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U.S. v. Himelwright

filed: November 25, 1994.



Before: Stapleton, Alito and Lewis, Circuit Judges.

Author: Lewis


LEWIS, Circuit Judge.

Richard Himelwright was indicted on September 7, 1993, and charged with two counts of Interstate Threats and Extortionate Demands, in violation of 18 U.S.C. § 875(b),*fn1 (Counts I and II), and one count of Interstate Threats, in violation of 18 U.S.C. § 875(c),*fn2 (Count III). Prior to trial, Himelwright filed a motion in limine seeking to bar testimony regarding his purchase and possession of two firearms, claiming that their admission would violate Rule 404(b) of the Federal Rules of Evidence and would be unduly prejudicial under Rule 403. By Memorandum Opinion dated November 12, 1993, the district court denied the motion, finding that the firearms evidence was admissible under Rule 404(b) as proof of Himelwright's intent to commit the crimes charged or, in the alternative, as indicative of his plan or preparation. Memorandum Opinion at 5. Himelwright was subsequently convicted and sentenced to 18 months imprisonment,*fn3 to be followed by three years supervised release. Himelwright appeals.


We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because we believe that the district court erred in admitting testimony concerning Himelwright's purchase and possession of firearms, as well as the firearms themselves, we will reverse the district court's denial of the in limine motion and vacate Himelwright's conviction.


Prior to his arrest on September 8, 1993, Himelwright had been employed as a truck driver with the United States Post Office in York, Pennsylvania. Several months before the events which lead to his arrest occurred, Himelwright had been found guilty of driving under the influence of alcohol, a conviction which, because of the mandatory one-year suspension of driving privileges, jeopardized his continued employment as a truck driver. In anticipation of having his license suspended, Himelwright applied for several non-driving jobs with the Postal Service. Because he had two daughters who lived with their mother in Moorhead City, North Carolina, Himelwright focussed his efforts on openings in the Mid-Carolina's District.

One of the positions Himelwright sought was in Florence, South Carolina.*fn4 The Florence postal facility had a maintenance position which would be held open until July 1, 1993. In order to qualify for the position, Himelwright was required to take and pass an aptitude test. In early June, Himelwright was advised that the test was only conducted twice a year, in February and August. He contacted the Postal Service's Employee Assistance Program (EAP) Hotline, and requested help in obtaining an earlier test date. A test was scheduled for July 9, 1993, at the post office in Lancaster, Pennsylvania. Either because he was approximately two hours late, or because the Postal Service did not accurately inform him of the time for the test, Himelwright was not able to take the test on July 9. The test was then rescheduled for July 12, 1993, and Himelwright completed the exam that day. When he was finally notified on July 24 that he had passed the test, however, the Florence position apparently was no longer an option.

Almost one week later, on the evening of August 30, 1993, Himelwright placed several telephone calls to two Postal Service hotlines in Washington, D.C., from his home in York. He had been drinking and was fearful that a hurricane was going to hit the town where his two daughters lived. The first call, placed at approximately 8:20 p.m., was to the EAP Hotline. Because it was received after business hours, his call was answered by an answering machine. Himelwright made the following statement:

Hello, my name is Richard C. Himelwright, 866 Tioga Street, York, PA. Case No. 1610. I requested y'all to give me a letter from Lancaster where they stated they were going to give me the test by July 1st. Y'all won't respond to that. That's fine and dandy. Now this is August 30th, 8:20 p.m., the hurricane is gonna hit in the next four hours, where my daughters live in Moorhead City, North Carolina, and y'all ain't doing shit about getting my transfer. Now I'm very, very, irate here, this ain't a threat, but I shot on too many rifle teams, and I'm tired of being jerked around. Now you all ain't giving me no help at all, none whatsoever. You won't return no phone call all of a sudden, nobody's doing nothing. You told me that Lancaster said, "Oh yeah, you gonna have the test by July 1st." Wrong. I didn't get it until July 9th and then it was postponed 'til July 12th. Oh, that's not your fault, that's my fault, right? Wrong. I lost that transfer to Florence. Now I'm trying for Raleigh, North Carolina. Now I'm tellin' y'all right now, if I don't get that transfer, there's gonna be some shit! Cause I'm tired of playing games with y'all. I'm tired of playin', I don't even know if my daughters is gonna make it through the night. I can't even get through. The lines are dead. I don't even know where my daughters are right now. They live in Moorhead City, North Carolina, where the storm is supposed to hit between now and midnight, and y'all ain't done shit for me. You got me so (sob) freakin' upset. Oh, never mind, you ain't no help.

Himelwright then called the Postal Inspection Service Crimes Hotline and left a message for a duty officer to return his call. At about 8:30 p.m., Postal Service Police Officer Roberto S. Lloyd contacted Himelwright, who explained his predicament and, in the process, stated:

I am irate and upset because I'm getting shafted. Someone better do something now because I'm getting tired of it now. . . . I want to be with my daughters but the Postal Service is saying, "Fuck You!" . . . If something happens to these children, someone is going down the tubes. . . . I was a policeman in North Carolina and a weapons specialist in the Marine Corps. Why is everybody messing with me? They worry about shootings in the Post Office, they should worry about me if anything happens to my children because of the hurricane. Shit will hit the fan; this is not a threat but a promise.

About one-half hour later, Himelwright called the EAP Hotline again and left another lengthy message. He once again made threatening remarks and expressed his frustration about the Florence position as well as his concern that his children might be in danger. He then called his friend and Local Union President, Henry P. Dennis, Jr. Himelwright told Dennis:

Henry, I really blew it this time. I really blew it big time. My job's down the tubes. I just called the Postal Inspectors and spilled my guts. I told them everything from Bill Runkel to them screwing around with my transfer to North Carolina. I feel like coming in there and blowing everybody away. You don't have to worry, I don't want you.

Dennis called the York Post Office receptionist and warned her that if Himelwright were to appear at the Post ...

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