UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1408
UNITED STATES,
Appellee,
v.
TIMOTHY P. NORTON,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Breyer,* Chief Judge,
Torruella and Boudin, Circuit Judges.
Frank G. Kelleher, by Appointment of Court, with whom
Timothy P. Norton pro se was on brief for appellant.
Michael J. Pelgro, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).
TORRUELLA, Circuit Judge. A federal grand jury
returned an indictment charging Timothy P. Norton with being a
felon in possession of a firearm in violation of 18 U.S.C.
922(g)(1). Following trial, the jury found Norton guilty, and
the district court then sentenced him to 180 months in prison.
Norton now appeals his conviction, contending that the district
court abused its discretion when it permitted the government to
cross-examine Norton about a prior conviction for carrying a
firearm. We affirm.
FACTS
The testimony and other evidence properly introduced at
trial, viewed in the light most favorable to the verdict,
established the following facts. United States v. Rivera-
Santiago, 872 F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492
U.S. 910 (1989).
On October 14, 1990, Norton and Kevin Johnson were
drinking in "The Bullpen Sports Bar and Grill" ("The Bullpen") in
Somerville, Massachusetts. The two men became involved in an
altercation with one of the owners, James Hough, and a manager,
Leo Kelley. Norton and Johnson were ejected from The Bullpen.
The Somerville police then arrived at the scene.
After The Bullpen had closed for the night, Norton and
Johnson returned to the premises. What happened when the two men
returned was disputed at trial. Because of the earlier
disturbance, Police Officers Thomas Silveira and Neil Brennan
were assigned to patrol the vicinity around The Bullpen. Officer
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Silveira observed a vehicle, later identified as Norton's
Cadillac Seville, stopped in the street in front of The Bullpen.
Officer Silveira observed Norton pointing what appeared to be a
pistol toward the front door of The Bullpen. He testified that
he then saw a flash from the weapon. Norton then got into the
Cadillac. Officer Silveira then observed Johnson run to the
front of The Bullpen, he saw a large flash and explosion, and saw
Johnson get back into Norton's Cadillac.
Somerville Police Detective Ernest Nadile had earlier
returned to The Bullpen to protect the employees who remained and
were present after the bar closed. Detective Nadile testified
that he heard a shot ring out. He then "hit the floor," and
heard another shot approximately three seconds later. As
Norton's Cadillac sped away, Officer Silveira and Officer Brennan
pursued the vehicle. During the pursuit, Officer Brennan
observed the driver of the Cadillac throw what appeared to be a
gun out the driver's side window, and he heard the gun hit a
parked car and slide across the pavement.
Other officers subsequently joined in the chase, and
they eventually stopped the Cadillac. A struggle then ensued
between Officer Brennan and Norton. Officer Brennan testified
that he heard Norton repeatedly utter that he had not shot at a
cop. The police officers arrested both Norton and Johnson.
Officer Brennan then went back to the location in
Somerville where he had seen Norton throw an object, and found a
Colt Combat Commander .45 caliber semi-automatic pistol in the
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street.
Johnson testified on behalf of the defense. He stated
that after being ejected from The Bullpen, he and Norton went to
the Jumbo Pub, another bar, and then to the Moose Club, where
they drank for the next few hours. Johnson testified that while
at the Moose Club, a friend gave him an "M-80," a big
firecracker. After leaving the Moose Club, Johnson discovered
that he had lost his wallet and Norton drove him back to The
Bullpen to look for the missing item. Johnson then found his
wallet against the curb of the street. While returning to
Norton's Cadillac, Johnson took out the "M-80," lit it, and threw
it in the general vicinity of The Bullpen's front door. Johnson
testified that he did not see a gun that night and that he did
not know anything about a gun.
Norton also chose to testify on his own behalf. Prior
to Norton's testimony, the court conducted a voir dire with him
concerning his decision. During the course of the colloquy,
Norton made reference to his prior criminal record and discussed
the possibility that the government might try to impeach him by
means of his prior convictions. Prompted by the exchange, the
district court asked the government to review Norton's prior
criminal record so that the court could make an advance ruling on
the admissibility of Norton's prior convictions under Fed. R.
Evid. 609. The government then advised the district court of
numerous prior convictions extending back to 1954. Upon learning
that the government had not provided advance written notice to
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the defense of its intent to use these convictions at trial, as
required by Fed. R. Evid. 609(b), the court ruled that the
government would not be allowed to impeach Norton with any
convictions that were greater than ten years old, including a
1963 conviction for unlawfully carrying a firearm.
The court then engaged in a balancing process to rule
on the admissibility of the more recent convictions. The court
ruled that the government could inquire about a 1991 conviction
for malicious destruction of property and a 1985 conviction for
possession of cocaine with intent to distribute, but that it
could not inquire about other convictions.
After the court's advance ruling, Norton took the
stand, and essentially testified to the same chain of events to
which Johnson had testified. Norton testified that he never saw
a gun that night, that he never possessed a gun that night, and
that he never threw a gun out of the driver's side window of his
Cadillac.
During direct examination, the following exchange
occurred between Norton and his counsel:
Q. Now, at some point did you have a gun in your
possession during the chase?
A. I never had a gun in my life in that car. Or on my
possession or anywhere.
During cross-examination, a sidebar conference took place, where
the government requested that it be able to present evidence of
Norton's 1963 conviction for unlawfully carrying a firearm,
because Norton had stated on direct examination that he never had
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a gun in all his life. The following exchange occurred:
Mr. Pelgro: ". . . in connection with the prior
convictions that are over ten years, you
ruled, of course, they were not admissible
under Rule 609. The defendant in the
course of his direct examination, when
asked a question about whether he had a
gun that night, stated he never had a gun
in all my life. I've got a conviction
from 1963 of him carrying a revolver. I
think it's fair game on his credibility to
ask him about that.
The Court: I think that's so.
Mr. Kelleher: I would object to it. I think that was
an
emotional response, I never had a gun in
all my life.
The Court: Well, it was wrong.
With the court's permission, the government proceeded to ask
Norton about his 1963 firearm conviction. On cross-examination,
the following exchange took place:
Q. Now, sir, I believe you testified on Friday in
response to your lawyer's questions that you never
had a gun in your entire life; is that correct?
A. I didn't say I never had a gun in my entire life,
sir.
Q. Well, when your lawyer asked you if you had a gun
that night, didn't you say I never had one in all
my life?
A. I never had one in my hand in all my life, yes.
Q. You never had one in your hand?
A. No, sir, I didn't.
Q. It is true, is it not, that you were previously
convicted of unlawfully carrying a revolver; isn't
that correct?
A. I pled guilty to that. I was involved with another
gentleman, sir. You're referring to 1963?
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Q. Yes.
A. I was a young man then. I was a very young man
then.
Q. So you were mistaken when you stated that you never
had one in all your life?
A. It wasn't in my hand. It was one revolver and it
never was in my hand.
Q. You did plead guilty, though to carrying a
revolver, didn't you?
A. That was the cumulation of the charge. I pled
guilty and received three to five years.
The jury subsequently found Norton guilty. This appeal followed.
ANALYSIS
A. Standard of Review
The district court is vested with broad discretionary
power to admit or exclude evidence. See United States v.
Innamorati, 996 F.2d 456, 478 (1st Cir.), cert. denied, 114 S.
Ct. 409 (1993); United States v. George, 752 F.2d 749, 756 (1st
Cir. 1985). A district court has considerable discretion to
discern the relevancy of evidence. United States v. Tierney, 760
F.2d 382, 387 (1st Cir.), cert. denied, 474 U.S. 843 (1985).
Similarly, the court has great latitude to gauge the relevance of
the evidence against the unfair prejudice which may result from
its admission. Id.; United States v. Griffin, 818 F.2d 97, 101
(1st Cir.), cert. denied, 484 U.S. 844 (1987). "[O]nly rarely -
and in extraordinarily compelling circumstances - will we, from
the vista of a cold appellate record, reverse a district court's
on-the-spot judgment concerning the relative weighing of
probative value and unfair effect." United States v. De La Cruz,
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902 F.2d 121, 124 (1st Cir. 1990) (quoting Freeman v. Package
Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).
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B. Governing Evidentiary Principles
Norton contends that his 1963 firearm conviction was
not admissible under Fed. R. Evid. 609, and that the court
violated a number of requirements of this rule when it admitted
the conviction. Rule 609, however, is not controlling in this
context. Rule 609 is an impeachment rule which governs the
admissibility of evidence of certain criminal convictions of a
witness when offered to impeach that witness by proving character
for untruthfulness. Fed. R. Evid. 609 advisory committee's
notes; 28 Wright and Gold, Federal Practice and Procedure,
6133 at p. 204; see, e.g., United States v. Brown, 603 F.2d 1022,
1027-29 (1st Cir. 1979); United States v. Oakes, 565 F.2d 170,
173 (1st Cir. 1977). The premise behind the rule is that a
witness who has previously been convicted of a felony, or a crime
involving dishonesty or a false statement, is more likely to lie
than is a person with a spotless past. Federal Practice, 6132
at pp. 190-94. Thus, Rule 609 evidence is admissible for the
purpose of attacking credibility generally, but the rule does not
address the admissibility of prior convictions when they are
offered for another purpose. Id. at pp. 205-06; see United
States v. Babbitt, 683 F.2d 21, 25 (1st Cir. 1982) (introduction
of evidence of a prior conviction did not implicate Rule 609
where defendant denied having a police record on direct
examination and prosecutor introduced conviction on cross-
examination to bring to light actual facts); United States v.
L pez, 979 F.2d 1024, 1033 (5th Cir. 1992) (neither Rule 608 or
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609 applies "in determining the admissibility of relevant
evidence introduced to contradict a witness's testimony as to a
material issue"), cert. denied sub nom. Ram rez v. United States,
113 S. Ct. 2349 (1993); cf. United States v. Barrett, 766 F.2d
609, 619 (1st Cir.) (where a defendant introduces, and makes
material, specific conduct in his direct testimony, proving the
falsity of such testimony is a fair target for the prosecution
and Rule 608 is not implicated), cert. denied, 474 U.S. 923
(1985).2
Instead, the general strictures of Fed. R. Evid. 4023
and 4034 were invoked when the government proffered the 1963
firearm conviction to contradict material false testimony
injected into the trial by Norton himself. See L pez, 979 F.2d
at 1034. Prior convictions are admissible under Rules 402 and
2 At trial, the government argued that the 1963 firearm
conviction was relevant to shed light on Norton's credibility.
The record is somewhat unclear as to the precise grounds the
court ultimately used to justify its decision to admit the
conviction. Even if, however, the court admitted the evidence
under Rule 609, we can still affirm its ruling if the evidence is
admissible under another rule. A district court's reliance on an
improper ground for admitting the evidence will not amount to
harmful error if other valid grounds for admission exist, because
such a situation does not affect a defendant's substantial
rights. L pez, 979 F.2d at 1033.
3 Fed. R. Evid. 402 provides in pertinent part that "[a]ll
relevant evidence is admissible . . . " Fed. R. Evid. 401
defines "[r]elevant evidence" as ". . . evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence."
4 Fed. R. Evid. 403 provides in pertinent part: "[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice
. . . . "
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403 to contradict specific testimony, as long as the evidence is
relevant and its probative value is not substantially outweighed
by the danger of unfair prejudice. L pez, 979 F.2d at 1034; cf.
United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993).
Evidence which tends to disprove a witness's testimony about a
material issue in the case is relevant. L pez, 979 F.2d at 1034.
In the present case, Norton's possession of the
firearm was the sole contested issue at trial.5 We agree with
the government that the district court could have found that the
evidence of Norton's prior firearm conviction was relevant to
this material issue. See Babbitt, 683 F.2d at 25; L pez, 979
F.2d at 1034. Norton testified on direct examination that he did
not have a firearm on the night in question. Norton then
attempted to add credence to this claim by testifying to the
effect that he had never possessed a gun in his life. If Norton
had never possessed a gun prior to the night in question, it was
more likely than it would be without this evidence that he did
not possess a gun on the night in question. Once Norton denied
that he had ever possessed a gun, he opened the door to the issue
of his prior or present firearm possession. The fact that Norton
had been previously convicted of carrying a firearm was highly
5 Under 18 U.S.C. 922(g)(1), the Government had to prove that
1) Norton had previously been convicted of an offense punishable
by imprisonment exceeding one year; and 2) he knowingly possessed
a firearm in or affecting commerce. United States v. Wight, 968
F.2d 1393, 1397 (1st Cir. 1992).
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relevant to contradict his specific misleading assertion.6
As with most evidentiary questions, the court was then
required to consider the unfair prejudice that would stem from
admitting this prior conviction. As a primary matter, Norton
introduced the issue of whether he had previously possessed a
firearm into the trial. Norton cannot be heard to claim that he
was "unfairly prejudiced" by the fact that the government then
established, through the 1963 conviction, that he lied, or at the
least, misled the jury, when he testified that he had never
possessed a firearm. See, e.g., Oakes, 565 F.2d at 172 (an
accused should not "be heard to complain of any resulting
prejudice created by his own actions"). Moreover, the prejudice
to Norton which resulted from admitting the conviction was
relatively slight. While the evidence did tend to demonstrate a
propensity by Norton to possess firearms, here, that effect was
minimal. The conviction was 29 years old, and, as Norton pointed
out on cross-examination, his transgression had occurred many
years ago, when he was a "very young man." The court also
limited any possible prejudicial spill-over of such evidence by
repeatedly instructing the jury as to the limited purpose of
6 Norton claims that the court had previously ruled that the
1963 firearm conviction was generally not admissible under Fed.
R. Evid. 609, and that the court could not then change this
ruling during the course of Norton's testimony. Advance rulings
on the admissibility of prior convictions for impeachment
purposes, however, may always be altered as the case unfolds.
United States v. Nivica, 887 F.2d 1110, 1116 (1st Cir. 1989),
cert. denied, 494 U.S. 1005 (1990); Oakes, 565 F.2d at 172. The
court's advance ruling was not a license for Norton to proffer
false or misleading testimony.
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prior conviction evidence.7 Under these circumstances, the
court properly concluded that the probative value of Norton's
1963 firearm conviction outweighed any unfair prejudice to him.
The district court's decision to admit Norton's prior
firearm conviction was free from error. Therefore, we affirm.
7 When the government asked Norton about his 1985 cocaine
conviction, the court instructed the jury as follows:
. . . And there's another thing here,
because this is the person accused. If
you were to draw from the fact that back
then he was convicted of this drug crime
that he's a bad person and therefore he
must have done this crime, that would
violate your oath. It's not fair, it's
not what you're asked here. You're
asked whether the government proves this
crime, the reason that we're all here
together in court, felon in possession of
a firearm, whether they proved this crime
beyond a reasonable doubt.
You may consider that crime on the
issue of whether he's a felon, and you
may consider that crime on the issue of
whether you believe his testimony. But
don't just come to the conclusion he's
some sort of bad person so he must have
done this. That would violate your oath
as jurors.
The court repeated the essence of this instruction when the
government asked Norton about his 1991 conviction for malicious
destruction of property.
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