USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1301
UNITED STATES,
Appellee,
v.
ALFRED TRENKLER,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Morris M. Goldings with whom Amy J. Axelrod, R. David Beck, and
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Mahoney, Hawkes & Goldings were on brief for appellant.
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Paul V. Kelly, Assistant United States Attorney, with whom Frank
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A. Libby, Jr., Assistant United States Attorney and Donald K. Stern,
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United States Attorney, were on brief for appellee.
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July 18, 1995
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STAHL, Circuit Judge. Following a lengthy criminal
STAHL, Circuit Judge.
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trial, a jury convicted defendant Alfred Trenkler of various
charges stemming from a bomb explosion in Roslindale,
Massachusetts ("the Roslindale bomb"). On appeal, Trenkler
challenges the admission of evidence relating to his
participation in a prior bombing that occurred five years
earlier in Quincy, Massachusetts ("the Quincy bomb").
Trenkler also assigns error to two evidentiary rulings
admitting evidence derived from a computer database that
purported to establish that Trenkler built both the Quincy
and the Roslindale bombs and several out-of-court statements
made by a fellow participant in the bombing. After careful
review, we affirm.
I.
I.
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Background
Background
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On October 28, 1991, a bomb exploded at the
Roslindale home of Thomas L. Shay ("Shay Sr."), killing one
Boston police officer and severely injuring another. The two
officers, members of the Boston Police Department Bomb Squad,
had been dispatched to Shay Sr.'s home to investigate a
suspicious object located in Shay Sr.'s driveway. Shay Sr.
had earlier reported that, while backing his 1986 Buick
Century into the street the day before, he had heard a loud
noise emanating from beneath the floorboard of his
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automobile. Shay Sr. added that, subsequently, he found the
suspicious object resting near the crest of his driveway.
Following the explosion, a massive investigation
ensued involving a variety of federal, state and local law-
enforcement agencies. On June 24, 1993, this investigation
culminated with the return of a three-count indictment
charging Trenkler and Thomas A. Shay ("Shay Jr."), Shay Sr.'s
son, with responsibility for the Roslindale bombing.1
Trenkler filed a successful severance motion, and the
government tried the two defendants separately. Shay Jr. was
tried first, and a jury convicted him on counts of conspiracy
and malicious destruction of property by means of
explosives.2
At Trenkler's trial, the thrust of the government's
case was that Trenkler had built the Roslindale bomb for Shay
Jr. to use against his father. To establish Trenkler's
identity as the builder of the bomb, the government offered,
inter alia, evidence that Trenkler had previously constructed
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1. The June 24, 1993, indictment specifically charged
Trenkler and Shay Jr. with conspiracy, 18 U.S.C. 371;
receipt of explosive materials with knowledge and intent that
they would be used to kill, injure and intimidate, and cause
damage to real and personal property, 18 U.S.C. 844(d); and
malicious destruction of property by means of explosives; 18
U.S.C. 844(i). The indictment superseded a five-count
indictment initially returned against Trenkler and Shay Jr.
on December 16, 1992.
2. The district court sentenced Shay Jr. to concurrent
sentences of 188 and 60 months.
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a remote-control device, the Quincy bomb, which exploded in
Quincy, Massachusetts, in 1986. The government contended
that unique similarities in design, choice of components, and
overall modus operandi between the two bombs compelled the
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conclusion that Trenkler had designed and built both devices.
Prior to trial, the government filed a motion in limine
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seeking to admit the "similarity" evidence. Following a day-
long evidentiary hearing, the district court ruled the
evidence admissible, finding that it was relevant on the
issues of identity, skill, knowledge, and intent. Although
Trenkler did not testify at trial, his counsel stipulated at
the evidentiary hearing that Trenkler had built the Quincy
bomb.3
1986 Quincy Bomb
1986 Quincy Bomb
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Trenkler constructed the Quincy bomb in 1986 for a
friend, Donna Shea. At the time, Shea was involved in a
dispute with the owners of the Capeway Fish Market and she
wanted the bomb to use as a means to intimidate them. At her
request, Trenkler assembled a remote-control, radio-activated
explosive device. The device was later attached to the
undercarriage of a truck belonging to the Capeway Fish Market
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3. During the original 1986 investigation of the Quincy
bombing, Trenkler admitted building the bomb. In 1987, the
Commonwealth of Massachusetts brought charges against
Trenkler for his involvement in the Quincy bombing, but the
charges were dismissed.
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and detonated in the middle of the night. The resulting bomb
blast caused no injuries and little property damage.
In building the Quincy bomb, Trenkler used as the
explosive material a military flash simulator typically
utilized to mimic gunfire in combat exercises. To provide
remote-control capabilities, Trenkler employed a radio-
receiver he had removed from a small toy car. Trenkler
wrapped the bomb in duct tape and attached a large donut-
shaped speaker magnet to enable the bomb to adhere to the
undercarriage of the truck. Other components Trenkler used
included a "double throw" toggle switch, four AA batteries,
two six-volt batteries, an electric relay, solder, various
wires, and a slide switch.
Testimony at trial established that Trenkler
purchased some of the electrical components for the Quincy
bomb from a Radio Shack store. On one occasion, Trenkler
sought to obtain needed components by sending Shea's eleven-
year-old nephew into a Radio Shack store with a list of items
to purchase while Trenkler remained waiting outside. Shea's
nephew, however, was unable to find all of the items, and
Trenkler eventually came into the store to assist him.
1991 Roslindale Bomb
1991 Roslindale Bomb
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The government contended that Trenkler built the
Roslindale bomb at Shay Jr.'s request. At trial, the
government offered evidence about Trenkler's relationship
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with Shay Jr., dating back at least two years prior to the
Roslindale bombing. Several witnesses, including Trenkler's
business partner, reported seeing the two together on
different occasions in 1990 and 1991. Shay Jr.'s address
book included an entry for Trenkler listing his current pager
number. Moreover, Trenkler's roommate at the time of the
Roslindale bombing testified that, during September and
October of 1991, Shay Jr. left several voice-mail messages on
the pager for Trenkler.
Testimony from government investigators and Shay
Sr. established that the Roslindale bomb was a remote-
control, radio-activated device with an explosive force
supplied by two or three sticks of dynamite connected to two
electrical blasting caps. A black wooden box weighing two or
three pounds and measuring approximately eight- to ten-inches
long, five- to six-inches wide and one- to two-inches deep
housed the bomb. A large donut-shaped magnet and several
smaller round magnets attached to the box were used to secure
the device to the underside of Shay Sr.'s automobile. Other
components used in the construction of the bomb included duct
tape, a "single throw" toggle switch, four AA batteries, five
nine-volt batteries, a Futaba radio receiver, solder, various
wires, and a slide switch.
According to the government's experts and Shay Sr.,
the bomb was originally attached to the undercarriage of Shay
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Sr.'s automobile directly beneath the driver's seat. The
government's explosives expert testified that if the bomb had
exploded while still attached to the car, it probably would
have killed or at least seriously injured any individual
sitting in the driver's seat.
The government also asserted that Trenkler used
Shay Jr. to purchase the electronic components used in the
bomb. In support of this assertion, the government
introduced a sales receipt for a toggle switch purchased in
October 1991 at a Radio Shack store located across the street
from where Trenkler, at the time, was installing a satellite
dish.4 Agents from the Bureau of Alcohol, Tobacco and
Firearms ("ATF") recovered from the debris of the Roslindale
bomb a switch identical to the one purchased. Shay Jr.
admitted purchasing the switch during a taped television
interview, portions of which the government introduced at
trial.5 Furthermore, a sales clerk at the Radio Shack
testified that, prior to purchasing the switch, the person
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4. Trenkler has an extensive background in electronics. At
the time of the Roslindale bomb, he operated his own business
installing satellite dishes and other electronic equipment.
5. The Radio Shack sales receipt has the letters "sahy jyt"
printed in a space for the customer's address and lists the
customer's "ID" number (the last four digits of the
customer's phone number) as "3780." The government maintains
that this corroborates Shay Jr.'s statement that he purchased
components for the bomb because "sahy" is a transposition of
"Shay" and "3780" is a transposition of "7380," the last four
digits of Shay Sr.'s phone number.
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who bought it had browsed in the store for several minutes,
appearing to shop for items written on a list. The sales
clerk also testified that he recalled seeing Trenkler in the
store on two or three occasions during the fall of 1991.
Both the government and Trenkler elicited testimony
from their respective explosives experts explaining the
similarities and differences between the two bombs. Both
experts testified at length concerning the electronic
designs, the choice of components and the method of
construction. The government's expert opined that the two
incidents shared many similar traits and characteristics,
evincing the "signature" of a single bomb maker. He further
stated that he had no doubt "whatsoever" that the same person
built both bombs. Trenkler's expert, on the other hand,
stated that too many dissimilarities existed to conclude that
the same person built both bombs. Moreover, Trenkler's
expert testified that the similarities that existed lacked
sufficient distinguishing qualities to identify the two bombs
as the handiwork of a specific individual.
EXIS Computer Database Evidence
EXIS Computer Database Evidence
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To support the inference that Trenkler built both
bombs, the government offered testimony both at the pretrial
hearing and at trial concerning information retrieved from an
ATF computer database of explosives and arson incidents.
Stephen Scheid, an Intelligence Research Specialist with ATF,
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testified that the database, known as EXIS, contains
information taken from reports submitted to ATF by various
federal, state and local law-enforcement agencies. Scheid
further testified that he had been personally responsible for
maintaining the database since 1977. Scheid stated that he
reviews submitted incident reports, culling from them
information describing the characteristics of each bombing or
arson episode. Scheid added that he then encodes the
extracted information on a standardized worksheet, which he
or a data-entry person in turn uses to enter the information
into the database.
Scheid testified that, through the use of a
computer program, he then produces investigatory leads by
retrieving all incidents entered in the database that are
listed as possessing a specific component or characteristic.
Scheid further testified that, in an effort to identify the
builder of the Roslindale bomb, he performed a series of
computer queries, focusing on characteristics of the
Roslindale bomb. This series of inquiries narrowed the field
of reported incidents in the database from 40,867 to seven.6
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6. The computer queries and the total number of resulting
incidents are listed below. The queries are successive.
All incidents in database - 40,867
Bombings and attempted bombings - 14,252
Involving cars and trucks - 2,504
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The seven remaining incidents included both the Roslindale
and Quincy bombs. Scheid stated that he subsequently
conducted a manual analysis of the remaining incidents and
was able to identify several additional characteristics
common to only the Roslindale and Quincy bombs.7
Scheid also testified that the report of the Quincy
bomb did not come to his attention through normal procedures.
Scheid did not receive information about the 1986 Quincy
bomb, nor enter any information pertaining to it into the
EXIS database, until after the Roslindale incident in 1991.8
Other Trial Evidence
Other Trial Evidence
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The government also offered the testimony of David
Lindholm to establish that Trenkler had built the Roslindale
bomb. Lindholm testified that he met Trenkler at the
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Under vehicles - 428
Remote-control - 19
Using magnets - 7
7. Scheid testified that, of the seven remaining incidents,
only the Roslindale and the Quincy bomb were reported as
possessing all of the additional features: duct tape,
soldering, AA batteries, toggle switches, and "round"
magnets.
8. Scheid testified that, in entering information about the
Quincy bombing into the EXIS database, he relied solely on a
laboratory report prepared in 1986 by investigators from the
Massachusetts Department of Public Safety. This report,
however, does not state that the Quincy bomb was attached to
the underside of the Capeway truck. It only refers to the
bomb as an "[e]xplosion on truck." Nevertheless, Scheid used
"under vehicle" as one of the computer queries that matched
the Quincy and Roslindale bombings.
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Plymouth House of Correction where they had spent four days
incarcerated together in an uncomfortable orientation holding
cell in December 1992. Lindholm testified that initially the
cell had held about forty-four prisoners, but that eventually
the total number of prisoners in the cell dwindled to six or
seven. Lindholm added that he had numerous conversations
with Trenkler over the course of the four days as they
gradually "bonded" upon discovering that they came from the
same home town and had similar backgrounds.
Lindholm testified that he gave Trenkler legal
advice based on his own experience as a criminal defendant.
Lindholm acknowledged that Trenkler initially asserted his
innocence and had maintained that he could not understand why
Shay Jr. had implicated him in the case. Lindholm testified
further that Trenkler later told him that the government knew
that some of the components used in the Roslindale bomb had
been purchased locally and that, in response, Lindholm opined
that the bomber had been careless not to have gone out of
state. To this, Trenkler agreed and then stated that the
local purchase was "regrettable."
In addition, Lindholm recalled that at one point
during the four days they discussed Trenkler's involvement
with the 1986 Quincy bomb. Lindholm testified that, during
this discussion, Trenkler asserted that the Roslindale bomb
was much more powerful than the bomb he had built in 1986.
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Ultimately, Lindholm stated that Trenkler admitted building
the Roslindale bomb, testifying that:
[Lindholm:] At one point he stated,
["W]ell, even if I did build a bomb, I
did not place it on the car.["]
[Government:] What happened next?
[Lindholm:] Then he paused for a moment
and said, ["S]o, I built the bomb. I
built the bomb. I don't deserve to die
or spend the rest of my life in prison
for building this device.["]
Lindholm added further that Trenkler "stated that the two
bomb squad officers were foolish and negligent for not
wearing body armor at the time that they were examining this
device, and in essence that it served them right for what
happened to them. It wasn't his fault."
At the time of trial, Lindholm was serving
sentences stemming from convictions on federal drug and tax
evasion charges. Lindholm testified that he had not received
nor discussed receiving anything from the government in
return for his testimony. On cross examination, Trenkler's
counsel made only a minimal effort to impeach Lindholm,
raising matters unrelated to his testimony implicating
Trenkler. Primarily Trenkler's counsel attempted to
challenge Lindholm's assertion that, as a small boy, he had
at one time lived on the same street as Trenkler and to show
that Lindholm was at the Plymouth House of Correction in
December 1992 in order to provide information to the
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government on other individuals with whom he had been
involved in past criminal activities.
In addition to Lindholm's testimony, ATF Agents
Dennis Leahy and Thomas D'Ambrosio recounted a November 6,
1991, interview they conducted with Trenkler shortly after
the bombing. During this interview, Trenkler admitted
building the Quincy bomb and sketched a circuit diagram
describing it. After making the sketch, Agent D'Ambrosio
asked Trenkler how the diagram would differ if Trenkler had
used dynamite like that utilized in the Roslindale incident.
Both agents testified that, in response to this question,
Trenkler drew a second diagram, which featured two sticks of
dynamite connected to two electrical blasting caps. Both
agents added that they were surprised when they saw the
diagram because the use of two electrical blasting caps was a
distinctive feature of the Roslindale bomb that, at the time
of the interview, had not been disclosed to the public.9 At
trial, Leahy also related other conversations he had with
Trenkler in which Trenkler conveyed a working knowledge of
dynamite and electrical blasting caps.
Leahy further testified about a statement Trenkler
made to him at the ATF offices on February 4, 1992. Leahy
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9. Although the agents conducted the interview during a
search of Trenkler's place of business (to which Trenkler had
consented), neither agent attempted to keep the drawing and,
consequently, it was not produced at trial.
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explained that Trenkler had come to the offices on his own
accord to pick up previously-seized business records. Leahy
stated that, during his visit, Trenkler engaged Leahy in a
long discussion, lasting more than two hours, about the
course of the investigation. According to Leahy's testimony,
after Leahy had ended the discussion, Trenkler announced
arrogantly upon leaving the ATF offices that "If we did it,
then only we know about it. How will you ever find out . . .
if neither one of us talk[]?"
The jury returned a guilty verdict on all counts of
the indictment. Subsequently, the district court sentenced
Trenkler to concurrent terms of life imprisonment on the
counts of receipt of explosive materials and attempted
malicious destruction of property by means of explosives and
sixty months on the count of conspiracy. Trenkler now
appeals.
II.
II.
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Discussion
Discussion
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On appeal, Trenkler assigns error to the admission
of the Quincy bomb evidence, contending primarily that the
incident was not sufficiently similar to the Roslindale bomb
to be relevant on the issue of identity, and to the admission
of the EXIS database-derived evidence that the government
used to prove the similarity of the two bombs. Trenkler
additionally argues that the district court erroneously
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admitted several out-of-court statements made by Shay Jr. We
discuss each argument in turn.10
A. Quincy Bombing Evidence
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We begin with Trenkler's contention that the
district court erred in admitting the evidence of the Quincy
bombing.
1. Fed. R. Evid. 404(b): Other Act Evidence
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In general, Rule 404(b)11 proscribes the use of
other bad-act evidence solely to establish that the defendant
has a propensity towards criminal behavior. Rule 404(b)'s
proscription, however, is not absolute: the rule permits the
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10. Trenkler also raises the issue of prosecutorial
misconduct. Trenkler contends that counsel for the
government intentionally made inflammatory remarks in the
government's opening statement and introduced prohibited
other-act evidence in contravention of representations
previously made to the district court. We find no merit in
these contentions.
11. Fed. R. Evid. 404(b) provides:
(b) 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,
provided that upon request by the
accused, the prosecution in a criminal
case shall provide reasonable notice in
advance of trial, or during trial if the
court excuses pretrial notice on good
cause shown, of the general nature of any
such evidence it intends to introduce at
trial.
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use of such evidence if it bears on a material issue such as
motive, knowledge or identity. In this Circuit, we have
adopted a two-part test for determining the admissibility of
Rule 404(b) evidence. E.g., United States v. Williams, 985
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F.2d 634, 637 (1st Cir. 1993). First, the district court
must determine whether the evidence has some "special
relevance" independent of its tendency simply to show
criminal propensity. E.g., United States v. Guyon, 27 F.3d
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723, 728 (1st Cir. 1994). Second, if the evidence has
"special relevance" on a material issue, the court must then
carefully conduct a Rule 40312 analysis to determine if the
probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice. Williams, 985
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F.2d at 637. As with most evidentiary rulings, the district
court has considerable leeway in determining whether to admit
or exclude Rule 404(b) evidence. Accordingly, we review its
decision only under the lens of abuse of discretion. Id.;
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see also United States v. Fields, 871 F.2d 188, 196 (1st
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Cir.), cert. denied, 493 U.S. 955 (1989).
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12. 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.
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2. Identity
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The government offered the evidence of the Quincy
bomb, which Trenkler admitted building, primarily to prove
that Trenkler also built the Roslindale bomb. The government
contends that the evidence of the Quincy bomb has "special
relevance" on the issue of identity because the numerous
similarities surrounding the Quincy and Roslindale incidents
compel the conclusion that the same individual built both
bombs. Trenkler, on the other hand, argues that the Quincy
incident is too dissimilar to be relevant on the issue of
identity, and even if it has some relevance, the risk of
unfair prejudice that it poses far outweighs its probative
value. We agree with the government that the Quincy bomb
evidence has "special relevance" on the issue of identity and
that the district court did not abuse its considerable
discretion in admitting it.
a. Rule 404(b) Evidence: Special Relevance
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When, as in this case, Rule 404(b) evidence is
offered because it has "special relevance" on the issue of
identity, we have required, as a prerequisite to admission, a
showing that there exists a high degree of similarity between
the other act and the charged crime. See United States v.
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Ingraham, 832 F.2d 229, 231-33 (1987), cert. denied, 486 U.S.
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1009 (1988). Indeed, the proponent must demonstrate that the
two acts exhibit a commonality of distinguishing features
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sufficient to earmark them as the handiwork of the same
individual. Id. at 231. This preliminary showing is
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necessary because
[a] defendant cannot be identified as the
perpetrator of the charged act simply
because he has at other times committed
the same commonplace variety of criminal
act except by reference to the forbidden
inference of propensity. The question
for the court[, therefore, must be]
whether the characteristics relied upon
are sufficiently idiosyncratic to permit
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an inference of pattern for purposes of
proof.
United States v. Pisari, 636 F.2d 855, 858-59 (1st Cir. 1981)
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(internal quotations and citations omitted) (emphasis added).
Resolving whether the prior act is sufficiently
similar to the charged offense to have "special relevance" on
the issue of identity, however, is essentially an issue of
"preliminary" or "conditional" fact. In other words, the
prior act has no tendency to prove the perpetrator's identity
-- i.e., it is not relevant -- unless the proponent can first
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establish the conditional fact: that the two acts are
sufficiently idiosyncratic to support the inference that they
are the handiwork of the same individual. The admissibility
of evidence whose relevance turns on the resolution of a
conditional fact is governed by Fed. R. Evid. 104(b). See
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Huddleston v. United States, 485 U.S. 681, 689 (1988). Rule
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104(b) provides, "When the relevancy of evidence depends upon
the fulfillment of a condition of fact, the court shall admit
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it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the
condition." Fed. R. Evid. 104(b). Moreover,
[i]n determining whether the Government
has introduced sufficient evidence to
meet Rule 104(b), the trial court neither
weighs credibility nor makes a finding
that the Government has proved the
conditional fact by a preponderance of
the evidence. The court simply examines
all the evidence in the case and decides
whether the jury could reasonably find
the conditional fact . . . by a
preponderance of the evidence.
Huddleston, 485 U.S. at 690. Thus, as here, when a party
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seeks to admit Rule 404(b) evidence to establish identity,
the district court must condition its admission on a showing
that the shared characteristics of the other act and the
charged offense are sufficiently idiosyncratic that a
reasonable jury could find it more likely than not that the
same person performed them both.13
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13. Huddleston involved the use of Rule 404(b) evidence to
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prove knowledge in a case where the petitioner, charged with
the knowing possession of stolen video tapes, claimed that he
did not know the tapes were stolen. 485 U.S. at 683. In
order to prove knowledge, the government introduced evidence
of the petitioner's previous involvement in sales of
allegedly stolen television sets. The Supreme Court rejected
the petitioner's contention that, before admitting the
evidence, the district court was required to make a
preliminary finding that the government had proven that the
television sets were in fact stolen. Id. at 687.
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The Court stated that "Rule 404(b) . . . protects
against the introduction of extrinsic act evidence when that
evidence is offered solely to prove character. The text
contains no intimation, however, that any preliminary showing
is necessary before such evidence may be introduced for a
proper purpose." Id. at 687-88. The Court continued,
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Trenkler contends that the array of similarities
between the two incidents amounts to no more than a
collection of "prosaic commonalit[ies that] cannot give rise
to an inference that the same person was involved in both
acts without reference to propensity." United States v.
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Garcia-Rosa, 876 F.2d 209, 225 (1st Cir. 1989), cert. denied,
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493 U.S. 1030, cert. granted and vacated on other grounds sub
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nom., Rivera-Feliciano v. United States, 498 U.S. 954 (1990).
____ ________________ _____________
However, in resolving whether the evidence supports an
inference that the two incidents are "sufficiently
idiosyncratic," we have cautioned that "an exact match is not
necessary." Ingraham, 832 F.2d at 232. The test must focus
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on the "totality of the comparison," demanding not a
"facsimile or exact replica" but rather the "`conjunction of
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stating, "If offered for such a proper purpose, the evidence
is subject only to general strictures limiting admissibility
such as Rules 402 and 403." Id. at 688.
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The Court then stated that evidence of the prior
sales was relevant for the proper purpose of proving
knowledge only if the jury could find the preliminary fact
that the televisions were stolen. Id. at 689. Thus, the
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Court held that Rule 104(b) controlled the admissibility of
the evidence. Id.
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Though the issue here arises in a slightly
different context, we think that Huddleston provides the
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appropriate framework for our analysis. Here, the government
offered the Quincy bomb evidence for the proper Rule 404(b)
purpose of identity. The relevance of the Quincy bomb on the
issue of identity turns, however, on the factual question of
whether the Roslindale and the Quincy bombings are
sufficiently similar to earmark them as the handiwork of the
same individual. This is analogous to whether the television
sets in Huddleston were stolen, and, accordingly, Rule 104(b)
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sets the framework for admissibility.
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several identifying characteristics or the presence of some
__
highly distinctive quality.'" Id. at 232-33 (quoting Pisari,
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636 F.2d at 859) (emphasis added); see also United States v.
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Myers, 550 F.2d 1036, 1045 (5th Cir. 1977) ("[A] number of
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common features of lesser uniqueness, although insufficient
to generate a strong inference of identity if considered
separately, may be of significant probative value when
considered together."). In this case, we think the balance
of the evidence tilts sufficiently towards admission to
satisfy the first step of the Rule 404(b) analysis.
Accordingly, we believe that the district court did not abuse
its discretion in determining that the numerous similarities
in components, design, and technique of assembly, combined
with the similar modus operandi and the closeness of
_____ ________
geographic proximity between the two events, sufficiently
support the inference that the same person built both bombs.
We begin by noting that the government's explosives
expert, Thomas Waskom, testified that his analysis of the
similarities shared by the two incidents left him with no
doubt "whatsoever" that the same individual built both bombs.
Our own review of the record reveals that the two bombs did
indeed share a number of similar components and
characteristics. Both bombs were remote-controlled, radio-
activated, electronic explosive devices. Both were homemade
mechanisms, comprising, in general, electronic components
-21-
21
easily purchased at a hobby store. Both had similar, though
not identical, firing and fusing circuits with separate
battery power supplies for each. Both had switches in their
fusing circuits to disconnect the radio receivers. To
energize their respective radio receivers, both devices
utilized similar power supplies, consisting of four AA
batteries. Both employed many similar components such as
batteries, duct tape, toggle switches, radio receivers,
antennas, solder, electrical tape, and large round speaker
magnets. Moreover, both used a distinctive method (i.e.,
____
twisting, soldering, and taping) to connect some, though not
all, of the wires used.14 Though we hardly find any of
these factors by themselves to be "highly distinctive," the
coalescence of them is fairly persuasive.15 Indeed, even
____________________
14. Though it is unclear from a close reading of the record
just how many of the wires in each bomb employed this
connection method, it is apparent that at least some did.
More interestingly, we note that, before learning that both
bombs had wires that were joined in this fashion, Trenkler's
explosives expert stated that such a method is a "singularly
unique method[] of assembly which individual bomb makers are
very likely to repeat."
15. On the other hand, Trenkler argues that the differences
between the two bombs are more significant. Some of the
differences that Trenkler cites include:
Roslindale Bomb Quincy Bomb
Two or three sticks of Military flash simulator used
dynamite rewrapped in a which produced only minor
magazine page and electrical damage
blasting caps which killed one
officer and severely injured
another -22-
22
Trenkler's expert witness, Denny Kline, testified at the
pretrial hearing that, in light of these similarities, "there
is a possibility, a probability, that maybe there is a
___________ _____ __ _
connection between the maker of these two bombs." (Emphasis
__________
added.)
Moreover, we note that, in refusing to conclude
"beyond a reasonable doubt"16 that the same person built
both bombs, Trenkler's expert Kline eschewed reliance on any
factors except the physical evidence. The appropriate test
for sufficient similarity, however, is not so limited. "[I]n
assessing the sufficiency of the evidence under Rule 104(b),
the trial court must consider all evidence presented to the
___
jury." Huddleston, 485 U.S. at 690-91 (emphasis added).
__________
Accordingly, we believe some significance is
properly attributed to the simple fact that both incidents
____________________
Futaba remote control system Radio receiver taken from toy
which used a small electrical car
servo motor
"Single throw" toggle switch Relay allowed power to be sent
used to send power to dynamite to explosives; "double throw"
toggle switch used as safety
Five nine-volt batteries Two six-volt batteries
provided power to firing supplied power to firing
system system
Device was housed in a black Device was wrapped in silver
wooden box duct tape
16. As the district court correctly noted in its ruling, the
government is not required to establish "beyond a reasonable
doubt" that the same person built the two bombs. See
___
Huddleston, 485 U.S. at 690.
__________
-23-
23
are bombings. A bombing, in and of itself, is, arguably, a
fairly distinctive method for intimidating or killing an
individual. Cf. United States v. Patterson, 20 F.3d 809, 813
___ _____________ _________
(10th Cir. 1994) (in a hijacking case, uniqueness of crime
itself has significance in Rule 404(b) similarity analysis),
cert. denied, 115 S. Ct. 128 (1994); Pisari, 636 F.2d at 858
_____ ______ ______
("[M]uch more is demanded than the mere repeated commission
of crimes of the same class, such as repeated burglaries or
thefts. The device used must be so unusual and distinctive
___ ______ ____ ____ __ __ _______ ___ ___________
as to be like a signature." (quotations and citations
__ __ __ ____ _ _________
omitted)). In addition, both incidents involved not simply
bombs, but remote-control bombs that were placed underneath
automotive vehicles.
In both instances, the bombs were constructed and
used to benefit a friend of the builder. Trenkler built the
Quincy bomb for Donna Shea to use to intimidate the owners of
the Capeway Fish Market, and the evidence supported the
inference that the person who constructed the Roslindale bomb
built it for Shay Jr. to use against his father.
Furthermore, in both instances the builder attempted to
conceal his or her participation by using a third party to
purchase the electronic components used in the explosive
device. In 1986, Trenkler initially waited in his car while
sending Donna Shea's nephew into the electronics store with a
list to purchase the needed components. Similarly, the
-24-
24
evidence supports the inference that the builder of the
Roslindale bomb used Shay Jr. to purchase the needed
components. Finally, the fact that both bombings occurred
within a relatively close geographic proximity must be given
some weight in the analysis.
In United States v. Pisari, 636 F.2d 855 (1st Cir.
_____________ ______
1981), we reversed the district court's decision to admit
evidence of a prior robbery solely on the issue of identity,
where the only similarity between it and the charged offense
was that a knife was used. Similarly, in Garcia-Rosa, 876
___________
F.2d at 224-25, we refused to sanction the admission of a
prior drug transaction where the only characteristic linking
it to the charged drug deal was the characteristic exchange
of a sample of drugs prior to the sale. In Garcia-Rosa, we
___________
held that a single "prosaic commonality" was insufficient "to
give rise to an inference that the same person was involved
in both acts without reference to propensity." Id. at 225.
___
See also United States v. Benedetto, 571 F.2d 1246, 1259 (2d
___ ____ _____________ _________
Cir. 1978) (no signature where shared characteristic is
merely "a similar technique for receiving the cash: the
passing of folded bills by way of a handshake").
In the present case, however, the government
presented more than a single "prosaic commonality." Indeed,
the government propounded a laundry list of similarities in
design, component selection, construction and overall modus
_____
-25-
25
operandi. On the other hand, Trenkler offered a fairly
________
impressive list of differences between the two incidents. In
the absence of one or more highly distinctive factors that in
themselves point to idiosyncracy, we must examine the
combination of all the factors. Had Trenkler been unable to
point to any significant differences, we suspect he would
have had little chance in establishing an abuse of discretion
in allowing the evidence. Similarly, had the government
found but three or four common characteristics to establish
sufficient similarity, we doubt that the admission of the
evidence would have been granted or sustained. Here, in the
middle, with substantial evidence on either side and
conflicting expert opinions, could a reasonable jury have
found it more likely than not that the same person was
responsible for both bombs? We think the answer is yes. See
___
Ingraham, 832 F.2d at 233 (admitting evidence)("[G]iven the
________
host of important comparables, the discrepancies -- though
themselves not unimportant-- go to the weight of the
challenged evidence, not to its admissibility.").17
____________________
17. As we explain infra in part II.A., we believe that the
_____
district court erred in admitting the EXIS database evidence
on the issue of idiosyncratic similarity. Our review of the
record, however, convinces us that the EXIS evidence did not
weigh significantly in the court's decision to admit the
evidence of the Quincy bomb. Cf. United States v. Gallo, 20
___ _____________ _____
F.3d 7, 14 (1st Cir. 1994) (abuse of discretion occurs when,
inter alia, improper factor is accorded significant weight).
_____ ____
-26-
26
b. Rule 404(b) Evidence: Probative Value and
______________________________________________
Unfair Prejudice
________________
Resolving that the district court did not abuse its
discretion in determining that a rational jury could infer
that it was more likely than not that the same person built
both bombs, however, does not end the analysis. We must also
review the trial court's determination that the probative
value of the evidence was not substantially outweighed by the
risk of unfair prejudice. Several factors weigh heavily in
this balancing, such as the government's need for the
evidence, see Fields, 871 F.2d at 198 (quoting Fed. R. Evid.
___ ______
404(b) advisory committee's note), the strength of evidence
establishing the similarity of the two acts, see Huddleston,
___ __________
485 U.S. at 689 n.6, the inflammatory nature of the evidence,
and the degree to which it would promote an inference based
solely on the defendant's criminal propensity, see United
___ ______
States v. Rubio-Estrada, 857 F.2d 845, 851-52 (Torruella, J.,
______ _____________
dissenting) (explaining inherent unfair prejudice in evidence
of prior bad acts).
We believe the district court acted well within its
broad discretion in admitting the evidence. First, the
evidence was important to the government's case. The
evidence that Trenkler had built the Quincy bomb corroborated
David Lindholm's testimony, identifying Trenkler as the
builder of the Roslindale bomb. Second, although the
-27-
27
evidence of similarity could have been more compelling, it
was nonetheless substantial: Indeed, the government's
explosives expert testified that he had no doubt "whatsoever"
that the same person designed and constructed both bombs.
On the other hand, we disagree with the district
court that the evidence did not pose any risk of unfair
prejudice.18 As with all "bad act" evidence, there is
always some danger that the jury will use the evidence not on
the narrow point for which it is offered but rather to infer
that the defendant has a propensity towards criminal
behavior. Nonetheless, outside the context of propensity,
the evidence was not unduly inflammatory. The Quincy bomb
did not kill or injure any individual and caused little
property damage. Moreover, the district court minimized any
risk of unfair prejudice by carefully instructing the jury
not to use the evidence of the Quincy bombing to infer
Trenkler's guilt simply because he was a bad person or
because the fact he had a built a bomb in the past made it
more likely he had built the bomb in this case. In sum, we
believe that the district court did not abuse its discretion
in determining that the probative value of the Quincy bomb
____________________
18. In ruling on the evidence, the district court stated,
inter alia, "The evidence of the [Quincy] bomb is without
_____ ____
question prejudicial in the sense that it will likely harm
the defendant. That is not the test, however, the question
is whether it is unfairly prejudicial. It is not."
-28-
28
evidence was not substantially outweighed by the risk of
unfair prejudice.19
B. EXIS Database Evidence
__________________________
Trenkler contends that the district court erred in
admitting under the residual hearsay exception, Fed. R. Evid.
803(24),20 testimony about the results of the search of the
____________________
19. Trenkler also contends that the district court abused
its discretion in admitting the Quincy bomb evidence to prove
knowledge, skill, and intent. With respect to the issues of
knowledge and skill, we find little merit in Trenkler's
argument. Obviously, the fact that Trenkler had in the past
built a remote-control bomb has some relevance on whether he
possessed the skill and knowledge necessary to build the
Roslindale bomb. See United States v. Latorre, 922 F.2d 1, 8
___ _____________ _______
(1st Cir. 1990), cert. denied, 502 U.S. 876 (1991).
_____ ______
Furthermore, because the evidence was otherwise admissible to
show identity, allowing the government to use it to show
skill and knowledge, posed no additional risk of unfair
prejudice. Trenkler's contention with respect to intent
stands on firmer ground. We have some difficulty
comprehending (and the government does not clearly
articulate) any theory of "special relevance" tending to show
intent that does not depend heavily on an inference of
propensity. See United States v. Lynn, 856 F.2d 430, 436
___ _____________ ____
(1st Cir. 1988) (error to admit evidence on intent where
inference depends on propensity). Nonetheless, because the
evidence was properly admitted to show identity, knowledge
and skill, any error in its admission to show intent is
harmless. See Benavente Gomez, 921 F.2d at 386 (harmless
___ _______________
error if it is "highly probable" the error did not contribute
to the verdict).
20. Fed. R. Evid. 803 provides:
The following are not excluded by the
hearsay rule, even though the declarant
is available as a witness:
. . .
(24) Other Exceptions
(24) Other Exceptions
A statement not specifically covered
by any of the foregoing exceptions but
having equivalent circumstantial
guarantees of trustworthiness, if the
-29-
29
EXIS database. He maintains that the district court erred
because the underlying reports composing the EXIS database
lack sufficient guarantees of trustworthiness to fall within
the residual hearsay exception. We agree that the district
court erred in admitting the evidence, but find the error
harmless.
The government offered the EXIS-derived testimony
as tending to show that the Roslindale and Quincy bombs
evinced the signature of a single bomb maker. Specifically,
the government offered it as an affirmative assertion that,
out of more than 14,000 bombing and attempted bombing
incidents, only the Roslindale and the Quincy incidents
possessed in common all of the queried characteristics. The
district court admitted the EXIS-derived testimony under the
____________________
court determines that (A) the statement
is offered as evidence of a material
fact; (B) the statement is more probative
on the point for which it is offered than
any other evidence which the proponent
can procure through reasonable efforts;
and (C) the general purposes of these
rules and the interests of justice will
best be served by admission of the
statement into evidence. However, a
statement may not be admitted under this
exception unless the proponent of it
makes known to the adverse party
sufficiently in advance of the trial or
hearing to provide the adverse party with
a fair opportunity to prepare to meet it,
the proponent's intention to offer the
statement and the particulars of it,
including the name and address of the
declarant.
-30-
30
residual hearsay exception, finding that it was "sufficiently
reliable." In reaching this conclusion, the court noted that
the EXIS database was used and relied upon "by law
enforcement authorities on a regular basis." The government
asserts that the district court did not err in admitting the
testimony because, in general, the underlying reports were
"written objective reports" summarizing careful field and
laboratory investigations that the court could permissibly
find to be particularly worthy of belief such that
"adversarialtesting ... wouldaddlittle to[their]reliability."
Initially, it is evident that whether or not
particular evidence may be admitted under the residual
hearsay exception is a fact-specific inquiry committed in the
first instance to the sound discretion of the district court.
United States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988),
______________ ___
cert. denied, 490 U.S. 1049 (1989). We accord great
_____ ______
deference to the district court's determination, reviewing it
only for an abuse of discretion. E.g., United States v.
____ ______________
Benavente Gomez, 921 F.2d 378, 384 (1st Cir. 1990).
________________
Nevertheless, we will overturn a district court's
determination if, upon careful review, we are left with a
"definite and firm conviction that the court made a clear
error of judgment" in its decision to admit the testimony.
Id. (internal quotations and citations omitted).
___
-31-
31
Under the residual hearsay exception, the district
court must determine, inter alia, whether the proffered
_____ ____
evidence possesses "circumstantial guarantees of
trustworthiness" equivalent to those possessed by the other
listed exceptions to the hearsay rule. See Fed. R. Evid.
___
803(24); Polansky v. CNA Ins. Co., 852 F.2d 626, 631 (1st
________ _____________
Cir. 1988); cf. 2 Kenneth S. Broun et al., McCormack on
___ ____________
Evidence 324, at 362 (John W. Strong ed., 4th ed. 1992)
________
(equivalent guarantees of trustworthiness is the most
important issue). This trustworthiness inquiry is largely
fact driven, and its focus will vary depending on the context
in which the issue arises. See Brookover v. Mary Hitchcock
___ _________ ______________
Memorial Hosp., 893 F.2d 411, 420 (1st Cir. 1990). A court,
_____________
however, may consider whether the evidence shares reliability
factors (e.g., personal knowledge, lack of bias) common to
the other hearsay exceptions, see 2 McCormack 324, at 362-
___ _________
4, and whether the evidence, but for a technicality, would
otherwise come within a specific exception, see United States
___ _____________
v. Nivica, 887 F.2d 1110, 1126-27 (1st Cir. 1989) (where
______
insufficient foundation laid to admit financial documents
under business records exception, court had discretion to
admit them under residual exception), cert. denied, 494 U.S.
_____ ______
1005 (1990). Essentially, the district court must determine
whether the totality of the circumstances surrounding the
statement establish its reliability sufficiently enough to
-32-
32
justify foregoing the rigors of in-court testimony (e.g.,
live testimony under oath, cross-examination) that ordinarily
guarantee trustworthiness. See Michael H. Graham, Federal
___ _______
Practice and Procedure: Evidence, 6775, at 737-40 (1992)
__________________________________
(courts employ "ad hoc assessment of reliability based upon
the totality of the surrounding circumstances"); cf. United
___ ______
States v. Ellis, 935 F.2d 385, 394 (1st Cir.) (citing Idaho
______ _____ _____
v. Wright, 497 U.S. 805, 819 (1990)) (guarantees of
______
trustworthiness in Confrontation Clause context must be
established from the "totality of circumstances" surrounding
the making of the statement), cert. denied, 502 U.S. 869
_____ ______
(1991).
Because we believe that the government clearly
failed to establish that the EXIS-derived evidence possessed
sufficient "circumstantial guarantees of trustworthiness," we
hold that the district court abused its discretion in
admitting the evidence. As noted above, the district court
rested its decision to admit the testimony, at least in part,
on its finding that law-enforcement agencies use and rely on
the database "on a regular basis." Though we take no issue
with this narrow finding, it is hardly dispositive on the
issue of trustworthiness. That law enforcement authorities
rely on information culled from the database does not, a
_
fortiori, imbue that information with sufficient guarantees
________
of trustworthiness to warrant admission under Rule 803(24).
-33-
33
Indeed, law enforcement authorities often rely on information
during their investigations (e.g., polygraph examinations,
anonymous tips) that would not necessarily be admissible as
evidence. See United States v. Scarborough, 43 F.3d 1021,
___ _____________ ___________
1026 (6th Cir. 1994) (polygraph examinations generally
inadmissible); and Fed R. Evid. 801, 802 (prohibiting hearsay
___
evidence).
More to the point, the government failed to
establish that the reports underlying the database possessed
any guarantees of trustworthiness similar to those found in
the enumerated hearsay exceptions. See generally Fed. R.
___ _________
Evid. 803(1)-(23). Scheid, the government's expert on EXIS,
stated that the database derived from reports submitted by a
variety of federal, state and local law enforcement agencies.
Though Scheid testified extensively on the reliability of the
procedures he followed to cull information from the reports
and subsequently input it into the EXIS database, the
government offered virtually nothing establishing the
reliability of the underlying reports.
On cross-examination, Scheid, who had been solely
responsible for EXIS since 1977, admitted that no agency
outside of the ATF was required by law to send reports to the
EXIS database and that state and local agencies submitting
reports were not required to follow any express procedures or
conform to any specific standards in collecting or recording
-34-
34
the reported information. Indeed, it is far from clear the
extent to which information memorialized in any of the
reports derives from laboratory analyses, on-the-scene
observations of police officers, second-hand descriptions of
the device by layperson witnesses, or some other source. Cf.
___
United States v. Scholle, 553 F.2d 1109, 1123-25 (8th Cir.)
______________ _______
(allowing printouts from Drug Enforcement Administration
("DEA") computer database where database comprised only
chemical analyses performed at regional DEA laboratories),
cert. denied, 434 U.S. 940 (1977).
_____ ______
Scheid further testified that the submitted reports
need not be signed, and that nothing required the author of a
submitted report to have personal knowledge of its contents,
see Fed. R. Evid. 803 advisory committee's note ("In a
___
hearsay situation, the declarant is, of course, a witness,
and neither this rule nor Rule 804 dispenses with the
requirement of firsthand knowledge."); Fed. R. Evid. 803(6)
(business record must be recorded by or from information
supplied by an individual with personal knowledge), or for
that matter to be qualified as a bomb investigator, see
___
Mathews v. Ashland Chem., Inc., 770 F.2d 1303, 1309-10 (5th
_______ ____________________
Cir. 1985); 4 Jack B. Weinstein et al., Weinstein's Evidence,
____________________
803(8)[03], at 803-283 ("Questions of the qualification of
the expert can be raised as one of the circumstances
indicating lack of trustworthiness."); cf. Beech Aircraft
___ ______________
-35-
35
Corp. v. Rainey, 488 U.S. 153, 167 n.11 (1988)
_____ ______
("investigator's skill or experience" is factor establishing
trustworthiness of government evaluative report). Finally,
Scheid admitted that he employed no procedures for verifying
or updating information in the EXIS database that had been
submitted by agencies other than ATF.
The underlying reports, arguably, come closest to
falling within the hearsay exception for public records and
reports, Fed. R. Evid. 803(8). In criminal cases, however,
Rule 803(8) does not authorize the prosecution's use of
investigative reports that contain "matters observed by
police officers and other law enforcement personnel," Fed.
R. Evid. 803(8)(B), or "factual findings resulting from an
investigation made pursuant to an authority granted by law,"
Fed. R. Evid. 803(8)(C). See United States v. Arias-Santana,
___ _____________ _____________
964 F.2d 1262, 1264 (1st Cir. 1992) (police reports offered
by prosecution generally inadmissible); but cf., e.g., United
___ ___ ____ ______
States v. Brown, 9 F.3d 907, 911-12 (11th Cir. 1993) (Rule
______ _____
803(8) does not necessarily prohibit the use of police
records prepared in a routine non-adversarial setting that do
not result from subjective investigation and evaluation),
cert. denied, 115 S. Ct. 152 (1994). Moreover, the exception
_____ ______
provided by Rule 803(8) is further limited by the general
qualification proscribing the use of public records if "the
-36-
36
sources of information or other circumstances indicate a lack
of trustworthiness." Fed. R. Evid. 803(8).
We have noted that Congress intended the residual
hearsay exception to be used "`very rarely, and only in
exceptional circumstances.'" Benavente Gomez, 921 F.2d at
________________
384 (quoting S. Rep. No. 1277, 93d Cong. 2d Sess., 20 (1974),
reprinted in 1974 U.S.C.C.A.N. 7051, 7066); see also Nivica,
_________ __ ___ ____ ______
887 F.2d at 1127 ("Rule 803(24) should be used stintingly").
Moreover, Congress did not intend for the exception "`to
establish a broad license for trial judges to admit hearsay
statements that do not fall within one of the other
exceptions' or `to authorize major judicial revisions of the
hearsay rule.'" Benavente Gomez, 921 F.2d at 384 (quoting S.
_______________
Rep. No. 127). In this case, the government failed to
establish that the reports composing the EXIS database
possessed guarantees of trustworthiness equivalent to the
other exceptions to the hearsay rule. Neither are we
convinced that the totality of circumstances surrounding the
reports adequately assure their reliability where no
standardized procedures were employed in creating the reports
and the sources of the reported information are unknown.
Finally, we find it significant that the government points us
to no case in which it has successfully (or unsuccessfully)
sought to admit EXIS-derived evidence to prove the identity
of a bomb maker. Accordingly, we hold that the district
-37-
37
court abused its discretion in admitting the EXIS-derived
evidence under the residual exception to the hearsay rule to
prove the identity of the builder of the Roslindale bomb.21
____________________
21. Even putting aside our concerns about the reliability of
the underlying reports, we remain, in general, somewhat
troubled by the government's use of the evidence. The
statement that out of more than 14,000 bombing and attempted
bombing incidents in the EXIS database only the Roslindale
and Quincy incidents share the eight specific queried
characteristics (bombings and attempted bombings, attached
under car or truck, remote-control, round magnets, duct tape,
solder, AA batteries, toggle switches) is a fairly powerful
statement, but perhaps a somewhat misleading one.
First, the statement assumes as a necessary
predicate that each of the more than 14,000 EXIS entries
definitively states whether or not the explosive device
described therein actually possessed those characteristics.
We have some doubt about the validity of such an assumption.
In general, bomb reconstruction strikes us as a rather
resource-intensive operation. We can envision circumstances
(e.g., a blast causing little or no injuries or damage, a
____
bomb maker apprehended before reconstruction investigation
complete) where the investigation and the resulting report
might not be nearly as thorough or complete as in the case of
_____
either the Roslindale or the Quincy bombs. Indeed, during
the preliminary hearing both Scheid and Thomas Waskom, the
government's explosives expert, acknowledged that the absence
of an item, such as magnets or batteries, from a post-blast
report meant only that investigators did not recover or
identify the item and not that it was not used.
Second, without further statistical analysis of the
database, we believe the statement that out of more than
14,000 incidents only the Quincy and Roslindale bombs share
the eight queried characteristics is potentially incomplete.
For example, by our count, the EXIS database entry for the
Roslindale incident lists approximately twenty-two
characteristics describing that incident. Nowhere in the
record, however, does the government explain why it chose to
focus on the specific characteristics used to query the
database. It does not suggest that these characteristics are
more important in a bomb-signature analysis than any of the
other characteristics not chosen. Moreover, the government
does not offer any analysis of the significance of the fact
that the Roslindale and the Quincy incidents share the
queried characteristics. In other words, though it is true
that only the Quincy incident shares the eight queried
-38-
38
Although we agree with Trenkler that the district
court erred in admitting the EXIS-derived evidence, we
nonetheless find the error harmless beyond a reasonable
doubt.22 Initially we note that substantial evidence,
beyond Trenkler's participation in the Quincy bombing,
supported a finding that he had built the Roslindale bomb.
Principally, David Lindholm convincingly testified that, in
fact, Trenkler had actually admitted building the Roslindale
bomb. Other admissions by Trenkler made to various law
____________________
characteristics with the Roslindale incident, how many other
incidents share some other set of eight (or more than eight)
characteristics with the Roslindale incident?
Arguably, these concerns go more to the weight of
the evidence than to its admissibility. However, we point
them out here to underscore the caution a district court
should employ in allowing evidence couched in terms of
numerical probabilities. Cf. United States v. Massey, 594
___ _____________ ______
F.2d 676, 679-81 (8th Cir. 1979) (testimony stating
probability of match to be one chance in 4,500 unfairly
confusing where no foundation for statement provided).
22. In general, we review an evidentiary miscue only for
harmless error, dismissing it if "we determine that it is
highly probable that the error did not contribute to the
verdict." Benavente Gomez, 921 F.2d at 386 (internal
________________
quotations and citations omitted). In this case, however,
Trenkler also contends that the erroneously admitted evidence
deprived him of his confrontation rights under the Sixth
Amendment, see U.S. Const. amend VI ("In all criminal
___
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him."). Assuming
arguendo that the admission of the EXIS-derived evidence
________
rises to the level of constitutional error, we accordingly
employ a stricter standard, asking whether we can consider
the error harmless beyond a reasonable doubt. See United
___ ______
States v. Brennan, 994 F.2d 918, 927 (1st Cir. 1993); see
______ _______ ___
also United States v. Argentine, 814 F.2d 783, 788-89 (1st
____ _____________ _________
Cir. 1987) (constitutional errors may not be regarded as
harmless if there is a reasonable possibility that the error
influenced the jury in reaching a verdict).
-39-
39
enforcement officers inferentially corroborated Lindholm's
testimony, specifically Trenkler's sketch of the Roslindale
bomb, drawn shortly after the explosion and conspicuously
featuring two electrical blasting caps. Moreover, Trenkler's
arrogant assertion to Agent Leahy that, "if we did it, then
only we know about it . . . how will you ever find out . . .
if neither one of us talk[]?" provided further corroboration.
Additional support could be inferred from the ample evidence
the government adduced establishing Trenkler's relationship
withShayJr.and hisknowledgeofbothelectronics andexplosives.23
Furthermore, the government offered the EXIS-
derived evidence to prove that the Roslindale and Quincy
bombs were so similar that they evinced the signature of a
single bomb maker, thus, establishing the relevance of the
Quincy bomb evidence on the issue of identity. Our review of
the record, however, convinces us that the EXIS-derived
evidence was not a critical factor in the district court's
decision to admit the Quincy bomb evidence for the purpose of
proving identity. The EXIS-derived evidence was merely
cumulative, corroborating the testimony of the government's
explosives expert who, after testifying in detail about the
____________________
23. We note with some concern our dissenting colleague's
suggestion that, notwithstanding Lindholm's testimony
(elicited by the U.S. Attorney) that the government had not
offered or promised Lindholm any consideration for his
testimony, an implicit quid pro quo nonetheless existed for
____ ___ ___
his cooperation. See infra at 65 n.43. We find nothing in
___ _____
the record to support such an inference.
-40-
40
similarities between the two bombs, stated that he had no
doubt "whatsoever" that the same person built both bombs.24
Moreover, as discussed supra at 20-26, other circumstantial
_____
evidence tending to show that the maker of each bomb used a
similar modus operandi (e.g., both bombs built for a friend,
_____ ________ ____
both bomb makers used third party to acquire needed
components) independently supported the inference that the
same person built both bombs. Finally, even putting aside
whether the jury would have found the two incidents
sufficiently similar to prove identity without the EXIS-
derived evidence, the jury nonetheless would have been able
to consider the fact that Trenkler had designed and built the
Quincy bomb to prove Trenkler's knowledge and skill.
In sum, while the admission of the EXIS-derived
evidence would not have been harmless error if the only other
evidence consisted of the expert's testimony of signature and
the evidence establishing Trenkler's relationship with Shay
Jr. and his electrical and explosive skills, the additional
____________________
24. Our dissenting colleague correctly notes that, in ruling
on the admission of the Quincy bomb evidence, the district
court stated that it was "adding" the statistical evidence to
the expert's testimony. But we differ from his conclusion
that it is "plain" that the district court relied on the
EXIS-derived evidence to form "the critical final link
between the two devices," see infra at 55. Indeed, the
___ _____
court's discussion focuses entirely on the expert testimony,
with only the passing reference at the end to the EXIS
system. In this context, we read the district court to be
saying not that the EXIS evidence was necessary to its
_________
decision, but only that it provided additional support for
it.
-41-
41
presence of several different strong sources of testimony
relating Trenkler's admissions, convinces us that no rational
jury could have entertained a reasonable doubt of Trenkler's
guilt even in the absence of the EXIS-derived evidence.25
C. Shay Jr.'s Out-of-Court Statements
______________________________________
Trenkler additionally asserts that the district
court erred by admitting testimony relating ten out-of-court
statements purportedly uttered by Shay Jr. The statements,
in general, tended to implicate Shay Jr. in the bombing and
to suggest that Shay Jr. had not acted alone. The district
court admitted the statements either as nonhearsay evidence
of Shay Jr.'s state of mind, see Fed. R. Evid. 801(c); 2
___
McCormack 269 at 208, or as falling within the declaration-
_________
against-penal-interest exception to the hearsay rule, see
___
Fed. R. Evid. 804(b)(3). Trenkler argues that the admission
of these statements violated his rights under the
Confrontation Clause.26 We do not agree.
____________________
25. We agree with our dissenting brother that we may find an
error harmless beyond a reasonable doubt only when the other
evidence in the case, "standing alone, provides `overwhelming
evidence' of the defendant's guilt." See infra at 53
___ _____
(quoting Clark v. Morgan, 942 F.2d 24, 27 (1st Cir. 1991)).
_____ ______
In contrast with our colleague, however, we believe that,
when the evidence of Trenkler's participation in the Quincy
bombing, which we do not believe was rendered inadmissible by
the admission of the EXIS-derived evidence, is added to the
"substantial" other evidence of Trenkler's guilt, the
resulting sum is clearly "overwhelming."
26. We do not understand Trenkler to assert that the
district court committed error under the Federal Rules of
Evidence in admitting the statements. Though Trenkler does
-42-
42
In asserting a Confrontation Clause violation,
Trenkler relies primarily on Bruton v. United States, 391
______ ______________
U.S. 123 (1968), in which the Supreme Court held that, in a
joint trial, an instruction to the jury to disregard the
confession of one non-testifying defendant was insufficient
to prevent the confession from unfairly prejudicing the other
defendant. Critical to the Bruton Court's decision was the
______
trial court's undisputed ruling that the confession was
inadmissible against the non-confessing defendant. Id. at
___
128 n.3. Bruton has no application in the present case,
______
however, because the challenged statements here were directly
admissible against Trenkler and, consequently, did not pose
the Bruton risk of spill-over prejudice. In this case, the
______
district court admitted the statements against Trenkler to
establish the existence of the conspiracy.
The Confrontation Clause does not proscribe the use
of all out-of-court statements. See Idaho v. Wright, 497
___ _____ ______
U.S. 805, 813 (1990). In general, nonhearsay statements or
statements not offered to prove the truth of the matter
asserted do not raise Confrontation Clause concerns.
Tennessee v. Street, 471 U.S. 409, 414 (1985); United States
_________ ______ _____________
v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993), cert. denied,
______ _____ ______
____________________
state at one point that the declarations "were erroneously
admitted . . . as statements against Shay Jr.'s penal
interest or of Shay Jr.'s state of mind," he does not explain
this assertion of error except on constitutional grounds.
-43-
43
114 S. Ct. 1224 (1994). Moreover, the Confrontation Clause
does not necessarily prohibit the use of hearsay statements
where the trial court has admitted them pursuant to a
"firmly-rooted" exception to the hearsay rule or has
otherwise found the statements to possess "particularized
guarantees of trustworthiness." See Wright, 497 U.S. at 816
___ ______
(citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)).
____ _______
To the extent that the district court admitted the
statements as nonhearsay evidence, Trenkler's Confrontation
Clause challenge lacks merit. See Street, 471 U.S. at 414.
___ ______
As for the rest, we have strongly suggested previously that
the exception for declarations against penal interest is a
"firmly rooted" exception to the hearsay rule. See United
___ ______
States v. Seeley, 892 F.2d 1, 2 (1st Cir. 1989) ("exception
______ ______
for declarations against penal interest would seem to be
`firmly rooted'"). Trenkler does not challenge this
assumption, nor does he explain why the statements in
question lack "particularized guarantees of trustworthiness."
Accordingly, we are not persuaded that the district court
violated Trenkler's confrontation rights by admitting them.
III.
III.
____
Conclusion
Conclusion
__________
For the foregoing reasons, we affirm Trenkler's
conviction.
-44-
44
Dissent follows.
Dissent follows.
-45-
45
TORRUELLA, Chief Judge, (Dissenting). In my view,
TORRUELLA, Chief Judge, (Dissenting).
___________
the erroneous admission in this case of evidence derived from
the EXIS computer database violated the defendant's Sixth
Amendment right to confront witnesses against him. Contrary
to my brethren, I do not believe that this error was harmless
beyond a reasonable doubt. I therefore dissent.
I.
I.
__
Trenkler admitted to building a device that
exploded in Quincy in 1986. The government's central
strategy at trial27 was to prove that the Quincy device was
so similar to the Roslindale bomb that they had to have been
built by the same person. Stephen Scheid, an Intelligence
Research Specialist with the Bureau of Alcohol, Tobacco and
Firearms ("ATF"), testified that he conducted a computer
query on the ATF's EXIS database28 to identify bomb
incidents which shared certain characteristics with the
Roslindale incident. Based on this analysis, Scheid told the
jury that, out of the 14,252 bombings and attempted bombings
reported in EXIS, only the Roslindale and the Quincy
incidents shared all the queried characteristics.
For a jury reviewing otherwise weak circumstantial
evidence of defendant's guilt (see infra), this is powerful
___ _____
____________________
27. In support of its motion in limine to admit evidence of
the 1986 incident, the government described this evidence as
"the centerpiece of the Government's case in chief."
28. For a description of the EXIS database, see supra p. 8.
_____
-46-
46
stuff -- tangible, "scientific" evidence which seems to
conclusively establish that the same person who made the
Quincy device in 1986 made the Roslindale bomb in 1991.
Unfortunately, as the majority concedes, the reports from
which the EXIS information is derived are utterly unreliable,
thus rendering its conclusion equally unreliable, and, as
will be shown, completely misleading. For three related
reasons, I disagree with the majority's conclusion that
admission of the EXIS-derived evidence was "harmless beyond
a reasonable doubt." First, the EXIS-derived evidence
plainly influenced the district court's decision to allow the
government's motion to admit evidence of the Quincy incident,
under Fed. R. Evid. 404(b), to show that the same person must
have built the Roslindale bomb. Second, the EXIS-derived
evidence was very powerful and very misleading. Third, the
____ ____
other evidence against Trenkler was not "overwhelming," as is
required under our precedent.
II.
II.
___
The majority assumes, without deciding, that
Trenkler's Sixth Amendment right to confront witnesses
against him was violated by introduction of the EXIS-derived
evidence. Supra n.22. As the majority recognizes,
_____
constitutional cases are governed by a stringent harmless
error analysis -- a conviction cannot stand unless the effect
of the evidence is "harmless beyond a reasonable doubt."
____________________________________
-47-
47
Chapman v. California, 386 U.S. 18, 24 (1966) (emphasis
_______ __________
added); United States v. De Jes s-R os, 990 F.2d 672, 678
______________ _____________
(1st Cir. 1993).29 To comprehend why admission of the
EXIS-derived evidence was not harmless beyond a reasonable
doubt, one must understand the nature and extent of the
constitutional violation. Because the majority barely
acknowledges, much less discusses, the constitutional right
at stake in this case, its result appears both analytically
sound and benign. It is neither. I will therefore begin by
explaining why, and to what extent, Trenkler's Sixth
Amendment right to confront witnesses against him was
violated. I will then endeavor to show why this error cannot
be considered harmless.
III.
III.
____
The Confrontation Clause of the Sixth Amendment
provides that, "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him." The Supreme Court has explained that
"[t]he central concern of the Confrontation Clause is to
ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context
____________________
29. Under the standard for analyzing harmless error in a
non-constitutional case, the court will uphold a conviction
provided it can be said "that the judgement was not
substantially swayed by the error." United States v. Flores,
_____________ ______
968 F.2d 1366, 1372 n.7 (1st Cir. 1992) (quoting Kotteakos v.
_________
United States, 328 U.S. 750, 765 (1946)).
_____________
-48-
48
of an adversary proceeding before the trier of fact."
Maryland v. Craig, 497 U.S. 836, 845 (1990); United States v.
________ _____ _____________
Zannino, 895 F.2d 1, 5 (1st Cir. 1990) ("the mission of the
_______
Confrontation Clause is to advance a practical concern for
the accuracy of the truth-determining process in criminal
trials by assuring that the trier of fact has a satisfactory
basis for evaluating the truth of the prior statement")
(quoting Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality
______ _____
opinion)).
Hearsay evidence from an unavailable declarant30
may only be admitted against a defendant in a criminal case
if the government can demonstrate that the proffered evidence
"bears adequate indicia of reliability." Ohio v. Roberts,
____ _______
448 U.S. 56, 66 (1980) (internal quotation marks
omitted).31 The government may satisfy this burden by
____________________
30. For practical purposes, the authors of the over 14,000
underlying EXIS reports were effectively "unavailable" in
this case. See United States v. Inadi, 475 U.S. 387, 394
___ ______________ _____
(1986) (absolute unavailability not constitutionally required
in all cases); Manocchio v. Moran, 919 F.2d 770, 774-76 (1st
_________ _____
Cir. 1990) (same).
31. The majority properly holds that the EXIS-derived
statement -- that out of more than 14,000 bombings and
attempted bombings in the EXIS database only the Roslindale
and Quincy incidents shared the specific queried
characteristics -- is inadmissible totem pole hearsay. That
is, it was based on a host of out-of-court statements (the
14,252 underlying reports submitted by unknown authors)
offered in court for the truth of the matters asserted
therein (the characteristics of those bombings). See Fed. R.
___
Evid. 801. Because we know neither who submitted those
underlying reports, nor under what conditions, the majority
properly holds that the statements do not satisfy any of the
-49-
49
establishing either that the evidence "falls within a firmly
rooted hearsay exception" or by showing that the evidence
possesses "particularized guarantees of trustworthiness."
Id.; accord Idaho v. Wright, 497 U.S. 805, 816-17 (1990)
__ ______ _____ ______
(collecting cases); Manocchio, 919 F.2d at 773. The majority
_________
properly holds that the EXIS-derived evidence satisfies
neither of these criteria, but neglects to fully explain why.
The critical inquiry for determining
"particularized guarantees of trustworthiness" is whether
"the test of cross-examination would be of marginal utility."
Wright, 110 S. Ct. at 3149-50.32 The government in this
______
case, through Scheid, was permitted to introduce the
statement that, out of 14,252 bombing and attempted bombing
incidents in the EXIS database, only the Roslindale and
Quincy incidents share the queried characteristics. The
individuals who reported those bomb incidents were witnesses
against Trenkler, each of them testifying, in effect: "This
bomb incident had the following characteristics . . . ."
Despite the importance of their "testimony," neither Trenkler
nor the jury ever saw any of these witnesses. Trenkler's
attorney was unable to cross-examine these witnesses with
____________________
hearsay exceptions listed in Fed. R. Evid. 803(1)-(24).
32. The residual hearsay exception contained in Fed. R.
Evid. 803(24), under which the EXIS evidence was admitted, is
not a "firmly rooted hearsay exception." See Idaho v.
___ _____
Wright, 497 U.S. 805, 817 (1990); Government of Virgin
______ ______________________
Islands v. Joseph, 964 F.2d 1380, 1387 (3d Cir. 1992).
_______ ______
-50-
50
respect to their credibility and reliability. Because they
were not subject to cross-examination, neither we nor the
jury will ever know, for example, the answers to the
following questions. Were the authors of these reports bomb
experts? Were they even police officers? Did they follow
certain procedures in compiling evidence? In filing their
reports? What criteria did they use for determining that the
device in question was a quote "bomb"? Did they even have
first hand knowledge of the devices, or was the information
provided to them second-hand from lay witnesses? Scheid did
not know the answers to these questions, nor did he have
first hand knowledge of the incidents themselves, supra p.
_____
34, thus making it impossible for Trenkler's attorney to
effectively cross-examine him. Moreover, Scheid admitted
that the bomb reports need not be signed, and that nothing
___________________
required the author of a submitted report to have personal
knowledge of its contents.33
The majority also alludes to a potentially more
pernicious problem concerning the EXIS-derived evidence. The
majority notes that the database entry for the Roslindale
incident lists approximately twenty-two characteristics
____________________
33. Even the majority questions the validity of the EXIS
conclusion that only the Roslindale and Quincy devices share
the same characteristics. As the majority points out,
because we know absolutely nothing about how the underlying
EXIS reports were generated, there is no way to know what the
absence of an item at a bomb site means. Both Scheid and the
government's explosives expert admitted as much. Supra n.21.
_____
-51-
51
describing that incident, but Scheid, inexplicably, chose
only to query ten of those characteristics.34 Supra n.21.
_____
The majority notes that there is nothing to suggest that
these ten characteristics are more important to a bomb-
signature analysis than any of the other characteristics not
chosen. Scheid offers no reason why he chose to query only
certain generic characteristics instead of the more specific
characteristics of the Roslindale bomb, which would be more
evincing of a "signature." For example, the Quincy device
would not have been a match if Scheid had queried any of the
following characteristics of the Roslindale bombing: Futaba
antenna, Rockstar detonator, use of dynamite, nails, glue, 6-
volt battery, slide switch, paint, magazine page, or black
electrical tape. The majority leaves the implication
unspoken. I will not be so discreet. The obvious
implication is that Scheid chose the particular
characteristics in an attempt to find a match with the Quincy
device. This implication is enforced by the fact that,
____________________
34. The queried characteristics were 1) bombings and
attempted bombings; 2) involving cars or trucks; 3) with bomb
placed under the car or truck; 4) using remote-control; and
5) magnets. EXIS listed seven incidents which included these
characteristics. Scheid testified that he then performed a
manual query of the seven incidents using other
characteristics of the Roslindale bombing. He checked the
other incidents to see if they involved 1) duct tape; 2)
soldering; 3) AA batteries; 4) a toggle switch; and 5) round
_____
magnets. Scheid did not check all 14,252 bombings and
attempted bombings for these latter characteristics, only the
seven.
-52-
52
according to Scheid's own testimony, the Quincy incident was
not entered into the database until after the Roslindale
_____
incident. That is, government agents brought the Quincy
bombing to Scheid's attention when they asked him to
investigate the Roslindale bombing.
The majority thinks these concerns go more to the
weight of the evidence than to its admissibility; to the
contrary, they go directly to the question of whether the
evidence has particularized guarantees of trustworthiness
under the Confrontation Clause. They demonstrate that it
does not. Because the reports upon which the EXIS evidence
is based are inherently and utterly unreliable, the EXIS
evidence itself is inherently and utterly unreliable, and
Trenkler's Sixth Amendment right to confront the witnesses
against him was violated. See Wright, 497 U.S. at 805. The
___ ______
question then becomes whether this error was harmless beyond
a reasonable doubt.35
____________________
35. This Circuit has demonstrated that it is not shy about
applying the harmless error rule to sustain a criminal
conviction, but rather, shows a persistent inclination to so
rule. See, e.g., United States v. Romero-Carri n, 1995 WL
___ ____ ______________ ______________
258843 (1st Cir.); United States v. Cotal-Crespo, 47 F.3d 1
_____________ ____________
(1st Cir. 1995); United States v. Smith, 46 F.3d 1223 (1st
_____________ _____
Cir. 1995); United States v. Lewis, 40 F.3d 1325 (1st Cir.
_____________ _____
1994); United States v. Tuesta-Toro, 29 F.3d 771 (1st Cir.
_____________ ___________
1994); Singleton v. United States, 26 F.3d 233 (1st Cir.
_________ ______________
1994); United States v. Isaacs, 14 F.3d 106 (1st Cir. 1994);
_____________ ______
United States v. Welch; 15 F.3d 1202 (1st Cir. 1993); United
______________ _____ ______
States v. Sep lveda, 15 F.3d 1161 (1st Cir. 1993); United
______ _________ ______
States v. Innamorati, 996 F.2d 456 (1st Cir. 1993); United
______ __________ ______
States v. Williams, 985 F.2d 634 (1st Cir. 1993); United
______ ________ ______
States v. Spinosa, 982 F.2d 620 (1st Cir. 1992); United
______ _______ ______
-53-
53
IV.
IV.
___
Under the harmless beyond a reasonable doubt
standard, we must vacate the conviction if there is "some
reasonable possibility that error of constitutional dimension
______________________
influenced the jury in reaching [its] verdict." United States
__________ _____________
v. Majaj, 947 F.2d 520, 526 n.8 (1st Cir. 1991) (emphasis
_____
added) (quoting United States v. Argentine, 814 F.2d 783, 789
_____________ _________
(1st Cir. 1987)). See also United States v. Flores, 968 F.2d
________ _____________ ______
1366, 1372 (1st Cir. 1992). Under this standard, we will
only find harmless error when the untainted evidence,
standing alone, provides "overwhelming evidence" of the
defendant's guilt. Clark v. Moran, 942 F.2d 24, 27 (1st Cir.
_____ _____
1991). In conducting this inquiry, we "must consider the
evidence as a whole, weighing the effect of the tainted
evidence against the effect of that evidence which was
properly admitted." Id. (citing Lacy v. Gardino, 791 F.2d
__ ____ _______
980, 986 (1st Cir.), cert. denied, 479 U.S. 888 (1986)).
_____________
Thus, the relative strength of the tainted evidence -- i.e.,
____________________
States v. Figueroa, 976 F.2d 1446 (1st Cir. 1992); United
______ ________ ______
States v. Tejeda, 974 F.2d 210 (1st Cir. 1992); United States
______ ______ _____________
v. Parent, 954 F.2d 23 (1st Cir. 1992); United States v.
______ ______________
Karas, 950 F.2d 31 (1st Cir. 1991); United States v. Minnick,
_____ _____________ _______
949 F.2d 8 (1st Cir. 1991); United States v. Maraj, 947 F.2d
_____________ _____
520 (1st Cir. 1991); Clark v. Moran, 942 F.2d 24 (1st Cir.
_____ _____
1991); United States v. McMahon, 938 F.2d 1501 (1991); United
_____________ _______ ______
States v. Brown, 938 F.2d 1482 (1st Cir. 1991); United States
______ _____ _____________
v. Ellis, 935 F.2d 385 (1st cir. 1991); United States v.
_____ ______________
Sutherland, 929 F.2d 765 (1st Cir. 1991); United States v.
__________ ______________
Wood, 924 F.2d 399 (1st Cir. 1991); United States v. Paiva,
____ _____________ _____
892 F.2d 148 (1st Cir. 1989).
-54-
54
its potential effect on the jury -- is a highly significant
consideration.
As I see it, there are three related reasons why
admission of the EXIS evidence cannot be considered harmless
beyond a reasonable doubt. First, it is clear to me that the
district court relied on the improper EXIS evidence in its
decision to allow the government to present evidence of the
Quincy incident to the jury to prove identity under Rule
404(b).
At the hearing on its motion in limine to admit
evidence of the Quincy incident under Fed. R. Evid. 404(b),
the government presented the testimony of Scheid, regarding
the EXIS computer analysis, and the testimony of the
government's bomb expert, Waskom, who testified that, in his
opinion, the Quincy and Roslindale devices were so similar
that they must have been built by the same person. In turn,
Trenkler presented expert testimony that the devices were too
different for anyone to be able to determine if they were
built by the same person. After hearing this evidence, the
district court concluded that "the similarities [between the
two incidents] are sufficient to admit the evidence under the
rules established . . . by the First Circuit."
The majority states that, based upon its review of
the record, it is convinced that the EXIS-based evidence "was
not a critical factor in the district court's decision to
-55-
55
admit the Quincy bomb evidence for purposes of identity. The
EXIS-derived evidence was merely cumulative, corroborating
the testimony of the government's explosives expert." Supra
_____
pp. 39-40. Yet the record demonstrates that the district
court judge thought otherwise when she decided to admit
evidence of the 1986 Quincy incident. In her oral opinion on
the government's motion, the district court judge began by
summarizing the testimony of Waskom, and then stated: "Adding
______
to this evidence, the statistical evidence from the EXIS
_________________
system, I am persuaded that the two devices are sufficiently
similar to prove that the same person built them, and thus
relevant to the issues in this case." (emphasis added). The
district court judge did not say that the EXIS evidence
"corroborated" Waskom's testimony. She stated that, when she
adds the EXIS evidence to Waskom's testimony, she becomes
____
convinced that the two devices are sufficiently similar. It
is plain that the district court judge relied on the EXIS
evidence to form the critical final link between the two
devices. Indeed, in arguing its motion, the government chose
to first present the EXIS evidence and then to present the
Waskom testimony, suggesting that it intended the latter to
corroborate the former. The district court's erroneous
determination that the EXIS evidence was admissible led not
only to the jury hearing that evidence, but also to the jury
hearing Waskom's testimony with respect to the two incidents.
-56-
56
I cannot agree, therefore, that admission of this evidence
was harmless beyond a reasonable doubt.
The second reason that admission of the EXIS
evidence cannot be considered harmless is that this type of
"scientific" evidence is too misleading, too powerful, and
has too great a potential impact on lay jurors, to be
disregarded as harmless.
The EXIS-derived evidence was, in the best case
scenario, unintentionally misleading, and, in the worst case
scenario, deliberately skewed. Scheid testified that, in
entering information about the Quincy incident into the EXIS
database, he relied solely on a laboratory report prepared in
1986 by investigators from the Massachusetts Department of
Public Safety. This report does not state that the Quincy
device was attached to the underside of the Capeway truck.
Rather, it refers only to an "[e]xplosion on truck."
Somebody must have given Scheid further information about the
Quincy explosion because he entered "under vehicle" as a
characteristic of the Quincy incident. The majority
acknowledges these facts but, inexplicably, makes no comment.
See supra n.8. These facts are important for three reasons.
___ _____
First, they illustrate the fallibility of the underlying
reports. How many of the other 14,232 reports had similar
defects? Second, they illustrate how easily one wrong or
incomplete entry can affect a query result. If Scheid had
-57-
57
actually followed the report, the Quincy incident would not
have matched the Roslindale bombing because Scheid's query
entry was for a bomb "under vehicle."36 Finally, these
facts indicate that the EXIS test was skewed (whether
intentionally or unintentionally) to find a match between the
Quincy and Roslindale incidents.37
The EXIS-derived evidence is also misleading
because it focuses the jury's attention on the trees instead
of the forest. By focusing on similar minor aspects between
the two devices -- e.g., duct tape, magnets and soldering --
the majority completely brushes aside the fact that the
central and most important ingredient in the two devices is
fundamentally different. The central ingredient in a bomb,
one would think, is the explosive content (in much the same
way that the central ingredient in a high-performance car is
the engine). The Roslindale bomb used two to three sticks of
dynamite -- a very powerful explosive. The Quincy device
________
used an M-21 Hoffman artillery simulator, which is a device
____________________
36. The majority acknowledges that "[t]he statement that out
of more than 14,000 bombing and attempted bombing incidents
in the EXIS database only the Roslindale and Quincy incidents
share the eight specific queried characteristics (bombings
and attempted bombings, attached under car or truck, remote-
control, round magnets, duct tape, solder, AA batteries,
toggle switches) is a fairly powerful statement, but perhaps
_________________________________________
a somewhat misleading one." Supra n.21 (emphasis added).
_________________________ _____
37. As discussed previously, there is other evidence (i.e.,
the suspect nature of Scheid's query choices) which tends to
show that the EXIS query may have been skewed to reach a
predictable result. See supra pp. 50-51.
___ _____
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used by the military to simulate, in a safe fashion, the
_________________________________
flash and noise of artillery. The simulator is, in effect, a
firecracker-like device; it has no where near the strength of
dynamite. In stark contrast to dynamite, a simulator is not
designed to cause physical or property damage. Indeed, while
the Roslindale device created an explosion large enough to
kill, the Quincy device caused no visible damage to the truck
it was placed under. Equating the two devices is like
equating a BB gun with a high caliber rifle.38
The misleading nature of the EXIS-derived statement
is compounded by the nature of its source, and the way in
which it was presented to the jury. Not only is it rank
hearsay evidence, it is hearsay evidence wrapped in a shroud
of "scientific" authenticity. This is not a paid government
expert testifying that, in his opinion, the two devices were
______________
built by the same person; this is a computer declaring that
________
the two devices were built by the same person. Computers
deal in facts,39 not opinions. Computers are not paid by
____________________
38. Federal authorities apparently did not deem the Quincy
incident serious enough to warrant bringing charges against
Trenkler pursuant to 18 U.S.C. 844(i) (malicious
destruction of property by means of an explosive), one of the
statutes at issue in this case. State charges stemming from
the Quincy incident were dismissed.
39. Of course, the facts generated by the computer are only
as accurate and reliable as the facts fed into it by its
operator. As the majority recognizes, in this case the facts
fed into the computer were, unbeknownst to the jury,
manifestly unreliable. Thus, its conclusion based on those
facts is similarly unreliable.
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one side to testify. Computers do not have prejudices. And
computers are not subject to cross-examination. Moreover,
the chart of the EXIS queries performed by Scheid, and the
printouts of the results of those queries, were introduced
into evidence and presented as exhibits to the jury.
Consequently, the jury had this misleading, physical evidence
with them in the jury room during deliberations.40 Does it
not stand to reason that the lay juror will accord greater
weight to a computer's written findings than to the testimony
of a government expert witness? The common-sense answer is,
of course.41
____________________
40. Common sense tells us that lay jurors often will lend
more weight to tangible evidence than to oral testimony. See
___
generally 22 C. Wright & Graham, Federal Practice and
_________ ______________________
Procedure, 5173 (1978) ("It is often asserted that the
_________
psychological impact of the concrete has a capacity to
suggest matters not proved, to lead the jury to draw
unconscious inferences that would not be drawn if the object
was the subject of testimony rather than being produced in
court.") (internal citations omitted). See also People v.
___ ____ ______
Moore, 525 N.E.2d 460, 463 (N.Y. 1988) (Kaye, J., dissenting)
_____
("No point in a trial can be more critical than jury
deliberations. Materials taken into the jury room at those
crucial moments may well influence the verdict.").
41. As one commentator has noted:
Scientific evidence impresses
lay jurors. They tend to
assume it is more accurate and
objective than lay testimony.
A juror who thinks of
scientific evidence visualizes
instruments capable of
amazingly precise measurement,
of findings arrived at by
dispassionate scientific tests.
In short, in the mind of the
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The majority decision in this case not only defies
common sense, it is also contrary to our precedent. In De
__
Jes s-R os, 990 F.2d 672, we held that the defendant's due
__________
process rights were violated when the district court admitted
certain identification testimony by a witness.
Significantly, we concluded that the error was not harmless
beyond a reasonable doubt, even though another witness
testified at trial that he also had identified the defendant.
Rather than concluding, as the majority does here, that the
one erroneously admitted identification was "merely
cumulative" of the other, the court reasoned:
[T]here is no way for us to discern the
role that Rivera's identification played
in the jury's deliberations. We are
concerned that the jury may have been
______________
persuaded to convict by the very fact
_________________________________________
that there were two witnesses who
____________________________________
identified [the defendant]. It is also
possible that the jury relied solely upon
the testimony of Rivera in reaching its
____________________
typical lay juror, a scientific
witness has a special aura of
credibility.
Imwinkelried, Evidence Law and Tactics for the Proponents of
_______________________________________________
Scientific Evidence, In Scientific and Expert Evidence 33, 37
______________________________________________________
(E. Imwinkelried ed. 1981). See also Giannelli, The
_________ ___
Admissibility of Novel Scientific evidence: Frye v. United
_____________________________________________
States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1237
_____________________
(1980) ("The major danger of scientific evidence is its
potential to mislead the jury; an aura of scientific
infallibility may shroud the evidence and thus lead the jury
to accept it without critical scrutiny."); 22 C. Wright &
Graham, supra note 41, 5217 ("Scientific . . . evidence has
_____
great potential for misleading the jury. The low probative
worth can often be concealed in the jargon of some expert . .
.").
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conclusion. Thus, we find reasonable
doubt exists as to whether the jury would
have convicted [the defendant] based
solely upon Mejias's identification
testimony.
Id. at 678 (emphasis added). Is it not equally plausible
__
that the jury in this case "may have been persuaded to
convict" by the very fact that two "witnesses" -- Waskom and
the EXIS-derived evidence -- identified the builder of the
Quincy device as the builder of the Roslindale bomb? Is it
not also equally plausible that the jury relied solely upon
______
the EXIS-derived evidence in reaching its conclusion?
Because the EXIS-derived statement came from a computer, and
was presented in tangible, exhibit form, it is more powerful
and seemingly credible evidence to a lay jury than the
testimony of a human being. The jury may well have relied on
the EXIS-derived evidence to break the tie between the
competing experts. This is particularly so since, as the
trial judge noted, defendant's expert witness had
"considerably more experience in making . . . signature
comparisons." Since the EXIS-derived evidence could well
have been "the clincher" for the jury, it cannot be
considered harmless beyond a reasonable doubt. See Coppola
___ _______
v. Powell, 878 F.2d 1562 (1st Cir. 1989).
______
The third reason that admission of the EXIS
evidence is not harmless beyond a reasonable doubt is that
the other evidence against Trenkler was not "overwhelming."
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See Clark, 942 F.2d at 27. The majority points to a
___ _____
conglomeration of other testimony in support of its
conclusion that there was "substantial evidence" of
Trenkler's guilt, independent of the Quincy incident. The
test, of course, is not whether there is "substantial
evidence" of Trenkler's guilt but whether there is
"overwhelming evidence" of Trenkler's guilt. The two
____________
standards are qualitatively and quantitatively different. In
any case, I will begin by addressing Trenkler's "statements"
to government agents.
ATF Agent D'Ambrosio testified that he asked
Trenkler to draw a sketch of the Quincy device, which
Trenkler did. D'Ambrosio then told Trenkler that the
Roslindale bomb also used remote control, but that, rather
than a firecracker type device, it used dynamite. D'Ambrosio
asked Trenkler how, in light of these facts, the wiring
diagram he had just drawn for the Quincy device would have
been different for the Roslindale bomb. D'Ambrosio testified
that Trenkler then drew a diagram which showed two blasting
caps inserted into two sticks of dynamite. The majority
considers this significant evidence of Trenkler's guilt
because the fact that the Roslindale bomb used blasting caps
had not been publicly disclosed. The majority fails to note,
however, that D'Ambrosio actually testified that at least two
________
blasting caps were used in the Roslindale bombing. Thus,
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Trenkler's drawing of only two blasting caps was not an exact
match. Moreover, the jury heard evidence that Trenkler had
extensive knowledge of both electronics and explosives, so it
is not necessarily significant that Trenkler was able to
reconstruct an aspect of the Roslindale bomb, particularly
considering the information concerning the bomb provided to
Trenkler by D'Ambrosio. Trenkler merely identified that
blasting caps were a likely way in which a bomb of this size
and power would be constructed. In the absence of any
testimony that the use of blasting caps is unusual or unique
(a proposition which is highly unlikely), the jury could only
speculate as to the significance of the drawing.
The majority also finds significance in ATF Agent
Leahy's testimony that Trenkler said to him: "If we did it,
then only we know about it . . . how will you ever find out .
. . if neither one of us talk[]?" The majority paints this
statement in a confessional light. This testimony may or may
not have been of some circumstantial relevance to the jury
(although standing alone, of course, it would not be
sufficient to sustain a conviction). But, upon review, when
the court is looking for "overwhelming evidence of guilt,"
one would think the court would not have to resort to this
sort of an ambiguous, taunting statement.42 Similarly, the
____________________
42. In Coppola, for example, we lent little weight to
_______
defendant's statement to another inmate -- "What did I have
to lose?" -- in response to a question whether he had
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court notes that there was evidence that Trenkler and Shay
knew each other, and that Trenkler had knowledge of both
electronics and explosives. While the jury might consider
this type of circumstantial evidence relevant, it can hardly
be said that it does much in the way of providing
"overwhelming evidence" of defendant's guilt. Cf. United
__ ______
States v. Innamorati, 996 F.2d 456, 476 (1st Cir. 1993)
______ __________
(holding that the erroneous admission of inculpatory grand
jury testimony was harmless beyond a reasonable doubt when
seven people testified at trial that defendant was engaged in
_____
marijuana and cocaine dealing, and drugs and money were found
in defendant's constructive possession).
The majority relies most heavily on the testimony
of David Lindholm, who testified that Trenkler confessed to
building the Roslindale bomb. But Lindholm had some serious
credibility problems which make his testimony "shaky," to say
the least. Lindholm testified that he met Trenkler while
Lindholm was serving a 97-month sentence for conspiracy to
distribute marijuana and tax evasion. He further testified
that he was in the marijuana business from approximately 1969
through 1988, and that he did not pay any income taxes during
that time. Lindholm also testified that, in order to secure
bank loans to purchase property during that period, he showed
several banks false income tax returns. On the basis of
____________________
committed the rape. See 878 F.2d at 1569-70.
___
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Lindholm's shady past alone, the jury might have completely
disregarded his testimony.
But Lindholm also had some less obvious credibility
problems. The circumstances of his meeting Trenkler strike
me as a little too coincidental. On December 17, 1992, after
a year and a half incarceration in Texas, Lindholm is brought
back to Boston concerning certain unspecified charges related
to his conviction. He is then placed in the orientation unit
at the Plymouth House of Correction where he meets Alfred
Trenkler, who is being held in connection with the Roslindale
bombing. The two subsequently discover that they have an
extraordinary amount in common. First, they are both from
the town of Milton, Massachusetts. Second, Trenkler attended
Thayer Academy and Milton Academy, and Lindholm's father also
attended Thayer Academy and Milton Academy. Third, they both
lived for a time -- overlapping by one year -- on White Lawn
Avenue in Milton. Based on these commonalities, and
Lindholm's generosity in sharing his knowledge of the
criminal justice system with Trenkler, they form a
friendship. Trenkler then, allegedly, confesses to Lindholm
that he built the bomb.
In my view, a reasonable juror might question
whether Lindholm was placed in the orientation unit by the
government for the purpose of obtaining a confession from
Trenkler. If so, that juror would likely wonder what
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Lindholm got in return. Not surprisingly, Lindholm testified
that he had no agreements with the government and that he did
not receive any promises or inducements for his
testimony.43 He did testify on cross-examination, however,
that he knew, when he provided the information about Trenkler
to the government, that the only way his 97-month sentence
could be reduced was if he supplied new information to the
government.44
We do not know how much weight the jury gave
Lindholm's testimony, but we do know that, at least on paper
-- for we did not observe his demeanor at trial -- Lindholm
____________________
43. If the government makes an explicit promise to a
witness, of course, this will come out at trial and likely
decrease the witness's credibility in the eyes of the jury.
But if the government lawyers explain to the witness why they
do not want to make any explicit promises, leaving the
inference that one good deed begets another, the witness can
testify that he has no agreement. I note, in this regard,
that this court has previously questioned the validity of
these "no agreement" statements by criminal defendants. See,
___
e.g., Coppola, 878 F.2d at 1569-70.
____ _______
44. When asked on direct examination why he testified,
Lindholm stated:
Since I have been incarcerated, I have
come to realize that the sole function of
prison is not just punishment. I think
rehabilitation is important for an
individual. And I think, when I talk
about rehabilitation, I mean
rehabilitation of a person's values in
terms of how they live one's life and the
decisions they make, knowing the
decisions they make, knowing the
difference between what's wrong and
what's right, what's illegal and legal.
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had some significant credibility problems. Consequently, I
cannot conclude beyond a reasonable doubt that the jury would
have believed his testimony; particularly in a case such as
this where there is absolutely no physical evidence tying
_________________________________
Trenkler to the bombing. Cf. Coppola, 878 F.2d at 1571
__ _______
(discounting inculpatory testimony of three jail inmates
because it "raises serious questions of credibility" and
noting the absence of any conclusive physical evidence tying
the defendant to the crime). The only evidence coming near
thatlevelofreliability wastheimproperlyadmitted EXISevidence.
Absent the EXIS-derived evidence, the government's
case against Trenkler consists of a smorgasbord of
inconclusive circumstantial evidence and an inherently
unreliable alleged jailhouse confession. Faced with this
sort of evidence, a reasonable jury would probably look for
some sort of tangible evidence upon which to hang its hat.
The EXIS-derived evidence was just that. Because it was the
only ostensibly conclusive evidence tying Trenkler to the
crime, it may have been the clincher for the jury. See
___
Coppola, 878 F.2d at 1571. It was therefore not harmless
_______
beyond a reasonable doubt.
V.
V.
__
A horrible crime was committed in which one police
officer was killed and another seriously injured. Society
rightfully demands that the guilty be apprehended, tried, and
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punished. But the distinguishing feature of our legal system
is that even those charged with grotesque crimes are
guaranteed certain constitutional rights intended to ensure
that they receive a fair trial. Unfortunately, and with all
due respect to my brethren, I believe the defendant's right
to a fair trial was violated when the government was
permitted to introduce the highly prejudicial evidence
derived from the EXIS computer database. Because this error
so severely violated defendant's Sixth Amendment right to
confront the witnesses against him, and because the remainder
of the evidence against him was not "overwhelming," I
dissent.
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