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United States of America v. John Tomkins

April 19, 2012

UNITED STATES OF AMERICA,
v.
JOHN TOMKINS,



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are several motions filed by the parties in anticipation of trial. The Court's rulings are set forth below and are to be construed in a manner consistent with the rulings made or forecasted by the Court during the final pre-trial conferences in this matter.

I. Motions

A. Bill of Particulars [288]

Defendant has filed a motion for a bill of particulars [288]. He argues that the indictment charges him with "mail[ing] or caus[ing] to be mailed" threatening communications and "does not indicate whether [he was] the author or not" of the threatening communications. Defendant contends that in light of these alternative theories of criminal liability, he needs to know additional details to prepare his defense.

Defendant is not entitled to a bill of particulars in these circumstances. The indictment provides Defendant with sufficient information apprising him of the charges that he is facing, and the voluminous discovery produced to Defendant further informs him about the evidence against him and the Government's likely theories of the case. Under the pertinent case law, the Government need not disclose its exact theory (or theories)-i.e., whether the Government intends to try to prove that Defendant himself mailed or typed the threatening letters or aided and abetted another individual in the commission of the charged offenses. Indeed, the Government may attempt to prove both theories at trial. See, e.g., United States v. Concepcion, 983 F.2d 369, 392-93 (2d Cir. 1992) (explaining that the government may attempt to prove multiple theories at trial provided that it has provided the defendant with adequate notice of those theories); see also United States v. Davis, 2000 WL 290302, at *1 (7th Cir. 2000) ("even when alternative theories of liability have been charged in the conjunctive, only one theory must be proved") (citing United States v. Martin, 63 F.3d 1422, 1428 (7th Cir. 1995); United States v. LeDonne, 21 F.3d 1418, 1427 (7th Cir. 1994)).

In sum, where, as here, the indictment includes (i) the elements of each offense charged, (ii) the time and place of the defendant's conduct constituting the violation, and (iii) a citation to the statute or statutes violated, and the Government also has provided the necessary discovery to Defendant to defend against either theory, a bill of particulars is not necessary. See, e.g., United States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008) ("[T]he key question is whether the defendant wassufficiently apprised of the charges against him in order to enable adequate trial preparation."); United States v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003) (explaining that a bill of particularsis not necessary in cases in which the indictment sets out the elements of the charged crimes andprovides sufficient notice of the charges to enable the defendant to prepare his defense). Accordingly, Defendant's motion for a bill of particulars [288] is denied.

B. Defendant's Fourth Motion for Discovery [306]

For the reasons stated on the record at the previous pre-trial conferences held on March 28 and April 10, the Court has granted Defendant's fourth motion for discovery [306] and Defendant's emergency motion [321]. Since the March 28 conference, Defendant has been given additional access to evidence at the storage facility and has received photocopies of additional documents that he requested from among the materials that were seized from him that remain in the Government's possession because they are potentially relevant at trial.

C. Defendant's Motion in Limine [304]

Defendant's seven-part motion in limine [304]is granted in part and denied in part consistent with the following:

1. Use of Inflammatory Words

As explained on the record at the April 10 pre-trial conference, Defendant's motion is granted to the extent that it relates to the words "terrorist" and "terrorism." The Government has not charged Defendant with being a "terrorist" or with engaging in "terrorism." Counsel for the Government may not use either word in reference to Defendant in their opening statements, closing arguments, or in framing questions to witnesses.

2. Name Calling

Defendant's motion is granted in part and denied in part. The Government has acknowledged its obligation to act professionally and not in any way that is unfairly prejudicial to Defendant. Except as explained below, Government counsel should refer to Defendant as "Defendant" or "Mr. Tomkins." The exception is that the Government may elicit testimony designed to establish Defendant's involvement in creating certain letters that were signed by "The Bishop." The Government alleges that Defendant signed many of the letters that he sent as "The Bishop" -- a moniker that the Government has alleged in the title block of the superseding indictment to be Defendant's alias. The Government further contends that Defendant took significant steps to conceal his identity from his victims and that at least some of the Government's witnesses only know Defendant as "The Bishop." These allegations make it fair game for the Government, which bears the burden of proof beyond a reasonable doubt, to try to establish that Defendant and "The Bishop" are one and the same person and to make references to that theory of the case during opening statements, witness examination, and closing arguments, to the extent necessary but no more.

3. Comments by Government about Defendant's Pro Se Status

Defendant's motion is granted. If Defendant does represent himself at trial -- as currently appears will be the case -- neither he nor the Government may call undue attention to that fact by commenting on it to the jury. Within the limitations discussed on the record at the pre-trial conferences (pertaining to Defendant's anticipated appropriate behavior and the prohibition on "hybrid" representation), Defendant has a right to represent himself at trial. Both this Court and Judge Lindberg have exhaustively explained and explored the subject with Defendant to ascertain his wishes and his knowing and voluntary waiver of his right to counsel. Defendant has highly capable stand-by counsel to assist him within the bounds of the rule against "hybrid" representation. Defendant's role in representing himself will be evident to the jury, but there is no need for either side to belabor or call additional attention to the matter. To the extent that either side believes that an issue at trial may require some guidance from the Court (or stand-by counsel) on account of Defendant's pro se status, Defendant and Government counsel are directed to request a side bar, where the issue can be discussed outside the presence of the jury.

4.Right Not to Testify

Defendant's motion is granted. Defendant has a right not to testify and the Government has properly acknowledged that it will not comment about Defendant's decision not to testify, should that be his choice.

5. No Hypothetical Questions

Defendant's motion is denied without prejudice to renewal on an issue-by-issue basis during trial. As the Court explained at the pre-trial conferences, because hypothetical questions are permissible in some circumstances, the Court must reserve ruling until a concrete question is posed. With that said, neither side is permitted to use a hypothetical in an attempt to arouse undue sympathy or ask jurors to put themselves in the victims' shoes or Defendant's shoes. However, jurors are allowed to use common sense and rely on life experiences during deliberations.

6. Exclusion of Potential Witnesses

Defendant's motion is granted. Consistent with Federal Rule of Evidence 615, potential witnesses are excluded from the courtroom. The exceptions are Defendant and the Government's representative. Government counsel has represented that its representative is likely to be Case Agent Jason Weber. In the event that it is not Mr. Weber, the Court requests that the Government advise the Court and Defendant promptly.

7. Use of Electronic Devices

Defendant's motion is denied for the reasons stated on the record during the pre-trial conference. The Government bears the burden of proof and is entitled to use laptops and other computers and electronic devices to present its case. Furthermore, showing the jury the computers found by law enforcement at Defendant's home and the files found on those computers is relevant and probative evidence that ties Defendant to the crimes charged. The use of these devices will aid in jury comprehension. They also may be of use to Defendant should he wish to call up Government exhibits in cross-examination or even in his case-in-chief should he present one.

D. Defendant's Fourth Motion for Return of Seized Property [312]

Defendant's fourth motion for the return of seized property [312] is denied without prejudice. Based on the discussions at the pre-trial conferences, the Court understands that the materials seized from Defendant that remain in the Government's possession at this time are potentially relevant at trial. To the extent that other property belonging to Defendant has not been returned yet, he should raise the issue with Magistrate Judge Schenkier.

E. Government's 404(b) Notice and Motion for Admissibility of Evidence per

FRE 404(b) [301]

The Government has filed a Rule 404(b) notice and a motion for admissibility of evidence pursuant to Rule 404(b). The Government argues in the alternative that the evidence that is subject to its Rule 404(b) motion is admissible (1) as direct evidence of the offenses charged and (2) at a minimum, under Rule 404(b). The Court reserves ruling on exactly what portion of the evidence identified in the motion is direct evidence as opposed to evidence that may be used for a particular purpose under Rule 404(b). See, e.g., United States v. Miller, ---F.3d ---, 2012 WL 763151 (7th Cir. Mar. 12, 2012) (finding that evidence of the defendant's recent possession of the same gun was directly relevant evidence of the charged crime, not propensity evidence); see also United States v. Gorman, 613 F.3d 711, 718-19 (7th Cir. 2010). Those judgment calls will be easier to make after the Court has heard opening statements and begins to see the presentation of the evidence at trial -- and the Court will endeavor to provide further guidance as early as possible in the trial. To the extent that the evidence is admissible only under Rule 404(b), limiting instructions will be necessary; the Court will work with the parties on fashioning appropriate instructions. For pre-trial purposes, however, the ruling is that the evidence identified in the Government's motion likely is admissible as directly relevant evidence of the crime charged and, in any event, at least under Rule 404(b).

Defendant John Tomkins is charged with mailing ten threatening letters, including two pipe bombs, between May 2005 and January 2007. Aside from these ten mailings, the Government alleges that Defendant sent nine additional letters to individuals throughout the United States. Also, during a search of Defendant's storage lockers in April 2005, law enforcement officers found two additional pipe bombs that they contend were constructed in substantially the same way as the explosive devices that Defendant allegedly mailed in January 2007. The Government ...


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