United States v. Gorko ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-13-2006
USA v. Gorko
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1597
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case Nos: 03-1597 and 04-4142
UNITED STATES OF AMERICA
v.
JOSEPH A. GORKO, JR.,
Appellant
On Appeal for the United States District Court
for the Middle District of Pennsylvania
District Court No.: 00-CR-00259
District Judge: The Honorable Thomas I. Vanaskie, Chief Judge
Argued February 2, 2006
Before: McKEE, SMITH, and VAN ANTWERPEN, Circuit Judges
(Filed: March 13, 2006)
Joseph A. O’Brien (argued)
Oliver, Price & Rhodes
1212 South Abington Road
P.O. Box 240
Clarks Summit, PA 18411
Counsel for Appellant
John C. Gurganus, Jr. (argued)
Office of the United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
OPINION
SMITH, Circuit Judge.
Joseph Gorko, Jr., D.V.M., appeals from his conviction on thirteen counts of
mailing threatening communications in violation of 18 U.S.C. § 876. The District Court
had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise final order jurisdiction under
28 U.S.C. § 1291. For the reasons set forth below, we will affirm the judgment of the
District Court.
I.
On September 19, 2000, a grand jury returned an eleven count indictment against
Gorko charging him with mailing threatening communications in violation of 18 U.S.C. §
876. Counts One through Seven alleged that Gorko mailed seven threatening
communications to Peter Paul Olszewski, Jr., with the intent to extort money. Counts
Eight, Nine and Ten alleged that Gorko caused to be delivered by the United States Postal
Service communications containing a threat to injure to his father, Joseph A. Gorko, Sr.
Count Eleven averred that Gorko caused to be delivered another communication
containing a threat to injure to Olszewski.
On February 14, 2001, Gorko was indicted on two additional counts in the
Northern District of Ohio of causing to be delivered to his father communications
containing a threat to injure in violation of 18 U.S.C. § 876. These charges were
2
transferred to the Middle District of Pennsylvania and consolidated for trial with the other
eleven counts.
At trial, the evidence established that Gorko signed his name to the communication
on which Count Eleven was based. The other communications, however, were only
circumstantially attributed to Gorko. The government linked the other communications to
Gorko by demonstrating that they were consistent with the plan set out in a book titled
Your Revenge Is In The Mail, which provided information on how “to destroy the
underpinnings” of the target of your revenge. This book, which was found in a bedroom
Gorko had previously occupied at his father’s house, contained a “primer” on how to
accomplish this “mail order revenge.” Because some of the revenge was to be extracted
by sending letters from third parties, the primer suggested making letterhead and
envelopes for the third parties by cutting and pasting parts of letterhead, signatures and
other portions of documents onto a blank sheet of paper, and then photocopying it to
produce a “good, quality letterhead.” The evidence established that some of the
threatening communications were created using this cut-and-paste technique. To
demonstrate Gorko’s ability to utilize this cut-and-paste technique, as well as his identity
as the author of some of the threatening communications, the government admitted other
documents constructed by Gorko, which used the cut-and-paste technique and which were
consistent with the plan set out in Your Revenge Is In The Mail.
On April 5, 2002, a jury convicted Gorko of each of the thirteen counts. The
3
District Court sentenced Gorko, inter alia, to ninety-seven months of imprisonment. This
timely appeal followed. Gorko contends that his convictions should be vacated because:
(1) the District Court erred by allowing the admission of certain “other act” evidence in
violation of Federal Rule of Evidence 404(b); (2) the evidence was insufficient to support
his convictions; and (3) the District Court erred in refusing to include a requested
instruction to the jury regarding Olszewski’s opinion testimony that Gorko was the author
of certain communications.
II.
Gorko challenges the propriety of the District Court’s decision to allow the
admission of three groups of “other act” evidence in violation of Federal Rule of
Evidence 404(b), specifically: (1) a letter purportedly sent to the Governor of
Pennsylvania by then Pennsylvania Attorney General Thomas Corbett; (2) several
documents relating to Duffy & Associates, a law firm; and (3) various documents
supposedly authored by Amy Kellogg. Gorko asserts that this evidence should not have
been admitted because it was not so unusual and distinctive as to be like a signature, and
because this evidence was more prejudicial than probative. We review the District
Court’s decision to admit this evidence for abuse of discretion. United States v. Givan,
320 F.3d 452, 460 (3d Cir. 2003).
4
Federal Rule of Evidence 404(b)1 is “inclusive, not exclusive, and [it] emphasizes
admissibility.” United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992). It “generally
prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the
actor’s character, unless that evidence bears upon a relevant issue in the case . . . .”
Huddleston v. United States, 485 U.S. 681, 685 (1988). In Huddleston, the Supreme
Court gave
four guidelines on the admissibility of prior bad act evidence: (1) the
evidence must have a proper purpose; (2) it must be relevant under Rules
401 and 402; (3) its probative value must outweigh its prejudicial effect
under Rule 403; and (4) the court must charge the jury to consider the
evidence only for the limited purpose for which it was admitted.
United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston, 485 U.S.
at 691-92); see also United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (reiterating
the four guidelines enumerated by the Supreme Court in Huddleston). Thus, “the
proponent must clearly articulate how that evidence fits into a chain of logical inferences,
no link of which may be the inference that the defendant has the propensity to commit the
crime charged.” United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994).
The government opposed Gorko’s motion in limine to exclude the Attorney
1
Federal Rule of Evidence 404(b) states, in pertinent part:
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 . . . .
5
General letter, arguing that it was critical because it showed that Gorko, “despite what he
claims, engages in cut and paste and making - using other people’s signatures and their
letterhead to send mail.” In addition, the government asserted that the exhibit was
consistent with the plan laid out in the book Your Revenge Is In The Mail, found in
Gorko’s former bedroom at his father’s house. The record as a whole, including the
handwritten rough draft of the Attorney General letter, which Gorko admitted was in his
handwriting, the typed draft of that letter, and the results of the examination of the
typewriter ribbon, establishes Gorko’s authorship of the Attorney General letter. The
references in the Attorney General letter to the alleged arson and insurance fraud by
Olszewski’s father-in-law, corruption in local politics, Olszewski’s brother’s conviction
of bank robbery, and other alleged personal misdeeds, also connect Gorko to the letters
sent to Olszewski. Moreover, this evidence demonstrated that Gorko used both the plan
set out in the book Your Revenge Is In The Mail and the same grammatical error – the
erroneous “it’s” for the possessive pronoun – that appeared in several of the
communications to Olszewski and Gorko’s father. Because the purpose of the Attorney
General letter was to establish that it was authored by the same person that authored the
Olszewski communications, the purpose was proper, the evidence was clearly relevant,
and there was no abuse of discretion by the District Court in concluding that it was more
probative than prejudicial. Inasmuch as the District Court provided the jury with a
general limiting instruction in the charge, the District Court did not err by denying the
6
motion in limine to exclude the admission of the Attorney General letter.
Nor do we find any abuse of discretion in the admission of the documents found
during a consent search bearing the letterhead “Duffy & Associates.” We agree with the
government that the documents demonstrated Gorko’s ability to utilize the cut-and-paste
technique that was used on one of the letters to Olszewski. Moreover, the return address
on the letter, as the government pointed out to the District Court, was actually used by
Gorko for business purposes. Accordingly, there was a proper purpose for the admission
of these documents. Indeed, Gorko does not dispute that this evidence was relevant, and
an instruction by the District Judge appropriately limited the purpose for which this
evidence was admitted.
Gorko contends, however, that the Duffy & Associates documents were more
prejudicial than probative in light of their bizarre content. To be sure, the documents
were bizarre because of their sensational allegations of improper and illegal conduct, but
they were no more bizarre than the communications to Olszewski. As a result, the Duffy
& Associates cut-and-paste documents, which were clearly linked to Gorko, were
consistent with his adherence to the book’s plan for exacting revenge and were more
probative than prejudicial. For that reason, we conclude that the District Court did not
abuse its discretion by allowing this evidence to be admitted.
Finally, Gorko cites as error the admission of various letters allegedly authored by
Amy Kellogg, a television news reporter who once worked with Gorko and was
7
subsequently affiliated with a station in New Jersey. The government argued that the
Kellogg documents, some of which were found in Gorko’s bedroom at his father’s house,
were necessary to show: (1) that Gorko used the cut-and-paste technique that was used in
a letter to Olszewski; (2) that Gorko followed the plan laid out in the Your Revenge Is In
The Mail book; (3) that Gorko erroneously used the contraction “it’s” for the possessive
pronoun, as he did in several of the communications; and (4) that Gorko used the term the
“avenging angel,” which is also contained in a threatening communication to his father.
After reviewing the record, we conclude that there was a proper purpose under
Rule 404(b) for admitting the Kellogg documents. The cumulative evidence was clearly
relevant and a limiting instruction was given by the Court before these exhibits were
presented. Again, Gorko argues that these documents were more prejudicial than
probative. We find no abuse by the District Court in concluding that the Kellogg
documents were more probative. This evidence was important to the prosecution and we
note that any unfair prejudice was eliminated by the redaction of the author’s opposition
to President Clinton and his prediction of Clinton’s death.
III.
Gorko also challenged the sufficiency of the evidence on each count of mailing
threatening communications. We “review[] the sufficiency of the evidence in the light
most favorable to the government and must credit all available inferences in favor of the
government.” United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). In light of our
8
conclusion that the “other acts” evidence was appropriately admitted under Rule 404(b),
we conclude that there is more than sufficient evidence to support Gorko’s conviction on
each count in the indictments.
Gorko submits, however, that Count Eleven cannot stand because the letter, which
he admitted he authored, did not contain a threat to injure Olszewski. Although Gorko is
correct that the letter could be construed as innocuous, the evidence supporting his
conviction on this count is not limited to the letter he authored. Rather, the evidence
before the jury included the letter, the circumstances that existed when Olszewski
received the letter, and Olszewski’s perception that the letter was another threat. From
this evidence, a jury could reasonably find that the communication contained a threat to
injure. See United States v. Zavrel, 384 F.3d 130, 136 (3d Cir. 2004); United States v.
Malik, 16 F.3d 45, 49 (2d Cir. 1994). There is no basis for disturbing Gorko’s conviction
on Count Eleven.
IV.
Gorko’s final argument is that the District Court erred, after the charge had already
been read to the jury without objection, by refusing his request to give a supplemental
instruction regarding Olszewski’s opinion testimony that Gorko was the perpetrator of the
various letters. “A court errs in refusing a requested instruction only if the omitted
instruction is correct, is not substantially covered by other instructions, and is so
important that its omission prejudiced the defendant.” United States v. Davis, 183, F.3d
9
231, 250 (3d Cir. 1999).
We find no error by the District Court. Immediately after Olszewski testified in
that regard, the District Court instructed the jury to disregard Olszewski’s statement. We
must presume that the jury followed the court’s limiting instruction and considered it only
for its limited purpose. See Givan, 320 F.3d at 462. Moreover, as the District Court
pointed out, to give a separate instruction after the jury was charged and was ready to
deliberate would have resulted in prejudice to Gorko by highlighting the fact that
Olszewski, the victim of a majority of the threatening communications, considered Gorko
to be the perpetrator.
We will affirm the judgment of the District Court.2
2
We recognize that Gorko asserts in his pro se submissions on appeal that his trial
counsel was ineffective. As we explained in United States v. Thornton, 327 F.3d 268,
271-72 (3d Cir. 2003), “it is preferable that such claims be considered on collateral
review rather than on direct appeal.”