which

he admitted he authored, did not contain a threat to injure Olszewski. Although Gorko is

correct that the letter could be construed as innocuous, the evidence supporting his

conviction on this count is not limited to the letter he authored. Rather, the evidence

before the jury included the letter, the circumstances that existed when Olszewski

received the letter, and Olszewski’s perception that the letter was another threat. From

this evidence, a jury could reasonably find that the communication contained a threat to

injure. See United States v. Zavrel, 

, 136 (3d Cir. 2004); United States v.

Malik, 

, 49 (2d Cir. 1994). There is no basis for disturbing Gorko’s conviction

on Count Eleven.

                                              IV.

       Gorko’s final argument is that the District Court erred, after the charge had already

been read to the jury without objection, by refusing his request to give a supplemental

instruction regarding Olszewski’s opinion testimony that Gorko was the perpetrator of the

various letters. “A court errs in refusing a requested instruction only if the omitted

instruction is correct, is not substantially covered by other instructions, and is so

important that its omission prejudiced the defendant.” United States v. Davis, 183, F.3d



                                               9
231, 250 (3d Cir. 1999).

       We find no error by the District Court. Immediately after Olszewski testified in

that regard, the District Court instructed the jury to disregard Olszewski’s statement. We

must presume that the jury followed the court’s limiting instruction and considered it only

for its limited purpose. See 

. Moreover, as the District Court

pointed out, to give a separate instruction after the jury was charged and was ready to

deliberate would have resulted in prejudice to Gorko by highlighting the fact that

Olszewski, the victim of a majority of the threatening communications, considered Gorko

to be the perpetrator.

       We will affirm the judgment of the District Court.2




  2
   We recognize that Gorko asserts in his pro se submissions on appeal that his trial
counsel was ineffective. As we explained in United States v. Thornton, 

,
271-72 (3d Cir. 2003), “it is preferable that such claims be considered on collateral
review rather than on direct appeal.”