Nurse Gilbert

Convicted of Killing Four Veterans

at Massachusetts VA

Former VA Nurse Now Behind Bars for Life

United States Court of Appeals

For the First Circuit

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Stahl, Circuit Judge.

STAHL, Circuit Judge. These interlocutory appeals challenge in limine orders excluding three blocs of evidence the government wishes to present during the upcoming capital murder trial of defendant Kristen Gilbert. See 18 U.S.C. § 3731 (permitting an appeal by the government of an order excluding evidence in a criminal case so long as the defendant has not yet been put in jeopardy and the United States attorney certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding). Mindful that in limine evidentiary rulings are generally provisional, see United States v. Lachman, 48 F.3d 586, 590, 594 (1st Cir. 1995) (emphasizing that in limine orders excluding evidence usually can be revisited if developments at trial so warrant), and believing that the circumstances surrounding these rulings dictate that we accord broad deference to the district court's views, we affirm in all respects except one.

Because these are interlocutory appeals of pretrial orders, we cull the relevant background not from an established evidentiary basis, but rather from the parties' proffers, the district court's characterizations of these proffers in its several opinions addressing matters relevant to these appeals, and our decision in United States v. Gilbert, 181 F.3d 152 (1st Cir. 1999), which affirmed a jury verdict convicting Gilbert of telephoning a bomb threat to the Veteran's Affairs Medical Center (VAMC) during a criminal investigation of the events giving rise to this prosecution. The following recitation is thus only a summary, taken from these sources, of what the parties have told us that the evidence in this case will show.

Gilbert was employed as a nurse at the VAMC in Leeds, Massachusetts, from March 1989 through February 1996. At all relevant times, she was assigned to Ward C and worked the late-afternoon to midnight shift four days per week. Ward C houses chronically ill patients and the hospital's intensive care unit.

Beginning in the summer of 1995, Gilbert befriended James Perrault, a hospital police officer whose work schedule roughly corresponded to hers and whose duties required him to respond to medical emergencies in Ward C. By fall, Gilbert was having an extramarital affair with Perrault. At the time, Gilbert was married to one Glenn Gilbert, with whom she had two children.

In the months following the inception of her relationship with Perrault and continuing until Gilbert terminated her employment at the VAMC in February 1996, Gilbert's colleagues perceived a marked rise in the number of fatalities and emergencies in Ward C. Members of the VAMC staff also perceived a concomitant increase in the hospital's procurement of the drug epinephrine during this time. These perceptions prompted first an investigation by the Office of Healthcare Inspections of the Department of Veterans Affairs (OHCI) - an investigation that concluded that there was no evidence that any VAMC employee had intentionally harmed patients - and eventually a criminal investigation that led to Gilbert's arrest. During the course of the criminal investigation, and at times Gilbert knew Perrault would be answering the telephone, Gilbert made a series of anonymous, threatening calls to the VAMC. In one of these calls, Gilbert made the false bomb threat for which she stands convicted. See generally Gilbert, 181 F.3d 152. Gilbert also directly harassed and threatened Perrault, who had ended their relationship and agreed to cooperate with the authorities, and expressed anger towards certain co-workers who cooperated with the criminal investigation but would not speak with her own private investigator. In addition, Gilbert once attempted to obstruct the criminal investigation by temporarily blocking Perrault's car in his driveway and pleading with Perrault not to keep an appointment with criminal investigators looking into goings-on at the VAMC. After Perrault refused her request, Gilbert followed him and then vandalized his car while he was being interviewed.

The most recent indictment in this case alleges that, in the six-month period following the commencement of her relationship with Perrault, Gilbert killed four Ward C patients, and attempted to kill three others, by intravenously poisoning them with epinephrine (and insulin, in the case of one diabetic patient).⁽¹⁾ Epinephrine, a clear, odorless liquid, is medically indicated for resuscitating patients in a state of cardiac arrest or anaphylactic shock, but causes a potentially fatal rapid or irregular heartbeat when administered in excessive doses. The four deaths and three near-deaths all involved some sort of cardiac arrest on the part of the victim.

According to the government, Gilbert committed these crimes using the following modus operandi. She would obtain epinephrine from Ward C's medicine cabinet, enter the patient's hospital room after all other medical personnel had left, and inject the patient with a fatal dose of epinephrine under the pretense of flushing his intravenous line with a saline solution, an unusual and potentially dangerous practice. The government's theory is that, by thus injecting non-prescribed medication into these patients, all of whom suffered from differing degrees of cardiac troubles, Gilbert was able to generate medical emergencies, or "codes," in which she plausibly could claim to be responding to naturally occurring cardiac emergencies. Gilbert orchestrated these codes, in the government's view, because they brought her into contact with Perrault, and because they provided her with the attention and excitement that she craved. The government's principal evidence in support of its theory consists of two admissions Gilbert made to Perrault and toxicological evidence garnered from those Gilbert allegedly murdered.

Although no jurisdiction has indicted her for it, the government also claims that, in November 1995, Gilbert attempted to murder her husband, Glenn, by poisoning him with potassium. On November 5, 1995, Glenn Gilbert was hospitalized for gastroenteritis (a condition the government alleges was induced by Gilbert's introduction of low doses of diuretics into her husband's food over the preceding several weeks) and diagnosed with having unusually low levels of potassium and glucose in his blood. This combination of factors caused his heart to beat irregularly, resulting in a cardiac arrythmia. Following his discharge, Gilbert complained to others about the fact that her husband had been released without a follow-up potassium-level blood test. The government alleges that these complaints set the stage for the attempted murder.

According to the government, Gilbert came home from work shortly after the aforementioned hospitalization with two syringes, one of which was filled with a clear, odorless liquid, and told her husband that she wanted to take a blood sample back to the VAMC for additional potassium-level testing. Gilbert then informed her husband that she first would have to inject saline into his arm to flush the vein. As he was receiving the injection, Glenn Gilbert's arms and chest became numb. He tried to pull away, but Gilbert pinned him against the wall with her hip and continued the injection. Glenn Gilbert briefly lost consciousness, but came to and survived without any outside medical intervention. Gilbert allegedly explained away the incident by informing her husband that he had fainted at the sight of the needle. The government contends that Gilbert actually injected her husband with potassium in hopes of inducing a fatal cardiac arrest. Glenn Gilbert did not report this incident to the authorities until months after its occurrence, at a time when he and his wife were involved in a bitter divorce and child custody dispute.

For her part, Gilbert denies any fault for the deaths and other cardiac incidents charged in the indictment. She claims that these deaths and all but one of the near-deaths resulted from natural causes precipitated by preexisting medical conditions suffered by the alleged victims. With respect to one near-death allegedly brought on by insulin poisoning, Gilbert contends that negligence on the part of VAMC physicians caused her unwittingly to administer, on their orders, an excessive dosage. Gilbert apparently will introduce expert medical testimony at trial to substantiate her theories and refute the government's. As to the alleged attempted murder of her husband, Gilbert takes the position that she was, in fact, merely attempting to draw blood from his arm, and that his loss of consciousness was an insignificant "fainting episode."

In a number of motions in limine, the government sought to establish prior to trial the admissibility of the following blocs of evidence: (1) evidence pertaining to Gilbert's attempted murder of Glenn Gilbert by means of a method similar to the one allegedly used on the VAMC victims; (2) evidence pertaining to Gilbert's anonymous bomb threat and her direct harassment of Perrault; and (3) evidence pertaining to the perceptions of the nurses in Ward C that, between the fall of 1995 and February 1996, there was a marked increase in the number of cardiac emergencies and deaths when Gilbert was on duty.

The government argued that the first two blocs of evidence, although at least conceptually "extrinsic" to the crimes to be tried,⁽²⁾ should be admitted at Gilbert's trial. See Fed. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as . . . intent, . . . knowledge, [or] identity . . . ."). In the government's view, the evidence of Gilbert's attempted murder of her husband is probative on the issues of identity, intent, knowledge, and opportunity. So too is it relevant on the issue of causation. The evidence of the harassment and retaliation, in turn, is probative of Gilbert's consciousness of guilt and intent. Finally, the evidence of a perceived rise in the number of emergencies in Ward C is straightforward "intrinsic" evidence tending to prove causation.

Gilbert countered that the first two blocs of evidence should be excluded because they in fact tend to show only that she is a person of bad character who acted in accordance therewith by committing the crimes charged. See Fed. R. Evid. 404(b). Citing Fed. R. Evid. 403, Gilbert additionally argued, even if relevant, these blocs of evidence nevertheless should be excluded on fairness grounds. See id. ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ."). As to the third bloc, Gilbert contended that it lacks a proper foundation, calls for speculative opinions, and is more prejudicial than probative. For reasons elaborated below, the district court agreed with Gilbert and, in a series of orders, excluded all three blocs of evidence. The government challenges these rulings in these appeals.

In addressing the government's motions to admit the Rule 404(b) evidence identified above, the district court applied the two-part test summarized in United States v. Trenkler, 61 F.3d 45, 52 (1st Cir. 1995). First, the court asked whether the proposed evidence "has some 'special relevance' independent of its tendency simply to show criminal propensity," id. (quoting United States v. Guyon, 27 F.3d 723, 728 (1st Cir. 1994)), and answered that, at least in large measure, it does not.⁽³⁾ Second, the court assumed arguendo that the evidence in fact did have significant special relevance on an issue other than criminal propensity and then asked whether the evidence should come in under a Rule 403 analysis. See id. The court answered that the evidence should be excluded because its presumed probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See id. Rule 403 also was the basis upon which the court excluded the third bloc of evidence, i.e., the so-called "intrinsic" evidence regarding the co-workers' perceptions as to the number of emergencies in Ward C between fall 1995 and February 1996.

Because we discern no basis for concluding that the district court misapprehended the scope of the Rules it was applying, cf. Olsen v. Correiro, 189 F.3d 52, 58 (1st Cir. 1999) ("The proper interpretation of the Federal Rules of Evidence is a question of law and is reviewed de novo . . . ."), we review its application of Rules 404(b) and 403 to the proffered evidence only for an abuse of discretion, see, e.g., United States v. DiSanto, 86 F.3d 1238, 1250 (1st Cir. 1996) (reviewing with deference a district court's Rule 404(b) and 403 determinations handed down in response to a motion in limine).⁽⁴⁾ As we have explained, an abuse of discretion occurs "when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales." United States v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992).

With these principles in mind, we turn to the government's three assignments of error.

A. Exclusion of Evidence Regarding the Attempted Murder of Glenn Gilbert

The government here renews the five Rule 404(b)-based arguments made below in support of admitting the evidence of Gilbert's attempt on her husband's life: (1) the similarities inhering in the modus operandi Gilbert employed in this attempt and that she employed in the crimes charged tends to identify Gilbert as the perpetrator of the crimes charged; (2) the evidence tends to show that Gilbert at all times acted intentionally; (3) the evidence tends to show that Gilbert had the knowledge necessary to commit the crimes charged; (4) the evidence tends to show that Gilbert had the opportunity to commit the crimes charged; and (5) the evidence tends to refute Gilbert's defense that natural causes, or VAMC physician negligence, led to the four deaths and three near-deaths cited in the indictment.

In denying the government's motion, the district court briefly addressed the first three of these five arguments within the context of Rule 404(b)'s "special relevance" prong. Stating that "other acts" evidence is admissible to prove identity under Rule 404(b) when "the shared characteristics of the other act and the charged offense are sufficiently idiosyncratic that a reasonable jury could find it more likely than not that the same person performed them both," Trenkler, 61 F.3d at 53, the court first explained that there was little to link the attempt on Glenn Gilbert to the crimes charged other than that "the attempt on the life of [Gilbert's] husband [was] by use of an injection." In the court's view, this "shared characteristic" is insufficiently idiosyncratic "in a hospital setting" to render the attempt on Glenn Gilbert specially relevant on the issue of identity.

The court also quickly dismissed the notion that the attempt on Glenn Gilbert is specially relevant on the issue of intent, reasoning that Gilbert is not defending this case on the theory that she administered fatal and near fatal doses of medicine but did so without the requisite intent. Finally, the court stated in a sentence that the government did not need this evidence to show Gilbert's specialized knowledge, as Gilbert "was concededly a trained nurse."

The district court then went on to describe at some length what it appears to regard as the heart of the matter: whether the evidence, even if having significant relevance on some non-forbidden avenue of inquiry, should come in under Rule 403. The court stated:

Even if the Government could show some significant degree of "special relevance" of the evidence related to the attempt on Glenn Gilbert, the second prong of the 404(b) analysis would render this evidence inadmissible. The potential unfair prejudice generated by this evidence overwhelmingly outweighs any probative value.

The obvious fact can be simply put. If the court permits the Government to put on evidence of the purported attempted murder of Glenn Gilbert, then the ensuing trial will be as much about the Glenn Gilbert episode as it will be about the charged murders and attempted murders. This is because no reasonable juror, even with the most thorough and forceful instructions, could avoid the temptation to conclude that, if the defendant could bring herself to kill her husband, then she must be "the sort of person" who would kill the victims of the charged crimes. To defend their client, defense counsel would simply have to convince the jury that the attack on Glenn Gilbert never occurred. The force of the improper propensity evidence would be too powerful for any juror to ignore, any attorney to leave unanswered, or any judge to guard against.

In other words, by proving the uncharged conduct, the Government would dramatically increase its chances of obtaining a conviction with regard to the charged conduct - not because the evidence of the uncharged crime would be applied on the issues of identity, motive, or specialized knowledge, but because of the inferences of propensity that would inevitably be drawn by the jury. In this evidentiary environment, the defendant simply could not get a fair trial on the charges that have actually been brought against her.

On appeal, the government directs most of its fire on the district court's reasoning as to whether the evidence of the alleged attempt on Glenn Gilbert's life might be regarded as specially relevant on one or more of the factors argued by the government in support of its in limine motion. The government contends that the court gave short shrift to its identity argument, particularly its argument that there were a number of relatively non-unique but nonetheless identifying similarities between the Glenn Gilbert episode and the charged crimes. See Trenkler, 61 F.3d at 54 ("a number of common features of lesser uniqueness, although insufficient to generate a strong inference of identity if considered separately, may be of significant probative value when considered together"). The government also argues that the court erred in failing to recognize that Gilbert has not stipulated the issue of intent out of the case, and that she appears prepared to defend one of the attempted murder charges by conceding that she gave a harm-causing injection but asserting that she did so without malicious intent. Finally, the government points out that the court did not specifically address each of the government's five Rule 404(b) arguments.

But Rule 404(b)'s "special relevance" prong was not the principal basis of the district court's ruling. The remarks excerpted above make it clear that, even if the district court considered the evidence regarding the attempted murder of Glenn Gilbert as having a significant degree of special relevance as to identity, intent, knowledge, opportunity, or causation, the court still would have excluded the evidence because, in its view, the evidence was overwhelmingly likely to confuse the issues and mislead the jury. And on this point, the government has failed to persuade us that the court committed a palpable error in judgment in calibrating the decisional scales. See Roberts, 978 F.2d at 21. We thus proceed directly to a review of the court's Rule 403 ruling.

In challenging the district court's balancing of probative value against the danger of issue confusion and jury inflammation, the government builds from its argument that the court underestimated the special relevance of the evidence. The government further contends that the court ignored its need for the evidence, see, e.g., United States v. Vest, 842 F.2d 1319, 1327 (1st Cir. 1988) (suggesting that the government's need for evidence helps determine its probative value), and that the court underestimated the jury's ability to follow limiting instructions as to how to use the evidence. Finally, the government suggests that the court erred in predicting that this evidence would dominate the proceedings because introduction of the evidence would take between two and four hours of what will be a two- to three-month trial.

Although the non-comprehensive nature of the district court's written remarks on the matter leaves us less than entirely confident in its conclusion that the Glenn Gilbert evidence would be unlikely to have any probative value,⁽⁵⁾ we are not convinced that relevant matters "deserving of significant weight" have been overlooked in the course of the court's Rule 403 balancing. Roberts, 978 F.2d at 21 (emphasis supplied). Five factors lead us to this conclusion; the first four bear on the overall probative value of the evidence, the fifth relates to its potential for being misused by the jury.

First, regardless whether the evidence of the methodology allegedly used in the attempt on Glenn Gilbert is sufficiently similar to the evidence of the methodology allegedly used in the crimes charged, we regard the inherent reliability of the evidence, and thus its overall probative value, as very much open to question. Although the district court appears to have assumed arguendo that the evidence passes the threshold admissibility hurdle of Rule 104(b), see supra note 5 (summarizing how district courts initially must decide whether to admit conditional facts), this determination strikes us as being far from a foregone conclusion. The evidence, after all, consists almost entirely of allegations made by a hostile witness months after the event in question.

Second, even without regard to the explosive nature of the evidence itself, we think that the court was warranted in having concerns about the extent to which the attempt on Glenn Gilbert would have to be litigated during the course of the trial. This is not a situation where the "extrinsic act" is conceded by all to have taken place. Indeed, Gilbert vehemently denies having attempted to murder her husband. Cf. Trenkler, 61 F.3d at 51-56 (concluding that evidence of a prior bombing conceded by all to have occurred and similar in many respects to a charged bombing had probative value on the issue of identity). It is thus nearly certain that there would be a mini-trial on whether the attempt actually took place. And in the course of the mini-trial, Gilbert likely would find herself obliged to introduce into evidence the tawdry details leading to the bitter divorce and child custody proceedings to explain Glenn Gilbert's hostility and thus attempt to undermine his credibility. We think that the potential for confusion of the issues and for unfair prejudice in such a scenario is manifest.

Third, four of the five issues adduced by the government in support of admitting the Glenn Gilbert evidence do not appear to be much in dispute in this case. As we have observed, Gilbert's defense theory, at least with respect to six of the seven charged events underlying the murder and attempted murder charges, is that no murder or attempted murder took place. In other words, Gilbert does not appear to be preparing to defend this case by acknowledging that crimes took place but arguing that the government has misidentified the perpetrator; or that she killed or nearly killed without intent (except with respect to the diabetic victim); or that she lacked the knowledge or opportunity to commit the crimes. And with respect to the fifth issue to which the government points - causation - we simply do not see how the jury could regard the Glenn Gilbert evidence as specially relevant without drawing a forbidden inference of criminal propensity. So far as we can tell, the presumed fact that Gilbert attempted to poison her husband in a non-VAMC setting tends to prove that the events underlying the charged crimes were the product of malicious human agency (and not naturally occurring) only if one first indulges an assumption that the odds of poisonings having taken place at the VAMC are increased by the presence of a demonstrated poisoner. Yet this is precisely the sort of assumption that Rule 404(b)'s preclusion of character evidence is designed to guard against.⁽⁶⁾

Fourth, we do not find particularly compelling the government's argument that it has a strong need for this evidence. We recognize that the government bears the burden of proving intent and causation, yet see little likelihood that these issues will prove nettlesome to the government if the jury accepts as truthful and reliable its principal evidence against Gilbert: her two admissions to Perrault and the toxicological evidence tending to establish that the deaths cited in the indictment were the result of deliberate poisoning.

Finally, we can find no fault with the district court's prognostication that the particularly inflammatory nature of the Glenn Gilbert evidence renders it highly susceptible of being misused by the jury in the course of its deliberations. On this point, we have nothing to add to the court's well-stated remarks other than to reiterate that, although Rule 404(b) is a rule of inclusion, see United States v. Cassiere, 4 F.3d 1006, 1021 (1st Cir. 1993), "there is always some danger that the jury will use [Rule 404(b) other act] evidence not on the narrow point for which it is offered but rather to infer that the defendant has a propensity towards criminal behavior," Trenkler, 61 F.3d at 56. Here, where the other act evidence is only marginally reliable, of marginal probative value, and so undeniably explosive, the court's decision to tread a cautious path was well within its wide discretion.

We therefore affirm the exclusion of this evidence. In so doing, we caution that our ruling does not foreclose a revisitation of the matter at trial should future events so warrant. See Lachman, 48 F.3d at 590, 594.

B. Exclusion of Evidence Regarding the Bomb Threat and the Harassment of Perrault

The government also renews its argument that the evidence of the anonymous bomb threat Gilbert phoned in to Perrault at the VAMC, as well as the evidence of her more directly retaliatory conduct towards Perrault, is admissible to prove her intent and consciousness of guilt.⁽⁷⁾ The district court determined that, although the evidence might plausibly be regarded as having some relevance on these issues, see supra note 3, its probative value would be exceedingly limited because

[the] jury would have to conclude that Gilbert, fearing the [criminal] investigation, harassed Perrault in revenge for his cooperation with law enforcement (and not because he had ended their affair), and phoned in a bomb threat thinking that, somehow, the resulting alarm would throw off the inquiry or intimidate potential witnesses, even though she went to great lengths to conceal the fact that she was the caller. This is an awful lot of squeezing for precious little juice.

The court then went on to exclude the evidence under Rule 403 because (1) it feared that the jury would conclude that one capable of phoning in a bomb threat requiring the evacuation of an intensive care unit would be capable of committing the crimes charged; and (2) Gilbert would be forced to introduce inflammatory and highly prejudicial evidence of her tumultuous and unsavory relationship with Perrault in order to prove that her conduct was motivated by anger towards him for betraying her and not by a desire to intimidate him into silence.

The government contends on appeal that the district court should have permitted the jury to hear the evidence and decide for itself whether pure anger, or the desire of a guilty person to obstruct an investigation, or some combination of the two, motivated the bomb threat and harassment. The government further asserts that both its evidence and Gilbert's likely responsive evidence is not so inflammatory as the court suggested, especially when viewed against the backdrop of the pending charges and the fact that the court has since issued an order acknowledging that some evidence as to Gilbert's affair with Perrault will be coming in anyway. Finally, the government argues that the court erred in weighing the evidence as an undifferentiated mass rather than analyzing it piece-by-piece.

Although we regard this issue as closer than the evidence of the alleged attempt on Glenn Gilbert's life, we think that the district court's ruling is, for the most part, well within its broad discretion. See DiSanto, 86 F.3d at 1250. We are aware that the court already has heard much of the harassment and retaliation evidence during the bomb threat trial, and we thus are particularly inclined to defer to its conclusion that, in the main, the evidence is far more likely attributable to anger at the disloyal Perrault and disloyal co-workers than to a quixotic effort to head off the criminal investigation. Cf. Anderson, 470 U.S. at 574-75 (emphasizing the trial judge's competence at fact determination). So too, and for the same reasons, are we prepared to defer to the court's characterization of the bomb threat, threats against Perrault's person, and vandalism against Perrault's property, as inflammatory and highly susceptible of misleading the jury.

But the district court's exclusion of the evidence pertaining to Gilbert's blocking in of Perrault's car, and her contemporaneous pleas to Perrault that he not cooperate with criminal investigators, strikes us as being on different footing. For one thing, this evidence seems more readily explainable as the product of an obstructive intent, and thus far more probative of a guilty conscience, than the other evidence in this "bloc." For another, the evidence is far less inflammatory. Unlike the bomb threat and vandalism evidence, this conduct is criminal only insofar as it constitutes an attempt to obstruct justice, and thus seems far less likely to be misused as pure propensity evidence by the jury. The court's explanations for its ruling excluding the entire bloc of evidence thus fail to explain the exclusion of this particular evidence. The court's apparent failure to separate out and analyze the admissibility of this evidence on its own merits is precisely the type of "error in judgment" against which the abuse of discretion standard protects. See Roberts, 978 F.2d at 21.

We thus affirm the provisional exclusion of the bomb threat evidence. So too do we affirm the provisional exclusion of evidence of direct threats and retaliation against Perrault, with the single exception just noted. As before, our rulings do not foreclose a second look at these matters in light of events at trial. See Lachman, 48 F.3d at 590, 594.

C. Exclusion of Evidence Regarding the Number of Emergencies on Ward C between Fall 1995 and February 1996

Finally, the government renews its argument that testimony from members of Ward C's staff as to a "noticeable increase in the number of codes beginning in the fall of 1995 through mid-February 1996" should be admitted to prove the truth of the matter asserted and, by inference, causation. The district court excluded this evidence under Rule 403 as impressionistic, lacking an objective basis, and thus posing a substantial risk of unfair prejudice. Yet in doing so, the court also acknowledged that, although the evidence will not come in to establish the truth of the matter asserted, it may well prove admissible to explain certain actions on the part of the witnesses, such as why the witness began investigating the absence of ampules of epinephrine from the hospital storeroom.

The government argues on appeal that the district court failed to comprehend that this evidence, in combination with an unexplained loss of epinephrine during the same period of time, is critical to an adequate understanding of the case against Gilbert. The government further asserts that the court failed to appreciate that the evidence is probative of causation. Finally, and to our surprise in light of the acknowledgment of possible future admissibility, the government argues that the evidence is necessary both to help explain certain testimony Gilbert's co-workers will be giving and to help cast light on certain statements Gilbert made to investigators.

Again, we think that the district court's ruling was well within its discretion. As direct evidence of causation, this inherently speculative evidence is at best cumulative of the government's toxicological evidence and Gilbert's two admissions to Perrault. Moreover, and more to the point, the court has acknowledged that the evidence, although not admissible to prove the truth of the matter asserted, may well come in for purposes of explanation. We fail to see why this exception would not apply to the extent of adding helpful context to the testimony of Gilbert's co-workers and to the statements Gilbert gave to investigators.

We thus affirm the exclusion of this evidence with the same caveat as to the provisional nature of in limine rulings set forth at the conclusion of the preceding two subsections. See Lachman, 48 F.3d at 590, 594.

For the reasons stated, we affirm the district court's in limine orders of exclusion except insofar as they pertain to the evidence that Gilbert blocked Perrault's car in with her own and contemporaneously urged him not to cooperate with the investigation into the sad events giving rise to the indictment.

Affirmed as modified.

1. Citing Gilbert's efforts to derail Perrault's cooperation with investigators and the bomb threat, the indictment also charges Gilbert with retaliating against a government witness and obstructing justice. The district court has severed these charges for a separate trial.

2. On appeal, the government takes the position that the retaliation and harassment evidence is really "intrinsic" because it is "not so much evidence of 'other crimes' in the context of this prosecution as [it] is circumstantial evidence of the defendant's involvement in the murder and attempted murder counts." (Govt. Brief at 53). Be that as it may, the district court, following circuit precedent and without a claim of error from the government, analyzed this evidence under the Rule 404(b) framework. See United States v. Pina, 844 F.2d 1, 9 (1st Cir. 1988) (examining the admissibility of similarly "intrinsic" obstruction-of-justice evidence pursuant to Rule 404(b)). For the sake of simplicity, we thus refer to this bloc of evidence as Rule 404(b) evidence.

3. The district court appears to have concluded that the evidence of the attempt on Glenn Gilbert's life has no such independent special relevance, but that the evidence of Gilbert's bomb threat and harassment of Perrault may have some independent special relevance as to Gilbert's intent and consciousness of guilt. See United States v. Stackpole, 811 F.2d 689, 694 (1st Cir. 1987) (acknowledging that Rule 404(b) evidence can be admissible on these grounds).

4. At page 21 of its brief, the government states:

[T]o the extent that the district court's in limine rulings are based on pretrial pleadings, and not on its "superior ability to view witnesses and assess the impact of evidence," United States v. King, 713 F.2d 627, 631 (11th Cir. 1983), less deference may be appropriate. As noted by the Supreme Court, this Court is "freer to perform the Rule 403 balancing ab initio when the issue arises in limine," and the district court is, therefore, not "'better positioned' than the appellate court to decide the issue in question." Salve Regina College v. Russell, 499 U.S. 225, 233 (1991).

This excerpt contains a serious misstatement on a crucial point of law. Neither Salve Regina nor, so far as we can tell, any other Supreme Court case suggests that appellate courts should perform the relevant balancing test "ab initio" where a Rule 403 determination is premised on a motion in limine or solely document-based information. Indeed, in discussing how appellate courts should review findings of fact made solely on the basis of physical and/or documentary evidence, the Court has cautioned appellate courts that the case for deference remains strong:

The rationale for deference . . . is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.

Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985) (discussing the standard for reviewing factual determinations made under Fed. R. Civ. P. 52(a)). We regard the Court's views on institutional competence and resource allocation in the context of document-based factual findings as having full and obvious application in the context of document-based evidentiary judgment calls. Thus, the fact that the district court here has based its rulings on pretrial documentary proffers, while certainly a relevant background fact, does not vitiate the discretion we accord it in its application of Rules 404(b) and 403.

                 United States Court of Appeals

                     For the First Circuit









No. 98-1563



                          UNITED STATES,



                            Appellee,



                                v.



                         KRISTEN GILBERT,



                      Defendant, Appellant.









           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Michael A. Ponsor, U.S. District Judge]



                    





                              Before



                      Boudin, Circuit Judge,



                  Bownes, Senior Circuit Judge,



                    and Stahl, Circuit Judge.











     Harry L. Miles, with whom Green, Miles, Lipton, White &

Fitz-Gibbon, were on brief for appellant.



     William M. Welch, II, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, were on brief for

appellee.   









June 21, 1999







                                

  BOWNES, Senior Circuit Judge.  Defendant-appellant

Kristen Gilbert was charged in a single-count indictment with

making a telephone bomb threat on September 26, 1996, to the

Department of Veteran's Affairs Medical Center (VAMC) in Leeds,

Massachusetts, in violation of 18 U.S.C.  844(e).  Gilbert was

found guilty by a jury and was sentenced to imprisonment for

fifteen months and three years of supervised release.  We affirm.

  There are three issues for review:  (1) Was there subject

matter jurisdiction under the interstate commerce clause; (2) Did

the district court commit reversible error in the exclusion and

allowance of certain evidence; (3) Was the evidence sufficient

under the reasonable doubt standard to sustain the jury's finding

of guilt.

                                I

  We state the facts as they could have been found by the

jury.

  Gilbert, a registered nurse, worked the 3:30 p.m. to

midnight shift on Ward C, an acute medical ward at the VAMC.  James

Perrault was a VAMC police officer who worked the 3:00 p.m. to

11:00 p.m. shift at the medical center.  In the summer of 1995

Gilbert and Perrault became friendly.  The friendship blossomed

into a full-blown affair in September and October of 1995.  At the

time Gilbert was married.  In November, 1995, Gilbert filed for

divorce against her husband, Glenn Gilbert, and moved out of their

home.  

  In February, 1996, an investigation was launched at the

VAMC because of some suspicious occurrences at the hospital.  The

investigation became an official criminal investigation in a few

months.  Gilbert was one of the targets of the investigation.  Many

employees at the VAMC were interviewed and grand jury subpoenas

were served on some employees.

  Gilbert was photographed and handwriting samples were

taken from her.  Gilbert was upset by the investigation and made

her feelings known.  She told her former husband (the divorce had

become final) that he had the right not to speak to the

investigators.  After he had spoken to them anyway, she became

angry and upset.  She disparaged him to several people by

belittling him and using epithets to denigrate him.  Gilbert also

expressed anger and resentment against those of her co-workers who

cooperated with the investigation.  She told a co-worker that

"maybe they ought to investigate" Gilbert's nursing supervisor. 

Gilbert became upset and angry with some of her co-workers on the

evening shift because they would not talk to a private investigator

she had retained.

  Gilbert talked about the investigation with Perrault. 

She told him that three nurses who worked in Ward C were

responsible for starting the investigation and she "couldn't

understand why they were trying to do this to me."  Perrault

suggested leaving the area, but Gilbert refused, saying she "wanted

everybody here to see what they had done to ruin her life." 

Perrault tried to end their relationship in June of 1996, but she

begged him not to do so.  In late July, 1996, Gilbert told a friend

of hers that if Perrault "dumped her, she probably would start

stalking him."  Perrault tried again in late August of 1996 to

break his relationship with Gilbert.  She became upset and blamed

the investigation for this.

  In September, 1996, Perrault told Gilbert of the day and 

time he had agreed to be interviewed in Springfield, Massachusetts, 

by investigators from the United States Attorney's Office.  Gilbert 

became upset and begged Perrault not to attend the interview.  On 

the day of the interview, Gilbert blocked Perrault's car with her 

car as he attempted to drive out of his driveway.  She asked 

Perrault to talk to her and not to go to the interview.  When 

Perrault made it clear that he would not do as she wished, she 

returned to her car and drove off.  On arriving at Springfield, 

Perrault used a parking garage that he and Gilbert had used on 

prior occasions.  When Perrault returned to his car after the 

interview he found that air had been let out of his right front 

tire.

  During the next several days Perrault's car was stained 

by egg yolks from eggs that had been thrown at it, the windshield 

was spray-painted, scratches were made on the exterior by keys, and 

the front license plate was damaged.  After the damage to the 

license plate, Perrault saw a car similar in appearance to 

Gilbert's enter the parking lot that Perrault used.  

  Gilbert denied that she was responsible for the damage to

Perrault's car, but admitted she had been in the parking lot prior

to and after the bomb threat to the VAMC on September 26, 1996. 

Gilbert called a neighbor of hers on two occasions to ask if

Perrault had been checking on her.  When told that Perrault had

inquired about her, the neighbor testified that Gilbert became very

angry and said, "Twit, fucking twit," in what the neighbor

described as a deep controlled tone of voice.

  Starting in mid-September Perrault received a number of

phone calls at his residence.  There was no voice communication,

only heavy breathing or hang-ups.  Perrault unsuccessfully tried to

trace the calls.  He contacted NYNEX which traced seven of the

calls to Gilbert's telephone number.  A pen register was installed

on Gilbert's phone on September 26, after the bomb threat.  The pen

register showed that, between September 26 and October 1, 1996, 

about one half of Gilbert's phone calls to Perrault used a method

(called the "*67 function") which prevented Perrault from tracing

her calls from his own telephone.

  On September 26, the day of the bomb threat that was the

basis of the indictment, Gilbert purchased a "Talkgirl Jr." with

her VISA credit card at Toys-R-Us.  She also bought several

packages of Energizer batteries from a Thrifty Drug Store about an

hour after the "Talkgirl Jr." purchase.  The batteries could be

used to activate the "Talkgirl Jr."  The toy is a hand-held voice

changer that records a statement which can be played back at a

higher or lower speed than the original recording.  Words recorded

by a woman played back at a lower speed make them sound like a

man's voice.

  On September 26, the following message was received at

3:34 p.m. on the telephone answering machine of Glenn Gilbert,

divorced husband of defendant-appellant:  "I just wanted to say

goodbye for the last time.  Goodbye."  Glenn Gilbert described the

voice as "an altered voice, an almost haunting voice."

  On September 26, Perrault was on patrol for two hours at

the VAMC and then took over the security desk at 5:00 p.m. 

Gilbert's neighbor saw her leave her apartment about 5:00 p.m. 

Gilbert knew that Perrault would be at the security desk for two

hours starting at 5:00 p.m.  She also knew the direct dial

telephone number for the security desk.

  Perrault answered a security desk phone call at 5:11 p.m. 

A recorded message from an unidentified caller stated:  "This

message is for all Persian Gulf veterans who were exposed to

chemical weapons."  Perrault was a Persian Gulf War veteran and

Gilbert knew it.  Perrault described the telephone voice as

"staticky, almost like there was a mechanical ring to it." 

Perrault dismissed the call as a prank.

  From 5:22 p.m. through 7:07 p.m. during the evening of

September 26, Perrault received a series of unidentified phone

calls at the security desk.  He described the voice as being

exactly the same as the one directed to Persian Gulf veterans.  The

messages received were as follows:

    Content of Messages   Time

  "There are three explosive devices in             5:22

  Building One.  You have two hours."



  "Nothing will compare as to what is

  going to happen tonight."    5:30

  

  "I want those patients out on time.               5:36

  Remember."



  "Would you like to know where to locate           5:40

  the devices?"



  Undiscernable.               5:45



  Undiscernable (small plane heard)                 5:50



  "You sound dumb or you would go . . ."            5:55



  "You mustn't think this is very                   6:10

  serious, just sitting in your office

  answering the phone."



  "You must be pretty stupid . . ."                 6:18



  Undiscernable.               6:25



  "You find this exciting, don't you?"              6:48



  "This is my last call.  In twenty-five            6:51

  minutes, I'll see you in hell."



  "It's your job to think about the                 7:07

  patients.  I do care, but the

  Government needs a message."



  All of the phone calls had the same ring pattern,

indicating that they were made from outside the VAMC.  An officer,

other than Perrault, answered the 5:30 call.  He described the

voice as distorted, not a normal voice   "like some kind of tape

recorder."

  As a result of the bomb threat, fifty acutely ill

patients were moved by wheelchairs and stretchers from the building

containing Ward C and Ward C Annex to another building several

hundred yards away.  No explosive devices were found in the

building.

  On the evening of September 27, Perrault received two

anonymous telephone calls while on duty at the security desk.  He

described the voice as exactly like that of the caller on

September 26.  Gilbert's telephone toll records did not show any

calls from her home at the time of the September 27th calls. 

  After listening again to the taped calls made on

September 26, Perrault noticed that certain tones of the caller

sounded very familiar.  He described the caller as sounding hurt,

upset, taunting, provocative, cold, and unfeeling.  He also noticed

that the calls seemed directed at him personally.  He was of the

opinion that the caller was Gilbert.

  On September 28 and 29 Perrault was off from work and was

not on duty at the VAMC.  No anonymous phone calls were received at

the VAMC on either of those days.

  On September 30, Gilbert told her neighbor (O'Donnell)

that she had gone to the Holyoke Mall and visited an Internet

coffee shop.  She said that she had logged onto the Internet and

obtained a bomb recipe which she said was "easy to find."

  About 6:25 p.m. on the 30th, Gilbert bought a "Talkboy

Jr." and the batteries to run it at Toys-R-Us with a personal

check.  Like the "Talkgirl" the "Talkboy" is a voice changer and

operates in the same manner.  The cashier who sold the toy to

Gilbert remembered that Gilbert wanted to be sure that the

batteries worked with it and that Gilbert told her she wanted the

toy for her nephews.  Gilbert does not have any nephews.

  At 6:44 p.m. on September 30, Perrault received a phone

call stating, "Officer Perrault, I've been watching you, boy." 

Perrault described the voice as the same as the one who made the

call on September 26, except that this time the caller appeared to

be "trying to put a southern drawl into it."  Perrault received two

more calls on September 30.  The caller sounded the same as the one

who had made the first call that evening.

  On the same evening, September 30, other departments at

the VAMC, i.e., Admissions and the Nurses' Station on Ward C, also

received unidentified phone calls.  Those who received the calls

described the voice as sounding electronically altered or as a

mechanical-sounding voice.

  After finishing his shift on September 30, Perrault went

to the local Veterans of Foreign Wars (VFW) Club about midnight. 

Shortly after arriving he received a phone call at the bar.  The

caller stated:  "You think you have a problem?  Just wait and see

what I have planned for you."  Perrault recognized the voice as

being the same as the one in the prior phone calls.  Gilbert knew

that Perrault usually stopped at that VFW on the way home from

work.  In fact, she had met him there on several prior occasions,

without notice beforehand.  On this same day, September 30,

Perrault received a letter from Gilbert in which she said that as

she drove by the VFW one evening she saw his car and stood outside

and watched him through a window playing darts.

  On October 1, 1996, Perrault met with investigators and

it was agreed that he would call Gilbert when he started his shift

on the security desk at 5:00 p.m.  Surveillance of a number of pay

telephone booths in the vicinity of Gilbert's apartment was

arranged for that evening.  Perrault called Gilbert at 5:12 p.m.

and left a message on her answering machine that he would be at the

security desk until 7:00 p.m.  Perrault received a series of

anonymous phone calls at 5:25 p.m., 5:41 p.m., 5:44 p.m., and

6:37 p.m.  The voice was the same as that of the prior anonymous

calls.  Another officer on duty received an anonymous call at

7:35 p.m.  He described the voice as strange, male-sounding and

distorted.  The 5:41 p.m. and 5:44 p.m. calls were traced to

telephone pay stations at a Citgo gas station and the Daily

Hampshire Gazette.  Gilbert later admitted to Perrault that she had

used those pay phones, but denied making any of the phone calls in

question.

  Shortly before the 6:37 p.m. pay-booth phone call,

Massachusetts State Trooper Kevin Murphy, who was on surveillance,

saw Gilbert arrive in her car at the Tasty Top, an ice cream stand,

and use the pay telephone booth outside of it.  Trooper Murphy

radioed to Special Agent Plante (a member of the surveillance

team).  Plante contacted Perrault at the VAMC security desk, who

confirmed that he had just received a call in which there was

traffic noise and heavy breathing noise.

  A fingerprint from Gilbert's right index finger was

lifted from the telephone receiver at the Tasty Top phone booth. 

Gilbert later told Perrault that she had made a phone call from the

Tasty Top booth to check her answering machine and that she had

seen a State Trooper at the Tasty Top.  

  On the evening of October 1, 1996, a search warrant was

executed at Gilbert's apartment.  Trooper Murphy seized from the

trash three empty battery packages for Energizer batteries, two

batteries stamped LI54 on the back, and a Thrifty Drug Store

receipt showing the purchase of the Energizer batteries.  Detective

Lieutenant Thomas Soutier also seized a "Talkboy" from a closet in

a child's room which contained a tape cassette that was blank. 

Agent Plante seized operating instructions for the "Talkboy" from

the left pocket of Gilbert's outdoor jacket, which Agent Plante

found lying on her bed.  Agent Plante also found a Daily Hampshire

Gazette, dated September 27, 1996, on Gilbert's bed that contained

an article about the bomb threat.

  While the police were executing the search warrant,

Gilbert went over to her neighbor's (O'Donnell) apartment.  Gilbert

told O'Donnell that the police were looking for a voice-changing

device, similar to a toy that her son owned, that "could change

your voice up high like a chipmunk or down low like a man."  She

also told O'Donnell that if the police found such a device in her

house, it might be broken, the tape might be erased or blank, or

the batteries might be dead.  The investigators never told Gilbert

that they were looking for a child's toy that could change a

person's voice.  The VAMC did not receive any more telephone calls

from the anonymous caller after October 1st.

  Bruce Koenig, a government expert, tested the "Talkboy"

and determined that the variance in speed from low to high speed on

the "Talkboy" was 31.1%.  Koenig increased the playback speed for

exhibit 13, the tape containing the September 30th phone calls, by

31.1%.  The telephone calls on exhibit 13 were tape-recorded

messages; the messages had been pre-recorded on the "Talkboy", and

then played back at a slower speed.  Mr. Koenig created a speed-

corrected tape of exhibit 13, which became exhibit 44. 

  One of Gilbert's friends, Ms. Abderhalden, who had known

and worked with Gilbert for over five years and had talked to

Gilbert daily in the fall of 1996, identified the voice on

exhibit 44 as Gilbert's voice, as did Glenn Gilbert her former

husband. 

                                II

  We first turn to the interstate commerce-jurisdiction

issue.  Gilbert argues that because there was no evidence "that the

telephone system used was more than an intrastate system, or that

the threat call was routed through an interstate system," there was

no effect on or nexus to interstate commerce.  Appellant's Br. at

19.  This claim is one of the many that have surfaced in the wake

of United States v. Lopez, 514 U.S. 549 (1995).  And, as with most

of the others, the claim fails to float.

  Before starting our legal analysis, we address the

government's suggestion that Gilbert's claim was procedurally

defaulted and is reviewable only for plain error.  We do not have

to resolve the issue because we do not think there was error, plain

or otherwise.

  We now proceed to our analysis of the interstate

commerce-jurisdictional question.  The first paragraph of Lopez

summarizes the case:

       In the Gun-Free School Zones Act of 1990,

  Congress made it a federal offense "for any 

  individual knowingly to possess a firearm at a 

  place that the individual knows, or has 

  reasonable cause to believe, is a school 

  zone."  18 U.S.C.  922(q)(1)(A)(1988 ed.,

  Supp.  V).  The Act neither regulates a

  commercial  activity nor contains a

  requirement that the  possession be connected

  in any way to  interstate commerce.  We hold

  that the Act  exceeds the authority of

  Congress "[t]o  regulate Commerce . . . among

  the several  States . . . ." U.S. Const., Art.

  I, 8, cl. 3.



Lopez, 514 U.S. at 551.



  Lopez does not apply because a telephone is an

instrumentality of interstate commerce and this alone is a

sufficient basis for jurisdiction based on interstate commerce.

  In Lopez itself the Court held:

    First, Congress may regulate the use of the 

  channels of interstate commerce . . . . 

  Second, Congress is empowered to regulate and

  protect the instrumentalities of interstate

  commerce, or persons or things in interstate

  commerce, even though the threat comes only

  from intrastate activities . . . .  Finally,

  Congress' commerce authority includes the

  power to regulate those activities having a

  substantial relation to interstate commerce

  . . . , i.e., those activities that

  substantially affect interstate commerce.  



Id. at 558 (emphasis ours, cites and quotes omitted.)  The Court

held that the statute at issue in Lopez fell into the third

category and could only be sustained "as a regulation of an

activity that substantially affects interstate commerce," id. at

559.  In the present case, we are dealing instead with the second

category.

  Shortly after Lopez was decided the Court issued a per

curiam opinion in United States v. Robertson, 514 U.S. 669 (1995).

The case was brought under the Racketeer Influenced and Corrupt

Practices Act (RICO) on the basis that defendant had invested

proceeds obtained from unlawful acts proscribed by RICO, in the

purchase and operation of a gold mine.  Section 1962(a) prohibits

the "acquisition of any interest in, or the establishment or

operation of, any enterprise which is engaged in, or the activities

of which affect, interstate or foreign commerce."  

  The Ninth Circuit reversed defendant's conviction on the

ground that the government had failed to prove that the gold mine

"was engaged in or affect[ed] interstate commerce."  Id. at 670. 

The Court did not consider the "affecting" commerce question.  It

pointed out that the evidence showed conclusively that the gold

mine itself was engaged in interstate commerce activities.  These

activities "assuredly brought the gold mine within  1962(a)'s

alternative criterion of 'any enterprise . . . engaged in . . .

interstate or foreign commerce.'"  Id. at 672.  This case is not

precisely on point but it illustrates that "affecting interstate

commerce" is not the sole test to use in determining whether there

is interstate commerce jurisdiction.

  There are cases directly on point:  United States v.

Kunzman, 54 F.3d 1522, 1527 (10th Cir. 1995), held:  "As long as

the instrumentality used is itself an integral part of an

interstate system, Congress may regulate intrastate activities

involving the use of the instrumentality under the federal

securities laws." 

  The intrastate telephone call cases are of long standing

but like old wine have a pertinent robust taste.  Loveridge v.

Dreagoux, 678 F.2d 870, 874 (10th Cir. 1982), held:  "[P]roof of

intrastate telephonic messages in connection with the employment of

deceptive devices or contrivances is sufficient to confer

jurisdiction in a  10(b) and Rule 10b-5 action."  In Alley v.

Miramon, 614 F.2d 1372, 1379 (5th Cir. 1980) the court held:  "This

court has consistently held that the intrastate use of the

telephone may confer jurisdiction over a private action under

Section 10(b) and Rule 10b-5."  In Kerbs v. Fall River Indus.,

Inc., 502 F.2d 731 (10th Cir. 1974) the court explained cogently

the reason for the telephone-call rule: 

    Both intrastate and interstate telephone 

  communications are part of an aggregate 

  telephonic system as a whole.  And as long as 

  the instrumentality itself is an integral part 

  of an interstate system, Congress has power, 

  when necessary for the protection of 

  interstate commerce, to include intrastate 

  activities within its regulatory control.



Id. at 738 (citation omitted).

  The use of the telephone in this case to make a bomb-

threat was, without more, sufficient to sustain jurisdiction under

the interstate commerce clause.

                               III

  The first evidentiary issue is rather unique and requires

explanation.  Prior to the bomb threat, Gilbert and some others

were the subject of an investigation by the VAMC police and other

police agencies.  The investigation was prompted by unexpected

deaths at the VA hospital.  That there was an ongoing investigation

was common knowledge at the VAMC and in the outside community. 

  Prior to trial, the district court discussed with counsel

how to handle the introduction of the fact that there was an

investigation going on and that Gilbert was one of those being

investigated.  The court told counsel that he would not exclude

entirely the fact that there was an investigation in process

because the case "flowed" around the investigation.  After a

lengthy pre-trial conference on the instructions to be given to the

jury, the following instruction was given at the outset of the

trial:

       Here is my preliminary instruction to you. 

  I want to instruct you now on part of the 

  background of this case.  Beginning around 

  February 1996, seven months before the bomb 

  threat charged by the Government in this case, 

  an independent investigation began about 

  certain possible wrongdoing at the VA. 



       That separate investigation had nothing to 

  do with the charge in this case.  The supposed 

  wrongdoing involved something else entirely.  

  For a time that separate investigation 

  included within its scope, among other people 

  and things, the defendant here Kristen 

  Gilbert.



       I'm not going to tell you about the 

  specifics of that other separate suspected 

  wrongdoing because to do so would give that 

  supposed misconduct more weight than it 

  deserves.  I have also instructed counsel not 

  to refer to the specifics of that 

  investigation.  I do want to emphasize a 

  couple points however.



       Nearly two years after that separate 

  investigation first began, there is still no 

  sufficient evidence that any wrongful act was 

  ever committed by anyone.



       Moreover, although at some point the 

  investigation turned in part towards this 

  defendant, Ms. Gilbert has never been charged 

  with the wrongdoing that was the subject of 

  that separate investigation.  So as far as 

  this trial is concerned, even assuming that 

  the other wrongdoing ever actually occurred, 

  she is not only entirely innocent of that 

  separate misconduct, she has not ever been 

  charged with it.



       The fact that there was an investigation, 

  however, and that for some time it included 

  the defendant, among other persons and things 

  within its scope, is part of the background of 

  this case.  You may hear references to that 

  investigation, and I am therefore permitting 

  you to know of the fact of that separate 

  investigation.



       Do not speculate about the subject matter 

  of that separate investigation.  It doesn't 

  matter.  Such speculation might distract you 

  from your task in this trial, which is to 

  determine whether the Government has proven 

  beyond a reasonable doubt that the defendant 

  phoned a bomb threat to the VA on

  September 26, 1996.



       Keep in mind as well that the fact that a 

  person is investigated for some separate 

  wrongdoing is not evidence of any kind that 

  the person is guilty of the crime they have 

  actually been charged with.



       You should not, as a matter of law and as a 

  matter of fundamental fairness, assume in any 

  way that Ms. Gilbert is or might be guilty of 

  phoning in a bomb threat simply because she 

  happened to fall within the scope of a 

  separate investigation involving something 

  entirely different.  The fact that she was 

  included for a time in that separate 

  investigation is simply not evidence against 

  her in this case in any way.



       As I have said, I am permitting the 

  evidence of the existence of that separate 

  investigation to come in this limited form 

  simply to give you the background and context 

  out of which the evidence in this case partly 

  arises.  Consider this evidence only in this 

  light.



  Gilbert took the position at trial that evidence of the

other investigation should not have been admitted at all.  She

argues before us that its admission violated the provisions of Fed.

R. Evid. 404(b), was an abuse of discretion, and deprived her of a

fair trail.  The government counters that the evidence was properly

admissible under Fed. Rules of Evidence 401 and 403 and "in the

alternative" under Fed. R. Evid. 404(b).

  Prior to giving the jury instruction the court made the

following rulings.  It expressed doubt that the investigation

evidence 

    constitutes the sort of other-act evidence 

  that falls within the scope of Rule 404(b).  I 

  think the fact is that the evidence of the 

  other investigation is connected to this case 

  in a way that really makes it part of the 

  Government's proof of the actual act that has 

  been charged.



       This isn't a pure other-act type of

  situation where, for example, the Government

  would be trying to prove that the defendant

  engaged in some kind of misconduct two or

  three years ago and therefore is likely to be 

  guilty or possibly guilty of the charge that 

  she's facing here at this time.



  The court then acknowledged that it might be wrong about

Rule 404(b)'s applicability and stated that it was "going to make

a finding under Rule 404(b) to cover the situation:" 

       I want to make it clear that in permitting 

  evidence of the other investigation to come 

  in, I do find that it has special relevance in 

  this case both on the issues of motive and 

  identity, and that special relevance is 

  entirely separate from any improper purpose 

  that the evidence might be offered for, 

  meaning propensity evidence.



       I believe also that the probative value of 

  the evidence outweighs any unfair prejudice 

  that will be done to the defendant as a result 

  of my letting this in, particularly in the 

  context of the limiting instruction that I 

  will give.



       So I want to make sure that my specific 

  findings are on the record to the extent that 

  we are in the area of Rule 404(b).  I also

  want to make it clear because this is close to

  404(b) that I'm approaching it as if it were

  404(b) evidence in assessing the probative

  weight versus the unfair prejudice.



  We start our analysis with the three evidentiary rules

implicated.  Rule 401 defines relevant evidence.  Rule 403 provides

for the exclusion of relevant evidence on the grounds of prejudice,

confusion or waste of time.  The pertinent part of Rule 404(b)

states:

       (b) Other crimes, wrongs, or acts. 

  Evidence of other crimes, wrongs or acts is 

  not admissible to prove the character of a 

  person in order to show action in conformity 

  therewith.  It may, however, be admissible for 

  other purposes, such as proof of motive, 

  opportunity, intent, preparation, plan, 

  knowledge, identity, or absence of mistake or 

  accident.



  Our standard of review of a district court's admission or

exclusion of evidence is abuse of discretion.

    We review a trial court's Rule 403 balancing 

  test for an abuse of discretion, and only in 

  "extraordinarily compelling circumstances" 

  will we reverse a district court's "on-the- 

  spot judgment" concerning the probative value 

  and unfair effect of the proffered evidence.  



United States v. Shea, 159 F.3d 37 (1st Cir. 1998); United States

v. Pitrone, 115 F.3d 1, 7 (1st Cir. 1997).

  We do not think that the investigation evidence is barred

by either Rule 403 or Rule 404(b).  As the district court pointed

out, it could be described as part of the proof that Gilbert was

the one who made the telephone bomb threat.  The jury could well

have found that her reaction to the investigation as shown by what

she said and did was the motive for the bomb threat.  And proof of

motive is one of the purposes for admitting evidence that would be

otherwise excludable under Rule 404(b).  Thanks to the admirable

instruction given the jury on this matter and the rulings made in

conjunction with it by the district court, we need go no further. 

We hold that the other investigation evidence was properly

admitted.

  The next evidentiary issue is more troublesome.  It

involves the admissions of expert testimony that resulted in the

positive voice identification of Gilbert as the person who made the

telephone calls on September 30, 1996 (subsequent to the bomb

threat calls on September 26).  Gilbert argues that the admission

was erroneous for three reasons:  (1) ambush, abuse of discretion,

and deprivation of a fair trial; (2) the voice identifications were

unduly suggestive, inherently unreliable, and constituted an abuse

of discretion; (3) the trial court's refusal to give an adverse

inference instruction constituted reversible abuse of discretion. 

  The procedural history of the voice identification is

important.  We first note that there was no mention of a positive

identification of Gilbert's voice in the government's opening.  We

start our recital of the facts underlying this issue by pointing

out that what took place is based in part on the representations of

the prosecutor which the court obviously accepted.  We make no

suggestion that the prosecutor misrepresented the facts or the

court erred in accepting the prosecutor's representations.

  Trial started on Wednesday, January 7, 1998.  On the

weekend prior to trial, the prosecutor was "fooling around" with

exhibit 13 on a play back tape recorder.  Exhibit 13 consisted of

tape recordings of phone calls made on September 30.  Perrault

received three phone calls during the evening of September 30.  The

voice on all three calls sounded the same to Perrault.  On the same

evening, there were unidentified phone calls made to various

departments of the VAMC.  The testimony of the recipients was that

the voice sounded as being electronically altered or was a

mechanical sounding voice.

  As the prosecutor "fiddled" with the tape recorder that

held exhibit 13, he became aware that when the play back speed of

the recorder was increased that Gilbert's natural voice was heard. 

This discovery was confirmed on January 6.  On January 7, after the

trial started, the government sought to have Gilbert's ex-husband

Glenn Gilbert, identify defendant's voice by playing exhibit 13 on

a voice transmitter with a variable speed adjustment.  The court

sustained Gilbert's objection, subject to a change of ruling if the

government obtained an expert witness.  The court was of the

opinion that allowing the government to vary the speed of the play

back to obtain Gilbert's natural voice would be unreliable and too

haphazard.

  The government promptly contacted an expert, Bruce

Koenig, who was in the business of analyzing audio and video tapes. 

Preparatory to testifying, he speeded up the play back so that

Gilbert's natural voice was heard.  This was recorded on another

tape, exhibit 44.  It must be borne in mind that part of the

government's theory on the voice identification issue was that

Gilbert had made the September 30 phone calls on the "Talkboy"

recorder that she bought on September 30 at 6:25 p.m. at Toys-R-Us.

  Koenig delivered the tape he created (exhibit 44) to the

government on Sunday, January 11, which immediately provided the

defense with a copy of it and a statement of Koenig's proposed

testimony.

  On Monday, July 12, the prosecutor proffered Koenig as a

witness.  Gilbert objected on the grounds already stated.  She also

pointed out that she would be severely prejudiced because of the

short amount of time she had to prepare for his testimony.

  The court decided to admit the evidence but gave Gilbert

several options among which was a short continuance.  Gilbert

declined the continuance but accepted the court's offer to allow

her expert to testify out of order.  Gilbert was also given an

opportunity to voir dire Koenig, which she did for ninety minutes.

  On January 13, Gilbert called her expert, Christopher

Ryan.  Ryan was a full-time musician, master engineer, and record

producer.  His testimony was that, after listening to the "Talkboy"

tape, he was of the opinion that it was incapable of producing the

conversation recorded on exhibit 44.

  Koenig, the government's witness, testified as to how he

had tested the "Talkboy" for variances in speed and then created a

speed corrected tape of exhibit 13 which became exhibit 44.

  There was testimony by two witnesses, a long time friend

of Gilbert and Gilbert's ex-husband, that the voice on exhibit 44

was that of defendant.

  We do not doubt that Gilbert was surprised by the

positive voice identification testimony.  We do not think, however,

that she was ambushed by it, if we define ambush as the government

deliberately laying a trap for her to walk into.  If the events

leading to the discovery that speeding up of the September 30 tape

recordings disclosed Gilbert's natural voice were as the prosecutor

stated, there was no ambush, just a fortuitous discovery by the

prosecutor the weekend prior to start of the trial.  And even if we

were skeptical about the prosecutor's assertion, we would be bound

by the district court's decision to admit the evidence.  "A

district court's denial of a motion to suppress will be upheld if

any reasonable view of the evidence supports the denial."  United

States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996).  United States v.

de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993).  And the standard

of review of discovery decisions is abuse of discretion.  United

States v. Samalot-Perez, 767 F.2d 1, 4 (1st Cir. 1985). 

  We think that the district court's handling of this

surprise evidence treated Gilbert fairly under the circumstances. 

She eschewed the offer of a short continuance and opted instead to

put on her own expert out of order.  The prosecutor had given her,

as soon as it was available, a statement of the testimony of its

expert that would be proffered at trial.  And Gilbert was accorded

an extensive voir dire of the government's expert before he

testified before the jury.  Significantly, Gilbert does not state

how she was prejudiced by the late disclosure of the voice

identification testimony or how it would have changed her defense

strategy.  United States v. Melucci, 888 F.2d 200, 203 (1st Cir.

1989).

  Moreover, Gilbert had been furnished a copy of exhibit 13

over a year prior to trial.  She certainly had an opportunity to

have her expert perform as many tests on it as necessary.

  Gilbert also argues on appeal that the court erred in not

excluding Koenig's testimony on the grounds that it was scientific

evidence and did not pass the reliability and validity tests of

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-93

(1993).  The short answer to this argument is that there was no

objection in the trial court on this basis.  No suggestion was made

by Gilbert that the Daubert principles should be applied to

Koenig's testimony.  Our rule is that an objection not made in the

trial court will not be considered in the first instance on appeal. 

Cooperman v. Individual, Inc., 171 F.3d 43, 49 (1st Cir. 1999);

Albion v. YMCA Camp Letts, 171 F.3d 1, 2 (1st Cir. 1999).

  Gilbert's second contention is that the voice

identifications were unduly suggestive and their admission an abuse

of discretion because the witnesses already knew Gilbert's voice

but were not given comparisons of tape recordings of other voices. 

In addition, both witnesses had listened to exhibit 44 prior to

testifying and identified the voice as that of Gilbert.  For these

reasons, Gilbert says that the trial judge should have excluded the

identifications in this case.

  While there were certainly suggestive elements in this

procedure, the Supreme Court has made clear that this does not

violate due process if the identification remains sufficiently

reliable, see Manson v. Braithwaite, 432 U.S. 98 (1977), cf.

Government of Virgin Islands v. Sanes, 57 F.3d 338 (3d Cir. 1995). 

Here, the witnesses were both familiar with Gilbert's voice and

therefore had a solid basis for their opinion that the taped voice

was Gilbert's, and the defense was free to bring out on cross-

examination any aspects of suggestiveness, including the pretrial

exposure of the witnesses to the tape.  This was a judgment call by

the district court under an abuse of discretion standard, and we do

not think that the discretion was abused.

  Moreover, there was sufficient evidence for the jury to

convict without the voice identification of the September 30

"Talkboy" telephone calls.  We summarize the evidence, omitting the

voice identification testimony.  

  Gilbert purchased a "Talkgirl Jr." about three and one

half hours before the bomb threat calls to the VAMC on the evening

of September 26, 1996.  The "Talkgirl Jr." could make a woman's

voice sound like that of a man.  Gilbert left her apartment eleven

minutes before the first bomb threat calls were received at the

VAMC.  She did not return home for about three hours.

  After listening to the tape recordings of the ten phone

calls made on the evening of September 26, 1996, the first of which

was the bomb threat, Perrault believed that they all were made by

Gilbert.  She admitted to Perrault that she watched from across the

street as the building which the caller said "contained three

explosive devices" was evacuated.  

  Personnel at the VAMC and Perrault received a number of

unidentified phone calls over the next several days.  The calls

were made by someone who knew Perrault's work schedule, which

Gilbert did.  Some of the calls to Perrault were of a personal

nature.  Perrault believed that the voice on these calls was the

same as the one that had made the bomb threat calls.

  On September 27th, Gilbert purchased a "Talkboy Jr."

which like the "Talkgirl Jr." could make a woman's voice sound like

that of a man.  She told the clerk from whom she made the purchase

that it was a gift for her nephews.  Gilbert does not have any

nephews.  The VAMC received an unidentified phone call about 15

minutes after the purchase.  The caller's voice sounded the same as

the other calls.

  On October first, it was decided to conduct a

surveillance of a number of pay phone booths in the vicinity of

Gilbert's apartment.  Perrault agreed to call Gilbert from the

security desk at VAMC, which he did at 5:00 p.m.  At 6:37 p.m. the

VAMC received an unidentified phone call in the same voice as the

others.  At the same time Gilbert was observed by a state trooper

making a phone call from a pay phone booth near her apartment.  A

fingerprint from Gilbert's right index finger was lifted from the

receiver at the phone booth.

  A warrant-authorized search was made of Gilbert's

apartment during the evening of October 1.  A "Talkboy Jr." and

other incriminating evidence was seized.

  This evidence was sufficient without the voice

identification evidence for a conviction.  Because, however, the

admission of the voice identification was not error, we need not

decide whether it would have been harmless error.

  The judgment of the district court is affirmed.

View PDF Version
 

No. 03-1159

In the Supreme Court of the United States

STATIA A. SKWIRA, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE OF
EDWARD S. SKWIRA, ET AL., PETITIONERS
 

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
 

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
ROBERT S. GREENSPAN
RICHARD A. OLDERMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
 

QUESTION PRESENTED

Whether the court of appeals correctly held that, under the statute of limitations provision of the Federal Tort Claims Act, a wrongful-death claim involving an intentional killing by a government employee accrued when the plaintiff knew or had reason to know of (1) the fact of the injury and (2) the injury's causal connection with the government.

In the Supreme Court of the United States

No. 03-1159

STATIA A. SKWIRA, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE OF
EDWARD S. SKWIRA, ET AL., PETITIONERS
 

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
 

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A47) is reported at 344 F.3d 64. The opinion of the district court (Pet. App. A50-A93) is reported at 204 F. Supp. 2d 216.

JURISDICTION

The judgment of the court of appeals (Pet. App. A94) was entered on September 15, 2003. A petition for rehearing was denied on November 13, 2003 (Pet. App. A95-A96). The petition for a writ of certiorari was filed on February 11, 2004. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioners are members of the family of Edward A. Skwira, one of several patients who, while being treated at the Veterans Affairs Medical Center (VAMC) in Leeds, Massachusetts, died as a result of an injection of epinephrine administered by Kristen Gilbert, a nurse who worked on Ward C of the hospital.

a. On February 15, 1996, Mr. Skwira was transferred to the VAMC from another facility for continued treatment of alcoholism. That same day, Mr. Skwira had what was believed to be a cardiac event. On February 18, 1996, he died. His death certificate identified the causes of death as "dissecting aneurysm," "inferior wall myocardial infarction," "arrhythmia," and "chronic alcoholism." Pet. App. A3, A28; Pet. C.A. App. 115.

A criminal investigation into the deaths of Mr. Skwira and other patients who died on Ward C of the VAMC during the same period commenced in the spring of 1996. Pet. App. A3. The lead investigators were Assistant United States Attorney (AUSA) William Welch, Veterans Administration Special Agent Steven Plante, and Massachusetts State Police Trooper Kevin Murphy. Id. at A55. Beginning in the fall of 1996, these men approached families of patients who had died on Ward C between the fall of 1995 and the winter of 1996 under suspicious circumstances, and asked permission to exhume the bodies of the deceased and perform autopsies. Id. at A4. The first family approached was that of Mr. Skwira, whose body was subsequently exhumed and examined. Ibid. By the time of the exhumation, Gilbert had become the focus of the investigation and that fact had become public. Id. at A3-A4.

As petitioners acknowledge, "[i]n the summer of 1996, articles started to appear in local newspapers describing an inquiry into suspicious deaths at the VAMC." Pet. 3. Media coverage was extensive. For example, an article entitled "VA officials probe deaths" in the July 17, 1996, edition of The Daily Hampshire Gazette reported that "[a] federal probe into 'a higher than usual number of deaths' from cardiac arrest on one ward of the U.S. Department of Veterans Affairs Medical Center has the hospital's acting director 'anxious' for a resolution." Pet. App. A3, A55; Pet. C.A. App. 59. It noted that the acting director had not ruled out either "foul play or malpractice." Pet. App. A3; Pet. C.A. App. 60. An August 2, 1996, article in the same newspaper, which ran under the headline "VA nurse said a focus of probe," reported that, while the nurse had not been charged with a crime, she had been placed on leave "at about the same time that the VA's Office of Inspector General was called in to investigate what officials feared was a greater number of deaths due to cardiac arrest occurring on a particular ward during a particular shift than on others." Pet. App. A3-A4, A55-A56; Pet. C.A. App. 62.

After the United States Attorney's Office issued a press release in early August 1996 stating that a grand jury investigation was in progress, there was again a flood of publicity. Pet. App. A4, A29. The August 8, 1996, edition of The Daily Hampshire Gazette, for example, ran an article with the title "Federal grand jury involved." Pet. App. A56; Pet. C.A. App. 65. It reported that the investigation into the deaths at the VAMC "is being broadened and a grand jury able to hand down indictments is hearing evidence." Pet. C.A. App. 65. The article also stated that "local law enforcement officials were asked to participate in the investigation based on their expertise, especially in homicide cases." Ibid.

Mr. Skwira's family was "surprised that Edward had died of heart complications at the VAMC when he was not admitted for heart problems." Pet. App. A86; accord id. at A24-A25. Then, in the summer of 1996, Mr. Skwira's daughter, Marsha Yarrows, began reading newspaper accounts of the ongoing investigation. Id. at A25, A86. She testified that, after reading these stories, "it was like a lightbulb went off because I knew that was exactly what had happened to my father." Id. at A25. "[I]t really bothered me," she said, "and even though my father's name wasn't mentioned as being one of the people who was investigated, I knew right then and there that that was exactly what had happened to him, that he was one of those people that they must be investigating the death of." Ibid.

In October 1996, Gilbert was arrested and charged with phoning bomb threats into the VAMC. Pet. App. A5. Her name was made public in connection with the arrest, and she was identified by the local media as the subject of the ongoing investigation into the deaths at the VAMC. Id. at A5, A29, A42 n.4.

b. In November 1996, a day after Mr. Skwira's autopsy, AUSA Welch informed his family that "the death certificate as printed was incorrect," and that Mr. Skwira "didn't die of a heart attack." Pet. App. A5, A29. The family was also told that "our medical people had some concerns that perhaps Mr. Skwira did not die of natural causes." Id. at A86.

In a July 1997 meeting with AUSA Welch, Mr. Skwira's widow was told that the chemical ketamine had inexplicably been found in her husband's body. Pet. App. A5, A29. He advised Mrs. Skwira that "the presence of the ketamine was a surprise," and that "the medical records * * * had not revealed the administration of it in an authorized fashion." Pet. C.A. App. 135a-136. Welch explained that further investigation was necessary to determine if the ketamine had been lawfully administered. Pet. App. A5; Pet. C.A. App. 136.

c. On June 8, 1998, AUSA Welch and Trooper Murphy met with members of the Skwira family and informed them that toxicological tests had conclusively determined that Mr. Skwira had died of epinephrine poisoning. They expressed the belief that Mr. Skwira had been murdered by Gilbert and told the family that they would be seeking an indictment. Pet. App. A6, A29.

In the fall of 1998, Gilbert was charged with first-degree murder and assault with the intent to commit murder. On March 14, 2001, she was convicted of three counts of murder and other charges. She was sentenced to life in prison. Pet. App. A6, A29, A58-A59.

2. In October 1999, the Skwira family filed an administrative tort claim with the Veterans Administration. In October 2000, after the administrative claim had been denied, petitioners filed a Federal Tort Claims Act (FTCA) action against the United States in district court. Their complaint principally alleged negligent supervision, and it sought damages for, among other things, wrongful death. The district court consolidated petitioners' action with FTCA suits brought by five other families of Gilbert's alleged victims. Pet. App. A2, A7, A29, A43 n.7.

Arguing that the administrative claims were untimely, the government filed a motion to dismiss. Pet. App. A2. It relied on the statute of limitations provision of the FTCA, 28 U.S.C. 2401(b), which states, in relevant part, that "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues."

The district court granted the motion as to five of the suits (Pet. App. A50-A93), including petitioners' (id. at A85-A89). Applying the principle that the FTCA claims accrued when the plaintiffs "had both knowledge of their injuries and sufficient indication of the injuries' cause" (id. at A65), the court held that petitioners' claim accrued no later than November 1996, by which time they knew that Mr. Skwira "did not die as the VAMC said he did" and that "there was an investigation targeting a VAMC nurse over the unusually high number of cardiac related deaths." Id. at A89. Because petitioners' administrative claim was filed nearly three years after November 1996, it was nearly a year too late.

3. Petitioners appealed the dismissal of their FTCA suit, and a divided panel of the court of appeals affirmed. Pet. App. A1-A47.

a. The majority observed that, while the "general rule" under the FTCA is that "a tort claim accrues at the time of the plaintiff's injury," this Court recognized in United States v. Kubrick, 444 U.S. 111 (1979), that a "discovery rule" applies to claims of medical malpractice. Pet. App. A12 (quoting Atallah v. United States, 955 F.2d 776, 779 (1st Cir. 1991)). Under the latter rule, the majority explained, "a claim 'accrues' when an injured party 'knows both the existence and the cause of his injury.'" Ibid. (quoting Kubrick, 444 U.S. at 113). Rejecting the government's argument that a discovery rule should apply only to medical-malpractice suits and that "a strict time-of-injury rule" should apply to a wrongful-death action like this one (id. at A14), the majority noted that "versions of Kubrick's discovery rule" had been applied "in settings other than medical malpractice" (id. at A13) and determined that a discovery rule should be applied "to this wrongful death action" (id. at A14-A15).

The majority then addressed "the nature of that discovery rule." Pet. App. A15. Relying, in part, on decisions of the Eighth and Eleventh Circuits (id. at A18-A20), the majority held that, "outside the medical malpractice context, a claim accrues under the FTCA once a plaintiff knows, or in the exercise of reasonable diligence should know, (1) of her injury and (2) sufficient facts to permit a reasonable person to believe that there is a causal connection between the government and her injury." Id. at A21. Applying that discovery rule, the court concluded that petitioners' administrative claim accrued no later than November 1996. Id. at A23-A27. By that time, the majority explained, "the Skwira family was aware of press reports concerning the suspicious deaths on Ward C; they knew that the government had begun a criminal investigation into Skwira's death; and they knew that the cause of death printed on Skwira's death certificate was incorrect." Id. at A26. The majority also determined that "[t]he family's subjective beliefs, described in deposition and trial testimony, reinforce[] the correctness of this conclusion." Id. at A24.

b. Chief Judge Boudin filed a concurring opinion. Pet. App. A30-A34. He observed that, although "[t]he formulas used in the cases for implementing the discovery rule are neither precise nor consistent," the ultimate question, which is "highly dependent on the facts," is "whether the plaintiff knew enough as to the potential responsibility of the defendant that-within two years of that point-he should have filed the short form" setting forth an administrative claim. Id. at A31. Applying that principle to the undisputed facts of this case, Chief Judge Boudin concluded that, by mid-1996, "a reasonable person would have believed that some kind of negligence or misconduct by government employees at the hospital might well underlie Edward Skwira's death." Id. at A32.

c. Judge Torruella filed a dissenting opinion. Pet. App. A34-A42, A46-A47. He disagreed with the standard adopted by the majority, because in his view the correct standard requires that, "before a statute of limitations runs on an FTCA claim, a plaintiff must be aware both of the existence of his injury and 'the facts of causation.'" Id. at A34 (quoting Kubrick, 444 U.S. at 122). Judge Torruella thought petitioners' suit was timely because they "could not possibly have discovered the medical cause of Edward Skwira's death before June 8, 1998," the date on which "the government first informed [them] about 'the facts of causation.'" Ibid.

ARGUMENT

Petitioners contend that, by virtue of the discovery rule it applied, the court of appeals' decision conflicts with this Court's decision in United States v. Kubrick, 444 U.S. 111 (1979). Pet. 14-21. They contend that, for the same reason, the court of appeals' decision conflicts with prior decisions of the First Circuit and decisions of other courts of appeals. Pet. 21-25. And they contend that, even under the discovery rule applied by the court of appeals, their claim was timely filed. Pet. 25-30. Because each of these contentions is without merit, and because the result in this case would likely be the same under petitioners' formulation of the discovery rule, review by this Court is unwarranted.

1. The court of appeals held that petitioners' claim accrued when they knew, or in the exercise of reasonable diligence should have known, (1) of the injury and (2) of sufficient facts to permit a reasonable person to believe that "there is a causal connection between the government and [the] injury." Pet. App. A21. Petitioners contend (Pet. 14-21) that that holding is inconsistent with Kubrick, which applied the principle that a medical-malpractice claim accrues when the plaintiff knows, or should know, both the existence and the cause of his injury. The court of appeals' decision conflicts with Kubrick, according to petitioners, because "cause," as used in that case, is the "medical cause," which petitioners take to mean the precise medical mechanism by which an injury occurred, not "a suspicion that a government employee was responsible for the death." Pet. 14-15. There is no such conflict.

a. As an initial matter, petitioners are mistaken in their contention that Kubrick "holds" (Pet. 14) that a claim accrues when the plaintiff knows, or should know, of the existence and cause of his injury. The holding of Kubrick was that a claim can accrue even if the plaintiff does not know, or have reason to know, that the injury was negligently inflicted. 444 U.S. at 118-125. The Court "simply observed (without endorsement) that several Courts of Appeals had substituted injury-discovery for the traditional rule [of accrual] in medical-malpractice actions under the [FTCA]." TRW Inc. v. Andrews, 534 U.S. 19, 37 n.2 (2001) (Scalia, J., concurring in the judgment). See Kubrick, 444 U.S. at 120-121 & n.7.

Nor does Kubrick "hold," or even state, that the cause of an injury, under the discovery rule applied by those courts of appeals, is its "medical" cause. To the contrary, there is language in the opinion suggesting that causation in that context has the same meaning it was given by the court of appeals here. See 444 U.S. at 122 ("The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury.").

b. Even if Kubrick could be thought to "hold" that a discovery rule is applicable to medical-malpractice claims under the FTCA, and that causation in that context means "medical" causation, there would still be no conflict between that case and the decision below. The court of appeals correctly recognized that Kubrick involved "the context of medical malpractice claims" (Pet. App. A12), and that the discovery rule as employed in this case applies "outside the medical malpractice context" (id. at A19, A21). This Court has never suggested, either in Kubrick or in any decision since, that the discovery rule as it has been applied in medical-malpractice cases must be applied in the identical manner outside the context of medical malpractice. Indeed, the Court has never suggested that any discovery rule is applicable in FTCA cases that do not involve medical malpractice-a type of claim, as the Court recently made clear, where "the cry for a discovery rule is loudest." Rotella v. Wood, 528 U.S. 549, 555 (2000).

The Court recognized in Kubrick itself that the "general rule" under the FTCA is that "a tort claim accrues at the time of the plaintiff's injury" (444 U.S. at 120), and the Court's discussion of the FTCA's legislative history in Kubrick suggested that that general rule might apply to a claim of wrongful death (id. at 119 n.6). The court of appeals rejected the government's position that the time-of-injury rule applies in a case of this type, and applied a discovery rule instead. Pet. App. A13-A15. But nothing in Kubrick or any other decision of this Court obligated the court of appeals to apply the discovery rule in precisely the same manner as it has been applied to claims of medical malpractice.

c. The court of appeals reasonably determined that "this case is not 'functionally identical' to a medical malpractice case" and that a "medical causation" discovery rule is therefore inappropriate. Pet. App. A45 n.14. Contrary to petitioners' contention that there is no difference between a medical-malpractice claim and the type of wrongful-death claim at issue here (Pet. 15-16), there are at least two crucial differences between them that justify the court of appeals' conclusion that the discovery rule must be applied in a slightly different manner in this context.

First, unlike Kubrick, this case involves an allegation of negligent supervision of a government employee who carried out an intentional killing. See Pet. App. A45 n.14. Thus, the crucial causation issue is the fact of the intentional killing by a government employee, not the precise medical mechanism by which the killing took place. Whatever the meaning of "probable cause" in the medical-malpractice context, it seems obvious that a plaintiff is on notice of the probable cause of a murder victim's death when there is reason to suspect both the fact of murder and the identity of the murderer.

The rule proposed by petitioners, by contrast, would lead to absurd results. If a claim of negligent supervision of a government employee who carried out an intentional killing did not accrue until the plaintiff knew, or had reason to know, of both the injury and its "medical" cause, a plaintiff who knew that her husband had been murdered by a government employee, and also had reason to believe that the employee was negligently supervised, would presumably be able to delay filing an administrative claim until she knew, or had reason to know, the specific mechanism by which the murder was carried out. A discovery rule that would lead to such a result makes little sense and would unfairly favor plaintiffs.

Second, in a medical-malpractice case, "knowledge of the federal status of the malpractitioner is irrelevant for accrual purposes," because the identity of the treating physician is usually known to the patient. Pet. App. A17, A45 n.14. But in a wrongful-death case like this one, the identity of the killer is less likely to be known to the plaintiff. A discovery rule under which a claim would accrue even if the plaintiff did not know or have reason to know that the injury had been caused by an agent of the government would thus unfairly favor the government.

2. Petitioners also contend (Pet. 21-25) that the court of appeals' decision conflicts with other decisions of the First Circuit and with decisions of other courts of appeals. Petitioners are mistaken on both counts.

a. According to petitioners (Pet. 21-23), the decision below conflicts with three prior First Circuit decisions that, petitioners say, "uniformly applied the Kubrick accrual standard" (Pet. 21). Since this Court does not grant certiorari to resolve intra-circuit conflicts, see Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam), that contention is irrelevant. It is also incorrect. Two of the cases cited by petitioners- Nicolazzo v. United States, 786 F.2d 454 (1st Cir. 1986), and Gonzalez v. United States, 284 F.3d 281 (1st Cir. 2002)-involved medical-malpractice claims. The decision below does not conflict with those decisions for the same reason it does not conflict with Kubrick. The third case cited by petitioners-Attallah v. United States, 955 F.2d 776 (1st Cir. 1992), which involved the robbery and murder of the plaintiffs' courier by Customs agents-also differs from this case, in that it is not a wrongful-death case. As the court below explained (Pet. App. A22-A23), moreover, Attallah is consistent with the decision here because it held that the plaintiffs' loss-of-property claim did not accrue during the time they "did not know, [and] in the exercise of reasonable diligence could [not] have known, of the Customs agents' criminal acts" (955 F.2d at 780 (emphasis added)), but did accrue once they were on notice of those facts.

b. Petitioners also contend that the court of appeals' decision conflicts with cases with "factual scenarios similar or analogous to this one," where other circuits "have