FALL 2007

Computer Law

 
Course No.  9200 711 001
Th 6:30 - 9:30 p.m.
Room W-214
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu, dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2004, 2007   Jay Dratler, Jr.   For permission, see CMI.
 

United States v. Trenkler



61 F.3d 45 (1st Cir. 1995)

Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

[*47] STAHL, Circuit Judge.

* * *

I.

Background

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 [*48] 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. 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.

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 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 conclusion that Trenkler had designed and built both devices. Prior to trial, the government filed a motion in limine 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. (1)

1986 Quincy Bomb

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 and detonated in the middle of the night. The resulting bomb blast caused no injuries and little property damage.

* * *

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

The government contended that Trenkler built the Roslindale bomb at Shay Jr.'s request. [*49]

At trial, the government offered evidence about Trenkler's relationship 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. * * *

According to the government's experts and Shay Sr., the bomb was originally attached to the undercarriage of Shay 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.(2) 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.(3) Furthermore, a sales clerk at the Radio Shack testified that, prior to purchasing the switch, the person 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

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 [*50] an ATF computer database of explosives and arson incidents. Stephen Scheid, an Intelligence Research Specialist with ATF, 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 testified that, through the use of a computer program, he [uses the database to produce] 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.(4) 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.(5)

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.(6)

Other Trial Evidence

The government also offered the testimony of David Lindholm to establish that Trenkler had built the Roslindale bomb. * * * [*51] * * *

    [One Lindholm, who had been incarcerated with Trenkler in a holding cell, testified as to Trenkler's conversations about the Roslindale bombing. According to Lindholm, Trenkler to him, inter alia, "So, I built the bomb. I don't deserve to die or spend the rest of my life in prison for building this device." Lindholm also testified that Trenkler had "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."
    Leahy, an ATF agent who had interrogated Trenkler for several hours, testified "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 . . . .

II.

Discussion

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 [*52] the similarity of the two bombs. * * *

A. Quincy Bombing Evidence

* * *

1. Fed. R. Evid. 404(b): Other Act Evidence

In general, Rule 404(b) 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 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. . . . First, the district court must determine whether the evidence has some "special relevance" independent of its tendency simply to show criminal propensity. . . . Second, if the evidence has "special relevance" on a material issue, the court must then carefully conduct a Rule 403 analysis to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. * * *

2. Identity

* * * 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

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. * * * [*53] * * * Indeed, the proponent must demonstrate that the two acts exhibit a commonality of distinguishing features sufficient to earmark them as the handiwork of the same individual. This preliminary showing is 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 an inference of pattern for purposes of proof."

United States v. Pisari, 636 F.2d 855, 858-59 (1st Cir. 1981) (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 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 Huddleston v. United States, 485 U.S. 681, 689, 99 L.Ed.2d 771, 108 S.Ct. 1496 (1988). Rule 104(b) provides, "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit 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,

    "in 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 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.

[*54] * * * [W]e 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 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. Though we hardly find any of these factors by themselves to be "highly distinctive," the coalescence of them is fairly persuasive. [*55] Indeed, even 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" 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. "In 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 are bombings. A bombing, in and of itself, is, arguably, a fairly distinctive method for intimidating or killing an individual. * * * 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. * * * Finally, the fact that both bombings occurred within a relatively close [**30] 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. * * *

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 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 [*56] 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. . . .

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. * * *

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 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. 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 evidence was not substantially outweighed by the risk of unfair prejudice.

[*57] B. EXIS Database Evidence

Trenkler contends that the district court erred in admitting under the residual hearsay exception, Fed. R. Evid. 803(24), testimony about the results of the search of the 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 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 "adversarial testing . . . would add little 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. . . . We accord great deference to the district court's determination, reviewing it only for an abuse of discretion. . . . 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. . . .

Under the residual hearsay exception, the district court must determine, inter alia, whether the proffered evidence possesses "circumstantial guarantees of trustworthiness" [*58]. . . . This trustworthiness inquiry is largely fact driven, and its focus will vary depending on the context in which the issue arises. * * * Essentially, the district court must determine whether the totality of the circumstances surrounding the statement establish its reliability sufficiently enough to justify foregoing the rigors of in-court testimony (e.g., live testimony under oath, cross-examination) that ordinarily guarantee trustworthiness. * * *

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, [sic: ipso facto?] imbue that information with sufficient guarantees of trustworthiness to warrant admission under Rule 803(24). 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. . . .

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 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 [*59] 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, 54 L.Ed. 2d 300, 98 S.Ct. 432 (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 . . . . 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). . . . Moreover, the exception provided by Rule 803(8) is further limited by the general qualification proscribing the use of public records if "the 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." . . . S. Rep. No. 1277, 93d Cong. 2d Sess., 20 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7066) . . . . 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." . . . . 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 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.

[*60] 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. 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 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 with Shay Jr. and his knowledge of both electronics and explosives.

Furthermore, the government offered the EXIS-derived evidence to prove that the Roslindale and Quincy bombs were so similar [*61] 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 similarities between the two bombs, stated that he had no doubt "whatsoever" that the same person built both bombs. Moreover, as discussed supra . . . 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 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.


* * * [*62] * * *

[The majority also upheld the admission of certain out-of-court statements of Shay Jr.]

III.

Conclusion

For the foregoing reasons, we affirm Trenkler's conviction.


TORRUELLA, Chief Judge, (Dissenting):

In my view, 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. * * *

I.

* * * 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. * * * [*63] * * *

II.

* * *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." Chapman v. California, 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824 (1966) (emphasis added) * * *

III.

The Confrontation Clause of the Sixth Amendment provides that, "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Supreme Court has explained that "the 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 of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 111 L.Ed. 2d 666, 110 S.Ct. 3157 (1990) . . . .

* * * [*64] * * *

The critical inquiry for [purposes of admitting hearsay] is whether the test of cross-examination would be of marginal utility. . . . 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 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, . . . 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.

The majority also alludes to a potentially more pernicious problem concerning the EXIS-derived evidence. * * * 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.

[*65] 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, according to Scheid's own testimony, the Quincy incident was not entered into the database until after the Roslindale incident. * * *

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. . . . The question then becomes whether this error was harmless beyond a reasonable doubt.

IV.

* * *

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).

* * *[*66] * * *

* * * In her oral opinion on the government's motion, the district court judge began by summarizing the testimony of [the government's expert] 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" [the expert's] testimony. She stated that, when she adds the EXIS evidence to [his] 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. * * *

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 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
[*67] 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 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.

* * * This [EXIS evidence] 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, not opinions. Computers are not paid by 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. 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.

* * *[*68]

* * * Is it not . . . 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. * * * Since the EXIS-derived evidence could well have been "the clincher" for the jury, it cannot be considered harmless beyond a reasonable doubt. . . .

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." * * *

The majority . . . 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 [*69] (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. Similarly, the 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. * * *

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. * * *

* * * [Judge Torruella reviews in detail the circumstances of Lindholm's appearance in the holding cell with Trenkler.]

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 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. 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.

[*70] * * *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 [**82] tying Trenkler to the crime, it may have been the clincher for the jury. . . . It was therefore not harmless beyond a reasonable doubt.

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 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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Footnotes

1. [court's footnote 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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2. [court's footnote 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.

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3. [court's footnote 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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4. [court's footnote 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
Under vehicles 428
Remote-control 19
Using Magnets 7



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5. [court's footnote 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.

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6. [court's footnote 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 "explosion on truck." Nevertheless, Scheid used "under vehicle" as one of the computer queries that matched the Quincy and Roslindale bombings.

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