1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-25-1994

United States v. Himelwright

Precedential or Non-Precedential:

Docket 94-7206

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Recommended Citation

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-7206 

 ___________ 

 UNITED STATES OF AMERICA 

 vs. 

 RICHARD C. HIMELWRIGHT 

 Appellant. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

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

 ___________ 

 ARGUED SEPTEMBER 12, 1994 

 BEFORE: STAPLETON, ALITO and LEWIS, Circuit Judges. 

 (Filed November 25, 1994) 

 ___________ 

GREGORY L. LENSBOWER (ARGUED) 

Stonesifer & Kelley 

209 Broadway 

Hanover, PA 17331 

 Attorney for Appellant

KIM D. DANIEL (ARGUED) 

Office of the United States Attorney 

Federal Building 

228 Walnut Street 

P.O. Box 11754 

Harrisburg, PA 17108 
 Attorney for Appellee

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 Richard Himelwright was indicted on September 7, 1993, 

and charged with two counts of Interstate Threats and 

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

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

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

Himelwright filed a motion in limine seeking to bar testimony 

regarding his purchase and possession of two firearms, claiming 

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

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

By Memorandum Opinion dated November 12, 1993, the district court 

 

1. 18 U.S.C. § 875(b) provides: 

 Whoever, with intent to extort from any person, 

firm, association, or corporation, any money or 

other thing of value, transmits in interstate 

commerce any communication containing any threat 

to kidnap any person or any threat to injure the 

person of another, shall be fined not more than 

$5,000 or imprisoned not more than twenty years, 

or both. 

2. 18 U.S.C. § 875(c) provides: 

 Whoever transmits in interstate commerce and 

communication containing any threat to kidnap any 

person or any threat to injure the person of 

another, shall be fined not more than $1,000 or 

imprisoned for more than five years, or both. 
denied the motion, finding that the firearms evidence was 

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

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

of his plan or preparation. Memorandum Opinion at 5. 

Himelwright was subsequently convicted and sentenced to 18 months 

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

Himelwright appeals. 

I. 

 We have jurisdiction over this appeal pursuant to 

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

erred in admitting testimony concerning Himelwright's purchase 

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

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

motion and vacate Himelwright's conviction. 

 II. 

 Prior to his arrest on September 8, 1993, Himelwright 

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

Office in York, Pennsylvania. Several months before the events 

which lead to his arrest occurred, Himelwright had been found 

guilty of driving under the influence of alcohol, a conviction 

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

privileges, jeopardized his continued employment as a truck 

 

3. The 18 month sentence was imposed after the district court 

downwardly departed from the 37-46 month guideline range. The 

downward departure was based on the fact that Himelwright "made 

threatening phone calls to an answering machine, not an actual 

person, and the answering machine was for a[] . . . hotline 

designed to assist employees." United States v. Himelwright, No. 

93-222-01 (M.D. Pa. March 30, 1994)(order of judgment). 
driver. In anticipation of having his license suspended, 

Himelwright applied for several non-driving jobs with the Postal 

Service. Because he had two daughters who lived with their 

mother in Moorhead City, North Carolina, Himelwright focussed his 

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

 One of the positions Himelwright sought was in 

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

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

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

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

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

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

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

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

the post office in Lancaster, Pennsylvania. Either because he 

was approximately two hours late, or because the Postal Service 

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

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

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

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

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

was no longer an option. 

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

1993, Himelwright placed several telephone calls to two Postal 

 

4. Himelwright also applied for custodial position in Raleigh, 

North Carolina, where his transfer reassignment form was received 

on August 30, 1993. 
Service hotlines in Washington, D.C., from his home in York. He 

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

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

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

Because it was received after business hours, his call was 

answered by an answering machine. Himelwright made the following 

statement: 

 Hello, my name is Richard C. Himelwright, 866 

Tioga Street, York, PA. Case No. 1610. I 

requested y'all to give me a letter from 

Lancaster where they stated they were going 

to give me the test by July 1st. Y'all won't 

respond to that. That's fine and dandy. Now 

this is August 30th, 8:20 p.m., the hurricane 

is gonna hit in the next four hours, where my 

daughters live in Moorhead City, North 

Carolina, and y'all ain't doing shit about 

getting my transfer. Now I'm very, very, 

irate here, this ain't a threat, but I shot 

on too many rifle teams, and I'm tired of 

being jerked around. Now you all ain't 

giving me no help at all, none whatsoever. 

You won't return no phone call all of a 

sudden, nobody's doing nothing. You told me 

that Lancaster said, "Oh yeah, you gonna have 

the test by July 1st." Wrong. I didn't get 

it until July 9th and then it was postponed 

'til July 12th. Oh, that's not your fault, 

that's my fault, right? Wrong. I lost that 

transfer to Florence. Now I'm trying for 

Raleigh, North Carolina. Now I'm tellin' 

y'all right now, if I don't get that 

transfer, there's gonna be some shit! Cause 

I'm tired of playing games with y'all. I'm 

tired of playin', I don't even know if my 

daughters is gonna make it through the night. 

I can't even get through. The lines are 

dead. I don't even know where my daughters 

are right now. They live in Moorhead City, 

North Carolina, where the storm is supposed 

to hit between now and midnight, and y'all 

ain't done shit for me. You got me so (sob) 

freakin' upset. Oh, never mind, you ain't no 

help. 
 Himelwright then called the Postal Inspection Service 

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

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

Roberto S. Lloyd contacted Himelwright, who explained his 

predicament and, in the process, stated: 

 I am irate and upset because I'm getting 

shafted. Someone better do something now 

because I'm getting tired of it now. . . . I 

want to be with my daughters but the Postal 

Service is saying, "Fuck You!" . . . If 

something happens to these children, someone 

is going down the tubes. . . . I was a 

policeman in North Carolina and a weapons 

specialist in the Marine Corps. Why is 

everybody messing with me? They worry about 

shootings in the Post Office, they should 

worry about me if anything happens to my 

children because of the hurricane. Shit will 

hit the fan; this is not a threat but a 

promise. 

 About one-half hour later, Himelwright called the EAP 

Hotline again and left another lengthy message. He once again 

made threatening remarks and expressed his frustration about the 

Florence position as well as his concern that his children might 

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

President, Henry P. Dennis, Jr. Himelwright told Dennis: 

 Henry, I really blew it this time. I really 

blew it big time. My job's down the tubes. 

I just called the Postal Inspectors and 

spilled my guts. I told them everything from 

Bill Runkel to them screwing around with my 

transfer to North Carolina. I feel like 

coming in there and blowing everybody away. 

You don't have to worry, I don't want you. 
Dennis called the York Post Office receptionist and warned her 

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

call 911. 

 The next day, a group of Postal Inspectors gathered at 

the York Post Office. They contacted Himelwright and asked him 

to come into the Post Office to be questioned. Himelwright 

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

accompanied by a uniformed police officer. After he executed a 

written waiver of his Miranda rights, the inspectors asked 

Himelwright whether he owned any firearms. He produced two 

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

Thompson-Center Contender pistol. The inspectors confiscated the 

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

EAP and Crimes hotlines the night before. Himelwright admitted 

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

the inspectors that he had made the calls after consuming alcohol 

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

charges mentioned above followed. 

III. 

 When deciding whether to admit "other acts" evidence 

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

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

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

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

under Rule 403 the probative value of the evidence outweighs its 

prejudicial effect. United States v. Sampson, 980 F.2d 883, 886 

(3d Cir. 1992). The trial court has significant leeway in making 
both determinations. Id. at 886. We, therefore, would 

ordinarily review the district court's evidentiary rulings for an 

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

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

its reasons for doing so are not otherwise apparent from the 

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

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

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

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

the record and perform the required balancing ourselves. 

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

(3d Cir. 1993). 

 Federal Rule of Evidence 404(b) provides: 

 Evidence of other crimes, wrongs or acts is 

not admissible to prove the character of a 

person in order to show that he acted in 

conformity therewith. It may, however, be 

admissible for other purposes, such as proof 

of motive, opportunity, intent, preparation, 

plan, knowledge, identity or absence of 

mistake or accident. 

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

of admissibility, United States v. Scarfo, 850 F.2d 1015, 1019 

(3d Cir. 1988), we have expressed our concern that, although the 

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

reasons proffered to admit prior act evidence may often be 

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

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

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

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

proponent must clearly articulate how that evidence fits into a 

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

inference that the defendant has the propensity to commit the 

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

proffered evidence tends to prove some fact besides character, 

admissibility depends upon whether its probative value outweighs 

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

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

court must weigh the probative value of the evidence against its 

potential to cause undue prejudice. Id. at 1272. 

 With these familiar principles of admissibility and 

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

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

Himelwright's possession and purchase of the firearms in 

question. 

IV. 

 The district court found that Himelwright's purchase 

and possession of firearms clearly constituted "other acts," 

whose admissibility is governed by Rule 404(b). Memorandum 

Opinion at 3. The government offered two theories of 

 

5. Fed.R.Evid. 403 provides: 

 Although relevant, evidence may be excluded 

if its probative value is substantially 

outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the 

jury, or by considerations of undue delay, 

waste of time, or needless presentation of 

cumulative evidence. 
admissibility: first, to rebut any claim by Himelwright that he 

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

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

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

turn. 

A. 

 In order to admit evidence under the "intent" component 

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

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

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

1057, 1060 (5th Cir. 1976). 

1. 

 In Count III of the indictment, Himelwright was charged 

with transmitting a wire communication with the intent to injure 

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

correctly determined that to establish a violation of this 

section, the government bore only the burden of proving that 

Himelwright acted knowingly and willfully when he placed the 

threatening telephone calls and that those calls were reasonably 

perceived as threatening bodily injury. The government bore no 

burden of proving that Himelwright intended his calls to be 

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

the threats. United States v. Cox, 957 F.2d 264, 266 (6th Cir. 

1992); United States v. DeAndino, 958 F.2d 146, 148-49 (6th Cir. 

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

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

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

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

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

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

and willfulness. 

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

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

the government attempted to connect one of the exceptions 

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

which Himelwright was charged. To appreciate the error in this 

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

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

argument lies in the unavoidable distinction between the general 

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

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

believe the government's true aim in offering the firearms 

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

requires proof of a defendant's general intent to threaten 

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

another or the present ability to carry out the threat. United 

States v. Holder, 302 F. Supp. 296, 300 (D. Montana 1969), aff'd

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

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

The government, however, offered no evidence showing a connection 

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

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

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

government did not need to establish that Himelwright had the 

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

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

Himelwright's intention to accomplish these things, which the 

government sought to establish through his possession of the 

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

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

 At best, the fact that Himelwright was found in 

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

indicative of his capability to carry out the threats. Evidence 

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

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

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

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

the specific exceptions listed in the Rule, character evidence 

which is offered to prove the likelihood that the defendant 

committed the particular crime is nevertheless inadmissible. 

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

the government sought to convince the jury that Himelwright's 

capability to carry out the threats or to injure, demonstrated 

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

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

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

actually something different; it was to portray Himelwright as a 

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

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

charged. 

 Accordingly, we conclude that the forbidden purpose 

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

-- the likelihood that Himelwright committed the offense based on 

an inference of his intent drawn from evidence pertaining to his 

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

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

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

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

important distinction between the use of character evidence to 

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

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

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

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

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

may easily be seen as a disguised attempt to accomplish precisely 

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

defendant intended to do that with which he or she stands 

charged. 

2. 

 We reach a different conclusion -- applying a somewhat 

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

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

only required to prove that Himelwright knowingly and willfully 

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

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

handguns entitled the jury to conclude that he acted with the 

specific intent to extort a job transfer when he communicated the 

threats. 

 We agree that a plausible argument could be made that 

the fact that Himelwright was capable of carrying out the threats 

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

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

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

conveying an extortionate threat. Conceivably, despite the fact 

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

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

handguns in his house that Himelwright was more likely to have 

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

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

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

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

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

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

that Himelwright was more likely to have understood his 

communication to be a threat of violence. 

 

6. The jury may have regarded this link in the chain of logic 

as being foreclosed by the judge's instructions. While he told 

the jury that it could consider whether the presence of the 

handguns was "probative as to whether defendant intended to make 

threats," he also instructed that the presence of the handguns 

"may not be used to conclude that the defendant had the ability 

to carry out his alleged threat." We have been unable to 

perceive any chain of logic from the presence of the handguns to 

the required intent that does not involve this apparently 

prohibited link. 
 But even assuming arguendo that Himelwright's gun 

possession is marginally relevant to the specific intent to 

extort, we nevertheless find that the probative value of the 

firearms evidence was substantially outweighed by the resulting 

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

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

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

conduct the requisite balancing of interests under the Rule. For 

present purposes, however, because we conclude that the evidence 

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

deciding, that Himelwright's possession of the firearms was 

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

Rule 404(b). 

B. 

 In addition to arguing that the firearms evidence was 

admissible as proof of intent, the government contended that the 

firearms evidence was admissible under the "plan" and 

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

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

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

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

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

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

transfer demands. But this argument fails to acknowledge that at 

the time Himelwright initiated the purchase of the revolver, he 

had no way of knowing that he would experience difficulty in 

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

articulate as the very foundation for admissibility of prior bad 

act evidence, rendering the links which remain inherently and 

inevitably flawed. To carry the metaphor further, it is 

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

inference that because the defendant committed the prior act, it 

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

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

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

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

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

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

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

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

unsuccessful in obtaining the transfer. 

 We believe the relevant time frame with respect to a 

plan or preparation is the time between the purchase of the 

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

calls.7 The government did not present any evidence of 

 

7. See United States v. Philibert, 947 F.2d 1467 (11th Cir. 

1991). In reviewing a district court's admission of evidence 

concerning Philibert's purchases of weapons and ammunition two 

months prior to making threatening telephone calls to his 

supervisor, the Eleventh Circuit stated: 

 . . . we fail to perceive, any possible relevance, 

on the question of whether appellant did or did 

not place a threatening phone call . . . on 

August 11, 1989, of the fact that two months 

earlier he had purchased certain firearms. 

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

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

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

government offer any evidence connecting the purchase of the 

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

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

the impetus for the calls was a hurricane which Himelwright 

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

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

Postal Service was responsible for his inability to respond to an 

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

imply that this constituted any justification for Himelwright's 

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

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

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

firearms. The meaning to be ascribed to the transcripts, 

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

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

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

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

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

purchased the revolver. While such a conjectural leap might 

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

attenuated and devoid of evidence of any connection to one 

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

(..continued) 

 
 V. 

 Even if we were to accept that the government's 

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

inquiry would not end there because the trial court failed to 

determine and to articulate whether the probative value of the 

firearms evidence outweighed its prejudicial effect under Rule 

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

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

court engages in a Rule 403 balancing and articulates on the 

record a rational explanation for its determination, we will 

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

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

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

measure of deference we might otherwise accord is lessened, and 

we may undertake to examine the record ourselves and conduct the 

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

 Our review of the record compels us to conclude that 

even if the firearms evidence had been admissible under Rule 

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

prejudicial effect under Rule 403 would have rendered it 

inadmissible in any event. 

 Initially, it is impossible to overlook the powerful 

impact of this type of evidence on the questions whether the 

telephone calls were, indeed, sufficiently threatening to satisfy 

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

whether Himelwright made them with the intent to extort a job 

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

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

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

circumstances surrounding his failed attempt to secure a transfer 

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

inferences could be drawn from these evidentiary links, each of 

which bore some logical relevance to the criminal charges 

Himelwright faced. But to compound that evidence by asking the 

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

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

invite a degree of prejudice which outweighed the probative value 

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

 The government dwelled upon the guns at great length 

when presenting its evidence and making its closing argument. At 

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

called by the government to testify about the transaction. He 

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

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

government also tendered testimony from the man who helped 

complete the paperwork associated with the sale of the revolver. 

He testified that Himelwright did not take possession of the 

revolver until approximately July 1, when all background checks 

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

postal inspectors who visited Himelwright the day after the 

telephone calls and solicited testimony that the two handguns 

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

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

concerning the handguns: 

 We know, ladies and gentlemen, that less 

than a week [after telephoning the EAP 

Hotline for assistance in arranging a 

custodial worker's examination], Mr. 

Himelwright bought a gun. He bought a .38 

caliber revolver. He bought it from William 

Kiehl. 

 Mr. Kiehl testified and the firearms 

dealer that was involved in the transfer, 

Greg Flinchbaugh, testified. They told about 

how Mr. Himelwright inspected the gun and 

bought it that night for $120.00 cash. He 

told you how the paperwork was filled out so 

that Mr. Himelwright could get legal 

ownership of that gun. But for some reason, 

Mr. Himelwright never personally appeared 

before Mr. Flinchbaugh. 

 The question has been raised why a .38 

caliber revolver? Several explanations have 

been offered. One, Mr. Himelwright wanted to 

use it for target practice. Two, he was a 

gun collector. Three, he wanted to give the 

gun as a gift to Bonnie, his girlfriend. 

 But you heard the testimony. Is a short 

barrel, a two and a half inch barrel .38 

caliber revolver a gun that is normally used 

for target shooting? No, it is too 

inaccurate. It is not a gun used by target 

shooters. 

 A gun collector? Mr. Himelwright wasn't 

a gun collector. He had two guns, but he 

wasn't a gun collector. 

 And giving it as a gift to Bonnie Irvin 

[his girlfriend]? You heard her testimony. 

Bonnie Irvin never shot that gun. In fact, 

she told you she never even held it. 

 Why a .38 caliber? We know Mr. 

Himelwright was a police officer for six 

years in North Carolina. Thirty-eight 

caliber revolvers are handguns that are 
normally used by police departments. As Mr. 

Himelwright repeatedly told you, he was a 

weapons specialist. He was a cop. He knew 

about guns. He knew how to handle them. He 

went out and bought a .38 caliber revolver. 

That gun wasn't for anybody else except for 

Richard Himelwright's use. 

Appellant's App. 99a-100a. 

 The object, or at least effect, of this 

disproportionate emphasis by the prosecution, we believe, was to 

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

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

of the public.8

 Moreover, the manner in which this evidence was used at 

trial exacerbated the error of its admission: the prosecutor was 

permitted to introduce into evidence, and display before the 

 

8. Himelwright's two-day trial took place on November 15 and 

16, 1993, following a series of well publicized shooting sprees 

by postal workers. See, e.g., Workers Kill Workers; Yet Again, 

Violence in the Post Office, New York Times, May 9, 1993, Sec. 4, 

at 2; Inside Post Offices, the Mail is Only Part of the Pressure, 

New York Times, May 15, 1993, at A1; Postal Study Aims to Spot 

Violence-Prone Workers, New York Times, July 1, 1993, at A9. As 

reported in the New York Times on August 3, 1993, "There have 

been at least 11 shooting incidents involving aggrieved 

emotionally disturbed postal workers in the United States in the 

last decade with 35 people killed and 18 wounded." Police Arrest 

Postal Worker in Pistol Threat to His Wife, New York Times, 

Aug. 3, 1993, at B5. 

 We believe the government's portrait of Himelwright as the 

stereotypical violence-prone postal worker had serious potential 

for prejudice to him in two different ways. First, it had the 

potential for frightening the jury into ignoring evidence that 

otherwise might have raised a reasonable doubt about whether he 

intended a serious threat. Second, if the jury was persuaded 

that Himelwright was violence-prone by character, it might have 

inferred that he intended violence in this particular instance. 

That inference is precisely what Rule 404(b) prohibits. 
jury, the firearms themselves. Such a method of introduction is 

not proscribed. But because of the remote connection between the 

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

display of weaponry was far more prejudicial than probative under 

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

not invited, the jury to draw impermissible inferences which 

might well have deprived Himelwright of a fair trial.9

VI. 

 For the reasons set forth above, we conclude that 

evidence of Himelwright's purchase and possession of firearms 

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

 

9. We note that the district court gave the following 

precautionary instruction: 

 Ladies and gentlemen, the mere fact that the 

defendant had purchased or possessed firearms may 

not be used to conclude that the defendant had the 

ability to carry out his alleged threat. You will 

recall I said that is not an element of the 

offense. 

 Nor may you conclude from the fact of the purchase 

or possession that the recipient of the 

defendant's statements took them as threats. You 

may consider whether these facts are probative as 

to whether defendant intended to make threats. 

Government's App. 45-46. 

 Although this instruction reflect's the district court's 

apparent understanding of the potential for undue prejudice to 

Himelwright, it does not cure the error in the first instance in 

not conducting the balancing of interests which Rule 403 

requires, and which should have lead to the exclusion of 

Himelwright's possession and purchase of the firearms. United 

States v. Sampson, 980 F.2d 886, 889 (3d Cir. 1992) (Rule 403 

requires the district court to evaluate evidence in the context 

of the developing case). 
plan or preparation to commit the crimes charged, or of 

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

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

relevant to his intent to extort, we nevertheless conclude that 

the admission of the firearms evidence violated Rule 403. We 

further find that the district court erred by not performing the 

balancing analysis in response to the Rule 403 objection. 

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

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

and remand for further proceedings consistent with this opinion.