U.S. v. Tomkins

In prosecution on charge of mailing threatening communications arising out of defendant’s mailing of two packages that appeared to be pipe bombs, Dist. Ct. did not err in barring defendant from testifying that said devices were meant as hoaxes. Under Johnson, 152 F.3d 618, defendant could not so testify where, as here, objective design of devices that included presence of lead shot did not have any legitimate purpose other than use as weapon. Moreover, while Dist. Ct. erred in submitting instruction asking jury to determine whether defendant had intended to create bomb where its prior ruling had precluded defendant from testifying regarding his intent, any error was harmless since there was ample evidence to establish beyond reasonable doubt that instant devices were destructive devices. Also, Dist. Ct. did not err in allowing govt. to introduce x-ray of one of defendant’s devices to rebut his testimony regarding its design, even though govt. had failed to turn over said x-ray to defendant until mid-trial, where: (1) Dist. Ct. had previously precluded govt. from using x-ray in its case-in-chief as sanction for delay in turning over x-ray to defendant; and (2) Dist. Ct. had warned defendant that x-ray could come into record during rebuttal portion of case depending on his testimony during his defense.