USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 94-1301

UNITED STATES,

Appellee,

v.

ALFRED TRENKLER,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Morris M. Goldings with whom

___________________

Amy J. Axelrod, R. David Beck,

______________ ______________

Mahoney, Hawkes & Goldings were on brief for appellant.

__________________________
Paul V. Kelly, Assistant
______________
A. Libby, Jr., Assistant
_____________

United States Attorney, with whom Fr

__

United States Attorney and Donald K. Ste

______________

United States Attorney, were on brief for appellee.

____________________

July 18, 1995

____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

Following a lengthy criminal

trial, a jury convicted

defendant Alfred Trenkler of various

charges

stemming

from

bomb

Massachusetts ("the Roslindale

challenges

the

participation

earlier

Trenkler

in

admission

in a

purported to

and

error

derived

establish that

to

from a

in

On

evidence

Massachusetts

assigns

admitting evidence

bomb").

prior bombing

Quincy,

also

of

explosion

Roslindale,

appeal, Trenkler

relating

that occurred

("the

two

to

five years

Quincy

bomb").

evidentiary

computer

rulings

database

Trenkler built both

his

that

the Quincy

the Roslindale bombs and several out-of-court statements

made by a fellow

review, we affirm.

participant in the bombing.

After careful

I.
I.
__

Background
Background
__________

On

October

28,

1991,

Roslindale home of Thomas L.

bomb

exploded

at

the

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

suspicious object located

had

earlier

Century

noise

Sr.'s

while

into the street the day

from

investigate

in Shay Sr.'s driveway.

reported that,

emanating

home to

beneath

backing

Shay Sr.

his 1986

Buick

before, he had heard a loud

the

floorboard

of

his

-22

automobile.

Shay Sr. added that,

subsequently, he found the

suspicious object resting near the crest of his driveway.

Following

ensued involving

with

explosion, a

massive investigation

a variety of federal, state

enforcement agencies.

culminated

the

the

On June 24,

return

of

and local law-

1993, this investigation

three-count

indictment

charging Trenkler and Thomas A. Shay ("Shay Jr."), Shay Sr.'s

son,

with

Trenkler

responsibility

filed

for

successful

the

Roslindale

severance

motion,

government tried the two defendants separately.

bombing.1

and

the

Shay Jr. was

tried first, and a jury convicted him on counts of conspiracy

and

malicious

destruction

of

property

by

means

of

explosives.2

At Trenkler's trial, the thrust of the government's

case was that Trenkler had built the Roslindale bomb for Shay

Jr.

to

use against

his

father.

identity as the builder of the bomb,

To

establish Trenkler's

the government offered,

inter alia, evidence that Trenkler had previously constructed

_____ ____

____________________

1.

The

June

Trenkler and

24,

1993,

indictment

Shay

Jr. with

specifically

conspiracy,

charged

18 U.S.C.

371;

receipt of explosive materials with knowledge and intent that

they

would be used to kill, injure and intimidate, and cause

damage to real and personal property, 18 U.S.C.

malicious destruction of property
U.S.C.

844(i).

844(d); and

by means of explosives; 18

The indictment

indictment initially returned against

superseded a

five-count

Trenkler and Shay

Jr.

on December 16, 1992.

2.

The

district

court

sentenced

sentences of 188 and 60 months.

-33

Shay

Jr.

to concurrent

a remote-control

device, the Quincy bomb,

Quincy, Massachusetts,

in

1986.

which exploded in

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

seeking to admit the "similarity" evidence.

long

evidentiary

evidence

issues of

Trenkler

hearing,

admissible, finding

the

district

that

it was

identity, skill, knowledge, and

motion in
__

limine
______

Following a day-

court

ruled

the

relevant on

the

intent.

Although

did not testify at trial, his counsel stipulated at

the evidentiary

hearing that

Trenkler had built

the Quincy

bomb.3

1986 Quincy Bomb

1986 Quincy Bomb
________________

Trenkler constructed the Quincy

friend,

Donna Shea.

At

dispute

with the owners of

the time,

bomb in 1986 for a

Shea was involved

the Capeway Fish

in a

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

____________________

3.

During

the

original

1986 investigation

bombing, Trenkler admitted building

the bomb.

of
In

the Quincy
1987, the

Commonwealth

of

Trenkler for his

Massachusetts

brought

charges

against

involvement in the Quincy bombing,

but the

charges were dismissed.

-44

and detonated in the middle of the night.

The resulting bomb

blast caused no injuries and little property damage.

In building

explosive

material

the Quincy bomb, Trenkler

military

flash

simulator

used as the

typically

utilized to

mimic gunfire in

remote-control

receiver

he

capabilities,

had removed

wrapped the bomb

undercarriage of

Trenkler

from a

in duct

shaped speaker magnet

included a

combat exercises.

small

the truck.

Other

batteries, an

toy car.

the bomb to

radio-

Trenkler

a large

donut-

adhere to

the

components Trenkler used

"double throw" toggle switch,

two six-volt

employed

tape and attached

to enable

To provide

four AA batteries,

electric relay, solder,

various

wires, and a slide switch.

Testimony

purchased some

bomb from a

at

of the

Radio Shack

sought to obtain needed

trial

established

that

electrical components for

store.

On

one occasion,

Trenkler

the Quincy

Trenkler

components by sending Shea's eleven-

year-old nephew into a Radio Shack store with a list of items

to purchase while Trenkler

nephew, however, was

remained waiting outside.

unable to

find all of

Shea's

the items,

and

Trenkler eventually came into the store to assist him.

1991 Roslindale Bomb

1991 Roslindale Bomb
____________________

The

government contended

Roslindale

bomb

at

government

offered

Shay

Jr.'s

evidence

that Trenkler

request.

about Trenkler's

-55

built the

At trial,

the

relationship

with Shay

Jr., dating back

Roslindale bombing.

business

different

partner,

at least two years

Several witnesses,

reported

occasions in

seeing

including Trenkler's

the

1990 and 1991.

prior to the

two

Shay

together

on

Jr.'s address

book included an entry for Trenkler listing his current pager

number.

Roslindale

Moreover, Trenkler's roommate

bombing

testified

that,

at the

during

time of

the

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

with

an

remote-

control,

radio-activated

supplied

by two or three sticks of dynamite connected to two

electrical blasting caps.

device

was

explosive

force

A black wooden box weighing two or

three pounds and measuring approximately eight- to ten-inches

long, five- to

housed

six-inches wide and

the bomb.

A large

one- to two-inches

donut-shaped magnet

deep

and several

smaller round magnets attached to the box were used to secure

the

device to the underside of Shay Sr.'s automobile.

Other

components used in the construction of the bomb included duct

tape, a "single throw" toggle switch, four AA batteries, five

nine-volt batteries, a Futaba radio receiver, solder, various

wires, and a slide switch.

According to the government's experts and Shay Sr.,

the bomb was originally attached to the undercarriage of Shay

-66

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

Shay Jr. to

bomb.

government also

asserted

purchase the electronic

In

support

of

this

introduced a sales receipt

that Trenkler

components used in

assertion,

the

used

the

government

for a toggle switch purchased

in

October 1991 at a Radio Shack store located across the street

from

where Trenkler, at the time, was installing a satellite

dish.4

Agents from

the

Bureau

Firearms ("ATF") recovered from

bomb

admitted

switch identical

purchasing

interview, portions

trial.5

Furthermore,

to the

which the

Tobacco

and

the debris of the Roslindale

the switch

of

of Alcohol,

one

during

purchased.

Shay Jr.

taped television

government introduced

sales clerk

at

the

at

Radio Shack

testified that,

prior to

purchasing the switch,

the person

____________________

4.

Trenkler has an extensive

background in electronics.

At

the time of the Roslindale bomb, he operated his own business

installing satellite dishes and other electronic equipment.

5.

The Radio Shack sales receipt has the

printed in a space
customer's

"ID"

letters "sahy jyt"

for the customer's address and

number

(the

last

customer's phone number) as "3780."

four

digits

lists the
of

the

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.

-77

who bought it had

appearing

to shop

browsed in the store for

for items written

clerk also testified that he

several minutes,

on a list.

The sales

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

similarities

respective

and differences

experts

testified

designs,

the

construction.

explosives

at

choice

between the

length

of

experts

concerning

components

The government's

and

explaining

two bombs.

the

Both

the

electronic

the

method

expert opined that

of

the two

incidents shared

evincing

many

similar traits

and

characteristics,

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

expert testified

both

bombs.

that the similarities

Moreover,

Trenkler's

that existed

lacked

sufficient distinguishing qualities to identify the two bombs

as the handiwork of a specific individual.

EXIS Computer Database Evidence

EXIS Computer Database Evidence
_______________________________

To support

the inference that Trenkler

bombs, the government offered

built both

testimony both at the pretrial

hearing and at trial concerning information retrieved from an

ATF

computer database

of

explosives and

arson

incidents.

Stephen Scheid, an Intelligence Research Specialist with ATF,

-88

testified

that

the

information taken

federal, state

database,

from reports

known

as

EXIS,

submitted to ATF

and local law-enforcement

contains

by various

agencies.

Scheid

further testified that he had been personally responsible for

maintaining the database

reviews

submitted

since 1977.

incident

Scheid

reports,

stated that he

culling

from

them

information describing the characteristics of each bombing or

arson

episode.

extracted

or

Scheid

information on a

added

that

he then

encodes

the

standardized worksheet, which he

a data-entry person in turn uses to enter the information

into the database.

Scheid

computer

testified

program, he

retrieving

that,

then produces

all incidents

the

use

of

investigatory leads

entered in

listed as possessing a specific

Scheid

through

the database

by

that are

component or characteristic.

further testified that, in

an effort to identify the

builder of

computer

the

queries,

Roslindale bomb.

of

Roslindale bomb,

focusing

on

he performed

a series

characteristics

of

of

the

This series of inquiries narrowed the field

reported incidents in the database from 40,867 to seven.6

____________________

6.

The computer

queries and

incidents are listed below.

the total number

of resulting

The queries are successive.

All incidents in database

- 40,867

Bombings and attempted bombings - 14,252

Involving cars and trucks

-99

2,504

The seven remaining

and

Quincy

bombs.

conducted a

was

able

incidents included

Scheid

manual analysis

to

identify

stated

both the

that

he

of the remaining

several

additional

Roslindale

subsequently

incidents and

characteristics

common to only the Roslindale and Quincy bombs.7

Scheid also testified that the report of the Quincy

bomb did not come to his attention through normal procedures.

Scheid

did not

bomb,

nor enter

receive

information about

any information

the 1986

pertaining to it

Quincy

into the

EXIS database, until after the Roslindale incident in 1991.8

Other Trial Evidence

Other Trial Evidence
____________________

The government

also offered the testimony of David

Lindholm to establish that

bomb.

Lindholm

Trenkler had built the Roslindale

testified

that he

met

Trenkler

at

the

____________________

7.
only

Under vehicles

428

Remote-control

19

Using magnets

Scheid testified that, of

the Roslindale

and the

possessing

all

of

the

soldering,

AA

batteries,

the seven remaining incidents,

Quincy bomb

were reported

additional features:
toggle

switches,

duct
and

as

tape,
"round"

magnets.

8.

Scheid testified that, in entering information about

the

Quincy

bombing into the EXIS database, he relied solely on a

laboratory report prepared in

Massachusetts
however,
the

Department

1986 by investigators from the

of Public

Safety.

This report,

does not state that the Quincy bomb was attached to

underside of the

Capeway truck.

bomb as an "[e]xplosion on truck."

"under vehicle" as

It

only refers to the

Nevertheless, Scheid used

one of the computer queries

that matched

the Quincy and Roslindale bombings.

-1010

Plymouth House of Correction

where they had spent

four days

incarcerated together in an uncomfortable orientation holding

cell in December 1992.

Lindholm testified that initially the

cell had held about forty-four prisoners, but that eventually

the total number

seven.

with

of prisoners in the cell dwindled to six or

Lindholm

added that

Trenkler over

gradually "bonded"

the

he had

course of

numerous conversations

the

four days

upon discovering that they

as

they

came from the

same home town and had similar backgrounds.

Lindholm

advice based on

Lindholm

testified that

he

gave

his own experience as a

acknowledged that

Trenkler

legal

criminal defendant.

Trenkler initially

asserted his

innocence and had maintained that he could not understand why

Shay

Jr. had implicated him in the case.

Lindholm testified

further that Trenkler later told him that the government knew

that some of the

components used in the Roslindale

bomb had

been purchased locally and that, in response, Lindholm opined

that

the bomber had

state.

To

been careless not

this, Trenkler

to have gone

agreed and then

out of

stated that

the

local purchase was "regrettable."

In addition,

during the four

with the 1986

days they

Quincy bomb.

this discussion,

was much

Lindholm recalled

that at

discussed Trenkler's

Lindholm

-1111

involvement

testified that, during

Trenkler asserted that

more powerful than the

one point

the Roslindale bomb

bomb he had built

in 1986.

Ultimately, Lindholm stated

that Trenkler admitted

the Roslindale bomb, testifying that:

[Lindholm:]

At

one point

["W]ell, even

if I

he

stated,

did build a

bomb, I

did not place it on the car.["]

[Government:]

[Lindholm:]
and

What happened next?

Then he

said, ["S]o,

built the

bomb.

or spend

the rest

paused for a moment

I built
I don't

the bomb.

deserve to die

of my life

for building this device.["]

in prison

building

Lindholm

bomb

added further

squad

wearing

officers

foolish and

essence that

happened to them.

At

negligent

the two

for

not

the

evasion charges.

discussed

return for

time

of

raising

matters

what

trial,

Lindholm

was

serving

drug and tax

Lindholm testified that he had not received

anything

his testimony.

made

right for

from convictions on federal

receiving

counsel

it served them

It wasn't his fault."

sentences stemming

Trenkler.

were

"stated that

body armor at the time that they were examining this

device, and in

nor

that Trenkler

only a

On

minimal

unrelated

Primarily

challenge Lindholm's

to

from

the

government in

cross examination, Trenkler's

effort

his

Trenkler's

to impeach

testimony

counsel

assertion that, as a small

Lindholm,

implicating

attempted

to

boy, he had

at one

that

time lived on the same street as Trenkler and to show

Lindholm was

December

1992

in

at

the Plymouth

order

to

House of

provide

Correction in

information

to

the

-1212

government

on

other

individuals

with

involved in past criminal activities.

whom

he

had

been

In

addition to

Dennis Leahy

Lindholm's

and Thomas

D'Ambrosio recounted a

1991, interview

they conducted

the

During

bombing.

building

the

describing

used dynamite like that

agents testified

agents

connected to

added that

interview,

and

they

November 6,

sketched

after

Trenkler

admitted

a circuit

diagram

the sketch,

Agent D'Ambrosio

diagram would differ if Trenkler

had

utilized in the Roslindale incident.

that, in

Trenkler drew a second diagram,

dynamite

Agents

with Trenkler shortly

After making

asked Trenkler how the

Both

this

Quincy bomb

it.

testimony, ATF

response to

this question,

which featured two sticks of

two electrical

were surprised

blasting caps.

when

they saw

Both

the

diagram because the use of two electrical blasting caps was a

distinctive feature of

the Roslindale bomb that, at the time

of the interview, had not been disclosed

trial,

Leahy also

Trenkler in

related other

which Trenkler

to the public.9

conversations he

conveyed a working

At

had with

knowledge of

dynamite and electrical blasting caps.

Leahy further testified

made to

him at the ATF

about a statement Trenkler

offices on February 4,

1992.

Leahy

____________________

9.

Although the

agents

conducted the

interview

during

search of Trenkler's place of business (to which Trenkler had

consented), neither agent attempted

to keep the drawing and,

consequently, it was not produced at trial.

-1313

explained

that Trenkler had come

accord to pick up

stated that,

long

on his own

previously-seized business records.

during his visit,

discussion,

to the offices

lasting more

Leahy

Trenkler engaged Leahy

than

two

hours, about

in a

the

course of the investigation.

According to Leahy's testimony,

after

discussion, Trenkler

Leahy had

ended

the

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.

Trenkler

counts

Subsequently, the district

to concurrent

of

receipt

of

terms

of life

explosive

malicious destruction of property

sixty months

on

the

count

court sentenced

imprisonment on

materials

and

the

attempted

by means of explosives and

of conspiracy.

Trenkler

now

appeals.

II.
II.
___

Discussion
Discussion
__________

On appeal,

of the

Quincy bomb

Trenkler assigns error to the admission

evidence, contending primarily

incident was not sufficiently

that the

similar to the Roslindale bomb

to be relevant on the issue of identity, and to the admission

of the

used

EXIS

to prove

additionally

database-derived evidence

the similarity

argues

that

of the

the

-1414

that the

two bombs.

district

court

government

Trenkler

erroneously

admitted several out-of-court statements made by Shay Jr.

We

discuss each argument in turn.10

A. Quincy Bombing Evidence

___________________________

We

begin

with

Trenkler's

district court erred in admitting

contention

that

the

the evidence of the Quincy

bombing.

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

_____________________________________________

In

general,

Rule 404(b)11

proscribes the

use of

other bad-act evidence solely to establish that the defendant

has a

propensity towards

criminal behavior.

proscription, however, is not absolute:

Rule 404(b)'s

the rule permits the

____________________

10.

Trenkler

misconduct.

also

raises

Trenkler

the

issue

contends

that

of

prosecutorial

counsel

for

the

government

intentionally

government's
other-act

opening

evidence

previously made to

made inflammatory

statement
in

and

remarks

introduced

contravention

of

the district court.

prohibited

representations

We find

no merit in

these contentions.

11.

Fed. R. Evid. 404(b) provides:

(b)

Other

Crimes,

Wrongs,

or

Acts.

Evidence of other crimes, wrongs, or acts

is not admissible
of a

person in

to prove the character

order to show

conformity therewith.

action in

It may,

however,

be admissible for other purposes, such as

proof

of

motive,

preparation,
or

plan,

absence

provided
accused,

of
that

the

court

intent,

knowledge, identity,

mistake
upon

or

accident,

request

prosecution in

case shall provide

advance of

opportunity,

by

the

a criminal

reasonable notice

in

trial, or during trial if the

excuses

pretrial

notice on

good

cause shown, of the general nature of any

such evidence it intends to
trial.

-15-

in the

introduce at

15

use of such evidence if it bears on a material

motive,

knowledge or

identity.

adopted a two-part test

Rule 404(b)

evidence.

F.2d 634, 637

must

determine

(1st Cir.

whether

In

issue such as

this Circuit,

we have

for determining the admissibility of

E.g., United States

____ _____________

1993).

the

First,

evidence

v. Williams, 985
________

the district

has

some

court

"special

relevance"

independent

to

show

criminal propensity.

E.g., United States v. Guyon, 27

____ ______________
_____

F.3d

723,

1994).

728 (1st

Cir.

of

its

tendency

Second,

if the

"special relevance" on a material issue,

carefully conduct a

probative

value

of

simply

Rule 40312 analysis to determine

the

evidence

is

at 637.

has

the court must then

not

outweighed by the danger of unfair prejudice.

F.2d

evidence

if the

substantially

Williams,
________

985

As with most evidentiary rulings, the district

court has considerable leeway in determining whether to admit

or exclude Rule

decision

see
___

404(b) evidence.

only under the lens

also United States v.

____ ______________

Accordingly, we review its

of abuse of

Fields, 871
______

Cir.), cert. denied, 493 U.S. 955 (1989).

discretion.

F.2d 188,

Id.;
___

196 (1st

_____ ______

____________________

12.

Fed. R. Evid. 403 provides:

Although

relevant,

excluded

if

its

evidence
probative

may

be

value

is

substantially outweighed by the danger of

unfair

prejudice,

issues,

or

confusion

misleading the

considerations of undue
time,

or

needless

cumulative evidence.

-1616

of

jury,

the
or by

delay, waste
presentation

of
of

2. Identity
____________

The

bomb, which

government offered the

evidence of the Quincy

Trenkler admitted building,

primarily to

that Trenkler also built the Roslindale bomb.

contends that

relevance"

the evidence of

on the

similarities

issue

has "special

because the

numerous

surrounding the Quincy and Roslindale incidents

compel

the conclusion

bombs.

Trenkler, on

incident is too

identity,

The government

the Quincy bomb

of identity

prove

that the

same individual

built both

the other hand, argues that

the Quincy

dissimilar to

and even

if it

be relevant on

has some

the issue

relevance, the

of

risk of

unfair prejudice

value.

We

that it

agree with

poses far outweighs

the government that

its probative

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

offered because it

this

case, Rule

404(b) evidence

has "special relevance"

on the issue

is

of

identity, we have required, as a prerequisite to admission, a

showing that there exists a high degree of similarity between

the other

act and the charged

crime.

See United States v.

___ ______________

Ingraham, 832 F.2d 229, 231-33 (1987), cert. denied, 486 U.S.
________
_____ ______

1009 (1988).

Indeed, the proponent must demonstrate that the

two acts

exhibit a

commonality

of distinguishing

features

the handiwork

the same

-1717

sufficient

individual.

to

earmark them

Id.
___

necessary because

at

231.

as

This

preliminary

of

showing

is

[a] defendant cannot be identified as the

perpetrator
because

of

the

he has at

charged act

simply

other times committed

the same commonplace variety

of criminal

act except by

reference to the forbidden

inference

propensity.

for

the

whether

of

court[,

therefore,

the characteristics

are sufficiently
____________
an inference of

The question
must

be]

relied upon

idiosyncratic to permit
_____________
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,

"preliminary"

or "conditional"

is essentially an

fact.

In other

issue of

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

of

the handiwork of the same individual.

evidence whose

conditional

Huddleston
__________

relevance turns

fact is governed by

on the

The admissibility

resolution of

Fed. R. Evid.

104(b).

v. United States, 485 U.S. 681, 689 (1988).

_____________

See
___

Rule

104(b) provides, "When the relevancy of evidence depends upon

the fulfillment of a condition of fact, the court shall admit

-1818

it

upon,

or

subject

sufficient to

condition."

to,

support a

the

introduction

finding of the

Fed. R. Evid. 104(b).

[i]n
has

the Government

sufficient

evidence

to

meet Rule 104(b), the trial court neither

weighs
that

credibility
the

nor makes

Government

conditional

fact

by a

has

a finding

proved

the

preponderance of

the

evidence.

all

the evidence in the case and decides

whether
the

the

The court simply examines

jury could

conditional

fact

reasonably find
.

preponderance of the evidence.

evidence

fulfillment of

Moreover,

determining whether
introduced

of

by

the

Huddleston, 485
__________

seeks to

U.S. at 690.

admit Rule

Thus, as

here, when a

404(b) evidence to

the district court must condition

that the

shared characteristics

charged

offense

are

establish identity,

its admission on a showing

of

sufficiently

reasonable jury could find

party

the other

act and

idiosyncratic

it more likely than not

the

that

that the

same person performed them both.13

____________________

13.

Huddleston involved
__________

the use of Rule

404(b) evidence to

prove knowledge in a case where the petitioner, charged

with

the knowing possession of stolen video tapes, claimed that he

did

not know the

tapes were stolen.

order to prove knowledge, the

of

the

petitioner's

petitioner's

evidence,

the

previous

contention

district

at 683.

In

government introduced evidence

involvement

allegedly stolen television sets.

the

485 U.S.

court

in

sales

of

The Supreme Court rejected

that,
was

before
required

admitting
to

make

the
a

preliminary finding

that the government had

television sets were in fact stolen.

The Court stated that
against the introduction of
evidence

is

proven that the

Id. at 687.
___

"Rule 404(b) . . .

protects

extrinsic act evidence when that

offered solely

to prove

character.

The text

contains no intimation, however, that any preliminary showing

is necessary

before such

proper purpose."

Id.
___

evidence may be
at 687-88.

The

introduced for
Court

continued,

-1919

Trenkler

contends that

the array

of similarities

between

the

two

incidents

amounts

to

no

more

than

collection of "prosaic commonalit[ies that] cannot give

rise

to an inference

both

acts

that the

without reference

same person was

to

involved in

propensity."

United States
_____________

v.

Garcia-Rosa, 876 F.2d 209, 225 (1st Cir. 1989), cert. denied,
___________
_____ ______

493 U.S. 1030, cert. granted and vacated on other grounds sub
_____ _______ ___ _______ __ _____ _______ ___

nom., Rivera-Feliciano v. United States, 498 U.S. 954 (1990).

____ ________________
_____________

However,

in

inference

resolving

that

the

whether

two

the

evidence

incidents

are

supports

an

"sufficiently

idiosyncratic," we have cautioned that "an exact match is not

necessary."

on

the

Ingraham, 832 F.2d at 232.

________

"totality

of

the

The

comparison,"

test must focus

demanding

not

"facsimile or exact replica"

but rather the "`conjunction of

____________________

stating,
is subject

"If offered for such a proper purpose, the evidence

only to general strictures limiting admissibility

such as Rules 402 and 403."

The Court
sales

was

then stated

relevant

knowledge only

the

that evidence of
proper

purpose

could find the

were stolen.

the prior
of

proving

preliminary fact

Id. at 689.
___

that Rule 104(b) controlled

the evidence.

Thus,

the

the admissibility of

Id.
___

Though
different

for

if the jury

that the televisions

Court held

Id. at 688.
___

the

issue

here

context, we

think

that

arises

purpose of identity.

slightly

Huddleston provides
__________

appropriate framework for our analysis.

offered the Quincy bomb evidence

in

the

Here, the government

for the proper Rule

404(b)

The relevance of the Quincy bomb on the

issue of

identity turns, however, on the factual question of

whether

the

Roslindale

and

the

sufficiently similar to earmark them as

same individual.

Quincy

bombings

are

the handiwork of the

This is analogous to whether the television

sets in Huddleston were stolen, and, accordingly, Rule 104(b)

__________

sets the framework for admissibility.

-2020

several identifying characteristics

highly distinctive quality.'"

636

or the presence of
__

some

Id. at 232-33 (quoting Pisari,

___
______

F.2d at 859) (emphasis added); see also United States v.

___ ____ _____________

Myers,
_____

550 F.2d 1036, 1045

(5th Cir. 1977)

("[A] number of

common

to

features of lesser

generate a

separately,

strong

may

be

inference of

of

considered together.").

of

the

satisfy

evidence

the

identity if

significant

In this

tilts

first

uniqueness, although insufficient

of

probative

value

case, we think the

sufficiently

step

considered

the

balance

towards admission

Rule

404(b)

when

to

analysis.

Accordingly, we believe that the district court did not abuse

its discretion

in determining that the numerous similarities

in components,

design, and

with

the

geographic

similar

modus
_____

technique of

operandi
________

proximity between

the

and

assembly, combined

the

two events,

closeness

of

sufficiently

support the inference that the same person built both bombs.

We begin by noting that the government's explosives

expert,

Thomas Waskom,

similarities shared by

testified that

the two

his analysis

incidents left

of the

him with

no

doubt "whatsoever" that the same individual built both bombs.

Our own review of

indeed

share

characteristics.

the record reveals that the

number

Both bombs

of

similar

comprising,

in

components

and

were remote-controlled, radio-

activated, electronic explosive devices.

mechanisms,

two bombs did

Both were

general, electronic

-2121

homemade

components

easily

not

purchased at a hobby store.

identical,

battery

fusing

firing

and

fusing

power supplies for each.

circuits

energize

their

utilized

similar

batteries.

batteries,

Both

duct

to

power

tape,

the radio

radio

toggle

both

consisting

of

switches,

solder, electrical tape,

magnets.

Moreover,

radio

To

devices

four

similar components

antennas,

both used

separate

receivers.

receivers,

supplies,

employed many

circuits with

Both had switches in their

disconnect

respective

Both had similar, though

AA

such as

receivers,

and large

round speaker

a distinctive

method (i.e.,
____

twisting, soldering, and taping)

all,

of the

wires

these factors

coalescence

used.14

to connect some, though not

Though we

by themselves to be

of them

is fairly

hardly find

any of

"highly distinctive," the

persuasive.15

Indeed, even

____________________
14.

Though

just

how

it is unclear from a close reading of the record

many

of the

connection method,

wires

it is

More interestingly,

in

each

apparent that

we note that, before

bomb employed
at least

some did.

learning that both

bombs had wires that were joined in this fashion,

explosives expert

this

Trenkler's

stated that such a method is a "singularly

unique method[] of assembly

which individual bomb makers are

very likely to repeat."

15.

On the other hand,

between

the two

Trenkler argues that the differences

bombs are

more significant.

Some

differences that Trenkler cites include:

Roslindale Bomb

Quincy Bomb

of the

Two or three sticks of

Military flash simulator used

dynamite rewrapped in a

which produced only minor

magazine page and electrical

damage

blasting caps which killed one

officer and severely injured
another

Trenkler's

-2222

expert

witness, Denny

Kline,

testified

at the

pretrial hearing that, in light of these similarities, "there

is

possibility, a

probability,
___________

that

maybe there
_____

is
__

a
_

connection between the maker of these two bombs."

__________

(Emphasis

added.)

Moreover,

"beyond

we note

a reasonable

that, in

doubt"16

both bombs, Trenkler's expert

factors except

refusing to

that the

conclude

same person

Kline eschewed reliance on any

the physical evidence.

The appropriate test

for sufficient similarity, however, is not so limited.

assessing the sufficiency of

the trial court

jury."

built

"[I]n

the evidence under Rule 104(b),

must consider all evidence

___

presented to the

Huddleston, 485 U.S. at 690-91 (emphasis added).

__________

Accordingly,

properly attributed

we

to the

believe

some

significance

simple fact that

is

both incidents

____________________

Futaba remote control system

Radio receiver taken from toy

which used a small electrical

car

servo motor
"Single throw" toggle switch

Relay allowed power to be sent

used to send power to dynamite

to explosives; "double throw"

toggle switch used as safety

Five nine-volt batteries

Two six-volt batteries

provided power to firing

supplied power to firing

system

system

Device was housed in a black

Device was wrapped in silver

wooden box

duct tape

16.

As the district court correctly noted in its ruling, the

government is not required

doubt"

that

the

to establish "beyond a reasonable

same person

built

Huddleston, 485 U.S. at 690.

__________

-2323

the

two

bombs.

See
___

are

bombings.

A bombing, in

fairly distinctive

individual.

for intimidating

or

killing

an

Cf. United States v. Patterson, 20 F.3d 809, 813

___ _____________
_________

(10th Cir. 1994)

itself has

method

and of itself, is, arguably, a

(in a hijacking

case, uniqueness of

crime

significance in Rule 404(b) similarity analysis),

cert. denied, 115 S. Ct. 128 (1994);

_____ ______

("[M]uch more

is demanded than the

of crimes of the

Pisari, 636 F.2d at 858

______

mere repeated commission

same class, such as repeated

burglaries or

thefts.

as
__

to
__

The device
___ ______

be
__

like
____

omitted)).

used must be so unusual

____ ____ __ __ _______

a
_

signature."
_________

(quotations

In addition, both incidents

bombs, but remote-control bombs

and distinctive
___ ___________

and

citations

involved not simply

that were placed

underneath

automotive vehicles.

In both

instances, the bombs were

used to benefit a friend of the builder.

constructed and

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

Furthermore,

conceal

Shay

in

both

Jr.

to

use

instances the

his or her participation

against

his

builder

attempted

by using a

father.

to

third party to

purchase

the

electronic components

used

in

the explosive

device.

In 1986, Trenkler initially waited in his car while

sending Donna Shea's nephew into the electronics store with a

list

to

purchase the

needed

components.

-2424

Similarly,

the

evidence

supports

Roslindale

bomb

components.

the inference

used

Shay

Finally, the

within a relatively close

Jr.

that

to

the

builder of

purchase

fact that both

the

the

needed

bombings occurred

geographic proximity must be given

some weight in the analysis.

In United States v. Pisari, 636 F.2d 855

_____________
______

1981),

we reversed

the district

court's decision

(1st Cir.

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

F.2d at 224-25,

prior drug

it to

used.

we refused

Similarly,

in Garcia-Rosa, 876
___________

to sanction the

admission of

transaction where the only characteristic linking

the charged drug deal was

the characteristic exchange

of a sample of drugs

prior to the sale.

In

Garcia-Rosa, we
___________

held that a single "prosaic commonality" was insufficient "to

give rise to an

inference that the same person

in both acts without

See
___

reference to propensity."

was involved

Id.
___

at 225.

also United States v. Benedetto, 571 F.2d 1246, 1259 (2d

____ _____________
_________

Cir.

merely

1978) (no

signature

"a similar

where

technique for

shared

characteristic

receiving

the cash:

is

the

passing of folded bills by way of a handshake").

In

the

present

presented more than a

the government

case,

however,

the

government

single "prosaic commonality."

propounded a laundry list

design, component selection,

Indeed,

of similarities in

construction and overall

modus
_____

-2525

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,

combination

of all the factors.

we

must

examine

the

Had Trenkler been unable to

point

to any

significant differences,

we suspect

he would

have had little chance in establishing an abuse of discretion

in

allowing the

found but

evidence

similarity, we

with

substantial

it more

likely

Ingraham,
________

832 F.2d at

evidence

the admission

not

on

could a

than not

that

either

of the

Here, in the

side

and

reasonable jury

have

person

was

We think the answer is yes.

See
___

the same

233 (admitting evidence)("[G]iven the

important comparables, the

themselves

government

characteristics to establish

doubt that

expert opinions,

responsible for both bombs?

host of

had the

would have been granted or sustained.

conflicting

found

Similarly,

three or four common

sufficient

middle,

evidence.

unimportant--

go

discrepancies --

to

the

weight

though

of

the

challenged evidence, not to its admissibility.").17

____________________

17.

As we explain infra
_____

district court erred in

on

in part II.A., we believe

admitting the EXIS database evidence

the issue of idiosyncratic similarity.

record, however, convinces us that

weigh

significantly in

the

evidence of the Quincy bomb.

F.3d

that the

Our review of the

the EXIS evidence did not

court's decision

to admit

Cf. United States v.

___ _____________

the

Gallo, 20
_____

7, 14 (1st Cir. 1994) (abuse of discretion occurs when,

inter alia, improper factor is accorded significant weight).

_____ ____

-2626

b. Rule 404(b) Evidence: Probative Value and

______________________________________________

Unfair Prejudice
________________

Resolving that the district court did not abuse its

discretion in

determining that

that it was more likely than

a rational jury

not that the same person

both bombs, however, does not end the analysis.

review

the trial

could infer

court's determination

built

We must also

that the

probative

value of the evidence was not substantially outweighed by the

risk of unfair prejudice.

Several factors weigh heavily

this

the

balancing,

such

as

government's

need

for

in

the

evidence,

see Fields, 871 F.2d at 198 (quoting Fed. R. Evid.

___ ______

404(b) advisory committee's note),

establishing the similarity of

the strength of

evidence

the two acts, see Huddleston,

___ __________

485 U.S. at 689 n.6, the inflammatory nature of the evidence,

and the degree to

solely on

the

which it would promote an

defendant's criminal

inference based

propensity, see
___

United
______

States v. Rubio-Estrada, 857 F.2d 845, 851-52 (Torruella, J.,

______
_____________

dissenting) (explaining inherent unfair prejudice in evidence

of prior bad acts).

We believe the district court acted well within its

broad

discretion

evidence

was

in admitting

important

to

the

the

evidence.

government's

First,

case.

the

The

evidence that Trenkler had built the Quincy bomb corroborated

David

Lindholm's

builder

of

the

testimony,

identifying

Roslindale

bomb.

Trenkler

Second,

as

the

although

the

-2727

evidence of

was

similarity could

nonetheless

substantial:

have been more

Indeed,

the

compelling, it

government's

explosives expert testified that he had no doubt "whatsoever"

that the same person designed and constructed both bombs.

On the

court

that

prejudice.18

other hand,

the evidence

As

with

we disagree with

did not

all "bad

pose

act"

the district

any risk

of unfair

evidence,

there

is

always some danger that the jury will use the evidence not on

the narrow point for which it is offered

that

the

defendant

behavior.

Nonetheless,

the evidence

did

not

not

kill or

the

propensity

towards

outside the context

injure

inflammatory.

any individual

Moreover,

unfair prejudice

to use

was not unduly

property damage.

risk of

has

but rather to infer

criminal

of propensity,

The

and

Quincy bomb

caused little

the district court minimized any

by carefully instructing

evidence of

the

Quincy bombing

the jury

to

infer

Trenkler's

because the

guilt

simply

fact he had a built

more likely he had built

believe

because

he was

bad

a bomb in the

person or

past made it

the bomb in this case.

In sum, we

that the district court did not abuse its discretion

in determining

that the probative

value of the

Quincy bomb

____________________

18.

In ruling

inter alia, "The

_____ ____

on the

evidence, the district

evidence of

the [Quincy]

bomb is

question prejudicial

in the sense

the defendant.

is not the test, however,

That

that it will

is whether it is unfairly prejudicial.

-2828

court stated,
without

likely harm
the question

It is not."

evidence

was not

substantially

outweighed by

the risk

of

unfair prejudice.19

B. EXIS Database Evidence

__________________________

Trenkler

contends that the district court erred in

admitting under the residual hearsay exception, Fed. R. Evid.

803(24),20

testimony about the results of

the search of the

____________________

19.

Trenkler also

contends that the

district court

abused

its discretion in admitting the Quincy bomb evidence to prove

knowledge,
knowledge

skill, and intent.

and

argument.

skill, we

With respect to the issues of

find

little

Trenkler's

Obviously, the fact that Trenkler had in the past

built a remote-control bomb has

possessed

the skill

Roslindale bomb.
(1st

merit in

Cir.

and

some relevance on whether he

knowledge necessary

to build

the

See United States v. Latorre, 922 F.2d 1, 8

___ _____________
_______

1990),

cert.
_____

denied,
______

502

U.S.

876

(1991).

Furthermore, because the evidence was otherwise admissible to

show

identity, allowing

skill

and

knowledge, posed

prejudice.
stands

the government
no

to use

additional

Trenkler's contention with

on

firmer

comprehending

ground.

(and

the

We

show

risk of

unfair

respect to

intent

have

government

it to

some
does

difficulty
not

clearly

articulate) any theory of "special relevance" tending to show

intent that

does

propensity.

See
___

(1st

Cir. 1988)

inference

skill,

harmless.

depend

heavily on

United States
_____________
(error to

admit evidence

properly admitted
any error
See
___

an

v. Lynn, 856
____

depends on propensity).

evidence was
and

not

in its

F.2d 430,
on

of
436

intent where

Nonetheless, because the

to show
admission

Benavente Gomez,
_______________

inference

identity, knowledge
to show

921 F.2d at

intent is

386 (harmless

error if it is "highly probable" the error did not contribute

to the verdict).

20.

Fed. R. Evid. 803 provides:

The

following are

hearsay rule, even

not

excluded by

though the

the

declarant

is available as a witness:
. . .
(24) Other Exceptions
(24) Other Exceptions
A statement not specifically covered
by

any of

the foregoing

exceptions but

having

equivalent

circumstantial

guarantees

of

trustworthiness,

-2929

if

the

EXIS database.

because

He maintains that

the underlying reports

the district court

composing the

erred

EXIS database

lack sufficient guarantees of trustworthiness to fall

the residual

hearsay exception.

court erred

in admitting

We agree

the evidence,

within

that the district

but find

the error

the EXIS-derived

testimony

harmless.

The government offered

as tending

to

evinced the

of

more

incidents,

the

Roslindale and

signature of a single bomb maker.

the government

out

show that

offered it as an

than

only the

14,000

bombs

Specifically,

affirmative assertion that,

bombing

Roslindale

Quincy

and

and

the

attempted

Quincy

bombing

incidents

possessed in common all of the queried characteristics.

district court admitted the

The

EXIS-derived testimony under the

____________________

court determines that

is

offered as

(A) the

evidence

of

statement
a

material

fact; (B) the statement is more probative

on the point for which it is offered than
any

other

can

procure through

and (C)

evidence which

the

be

reasonable efforts;

general purposes

rules and the

best

the proponent

of

these

interests of justice

served

by

admission

of

the

statement

into

statement

may not be admitted under this

exception

unless

makes

evidence.

will

known

the

to

the

sufficiently in advance

However,

proponent

of

adverse

it

party

of the trial

or

hearing to provide the adverse party with

a fair opportunity to prepare to meet it,
the

proponent's

statement

and

including the

intention to

offer the

the

particulars

of

it,

name

and address

of

the

declarant.

-3030

residual hearsay exception, finding that it was "sufficiently

reliable."

the

EXIS

In reaching this conclusion, the court noted that

database

was

used

enforcement authorities on a

asserts

relied

regular basis."

upon

"by

law

The government

that the district court did not err in admitting the

testimony because,

"written

and

objective

in general,

the underlying

reports" summarizing

reports were

careful

field and

laboratory

find

to

investigations that

be

particularly

the court

worthy

of

could permissibly

belief

such

that

"adversarialtesting ... wouldaddlittle to[their]reliability."

Initially,

particular

it

evidence

is

may

evident

be

that

admitted

whether

under

the

or

not

residual

hearsay exception is a fact-specific inquiry committed in the

first instance to the sound discretion of the district court.

United States v.
______________

cert.
_____

denied,
______

490

Doe, 860
___

U.S.

F.2d 488,

1049

491 (1st

(1989).

We

Cir. 1988),

accord

great

deference to the district court's determination, reviewing it

only

for an

abuse of

Benavente Gomez,
________________

921

discretion.

F.2d

378,

E.g., United States v.

____ ______________

384

(1st

Cir.

1990).

Nevertheless,

we

determination if,

"definite

error of

and firm

will

overturn

upon careful

review, we

conviction that the

judgment" in its

district

are left

court made

decision to admit

with a

a clear

the testimony.

Id. (internal quotations and citations omitted).

___

-3131

court's

Under

court

must

the residual hearsay exception, the district

determine,

evidence

possesses

inter
_____

alia,
____

whether the

"circumstantial

trustworthiness" equivalent to

guarantees

those possessed by

listed exceptions to

the hearsay

803(24); Polansky v.
________

CNA Ins. Co., 852 F.2d

_____________

Cir.

1988);

Evidence
________

(equivalent

cf. 2
___

324,

Kenneth S.

at 362

guarantees

important issue).

rule.

Broun

(John W. Strong

of

See
___

of

the other

Fed. R.

Evid.

626, 631

(1st

et al.,

McCormack on
____________

ed., 4th ed.

trustworthiness

This trustworthiness

proffered

is

inquiry is

1992)

the

most

largely

fact driven, and its focus will vary depending on the context

in which the issue

Memorial Hosp.,
_____________

arises.

See Brookover v.
___ _________

Mary Hitchcock
______________

893 F.2d 411, 420 (1st Cir. 1990).

A court,

however, may consider whether the evidence shares reliability

factors (e.g.,

the

4,

personal knowledge,

lack of bias)

other hearsay exceptions, see 2 McCormack

___
_________

and whether the

evidence, but for

common to

324, at 362-

a technicality, would

otherwise come within a specific exception, see United States

___ _____________

v.

Nivica,
______

887 F.2d

1110, 1126-27

(1st Cir.

insufficient foundation

laid

under

exception, court

business records

admit them under residual

1005 (1990).

Essentially,

to admit

1989) (where

financial

documents

had discretion

to

exception), cert. denied, 494 U.S.

_____ ______

the district court must determine

whether

statement

the totality

of

establish its

the circumstances

surrounding the

reliability sufficiently

enough to

-3232

justify

foregoing

the rigors

of in-court

testimony (e.g.,

live testimony under oath, cross-examination) that ordinarily

guarantee trustworthiness.

See Michael

H. Graham,

Federal

___

_______

Practice and Procedure: Evidence,

__________________________________

(courts employ

the totality

"ad hoc assessment of

Wright,
______

497

trustworthiness

established

the

at 737-40 (1992)

reliability based upon

of the surrounding circumstances");

States v. Ellis, 935

______
_____

v.

6775,

F.2d 385, 394 (1st Cir.)

U.S.

in

805,

819

Confrontation

(1990))

Clause

cf. United
___ ______

(citing Idaho
_____

(guarantees

context

must

of

be

from the "totality of circumstances" surrounding

making of

the statement),

cert.
_____

denied, 502
______

U.S. 869

(1991).

Because

we believe

failed to establish that

that

the

government

clearly

the EXIS-derived evidence possessed

sufficient "circumstantial guarantees of trustworthiness," we

hold

that

the

district

admitting the evidence.

court

As

abused

its

discretion

noted above, the district

in

court

rested its decision to admit the testimony, at least in part,

on its finding that law-enforcement agencies

the database "on a regular

basis."

with this

it is

narrow finding,

issue of trustworthiness.

rely

on information

fortiori, imbue
________

Though we take no

hardly dispositive

That law enforcement

culled from

the database

that information with

of trustworthiness to

use and rely on

on the

authorities

does not,

a
_

sufficient guarantees

warrant admission under

-3333

issue

Rule 803(24).

Indeed, law enforcement authorities often rely on information

during

their

investigations (e.g.,

anonymous tips)

evidence.

1026

(6th

See
___

Cir.

polygraph examinations,

that would not necessarily

United States v.
_____________

1994)

be admissible as

Scarborough, 43 F.3d
___________

(polygraph

examinations

1021,

generally

inadmissible); and Fed R. Evid. 801, 802 (prohibiting hearsay

___

evidence).

More

to

the

point,

the

government

establish that the reports underlying the

any guarantees

the

Evid. 803(1)-(23).

exceptions.

Scheid,

to

database possessed

of trustworthiness similar to

enumerated hearsay

failed

those found in

See generally
___ _________

Fed. R.

the government's expert on EXIS,

stated that the database derived from reports submitted by

variety of federal, state and local law enforcement agencies.

Though Scheid testified extensively on the reliability of the

procedures he

and

followed to cull information

subsequently

government

input

offered

it

into

virtually

the

from the reports

EXIS

nothing

database,

the

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

-3434

the reported information.

extent

to

reports

which

derives

observations

Indeed, it is far from

information

from

memorialized in

laboratory

analyses,

any

clear the

of

on-the-scene

of police officers, second-hand descriptions of

the device by layperson witnesses, or some other source.

United States v. Scholle, 553 F.2d

______________
_______

(allowing

("DEA")

chemical

the

printouts

computer

from

Drug

database

analyses performed

where

Cf.
___

1109, 1123-25 (8th Cir.)

Enforcement

database

at regional

Administration

comprised

only

DEA laboratories),

cert. denied, 434 U.S. 940 (1977).

_____ ______

Scheid further testified that the submitted reports

need not be signed, and that nothing required the author of a

submitted report to have

personal knowledge of its contents,

see
___

Fed.

R. Evid.

hearsay situation,

and

neither

advisory

the declarant

this rule

requirement of

(business

803

nor

Rule

committee's note

is, of course,

804

dispenses

firsthand knowledge."); Fed.

record must

be

supplied by

an individual

that matter

to

recorded by

("In

a witness,

with

as

or from

a bomb

Mathews v. Ashland Chem., Inc., 770 F.2d

_______
____________________

the

R. Evid. 803(6)

information

with personal knowledge),

be qualified

or for

investigator,

see
___

1303, 1309-10 (5th

Cir. 1985); 4 Jack B. Weinstein et al., Weinstein's Evidence,

____________________

803(8)[03], at 803-283

the

expert

indicating

can

lack

be

("Questions of the qualification of

raised

as

one

of

of trustworthiness.");

the

cf.
___

circumstances

Beech Aircraft
______________

-3535

Corp.
_____

v.

Rainey,
______

488

U.S.

153,

("investigator's skill or experience" is

trustworthiness of

167

n.11

factor establishing

government evaluative report).

Scheid admitted that he

(1988)

Finally,

employed no procedures for verifying

or updating

information in the

EXIS database that

had been

submitted by agencies other than ATF.

The underlying reports,

falling within

the hearsay exception for

reports, Fed. R. Evid.

803(8).

Rule

authorize

803(8)

does not

investigative

police officers

R. Evid.

reports

that

the

contain

803(8)(B), or

Fed. R. Evid. 803(8)(C).

F.2d 1262, 1264 (1st

to

public records and

In criminal cases,

however,

prosecution's use

"matters

and other law enforcement

observed

personnel,"

"factual findings resulting

investigation made pursuant to

964

arguably, come closest

of

by

Fed.

from an

an authority granted by law,"

See United States v. Arias-Santana,

___ _____________
_____________

Cir. 1992) (police reports offered

by prosecution generally inadmissible); but cf., e.g., United

___ ___ ____ ______

States
______

v. Brown, 9 F.3d
_____

803(8)

does

not

907, 911-12 (11th

necessarily

prohibit the

Cir. 1993) (Rule

use

of

police

records prepared in a routine non-adversarial setting that do

not

result from

subjective

investigation and

evaluation),

cert. denied, 115 S. Ct. 152 (1994).

_____ ______

Moreover, the exception

provided by

limited by

Rule 803(8)

qualification proscribing

is further

the use of public

-3636

the general

records if "the

sources of information or other circumstances indicate a lack

of trustworthiness."

We have

hearsay

exception

Fed. R. Evid. 803(8).

noted that Congress

to be

used

exceptional circumstances.'"

intended the residual

"`very rarely,

and

only in

Benavente Gomez, 921 F.2d

________________

at

384 (quoting S. Rep. No. 1277, 93d Cong. 2d Sess., 20 (1974),

reprinted in 1974 U.S.C.C.A.N.

_________ __

7051, 7066); see also Nivica,

___ ____ ______

887 F.2d at 1127 ("Rule 803(24) should

Moreover,

Congress did

establish a broad license

not

intend for

be used stintingly").

the exception

for trial judges to

"`to

admit hearsay

statements

that

do

not

fall

exceptions' or `to authorize

hearsay rule.'"

Rep.

No. 127).

In this

that

possessed

guarantees

exceptions

convinced

reports

one

of

the

other

major judicial revisions of the

Benavente Gomez, 921 F.2d at 384 (quoting S.

_______________

establish

other

within

the

to

case,

reports

the government

composing

of trustworthiness

the

hearsay

rule.

the

failed

EXIS

database

equivalent

Neither

to

to the

are

we

that the totality of circumstances surrounding the

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

of

a bomb

admit EXIS-derived evidence to

maker.

Accordingly, we

prove the identity

hold that

the district

-3737

court

abused

evidence

its discretion

in admitting

the EXIS-derived

under the residual exception to the hearsay rule to

prove the identity of the builder of the Roslindale bomb.21

____________________

21.

Even putting aside our concerns about the reliability of

the underlying
troubled

by

reports,

we

remain,

the government's

use

statement that out of more than

bombing incidents
and

Quincy

in the

incidents

characteristics

in
of

general,

the evidence.

(bombings

The

14,000 bombing and attempted

EXIS database only

share

somewhat

the

eight

and attempted

the Roslindale

specific

queried

bombings, attached

under car or truck, remote-control, round magnets, duct tape,

solder, AA

batteries, toggle switches) is

a fairly powerful

statement, but perhaps a somewhat misleading one.

First,
predicate

the

that each

definitively

states

statement

assumes

of the

more than

whether

or not

described therein actually

as

necessary

14,000 EXIS
the

possessed those

entries

explosive

device

characteristics.

We

have some doubt about the validity of such an assumption.

In

general,

bomb

reconstruction

strikes us

as

rather

resource-intensive operation.

We can envision circumstances

(e.g., a blast
____

or no injuries

bomb

maker

causing little

apprehended before

complete) where

or damage,

reconstruction investigation

the investigation

and the

resulting report

might not be nearly as thorough or complete as in the case of

_____
either the Roslindale

or the Quincy

bombs.

Indeed,

during

the preliminary

hearing both

Scheid and Thomas

Waskom, the

government's explosives expert, acknowledged that the absence

of an item, such
report

meant

as magnets or batteries, from

only that

investigators

did

a post-blast

not recover

or

identify the item and not that it was not used.

Second, without further statistical analysis of the
database, we

believe the

14,000 incidents

statement that

only the Quincy and

out

of more

than

Roslindale bombs share

the

eight queried characteristics is potentially incomplete.

For

example, by our count,

Roslindale

incident

characteristics

the EXIS database

lists

describing that

approximately
incident.

record, however, does the government

focus

on

database.

the specific

does not offer any

only

used

to query

bomb-signature analysis than any of

Roslindale

the

Moreover, the

the

the

and

Quincy

the Quincy

incidents

the fact
share

In other words, though it

incident shares

-3838

the

the

government

analysis of the significance of

queried characteristics.
that

Nowhere in

explain why it chose to

characteristics

other characteristics not chosen.

the

twenty-two

It does not suggest that these characteristics are

more important in a

that

entry for the

eight

the

is true
queried

Although we agree

court

erred

in

nonetheless

doubt.22

beyond

find

admitting

the

Initially

Trenkler's

supported a

with Trenkler that the

the

error

we

beyond

that

substantial

participation

Principally, David Lindholm

in

Other

admissions

the

had built the

by Trenkler

we

a reasonable

Quincy

evidence,

bombing,

Roslindale bomb.

convincingly testified that,

fact, Trenkler had actually admitted

bomb.

evidence,

harmless

note

finding that he

EXIS-derived

district

in

building the Roslindale

made

to various

law

____________________

characteristics with the Roslindale

incidents

incident, how many other

share some other set of eight (or more than eight)

characteristics with the Roslindale incident?

Arguably, these
the evidence
them out
should

than to its

here
employ

concerns go more to
admissibility.

to underscore
in

allowing

F.2d

Cir.

probability

of

(8th

match to

be

in

United States v.
_____________
1979)

we point

a district

evidence couched

Cf.
___

679-81

However,

the caution

numerical probabilities.
676,

the weight of

terms

in

of

Massey, 594
______

(testimony

one chance

court

stating

4,500 unfairly

confusing where no foundation for statement provided).

22.

In

general, we

review an

harmless error,

dismissing it

highly probable

that

verdict."

if "we

the error

Benavente Gomez,
________________

quotations and

evidentiary miscue

determine that

did not
921

citations omitted).

only for
it is

contribute to

F.2d

at

386

In this

the

(internal

case, however,

Trenkler also contends that the erroneously admitted evidence

deprived
Amendment,

him of

his

see
___

U.S.

confrontation rights
Const.

prosecutions, the accused

confronted

with

the

amend

VI

under the

("In

all

shall enjoy the right . .

witnesses against

him.").

Sixth

criminal
. to be
Assuming

arguendo
________

that the

rises to

the level

employ a

stricter standard,

the

error harmless

States v.
______

EXIS-derived

of constitutional error,

beyond a

reasonable doubt.

errors

evidence

we accordingly

asking whether we

can consider
See United
___ ______

927 (1st Cir. 1993);

v. Argentine, 814
_________

1987) (constitutional

harmless

of the

Brennan, 994 F.2d 918,

_______

also United States

____ _____________
Cir.

admission

F.2d 783, 788-89

may not

be regarded

see
___
(1st
as

if there is a reasonable possibility that the error

influenced the jury in reaching a verdict).

-3939

enforcement

testimony,

bomb,

officers

inferentially corroborated

specifically Trenkler's sketch

drawn shortly

after

the explosion

featuring two electrical blasting caps.

arrogant assertion to Agent

Lindholm's

of the Roslindale

and conspicuously

Moreover, Trenkler's

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

the government adduced

inferred from the ample evidence

establishing Trenkler's

relationship

withShayJr.and hisknowledgeofbothelectronics andexplosives.23

Furthermore,

derived

bombs

evidence to

the

prove

were so similar that

government

that the

offered

the

Roslindale and

they evinced the

EXIS-

Quincy

signature of a

single bomb

maker, thus,

establishing the relevance

Quincy bomb evidence on the issue of identity.

the

record,

evidence

however,

was not a

convinces

us

Our review of

that the

critical factor in

of the

EXIS-derived

the district court's

decision to admit the Quincy bomb evidence for the purpose of

proving

identity.

cumulative,

The

EXIS-derived

evidence

corroborating the testimony

explosives expert

was

merely

of the government's

who, after testifying in

detail about the

____________________

23.

We note

suggestion

with some
that,

(elicited by the
offered

or

testimony, an

concern

our dissenting

notwithstanding

Lindholm

any

implicit quid pro quo

____ ___ ___

his cooperation.

Lindholm's

U.S. Attorney) that the

promised

See infra
___ _____

colleague's
testimony

government had not

consideration

for

his

nonetheless existed for

at 65 n.43.

the record to support such an inference.

We find

nothing in

-4040

similarities between the

doubt "whatsoever"

Moreover, as

two bombs,

that the same person

discussed supra at
_____

evidence tending

stated that

no

built both bombs.24

20-26, other circumstantial

to show that the maker

similar modus operandi (e.g., both

_____ ________ ____

he had

of each bomb used a

bombs built for a friend,

both

bomb

makers

components)

same

used

the

sufficiently

party

independently supported

person built both

whether

third

jury

would

similar to

derived evidence,

bombs.

have

prove

to

acquire

the inference

Finally,

found

needed

that the

even putting aside

the

two

identity without

the jury nonetheless would

incidents

the

EXIS-

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

Jr. and

his electrical and explosive

____________________

relationship with Shay

skills, the additional

24.

Our dissenting colleague correctly notes that, in ruling

on the

admission of the

Quincy bomb evidence,

the district

court stated that it was "adding" the statistical evidence to

the expert's testimony.
that

it is

But we

"plain" that

the district

EXIS-derived

evidence

between

two devices,"

the

differ from his

to

form

"the

see infra
___ _____

court's discussion focuses entirely on

with

only the

system.
saying not

passing

In this
that

decision, but

reference at

court relied

EXIS

only that

final

at

Indeed, the

55.

the

end to

the

EXIS

district court to be
necessary
_________

it provided additional

-4141

link

the expert testimony,

evidence was

it.

on the

critical

context, we read the

the

conclusion

to

its

support for

presence

of

several different

strong sources

of testimony

relating Trenkler's admissions, convinces us that no rational

jury could have entertained

a reasonable doubt of Trenkler's

guilt even in the absence of the EXIS-derived evidence.25

C. Shay Jr.'s Out-of-Court Statements

______________________________________

Trenkler

additionally

court erred by admitting

statements purportedly

in general, tended to

to suggest that Shay

court admitted the

asserts

that the

district

testimony relating ten out-of-court

uttered by Shay Jr.

The statements,

implicate Shay Jr. in the

Jr. had not acted alone.

statements either as

bombing and

The district

nonhearsay evidence

of Shay

McCormack
_________

Jr.'s state of

mind, see
___

Fed. R. Evid. 804(b)(3).

these

Evid. 801(c);

269 at 208, or as falling within the declaration-

against-penal-interest exception

of

Fed. R.

statements

to

Trenkler argues that

violated

Confrontation Clause.26

the hearsay

his

rights

rule,

see
___

the admission

under

the

We do not agree.

____________________

25.

We agree with our dissenting brother that we may find an

error harmless beyond a reasonable

doubt only when the other

evidence in the case, "standing alone, provides `overwhelming

evidence'

of

the

defendant's

(quoting Clark v. Morgan,

_____
______
In

contrast with

when the

guilt."

See
___

942 F.2d 24, 27 (1st

our colleague,

infra at
_____

53

Cir. 1991)).

however, we

believe that,

evidence of Trenkler's participation

in the Quincy

bombing, which we do not believe was rendered inadmissible by

the admission

of the EXIS-derived evidence, is

"substantial"

other

evidence

of

Trenkler's

added to the
guilt,

the

resulting sum is clearly "overwhelming."

26.

We

district

do

not

understand

court committed

Evidence in

Trenkler

error under

to

assert

the Federal

admitting the statements.

that

the

Rules of

Though Trenkler does

-4242

In

Trenkler

asserting

relies primarily

U.S. 123 (1968),

Confrontation

on Bruton
______

Clause

violation,

v. United States, 391

______________

in which the Supreme Court held

that, in a

joint trial,

confession

an instruction

to

of one non-testifying

the jury

to disregard

the

defendant was insufficient

to prevent the confession from unfairly prejudicing the other

defendant.

trial

Critical to the

court's

inadmissible

128

n.3.

undisputed

Bruton Court's decision was the

______

ruling

that the

against the non-confessing

Bruton has
______

no application

confession

defendant.

in the

was

Id. at
___

present case,

however, because the challenged statements here were directly

admissible against Trenkler and,

the Bruton risk of

______

district court

consequently, did not

spill-over prejudice.

admitted the

In this

statements against

establish the existence of the conspiracy.

pose

case, the

Trenkler to

The Confrontation Clause does not proscribe the use

of

all out-of-court statements.

U.S. 805, 813 (1990).

statements

not

asserted

do

raise

prove

the truth

Confrontation

Tennessee v. Street, 471 U.S.

_________
______

v. Levine, 5 F.3d
______

Idaho v.
_____

Wright, 497
______

In general, nonhearsay statements

offered to

not

See
___

of

Clause

or

the matter

concerns.

409, 414 (1985); United States

_____________

1100, 1107 (7th Cir. 1993),

cert. denied,
_____ ______

____________________

state at

one point

admitted

that the declarations

as

statements

against

"were erroneously
Shay Jr.'s

penal

interest or of Shay Jr.'s state of mind," he does not explain

this assertion of error except on constitutional grounds.

-4343

114 S. Ct. 1224

does not

where

the

(1994).

Moreover, the

necessarily prohibit the use

trial

court

"firmly-rooted"

exception

otherwise found

the

has admitted

to

the

statements to

guarantees of trustworthiness."

Confrontation Clause

of hearsay statements

them

hearsay

possess

pursuant

rule

to

or

has

"particularized

See Wright, 497 U.S.

___ ______

(citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)).

____
_______

at 816

To the extent that

statements as nonhearsay

the district court admitted the

evidence, Trenkler's

Clause challenge lacks merit.

As for the

for declarations

"firmly rooted" exception

States v. Seeley, 892

______
______

for

rooted'").

assumption,

nor

does

to the hearsay

penal

previously that

rule.

explain

does

why

See
___

is a

United
______

1989) ("exception

interest would

Trenkler

he

at 414.

against penal interest

F.2d 1, 2 (1st Cir.

declarations against

`firmly

See Street, 471 U.S.

___ ______

rest, we have strongly suggested

the exception

Confrontation

not

the

seem to

challenge

be

this

statements

in

question lack "particularized guarantees of trustworthiness."

Accordingly,

we are

not persuaded

that the

district court

violated Trenkler's confrontation rights by admitting them.

III.
III.
____

Conclusion
Conclusion
__________

For the

foregoing

reasons, we

conviction.

-4444

affirm

Trenkler's

Dissent follows.
Dissent follows.

-4545

TORRUELLA, Chief Judge, (Dissenting).

TORRUELLA, Chief Judge, (Dissenting).
___________

In my view,

the erroneous admission in this case of evidence derived from

the

EXIS computer

database

Amendment right to confront

violated the

defendant's Sixth

witnesses against him.

Contrary

to my brethren, I do not believe that this error was harmless

beyond a reasonable doubt.

I therefore dissent.

I.
I.
__

Trenkler

exploded

in

admitted

Quincy

in

strategy at trial27 was

to

1986.

the same person.

Research Specialist

Firearms

query

on

incidents

which

EXIS

shared

Roslindale incident.

that

he

database28

certain

that

central

device was

that they had to have been

with the Bureau of

ATF's

device

government's

Stephen Scheid,

("ATF"), testified

the

The

to prove that the Quincy

so similar to the Roslindale bomb

built by

building

an Intelligence

Alcohol, Tobacco and

conducted a

to

computer

identify

characteristics

with

bomb

the

Based on this analysis, Scheid told the

jury that,

reported

out of the 14,252 bombings and attempted bombings

in

EXIS,

only

the

Roslindale

and

the

Quincy

incidents shared all the queried characteristics.

For a jury

evidence of

reviewing otherwise weak circumstantial

defendant's guilt (see infra),

___ _____

this is powerful

____________________

27.

In

support of its motion in limine to admit evidence of

the 1986 incident, the

government described this evidence as

"the centerpiece of the Government's case in chief."

28.

For a description of the EXIS database, see supra p. 8.

_____

-4646

stuff

--

tangible,

conclusively

Quincy

"scientific"

establish that

device in

1986

Unfortunately, as

the

made the

the majority

evidence which

same person

Roslindale

concedes,

seems

who made

bomb in

to

the

1991.

the reports

from

which the EXIS information is derived are utterly unreliable,

thus

rendering its

will

be shown,

reasons,

conclusion equally

completely

disagree

with

admission of the EXIS-derived

reasonable

doubt."

unreliable, and,

misleading.

For three

the majority's

evidence

First,

the

as

related

conclusion

that

was "harmless beyond

EXIS-derived

evidence

plainly influenced the district court's decision to allow the

government's motion to admit evidence of the Quincy incident,

under Fed. R. Evid. 404(b), to show that the same person must

have

built the

evidence

Roslindale bomb.

Second,

was very powerful and very

____
____

the EXIS-derived

misleading.

Third, the

other evidence against Trenkler was not "overwhelming," as is

required under our precedent.

II.
II.
___

The

Trenkler's

majority

Sixth

assumes,

Amendment

against him was violated

evidence.

Supra
_____

n.22.

right

without

to

deciding,

confront

that

witnesses

by introduction of the EXIS-derived

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."

____________________________________

-4747

Chapman
_______

v.

California, 386
__________

added); United

States v.

U.S.

18,

24 (1966)

De Jes s-R os, 990

(emphasis

F.2d 672,

678

______________

(1st

Cir.

1993).29

EXIS-derived

doubt,

_____________

To

evidence was

one must

constitutional

why admission

not harmless beyond

understand

the nature

violation.

acknowledges, much less

Because

and

the

of

extent of

majority

its result appears both

sound and benign.

It is

explaining

why,

and

Amendment

right

to

neither.

to

what

confront

the

a reasonable

the

barely

discusses, the constitutional

at stake in this case,

violated.

comprehend

right

analytically

I will therefore begin by

extent,

witnesses

Trenkler's

against

him

Sixth

was

I will then endeavor to show why this error cannot

be considered harmless.

III.
III.
____

The

provides

shall

Confrontation Clause

that, "[i]n all

enjoy

the right

of

the Sixth

Amendment

criminal prosecutions, the accused

. to

be

confronted

with the

witnesses against him."

The Supreme Court has explained that

"[t]he

central concern

of

ensure

the reliability

of the

the Confrontation

Clause is

evidence against

to

a criminal

defendant by subjecting it to rigorous testing in the context

____________________

29.

Under

the standard

for analyzing

non-constitutional case, the court

provided

it

can

be

said

"that

substantially swayed by the error."

harmless error

will uphold a
the

judgement

in a

conviction
was

not

United States v. Flores,

_____________
______

968 F.2d 1366, 1372 n.7 (1st Cir. 1992) (quoting Kotteakos v.
_________
United States, 328 U.S. 750, 765 (1946)).
_____________

-4848

of

an

adversary

proceeding

before

the

trier

of

fact."

Maryland v. Craig, 497 U.S. 836, 845 (1990); United States v.

________
_____
_____________

Zannino, 895 F.2d

_______

1, 5 (1st Cir. 1990) ("the

Confrontation Clause

the

accuracy of

trials

is to

mission of the

advance a practical

the truth-determining

process

concern for

in criminal

by assuring that the trier of fact has a satisfactory

basis

for

evaluating the

truth

(quoting Dutton v. Evans, 400

______
_____

of

the prior

statement")

U.S. 74, 89 (1970)

(plurality

opinion)).

Hearsay

evidence

may only be admitted

from an

unavailable declarant30

against a defendant in a

criminal case

if the government can demonstrate that the proffered evidence

"bears adequate

448

U.S.

omitted).31

indicia of

56,

66

The

reliability."

(1980)

government

Ohio
____

(internal

v. Roberts,
_______

quotation

may satisfy

this

marks

burden

by

____________________

30.

For practical

underlying
this case.

purposes, the authors of

EXIS reports

were

the over 14,000

effectively "unavailable"

See United States v. Inadi,

___ ______________
_____

475 U.S. 387,

in
394

(1986) (absolute unavailability not constitutionally required

in

all cases); Manocchio v. Moran, 919 F.2d 770, 774-76 (1st

_________

_____

Cir. 1990) (same).

31.

The

majority

statement

--

that out

attempted bombings
and

Quincy

properly
of

holds
more

than

incidents

shared

it was based on

14,252

underlying

offered

in

a host of
reports

court for

the

the

801.

Because

the

specific

underlying reports,
properly

queried

totem pole hearsay.

That

out-of-court statements (the

submitted
truth

we know

and

only the Roslindale

by

unknown

authors)

of the

matters

asserted

therein (the characteristics of those bombings).

Evid.

EXIS-derived

14,000 bombings

in the EXIS database

characteristics -- is inadmissible
is,

that

neither

nor under what

See Fed. R.
___

who submitted

those

conditions, the majority

holds that the statements do not satisfy any of the

-4949

establishing either that the

rooted

hearsay exception"

possesses

"particularized

Id.; accord
__
______

Idaho v.
_____

evidence "falls within a firmly

or by

showing that

guarantees of

Wright,
______

497 U.S.

trustworthiness."

805, 816-17

(collecting cases); Manocchio, 919 F.2d at 773.

_________

properly

holds

that

the

EXIS-derived

the evidence

(1990)

The majority

evidence

satisfies

neither of these criteria, but neglects to fully explain why.

The

"particularized

critical

guarantees

inquiry

of

for

determining

trustworthiness" is

whether

"the test of cross-examination would be of marginal utility."

Wright,
______

110 S.

Ct. at

3149-50.32

The government

in this

case,

through

Scheid,

statement that,

incidents

Quincy

in

was

permitted

out of 14,252 bombing

the EXIS

incidents

database,

share the

the Roslindale

characteristics.

individuals who reported those bomb incidents

against Trenkler,

bomb incident

each of them testifying,

had the

introduce

the

and attempted bombing

only

queried

to

and

The

were witnesses

in effect: "This

following characteristics

. .

."

Despite the importance of their "testimony," neither Trenkler

nor the jury

attorney

ever saw

was unable

any of these

to cross-examine

witnesses.

Trenkler's

these witnesses

with

____________________

hearsay exceptions listed in Fed. R. Evid. 803(1)-(24).

32.

The

residual

hearsay

exception contained

in

Fed. R.

Evid. 803(24), under which the EXIS evidence was admitted, is

not a

"firmly

Wright,
______

497

rooted
U.S.

805,

hearsay

exception."

817 (1990);

See
___

Idaho
_____

v.

Government of Virgin
______________________

Islands v. Joseph, 964 F.2d 1380, 1387 (3d Cir. 1992).

_______
______

-5050

respect to

their credibility and reliability.

were

not subject

jury

will

ever

to cross-examination,

know,

for

example,

Because they

neither we

the

answers

nor the

to

the

following questions.

experts?

Were they even

certain procedures

reports?

Were the authors of these reports

police officers?

in compiling

evidence?

a quote "bomb"?

first hand knowledge of

34,

know the

answers to

knowledge of

thus making

it

filing their

Did they even

Moreover,

of a submitted

he have

supra p.
_____

Trenkler's attorney

the bomb reports need not be signed,

___________________

required the author

Scheid did

nor did

the incidents themselves,

him.

have

information

witnesses?

these questions,

impossible for

effectively cross-examine

that

In

the devices, or was the

provided to them second-hand from lay

first hand

Did they follow

What criteria did they use for determining that the

device in question was

not

bomb

Scheid

to

admitted

and that nothing

report to have

personal

knowledge of its contents.33

The majority

also alludes

to

a potentially

pernicious problem concerning the EXIS-derived evidence.

majority

incident

notes that

lists

the database

approximately

entry for

twenty-two

more

The

the Roslindale

characteristics

____________________

33.

Even

the majority

conclusion that only the

the

same

because we

questions the

validity of

the EXIS

Roslindale and Quincy devices share

characteristics.

As the

majority

know absolutely nothing about

points

out,

how the underlying

EXIS reports were generated, there is no way to know what the

absence of an item at a bomb site means.

Both Scheid and the

government's explosives expert admitted as much.

-5151

Supra n.21.
_____

describing

that

incident, but

only

to query ten

The

majority notes

these

ten

that there

characteristics are

Scheid offers

is nothing

more

Supra n.21.
_____

to suggest

important

to a

that

bomb-

of the other characteristics not

no reason why he chose to

certain generic characteristics instead

characteristics of

inexplicably, chose

of those characteristics.34

signature analysis than any

chosen.

Scheid,

query only

of the more specific

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

following

characteristics of the

any of the

Roslindale bombing: Futaba

antenna, Rockstar detonator, use of dynamite, nails, glue, 6-

volt battery,

slide switch,

electrical

tape.

unspoken.

implication

is

The

will

paint, magazine page,

majority

not

be

that

so

Scheid

leaves

the

discreet.

chose

or black

implication

The

the

obvious

particular

characteristics in an attempt to find a match with the Quincy

device.

This

implication

is enforced

by

the fact

that,

____________________

34.

The

queried

characteristics

were

1)

bombings

and

attempted bombings; 2) involving cars or trucks; 3) with bomb

placed

under the car or

5) magnets.

truck; 4) using remote-control; and

EXIS listed seven incidents which included these

characteristics.
manual

query

Scheid testified that he

of

characteristics of
other

incidents to

soldering;
magnets.

the

seven

the Roslindale
see if

then performed a

incidents
bombing.

they involved

using
He

other

checked the

1) duct

tape; 2)

3) AA batteries; 4) a toggle switch; and 5) round

_____
Scheid

did

not

check all

14,252

bombings

and

attempted bombings for these latter characteristics, only the

seven.

-5252

according to Scheid's own

testimony, the Quincy incident was

not

entered into

incident.

bombing

That

to

the

is,

database until

after the
_____

government agents

Scheid's

attention

when

Roslindale

brought the

they

asked

Quincy

him

to

investigate the Roslindale bombing.

The majority

weight

of the

contrary,

evidence

under

evidence than

they go directly

has

Because

based are

evidence

question of

guarantees of

Clause.

itself is

Amendment right

to the

whether the

trustworthiness

They demonstrate

and utterly

inherently and

more to the

admissibility;

the reports upon which the

inherently

Trenkler's Sixth

to its

to the

particularized

the Confrontation

does not.

is

thinks these concerns go

that it

EXIS evidence

unreliable, the

utterly unreliable,

to confront

EXIS

and

the witnesses

against him was violated.

See
___

question then becomes whether

Wright, 497 U.S. at 805.

______

The

this error was harmless beyond

a reasonable doubt.35

____________________

35.

This Circuit has demonstrated

applying

the

harmless

error

conviction, but rather, shows

rule.

sustain

Cir. 1995); United States

_____________

Cir.

1995); United States v.

_____________
United States v.
_____________

1994); Singleton
_________

about

criminal

a persistent inclination to so
1995 WL

United States v. Cotal-Crespo, 47

_____________
____________

(1st

1994);

rule to

See, e.g., United States v. Romero-Carri n,

___ ____ ______________
______________

258843 (1st Cir.);

1994);

that it is not shy

F.3d 1

v. Smith, 46
_____

F.3d 1223 (1st

Lewis, 40 F.3d
_____

1325 (1st Cir.

Tuesta-Toro, 29 F.3d
___________

v. United States,
______________

26 F.3d

771 (1st Cir.

233 (1st

Cir.

United States v. Isaacs, 14 F.3d 106 (1st Cir. 1994);

_____________
______

United States v. Welch; 15 F.3d 1202 (1st Cir. 1993); United

______________
_____
______
States v. Sep lveda,
______
_________
States v.
______

15 F.3d

Innamorati, 996 F.2d

__________

1161 (1st

Cir. 1993);

456 (1st Cir.

United
______

1993); United
______

States
______

v. Williams,
________

States
______

v.

985 F.2d

Spinosa, 982
_______

F.2d

634

(1st Cir.

620 (1st

Cir.

1993); United
______
1992); United
______

-5353

IV.
IV.
___

Under

standard, we

the

harmless

must vacate

beyond

the conviction

reasonable

if there

doubt

is "some

reasonable possibility that error of constitutional dimension

______________________

influenced the jury in reaching [its] verdict." United States

__________
_____________

v. Majaj, 947
_____

F.2d 520,

526 n.8 (1st

Cir. 1991)

(emphasis

added) (quoting United States v. Argentine, 814 F.2d 783, 789

_____________
_________

(1st Cir. 1987)).

1366, 1372 (1st

only

find

standing

See also United States v. Flores, 968 F.2d

________ _____________
______

Cir. 1992).

harmless

alone,

provides

defendant's guilt.

1991).

In

error

Under this

when

the

untainted

"overwhelming

as a

evidence

against

whole,

properly admitted."

will

evidence,

evidence"

of

the

Clark v. Moran, 942 F.2d 24, 27 (1st Cir.

_____
_____

conducting this inquiry,

evidence

standard, we

the

weighing the

effect

we "must

effect

of that

Id. (citing Lacy

consider the

of the

evidence

tainted

which

v. Gardino, 791

was

F.2d

__

980, 986

Thus, the

(1st

____

Cir.), cert. denied, 479

_____________

_______

U.S. 888

(1986)).

relative strength of the tainted evidence -- i.e.,

____________________

States v.
______

Figueroa, 976 F.2d

________

1446 (1st

Cir. 1992);

United
______

States v. Tejeda, 974 F.2d 210 (1st Cir. 1992); United States
______
______
_____________
v.

Parent, 954
______

F.2d 23

(1st Cir.

1992); United States v.

______________

Karas, 950 F.2d 31 (1st Cir. 1991); United States v. Minnick,

_____
_____________
_______
949 F.2d 8 (1st Cir. 1991); United States v. Maraj, 947
_____________
_____
520 (1st

Cir. 1991); Clark v.

_____

Moran, 942 F.2d

_____

F.2d

24 (1st Cir.

1991); United States v. McMahon, 938 F.2d 1501 (1991); United

_____________
_______
______
States v. Brown, 938 F.2d 1482 (1st Cir. 1991); United States
______
_____
_____________
v.

Ellis, 935
_____

Sutherland, 929
__________

F.2d 385

(1st cir.

F.2d 765 (1st

Wood, 924 F.2d 399

____

1991); United States v.

______________

Cir. 1991); United States v.

______________

(1st Cir. 1991); United States

_____________

892 F.2d 148 (1st Cir. 1989).

v. Paiva,
_____

-5454

its potential effect on

the jury -- is a

highly significant

consideration.

As I

see it, there

admission of the EXIS

are three related

reasons why

evidence cannot be considered harmless

beyond a reasonable doubt.

First, it is clear to me that the

district court

decision

relied on the

improper EXIS evidence

to allow the government

Quincy incident

to

the jury

in its

to present evidence of the

to prove

identity under

Rule

404(b).

At the hearing

evidence of the

on its

EXIS

computer

analysis,

Quincy and

and

the

admit

Evid. 404(b),

testimony of Scheid,

government's bomb expert, Waskom,

opinion, the

limine to

Quincy incident under Fed. R.

the government presented the

the

motion in

regarding

testimony

of

the

who testified that, in his

Roslindale devices were

that they must have been built by the same person.

so similar

In turn,

Trenkler presented expert testimony that the devices were too

different for anyone

built by the same

to be

person.

able to determine

After hearing this

if they

were

evidence, the

district court concluded that

"the similarities [between the

two incidents] are sufficient to admit the evidence under the

rules established . . . by the First Circuit."

The majority states that,

based upon its review of

the record, it is convinced that the EXIS-based evidence "was

not a

critical factor

in the

district court's decision

-5555

to

admit the Quincy bomb evidence for purposes of identity.

EXIS-derived

evidence

the testimony of the

pp.

39-40.

court

judge

was merely

cumulative, corroborating

government's explosives expert."

Yet the record

demonstrates that

thought otherwise

when

evidence of the 1986 Quincy incident.

the government's

motion, the

The

she

Supra
_____

the district

decided to

admit

In her oral opinion on

district court judge

began by

summarizing the testimony of Waskom, and then stated: "Adding

______

to this evidence,
_________________

the

statistical evidence

system, I am persuaded that the

similar

to prove that the

from the

EXIS

two devices are sufficiently

same person built

them, and thus

relevant to the issues in this case."

district

court

judge did

not

say that

"corroborated" Waskom's testimony.

adds
____

the EXIS

evidence to

convinced that the

is plain that

evidence to

devices.

to

the

the district

form the

The

EXIS evidence

She stated that, when she

Waskom's testimony,

she becomes

two devices are sufficiently similar.

court judge relied

critical final

link

on the

between the

It

EXIS

two

Indeed, in arguing its motion, the government chose

first present the EXIS

Waskom testimony,

corroborate

the

determination that

only to

(emphasis added).

evidence and then

suggesting that it intended

former.

The district

the EXIS evidence was

to present the

the latter to

court's

erroneous

admissible led not

the jury hearing that evidence, but also to the jury

hearing Waskom's testimony with respect to the two incidents.

-5656

I cannot

agree, therefore,

that admission of

this evidence

was harmless beyond a reasonable doubt.

The

evidence cannot

second

reason

that

admission

be considered harmless is that

of

the

EXIS

this type of

"scientific" evidence

has

too

great

is too

misleading, too powerful,

a potential

impact

on

lay

jurors, to

and

be

disregarded as harmless.

The

EXIS-derived

evidence was,

in the

best case

scenario, unintentionally misleading, and, in the

scenario,

deliberately skewed.

entering information about the

worst case

Scheid testified

that, in

Quincy incident into the EXIS

database, he relied solely on a laboratory report prepared in

1986 by

Public

investigators from

Safety.

device was

Rather,

it

the Massachusetts

This report

attached to the

refers

only

Department of

does not state

that the Quincy

underside of the

Capeway truck.

to

an

"[e]xplosion

on

truck."

Somebody must have given Scheid further information about the

Quincy

explosion because

he

entered "under

vehicle" as

characteristic

of

the

Quincy

incident.

The

majority

acknowledges these facts but, inexplicably, makes no comment.

See
___

supra n.8.
_____

First,

they

These facts are important for three reasons.

illustrate the

fallibility

reports.

How many of

defects?

Second, they illustrate

incomplete

the other 14,232

entry can affect a

of

reports had similar

how easily

query result.

-5757

the underlying

one wrong

or

If Scheid had

actually followed

have

the report, the Quincy

matched the Roslindale

entry

was

for

facts

indicate

bombing because

bomb "under

that

the

incident would not

vehicle."36

EXIS

test

Scheid's query

Finally,

was

skewed

these

(whether

intentionally or unintentionally) to find a match between the

Quincy and Roslindale incidents.37

The

EXIS-derived

evidence

is

because it focuses the jury's attention on

of the forest. By

also

misleading

the trees instead

focusing on similar minor aspects

between

the

two devices -- e.g., duct tape, magnets and soldering --

the

majority

completely brushes

aside

the

fact that

the

central and most

important ingredient in the

fundamentally different.

one would think, is

two devices is

The central ingredient

in a bomb,

the explosive content (in much

the same

way that the central ingredient in a high-performance

the engine).

dynamite
________

car is

The Roslindale bomb used two to three sticks of

-- a very

used an M-21 Hoffman

powerful explosive.

The

Quincy device

artillery simulator, which is a

device

____________________

36.

The majority acknowledges that "[t]he statement that out

of more

than 14,000 bombing and

attempted bombing incidents

in the EXIS database only the Roslindale and Quincy incidents

share

the eight

specific queried

and attempted bombings, attached

control,

round magnets,

duct

characteristics (bombings
under car or truck, remote-

tape,

solder, AA

batteries,

toggle switches) is a fairly powerful statement, but perhaps

_________________________________________
a somewhat misleading one."
_________________________

Supra n.21 (emphasis added).

_____

37.

As discussed previously, there is other

evidence (i.e.,

the suspect nature of Scheid's query choices) which

show

that the

EXIS query

predictable result.

may have been

skewed to

tends to
reach a

See supra pp. 50-51.

___ _____

-5858

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.

the Roslindale

device created

Indeed, while

an explosion large

enough to

kill, the Quincy device caused no visible damage to the truck

it

was placed

under.

Equating

the

two devices

is

like

equating a BB gun with a high caliber rifle.38

The misleading nature of the EXIS-derived statement

is compounded

which it

by the nature

was presented

of its

to the

source, and the

jury.

Not

only is

hearsay evidence, it is hearsay evidence wrapped in a

of "scientific" authenticity.

This

it rank

shroud

is not a paid government

expert testifying that, in his opinion, the two

______________

built by the same

way in

person; this is a computer

________

devices were

declaring that

the two devices

were built

deal in facts,39

by the same

not opinions.

person.

Computers are

Computers

not paid

by

____________________

38.

Federal authorities apparently

incident serious enough to

Trenkler

pursuant

to

did not deem the

warrant bringing charges

18

U.S.C.

844(i)

Quincy
against

(malicious

destruction of property by means of an explosive), one of the

statutes

at issue in this case.

State charges stemming from

the Quincy incident were dismissed.

39.

Of course,

as accurate

the facts generated by the computer are only

and reliable

as the

facts fed

into it

by its

operator.

As the majority recognizes, in this case the facts

fed

the

into

computer

manifestly unreliable.

were,

unbeknownst

Thus, its conclusion

facts is similarly unreliable.

-5959

to

the

jury,

based on those

one side to testify.

computers

the

are not subject

chart of the EXIS

printouts of

into

Computers do not have

evidence

and

to cross-examination.

queries performed by

the results

prejudices.

of those queries,

presented

as

exhibits

And

Moreover,

Scheid, and the

were introduced

to

the

jury.

Consequently, the jury had this misleading, physical evidence

with them in the

not

jury room during deliberations.40

stand to reason that

the lay juror

Does it

will accord greater

weight to a computer's written findings than to the testimony

of a government expert witness?

The common-sense answer is,

of course.41

____________________

40.

Common sense

tells us that

lay jurors often

will lend

more weight to tangible evidence than to oral testimony.

generally
_________

22

Procedure,
_________
psychological
suggest

C.

Wright

5173 (1978)
impact

matters

not

of

&

Graham,

("It is
the

proved,

Federal Practice and

______________________

often

asserted that

concrete has
to

lead

the

capacity
jury

unconscious inferences that would not be drawn if

was

the subject of

court.") (internal

See
___

testimony rather than

citations omitted).

to

the
to
draw

the object

being produced in
See also
___ ____

People v.
______

Moore, 525 N.E.2d 460, 463 (N.Y. 1988) (Kaye, J., dissenting)
_____
("No

point in

deliberations.

trial

can

be

more

critical

Materials taken into the jury

As one commentator has noted:

Scientific

evidence

impresses

jury

room at those

crucial moments may well influence the verdict.").

41.

than

lay

jurors.

They

assume it is more
objective
A

scientific

who

of

testimony.
thinks

of

evidence visualizes

instruments
amazingly

to

accurate and

than lay

juror

tend

capable

of

precise measurement,

findings

arrived

at

by

dispassionate scientific tests.

In

short, in

the mind

-6060

of the

The majority decision in

common sense,

it is also contrary

Jes s-R os, 990

__________

F.2d 672, we

this case not only defies

to our precedent.

held that the

In De
__

defendant's due

process rights were violated when the district court admitted

certain

identification

Significantly, we

beyond

testimony

by

concluded that the error

reasonable

doubt,

even

witness.

was not harmless

though

another

witness

testified at trial that he also had identified the defendant.

Rather than concluding, as

one

erroneously

the majority does here, that

admitted

identification

was

cumulative" of the other, the court reasoned:

[T]here is
role that
in

no way for us

Rivera's identification played

the jury's

concerned

to discern the

deliberations.

that the

jury

We

are

may have been

______________

the

"merely

persuaded to convict by the very fact

_________________________________________
that
there
were two
witnesses
____________________________________
identified [the

defendant].

It

who

is also

possible that the jury relied solely upon

the testimony of

Rivera in reaching

its

____________________

typical lay juror, a scientific

witness has a

special aura

of

credibility.

Imwinkelried, Evidence Law and Tactics for the Proponents of

_______________________________________________
Scientific Evidence, In Scientific and Expert Evidence 33, 37
______________________________________________________
(E.

Imwinkelried

ed.

1981).

See also
_________

Giannelli,

Admissibility of Novel Scientific evidence: Frye

_____________________________________________
States, a Half-Century Later, 80
_____________________
(1980)

("The

potential

to

major danger
mislead

infallibility may
to accept

the

of

Colum. L. Rev.
scientific

jury;

an

aura

v. United
1197, 1237

evidence is
of

The
___

its

scientific

shroud the evidence and thus lead the jury

it without

Graham, supra note 41,

_____

critical scrutiny.");

22 C.

Wright &

5217 ("Scientific . . . evidence has

great

potential for misleading the jury.

The low probative

worth can often be concealed in the jargon of some expert . .

.").

-6161

conclusion.

Thus,

we find

reasonable

doubt exists as to whether the jury would

have
solely

convicted

[the

defendant]

upon

Mejias's

based

identification

testimony.

Id. at 678
__

(emphasis added).

Is it

not equally

plausible

that

the jury

convict"

the

in

this case

--

persuaded

to

identified the builder of the

device as the builder of the

not also equally plausible

the

have been

by the very fact that two "witnesses" -- Waskom and

EXIS-derived evidence

Quincy

"may

EXIS-derived

evidence

Roslindale bomb?

that the jury relied solely

______

in

reaching

its

Is it

upon

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

lay jury

than

the

testimony of a human being.

The jury may well have relied on

the

to

EXIS-derived

competing experts.

trial

judge

evidence

This

noted,

break the

is particularly

defendant's

tie

between

the

so since, as

the

expert

witness

had

"considerably

comparisons."

have

been

more

experience in

Since

"the

the EXIS-derived

clincher"

considered harmless

making

for

the

. .

evidence

jury,

it

beyond a reasonable doubt.

signature

could well

cannot

be

See Coppola
___ _______

v. Powell, 878 F.2d 1562 (1st Cir. 1989).

______

The

evidence is

third

reason

that

not harmless beyond

the other evidence

admission

a reasonable doubt

against Trenkler was

-6262

of

the

EXIS

is that

not "overwhelming."

See Clark,
___ _____

942

F.2d

conglomeration

conclusion

of

that

Trenkler's guilt,

test,

of

evidence"

course,

of

"overwhelming
____________

at

27.

other

The

testimony

there

was

not

Trenkler's

evidence"

points

support

to

there

but

Trenkler's

its

evidence"

of

is

The

"substantial

whether

there

is

guilt.

The

two

standards are qualitatively and quantitatively different.

any case, I will

of

the Quincy incident.

whether

guilt

of

in

"substantial

independent of

is

majority

In

begin by addressing Trenkler's "statements"

to government agents.

ATF

Trenkler

to

Trenkler

did.

Agent

draw

Roslindale bomb

D'Ambrosio

testified

sketch of

D'Ambrosio

also used

the

then

that

Quincy

told

he

asked

device,

which

Trenkler

remote control, but

that

the

that, rather

than a firecracker type device, it used dynamite.

D'Ambrosio

asked

the wiring

Trenkler

diagram

been

how, in

he had just drawn

of these

for the Quincy

facts,

device would have

different for the Roslindale bomb. D'Ambrosio testified

that Trenkler then drew

caps

light

inserted into

considers

this

a diagram which showed

two sticks

significant

of

dynamite.

evidence

of

two blasting

The majority

Trenkler's

because the fact that the Roslindale bomb used blasting

had not been publicly disclosed.

guilt

caps

The majority fails to note,

however, that D'Ambrosio actually testified that at least two

________

blasting caps

were used

in the

Roslindale bombing.

Thus,

-6363

Trenkler's drawing of only two blasting caps was not an exact

match.

Moreover,

the jury heard evidence that

Trenkler had

extensive knowledge of both electronics and explosives, so it

is

not necessarily

reconstruct an

aspect of

considering the

Trenkler

the Roslindale bomb,

was able

Trenkler

to

particularly

provided to

merely identified

that

were a likely way in which a bomb of this size

power would

testimony

that Trenkler

information concerning the bomb

by D'Ambrosio.

blasting caps

and

significant

be

constructed.

In

the absence

of

any

that the use of blasting caps is unusual or unique

(a proposition which is highly unlikely), the jury could only

speculate as to the significance of the drawing.

The majority

also finds significance in

Leahy's testimony that Trenkler

said to him: "If we

ATF Agent

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.

not have

been of some

(although

standing

sufficient

circumstantial relevance to

alone,

of

course,

to sustain a conviction).

the court

is looking

one would

think the court would

sort of

This testimony may or may

it

the jury

would

not

be

But, upon review, when

for "overwhelming evidence

of guilt,"

not have to resort

an ambiguous, taunting statement.42

to this

Similarly, the

____________________

42.

In

Coppola,
_______

for

defendant's statement to
to

lose?"

--

example,

we lent

little

weight

another inmate -- "What did

in response

to

-6464

question

to

I have

whether he

had

court notes that

knew

there was evidence

each other,

electronics and

and that

be

said

that

"overwhelming

States
______

v.

Trenkler

explosives.

this type of circumstantial

it

does

evidence" of

Innamorati, 996
__________

(holding that the

that Trenkler and

had knowledge

While the jury

Shay

of both

might consider

evidence relevant, it can hardly

much

in

the

way

of

defendant's guilt.

F.2d

456, 476

erroneous admission

(1st

providing

Cf.
__

United
______

Cir. 1993)

of inculpatory

grand

jury testimony

was harmless

beyond a reasonable

doubt when

seven people testified at trial that defendant was engaged in

_____

marijuana and cocaine dealing, and drugs and money were found

in defendant's constructive possession).

The majority

of David

relies most heavily on

Lindholm, who testified that

building the Roslindale bomb.

the testimony

Trenkler confessed to

But Lindholm had

some serious

credibility problems which make his testimony "shaky," to say

the

least.

Lindholm was

Lindholm

testified that

serving a

distribute marijuana

he met

97-month sentence for

and tax evasion.

Trenkler while

conspiracy to

He further testified

that he was in the marijuana business from approximately 1969

through 1988, and that he did not pay any income taxes during

that

time.

Lindholm also testified that, in order to secure

bank loans to purchase property during that period, he showed

several

banks false

income tax

returns.

On the

basis of

____________________

committed the rape.

See 878 F.2d at 1569-70.

___

-6565

Lindholm's shady

past alone, the jury

might have completely

disregarded his testimony.

But Lindholm also had some less obvious credibility

problems.

The circumstances of his

me as a little too coincidental.

meeting Trenkler strike

On December 17, 1992, after

a year and a half incarceration in Texas, Lindholm is brought

back to Boston concerning certain unspecified charges related

to his conviction.

at

the Plymouth

He is then placed in the orientation unit

House of

Correction where he

meets Alfred

Trenkler, who is being held in connection with the Roslindale

bombing.

The two

extraordinary amount

subsequently discover that

in common.

the town of Milton, Massachusetts.

they have

First, they are

an

both from

Second, Trenkler attended

Thayer Academy and Milton Academy, and Lindholm's father also

attended Thayer Academy and Milton Academy.

Third, they both

lived for a time -- overlapping by one year --

Avenue

in

Milton.

Lindholm's

Based

on

in

sharing

generosity

criminal

justice

friendship.

system

Trenkler then,

with

these

his

on White Lawn

commonalities,

knowledge

Trenkler,

they

and

of

the

form

allegedly, confesses to Lindholm

that he built the bomb.

In

my

whether Lindholm

view,

reasonable juror

was placed in

government

for the

Trenkler.

If so,

purpose of

that

juror

-6666

might

question

the orientation unit

obtaining a

would

by the

confession from

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

testimony.43

any

He

promises

or

did testify on

inducements

for

his

cross-examination, however,

that he knew, when he provided the information about Trenkler

to the

could

government, that the

be reduced was if

only way his

he supplied new

97-month sentence

information to the

government.44

We

Lindholm's

-- for we

do

not

know how

much

weight

the

jury gave

testimony, but we do know that, at least on paper

did not observe his demeanor at

trial -- Lindholm

____________________

43.

If

witness,

the

government

makes

of course, this will

decrease the

an

explicit

come out at

promise

to

trial and likely

witness's credibility in the eyes

of the jury.

But if the government lawyers explain to the witness why they

do

not

want to

make

any

explicit promises,

leaving

the

inference that one good deed begets

another, the witness can

testify that he

I note, in this

that

this court

has no agreement.
has previously

questioned the

regard,

validity of

these "no agreement" statements by criminal defendants.

See,
___

e.g., Coppola, 878 F.2d at 1569-70.

____ _______

44.

When

asked

on

direct

examination

why

he testified,

Lindholm stated:

Since

I have

been incarcerated,

I have

come to realize that the sole function of

prison

is not just

rehabilitation
individual.
about

punishment.

is
And

important
I

of

for

think, when

rehabilitation,

rehabilitation

I think

I talk

a person's

an

mean
values in

terms of how they live one's life and the

decisions

they

make,

knowing

the

decisions

they

make,

knowing

the

difference

between

what's

wrong

and

what's right, what's illegal and legal.

-6767

had some significant

credibility problems.

Consequently,

cannot conclude beyond a reasonable doubt that the jury would

have believed his

testimony; particularly in a

this

is absolutely no physical evidence tying

_________________________________

where there

Trenkler

to

(discounting

because

the bombing.

inculpatory

it "raises

noting the absence of

the defendant to the

Cf.
__

Coppola,
_______

testimony

serious

878 F.2d

of three

questions

case such as

jail

at 1571

inmates

of credibility"

and

any conclusive physical evidence tying

crime).

The only evidence

coming near

thatlevelofreliability wastheimproperlyadmitted EXISevidence.

Absent the EXIS-derived evidence,

case

against

inconclusive

Trenkler

consists

circumstantial

of

evidence

and

the government's

smorgasbord

an

of

inherently

unreliable

alleged jailhouse

confession.

sort

of evidence, a reasonable jury

some

sort of tangible evidence

The

upon which to

crime,

it may

conclusive evidence

have been

Coppola, 878 F.2d

_______

It was

hang its hat.

Because it was the

tying

the clincher

at 1571.

this

would probably look for

EXIS-derived evidence was just that.

only ostensibly

Faced with

Trenkler to

for the

jury.

therefore not

the

See
___

harmless

beyond a reasonable doubt.

V.
V.
__

A horrible crime was

officer was

killed and

committed in which one police

another seriously injured.

Society

rightfully demands that the guilty be apprehended, tried, and

-6868

punished.

is

that

But the distinguishing feature of our legal system

even

those

guaranteed certain

that

charged

grotesque

constitutional rights intended

they receive a fair trial.

due respect to

with

crimes

are

to ensure

Unfortunately, and with all

my brethren, I believe

the defendant's right

to

fair

permitted

trial

to

was

violated

introduce

the

when

highly

the

prejudicial

derived from the EXIS computer database.

so severely

violated

government

defendant's Sixth

was

evidence

Because this error

Amendment right

to

confront the witnesses against him, and because the remainder

of

the

dissent.

evidence

against

him

was

not

"overwhelming,"

-6969