United States Court of Appeals
For the First Circuit
Nos. 07-2209, 08-2308
UNITED STATES OF AMERICA,
Appellee,
v.
JEROME WEEKES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Stephen B. Hrones, with whom Hrones & Garrity was on brief,
for appellant.
John M. Pellettieri, U.S. Department of Justice, with whom
Lanny A. Breuer, Assistant Attorney General, Gary G. Grindler,
Deputy Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, and Christopher F. Bator, Assistant United States
Attorney, were on brief, for the United States.
July 9, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Appellant Jerome Weekes and
his associate Kelvin Brown were thrown out of a bar after arguing
with another patron. Brockton Police Officer Michael Darrah, who
was working as paid security at the bar, heard gunshots coming from
their direction, called for backup, and gave chase. Darrah caught
Brown as he and Weekes were trying to jump a fence. Weekes cleared
the fence but was arrested by another officer a moment later. A
search turned up Weekes’s cell phone and a loaded gun near where he
had landed, and two spent shell casings in the area from which
Darrah believed the sounds of shooting had come.
Weekes was indicted on one count of being a felon in
possession of a firearm, 18 U.S.C. § 922(g), and was found guilty
by a jury. The district court sentenced him to 15 years’
imprisonment under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). We have consolidated his direct appeal of the conviction
and sentence with his appeal from denial of collateral relief under
28 U.S.C. § 2255.
Weekes first claims a violation of his Sixth Amendment
right to a jury drawn from sources reflecting a fair cross section
of the community. See Taylor v. Louisiana, 419 U. S. 522 (1975).
To make out a prima facie violation of the fair-cross-section
requirement, a defendant must show, among other things, that the
alleged “underrepresentation is due to systematic exclusion of the
group in the jury-selection process.” Duren v. Missouri, 439 U.S.
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357, 364 (1979). Weekes’s evidence on this point, simply his
lawyer’s observation that there were apparently no African-
Americans in the venire, plainly did not suffice to demonstrate the
requisite systematic effort, and the district court properly
rejected the claim. The later decision by the District Court of
Massachusetts to establish a new juror selection plan avails Weekes
nothing; this court previously held that the plan in effect at the
time of Weekes’s trial complied with the Sixth Amendment, see In re
United States, 426 F.3d 1, 8 (1st Cir. 2005) (citing United States
v. Royal, 174 F.3d 1, 10-11 (1st Cir. 1999)), and even if this
panel had the authority (which it lacks) to overrule the prior
holding, nothing in the record would support doing that.
Next, Weekes challenges several evidentiary rulings, to
some of which he objected and to some did not. Where he preserved
the issue, we review the district court’s ruling for abuse of
discretion, and will not reverse if the error was harmless, that
is, if it is highly probable that the error did not contribute to
the verdict. United States v. Scott, 270 F.3d 30, 46 (1st Cir.
2001). If the objection was not preserved, review is for plain
error. Id.
First, the district court did not permit Weekes to cross-
examine Agent Stephanie Schafer about testing for gunpowder
residue, finding such questioning to be outside the scope of her
direct testimony. The court did, however, let Weekes cross-examine
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two other witnesses on the subject and said he could question a
third if subpoenaed as a defense witness. There is no abuse of
discretion here, and certainly no possibility of harm.
Second, the district court ruled that photographs of
Brown with injuries sustained the night of his arrest were
admissible during Weekes’s testimony only if the Government cross-
examined him about the harm Brown sustained. The Government did
not do that, and the photographs stayed out. But again, the court
provided Weekes with an opportunity to offer the evidence through
another witness, ruling (at Weekes’s request) that the photos could
come in during the testimony of Brockton Police Officer Edward
Abdelnour. Under these circumstances, not to mention that the
testimony of Weekes and Officer Darrah about Brown’s injuries left
the photographs largely cumulative, any error in excluding the
photographs during Weekes’s testimony was harmless.
Third, the district court permitted the Government to
impeach Weekes by asking him about his use of such nicknames as
“Ice” and “Unk” and about his use of false social security numbers.
Review here is only for plain error, and we find none. The
testimony about the social security numbers obviously went to
credibility and was therefore admissible under Federal Rule of
Evidence 608(b). The relevance to Weekes’s truthfulness of what
the Government calls his “aliases” may be less clear, but we do not
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see (and Weekes has not explained) how the jury’s awareness of
these particular nicknames could possibly have caused him harm.
Fourth, the district court did not allow Weekes to
testify that Brown had told him that he (Brown) had picked up the
gun after it was dropped from a passing vehicle from which the two
had been fired upon. Weekes argues that this statement is not
excludable under the hearsay rule because it was a statement
against penal interest and Brown was unavailable to testify at
trial. See Fed. R. Evid. 804(b)(3). The sticking point here is
the required showing of Brown’s unavailability, and we do not think
Weekes has demonstrated abuse of discretion in the district judge’s
finding that Weekes had not “show[n] at least a good faith effort
to procure the witness’[s] attendance,” a standard we have
described as “relatively high.” United States v. Mann, 590 F.2d
361, 367 (1st Cir. 1978). He apparently did try to find Brown
through Brown’s friends and family, but he neither subpoenaed Brown
at his last known address nor sought help from the district court,
local law enforcement, or, curiously, Brown’s counsel in the state
court action in which the two were co-defendants. See id. (good
faith standard “cannot be satisfied by perfunctory efforts”).
Weekes runs into the further admissibility problem that he has not
established that “corroborating circumstances clearly indicate the
trustworthiness of the [out-of-court] statement.” Fed. R. Evid.
804(b)(3). It is not enough to point, as Weekes does, to evidence
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that Brown made the statement; “there must be indicia of
trustworthiness of the specific, essential assertions” to be
repeated, United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997)
(internal quotation marks omitted), and Weekes points to none.
There was no abuse of discretion in excluding Brown’s hearsay.
Weekes’s rejoinder is that, if this is so, his trial
counsel must have been constitutionally ineffective for failing to
scale the barriers to admitting the hearsay raised by Rule
804(b)(3). But in accordance with usual practice, we decline to
review this claim as part of Weekes’s direct appeal, see United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), and we find it
likewise unsuitable for review in the present consolidated appeal
from denial of § 2255 relief. We have long recognized that “in the
absence of extraordinary circumstances, the orderly administration
of criminal justice precludes a district court from considering a
§2255 motion while review of the direct appeal is still pending.”
United States v. Gordon, 634 F.2d 638, 638 (1st Cir. 1980)
(internal quotation marks omitted). No such extraordinary
circumstances existed here, as the district court found. Thus, to
the extent the district court construed Weekes’s “request for
ruling on claim of ineffective assistance of counsel” as a petition
for relief under § 2255 and proceeded to rule on its merits, the
ruling was premature; the district court should have dismissed it
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without prejudice. See United States v. Diaz-Martinez, 71 F.3d
946, 953 (1st Cir. 1995).1
Finally, Weekes challenges his sentence under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA
mandates a 15-year minimum prison term for a defendant convicted of
being a felon in possession of a firearm if the defendant has
“three previous convictions . . . for a violent felony or a serious
drug offense, or both.” § 924(e)(1). Weekes denies that he has
three qualifying convictions, an issue subject to de novo review to
the extent properly preserved, United States v. Pakala, 568 F.3d
47, 54 (1st Cir. 2009), and plain error review to the extent it was
not, United States v. Duval, 496 F.3d 64, 84 (1st Cir. 2007).
Two of Weekes’s convictions were for drug offenses in
violation of Massachusetts law. They qualify as “serious drug
offense[s]” under the ACCA if “a maximum term of imprisonment of
ten years or more is prescribed by law.” § 924(e)(2)(A)(ii).
Weekes acknowledges that his crimes were potentially punishable by
ten years’ imprisonment, but calls this irrelevant because he was
in each instance tried in the alternative prosecutorial venue of a
state district court, see Mass. Gen. Laws ch. 218, § 26, which was
not authorized to sentence higher than two and one-half years. See
1
In light of this disposition, we need not address the
consequences of Weekes’s failure to request a certificate of
appealability. Cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 431 (2007).
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Mass. Gen. Laws ch. 218, § 27 and ch. 279, § 23. But we rejected
this argument in United States v. Moore, 286 F.3d 47, 49 (1st Cir.
2002), and see nothing in the Supreme Court’s intervening decision
in United States v. Rodriquez, 553 U.S. 377 (2008), to require us
to revisit the issue. On the contrary, Rodriquez instructs us to
look to “the maximum term prescribed by the relevant criminal
statute,” id. at 391, rather than external limitations on “the term
to which the state court could actually have sentenced the
defendant” in a particular case, id. at 390. The limits came from
a mandatory guidelines regime in Rodriquez, id., but there is no
apparent reason for a different rule when the restriction on a
court’s sentencing authority is more general, as here. We
therefore see no error, much less the plain error that Weekes must
show as to these convictions, in the district court’s conclusion
that these offenses were serious drug offenses under the ACCA.
The district court also counted Weekes’s state conviction
for resisting arrest, see Mass. Gen. Laws ch. 268, § 32B, as an
ACCA predicate, which it was if resisting arrest is soundly
categorized as a “violent felony” under that statute. In United
States v. Almenas, 553 F.3d 27, 32-35 (1st Cir. 2009), we held that
resisting arrest qualified as a “crime of violence” under U.S.S.G.
§ 4B1.2, and because that Guideline and the ACCA are similarly
worded, our holding in Almenas applies here to treat Weekes’s
conviction as a violent felony under the statute. See id. at 34
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n.7. Weekes argues that Almenas is no longer good law following
the Supreme Court’s decision in Chambers v. United States, 129
S.Ct. 687 (2009), which he says requires separate consideration of
the two types of conduct proscribed by the Massachusetts statute.
See Mass. Gen. Laws ch. 268, § 32B (covering use or threat of force
and creation of substantial risk of bodily injury). But that is
what we did in Almenas; Weekes’s argument is off the mark.
Weekes further suggests that, because stiffening one’s
arms or fleeing willfully can qualify as resisting arrest in
Massachusetts, we must look at the record of his conviction to
determine if his conduct was in fact violent. See Shepard v.
United States, 544 U.S. 13 (2005). But in Almenas, we rejected
this argument, which is at odds with the categorical method for
identifying qualifying felonies, 553 F.3d at 35 & n.9, and we do
not read Chambers to undermine our reasoning. In any event, arm
movement and flight by an arrestee of the type that would violate
the Massachusetts statute strikes us as more akin to escape than
the failure to report that Chambers held not to be a violent
felony. See Chambers, 129 S.Ct. at 691 (“The behavior that likely
underlies a failure to report would seem less likely to involve a
risk of physical harm than the less passive, more aggressive
behavior underlying an escape from custody.”); Commonwealth v.
Montoya, 73 Mass. App. Ct. 125, 130, 896 N.E.2d 638, 642 (2008)
(construing § 32B to reach “a defendant’s flight where the
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circumstances of such flight expose his pursuers to a ‘substantial
risk of bodily injury’” but not “mere flight on foot from arrest”
(emphasis omitted)); see also United States v. Pratt, 568 F.3d 11,
22 (1st Cir. 2009) (holding that escape from secure custody is a
violent felony).
Because the two drug offenses and conviction for
resisting arrest provide the three necessary predicates for the
application of an ACCA minimum sentence, there is no need to
consider whether the conviction for assault and battery would also
qualify in the aftermath of Johnson v. United States, 130 S.Ct.
1265 (2010).
We affirm the district court’s judgment of conviction and
sentence in Appeal No. 07-2209. We affirm the order in part and
vacate in part in Appeal No. 08-2308, and we remand the case for
further proceedings consistent with this opinion.
So ordered.
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