United States of America v. William R. Boul

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1417
__________
UNITED STATES OF AMERICA
v.
WILLIAM R. BOUL,
Appellant
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 01-cr-00087-1)
District Judge: The Honorable Donetta W. Ambrose
__________
Submitted Under Third Circuit LAR 34.1(a)
November 20, 2002
__________
Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN, District Judge
(Opinion Filed: November 25, 2002)
____________
OPINION
____________
BARRY, Circuit Judge
Following a two-day jury trial in the United States District Court for the Western
District of Pennsylvania, appellant William R. Boul was convicted of one count of
conspiracy to use extortionate means to collect an extension of credit in violation of 18
U.S.C. 894(a)(1) and (2). The District Court sentenced Boul to 33 months
imprisonment and a three year term of supervised release. Boul raises two issues on
appeal: (1) whether the District Court erred in admitting into evidence certain unsigned
threatening letters allegedly written by Boul, and (2) whether the District Court
erroneously held that section 5K2.10 of the United States Sentencing Guidelines did not
allow a downward departure from the otherwise applicable sentencing range in Boul’s
case. We have jurisdiction pursuant to 18 U.S.C. 3742(a) and 28 U.S.C. 1291. We
will affirm as to issue (1) and will dismiss as to issue (2) for lack of jurisdiction.
I. Background
Because we write solely for the parties, we need only briefly recite the essential
facts. In August of 2000, Thomas J. Thomas contacted the Pittsburgh office of the FBI
and said that he had been threatened by a man named "Mark" concerning gambling debts
that he, Thomas, owed Boul; indeed, during the previous five years, Thomas had
accumulated over $25,000 in debts to Boul, mostly from losing sports bets placed with
him. Beginning at least as early as 1998, Boul frequently contacted Thomas seeking
payment of the escalating debt. Also beginning in 1998, Thomas received in his home
mailbox a series of six unsigned, handwritten, hand-delivered letters concerning that debt.
The letters all expressed the writer’s frustration with Thomas’s repeated lies concerning
his ability to repay his debt, as well as his attempts to make payments with bad checks.

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Each of the letters alludes to the author’s intention to stop making excuses to unnamed
third parties on Thomas’s behalf, and each makes veiled threats that these third parties
might do something to hurt Thomas. Thomas testified that Boul admitted he wrote and
delivered the letters.
In July of 2000, Thomas received a threatening telephone call at his vacation house
in Myrtle Beach from an individual who identified himself as "Mark" (Boul’s co-
defendant Mark Pentland) concerning the money Thomas owed. Unsettled by Pentland’s
call, Thomas contacted the FBI but declined to wear a wire and told the FBI he would try
to "work something out." After again being repeatedly contacted by Boul over the next
several months concerning the debt, Thomas received a visit from Pentland at his house
on April 23, 2001. Pentland threatened Thomas that if he did not pay the money he owed
Boul, Pentland would "cut" Thomas, his wife, his mother, and his children. Over the next
two days, Pentland called Thomas twice to reiterate his threats. On April 25, Thomas
received a call from Boul warning that Pentland could be dangerous.
After this series of threatening telephone calls, Thomas again contacted the FBI
and agreed to do whatever was necessary to protect his family. The next day, Thursday,
April 26, Thomas again received a call from Pentland, recorded by the FBI, in which
Pentland threatened Thomas with violence if he did not make a substantial payment on
the debt by 6:00 p.m. that evening. Immediately after this call ended, Boul called Thomas
from Florida and the two men discussed the debt and the call from Pentland. Over a
series of calls that day, Thomas, at the prodding of the FBI, convinced Boul to put off
action until Monday, when he would make a good faith payment of part of the debt.
On Monday, April 30, after another series of calls, Boul went to Thomas’s house
to collect the good faith payment which Thomas had said would be paid by his brother-in-
law. When he arrived, Boul assured FBI Special Agent Philip Akins, posing as Thomas’s
brother-in-law, that he had the ability to control Pentland and that the threats against
Thomas’s family would cease if the good faith payment was made. Agent Akins then
placed Boul under arrest. After being transported to the FBI office for processing and
signing a written waiver of his Miranda rights, Boul admitted to FBI agents, inter alia,
that he handled sports bets, that Thomas owed him over $36,000 from sports bets, that he
and Pentland had been friends for 17 years, that he owed Pentland $20,000 from covering
sports bets, and that he had contacted Pentland to tell him not to contact Thomas after
Thomas offered to make the $5,000 good faith payment on April 30.
On May 22, 2001, a grand jury returned a one-count indictment charging Boul and
Pentland with conspiracy to use extortionate means to collect an extension of credit in
violation of 18 U.S.C. 894(a)(1) and (2). Boul and Pentland were separately tried
because of a Bruton problem and both were convicted. Two days before trial, Boul
moved in limine to preclude the admission into evidence of the six unsigned handwritten
letters that Thomas received threatening him concerning his outstanding debts. The
District Court denied Boul’s motion, and stated that the letters could be sufficiently
authenticated by Thomas’s testimony that Boul admitted writing and delivering the
letters. The District Court also ruled that the letters were admissible because they were
probative of Boul’s intent.
At his sentencing, Boul asked the District Court to depart downward from the
applicable guideline range pursuant to section 5K2.10 of the Sentencing Guidelines,
which allows for a District Court to grant a downward departure "[i]f the victim’s
wrongful conduct contributed significantly to provoking the offense behavior . . . ."
Although the District Court understood it had discretion to depart under section 5K2.10, it
denied the request.
II. Discussion
A. The District Court Did Not Err In Admitting the Unsigned Letters
In his motion in limine, Boul raised two objections to the admission of the six
unsigned letters: (1)Thomas’s testimony that Boul admitted to authoring the letters was
insufficient to authenticate them under Federal Rule of Evidence 901, and (2) the letters’
prejudicial effect outweighed their probative value under Federal Rule of Evidence 403
because Boul wrote some of the letters before the time frame of the conspiracy charged in
the indictment. In response, the government argued that letters were admissible under
Federal Rule of Evidence 404(b) to show the background of the crime, Boul’s role in the
charged conspiracy, and Boul’s intent in agreeing with Pentland. The District Court ruled
that Thomas’s testimony that Boul told him he left the letters in his mailbox because, in

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Boul’s words, "[i]t’s something that I have to do" was sufficient to authenticate the
letters. The District Court further held: "I also do not find [the letters] outside the scop
of the conspiracy because I think they are probative of the alleged intent of Mr. Boul."
On appeal, Boul does not take issue with the District Court’s ruling that Thomas’s
testimony was sufficient to authenticate the letters, but argues that the District Court
incorrectly found that the letters were admissible under Rule 404(b) to show Boul’s
intent, because intent is not an element of using extortionate means to collect an extension
of credit. Boul also argues that the District Court erred in admitting the letters under
Rule 403 because their prejudicial effect substantially outweighed their probative value.
We review the District Court’s ruling that the evidence was admissible under Rule 404(b)
for abuse of discretion. United States v. Himmelwright, 42 F.3d 777, 781 (3d Cir. 1994).
However, because the District Court failed to expressly balance under Rule 403, we may
conduct the requisite balancing ourselves. See United States v. Eufrasio, 935 F.2d 553,
572 (3d Cir. 1991).
Boul’s argument that the letters were not probative of anything other than his
propensity to commit the crime charged is plainly incorrect. Under Rule 404(b), evidence
concerning the defendant’s prior acts, while inadmissible to prove a defendant’s
character, is admissible to show "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . ." Fed. R. Evid. 404(b). In
order to convict Boul of conspiracy, the government had to prove Boul’s "intent to
achieve a common goal" with Pentland to extort the money Thomas owed. See United
States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). Because each of the letters
corroborates Thomas’s testimony and Boul’s admissions to the police that Thomas owed
Boul a significant debt that Boul in turn owed to third parties, the District Court correctly
ruled that letters were probative of Boul’s intent in agreeing with Pentland. Even if intent
were not an element of conspiracy, the letters are also probative of Boul’s motive to
threaten Thomas, motive also being a permissible purpose under Rule 404(b). Moreover,
unlike typical prior bad act evidence which involves events not directly related to the
issues on trial, the six unsigned letters directly concern the same debt and the same parties
involved in the crime charged in the indictment. We, therefore, conclude that the District
Court did not abuse its discretion in admitting the letters, which, in addition to the other
reasons as to why they were admissible, provided essential information concerning the
background of the relationship between Thomas and Boul. See, e.g., United States v.
Scarfo, 850 F.2d 1015, 1019-20 (3d Cir. 1988).
Boul’s argument that the letters were unduly prejudicial under Federal Rule of
Evidence 403 is similarly without merit. He argues that because the letters were written
and delivered as early as 1998, i.e., two years before the time frame of the conspiracy
charged in the indictment, they are not strong evidence of Boul’s intent, knowledge, or
motive in 2001, while the threatening tone of the letters unduly prejudiced the jury against
Boul. Even a cursory review of the letters, however, shows that they deal precisely with
the subject matter of the crime with which Boul was charged. As Thomas testified and as
Boul admitted to the police, Thomas’s debt to Boul preceded Pentland’s direct
involvement by several years. The letters thus corroborate Thomas’s story of Boul’s
efforts to collect the debt from 1998 to 2001 and Boul’s increasing frustration with
Thomas’s failure to pay. Therefore, even assuming that because the District Court did not
expressly conduct the requisite balancing we owe the District Court no deference on this
issue, we conclude that, because the letters provided essential corroboration of the key
witness’s testimony concerning the events which culminated in the crime charged in the
indictment, their probative value was not "substantially outweighed" by the potentially
prejudicial effect of their threatening tone.
B. We Lack Jurisdiction to Review the District Court’s Denial of
Boul’s Motion for a Downward Departure
Boul also argues that the District Court incorrectly interpreted 5K2.10 of the
Sentencing Guidelines as not allowing a downward departure in his case. Section 5K2.10
provides: "If the victim’s wrongful conduct contributed significantly to provoking the
offense behavior, the court may reduce the sentence below the guideline range to reflect
the nature and circumstance of the offense." Boul argues that we can and should review
the District Court’s finding that 5K2.10 did not allow for a downward departure in his
case. We disagree.

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In denying Boul’s motion for a downward departure, the District Court stated:
I acknowledge for the record that departure under this section can be
proper, because the crime committed is classified as a crime of violence.
So I have the discretion to depart under 5K2.10. I find after very careful
consideration of the positions of the parties and the state of the case law that
this is not an appropriate case for departure under that section.
This clear statement by the District Court shows, contrary to Boul’s assertion, that the
Court believed that it had discretion under 5K2.10 to depart, but decided that the
circumstances of Boul’s case did not warrant a departure.
Because the District Court expressly acknowledged its discretionary authority to
grant a downward departure, we are without jurisdiction to review its refusal to exercise
that authority. United States v. Sally, 116 F.3d 76, 78 (3d Cir. 1997).
III. Conclusion
For the foregoing reasons, we find that the District Court properly admitted into
evidence the letters received by Thomas and that we lack jurisdiction to review the denial
of Boul’s motion for a downward departure. We will affirm the judgment of the District
Court and dismiss the appeal of the sentencing issue for lack of jurisdiction.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1417
__________
UNITED STATES OF AMERICA
v.
WILLIAM R. BOUL,
Appellant
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 01-cr-00087-1)
District Judge: The Honorable Donetta W. Ambrose
__________
Submitted Under Third Circuit LAR 34.1(a)
November 20, 2002
__________
Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN, District Judge
____________
JUDGMENT
____________
This cause came on to be heard on the record from the United States District Court
for the Western District of Pennsylvania and was submitted on November 20, 2002.
On consideration whereof, it is now here ordered and adjudged by this Court that

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the judgment of the District Court be and hereby is affirmed and the appeal of the
sentencing issue is dismissed for lack of jurisdiction. No costs.
All of the above in accordance with the Opinion of this Court.
ATTEST:
_______________________
Acting Clerk
Dated: 25 November 2002

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