United States v. Wilkerson

United States Court of Appeals
For the First Circuit

No. 02-1729

UNITED STATES,

Appellee,

v.

AUSTIN R. WILKERSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lynch, Circuit Judge.

Miriam Conrad for appellant.

Jonathan L. Marcus, United States Department of Justice, with
whom Michael J. Sullivan, United States Attorney, District of
Massachusetts, and John T. McNeil, Assistant United States
Attorney, District of Massachusetts, were on brief, for appellee.

June 9, 2005

*
Of the Eighth Circuit, sitting by designation.
 JOHN R. GIBSON, Senior Circuit Judge. Austin R.

Wilkerson appeals his conviction for possessing a firearm as a

convicted felon under 18 U.S.C. § 922(g)(1), possessing more than

five grams of cocaine base with intent to distribute under 21

U.S.C. § 841(a)(1), and carrying a firearm in connection with a

drug trafficking offense under 18 U.S.C. § 924(c)(1). Wilkerson

asserts that the district court erred by admitting prior consistent

statements of a government witness in violation of Fed. R. Evid.

106 and the common law, permitting a government witness to

interpret one of his post-arrest statements in violation of Fed. R.

Evid. 701, and allowing the prosecutor to improperly vouch for his

witnesses in summation and engage in other forms of prosecutorial

misconduct. Wilkerson also challenges the sufficiency of the

evidence to establish a nexus between the firearm and interstate

commerce, and he argues that his sentence should be remanded

pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We

hold that the district court erred in the admission of prior

consistent statements, but this error was harmless. We remand to

the district court for resentencing, and we affirm the district

court on all other issues.

Boston police officers Tom Joyce and Ed Fleming stopped

Wilkerson after he made an illegal U-turn. During the stop, the

officers learned he was driving with a suspended license. Officer

Joyce asked Wilkerson to step out of the vehicle, but Wilkerson

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refused. Joyce and Wilkerson struggled for the door while Officer

Fleming called for back-up. Wilkerson then drove off and a chase

ensued.

The car chase ended when Wilkerson abandoned his vehicle

and took off on foot. From about thirty to forty feet away, the

officers saw Wilkerson holding his right side around his waist

area. Joyce informed his partner, "Eddie, be careful, I think he

has a gun." Joyce then broadcast over the radio, "He's reaching

for his budge," meaning that Wilkerson was reaching for the

waistband area where he thought Wilkerson had a gun. The officers

reported that Wilkerson continued to hold his right waist area

while they followed him, but they did not actually see a gun.

The officers pursued Wilkerson onto Hartwell Street.

Officer Joyce testified at trial that he was about sixty feet away

when he saw Wilkerson turn into an alley between houses at 11 and

5 Hartwell on the north side of the street. Officer Fleming

testified that he had just turned onto Hartwell when he saw the

same thing. As Wilkerson turned into the alley, Joyce slowed down

and peered down the driveway on the south side of 11 Hartwell,

between 11 and 15/17 Hartwell, to see if Wilkerson would come back

the opposite way. He did not. When Joyce reached the alley, he

saw Wilkerson climbing over a six- or seven-foot-high fence, no

longer clutching his waist area. Joyce did not see anything in

Wilkerson's hands or belt as he lowered himself over the fence.

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Joyce did not attempt to scale the fence, but instead turned around

and ran up the driveway. There Joyce saw Wilkerson running west

through the backyards toward Cheney Street. Officers from another

police unit arrested Wilkerson when they caught him running at a

slow jog on Maple Street near Cheney.

After Wilkerson's arrest, officers were ordered to

retrace the route of the foot chase looking for anything he might

have discarded. Another officer accompanied by Joyce found a gun

and 12.55 grams of crack cocaine in the alley between 11 and 5

Hartwell. The items were described as clean and dry and lying on

top of damp, dirty refuse. The gun was cocked, loaded, and ready

to be fired. The key factual dispute at trial was whether

Wilkerson ran up the alley where the gun and drugs were found,

between 5 and 11 Hartwell, or whether he ran up the driveway

between 11 and 15/17 Hartwell, which he would have had to pass

before reaching the alley.

I.

Both of the evidentiary issues Wilkerson raises on appeal

involve testimony about his flight path on Hartwell Street. We

first address Federal Rule of Evidence 106 and the common law to

determine when prior consistent statements may be used to

rehabilitate a witness's credibility.

Officer Fleming testified that he saw Wilkerson turn into

the alley between 5 and 11 Hartwell. Defense counsel attempted to

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impeach Fleming's credibility on this subject by eliciting

testimony that (1) he did not describe the alley in the radio

broadcasts he made while chasing Wilkerson, (2) he referred to the

alley as a driveway in his police report, and (3) in state grand

jury testimony he stated that Wilkerson ran between the second and

third houses on Hartwell, which would be between 15/17 and 11 if

counting from the direction in which they ran. Fleming was

impeached on other subjects with his federal grand jury testimony,

but none concerned Wilkerson's flight path.

To rehabilitate his credibility, the government asked

Officer Fleming on redirect examination, "[A]t any time prior to

writing the report or in testifying in this case, did you ever

indicate that [Wilkerson] ran up anyplace other than that area

between 5 and 11 Hartwell?" He answered no. He was then asked,

"[A]t any prior time, writing a report or in your prior testimony,

did you indicate that the defendant ran up any location other than

this location between 5 and 11 Hartwell?" Again he answered no.

Finally he was asked, referring to his federal grand jury

testimony, "[D]o you recall what you said in that testimony?"

Fleming answered:

A. I testified to the fact that I saw the defendant
run on to Hartwell Street and run up an alleyway
between two homes on Hartwell Street.

Q. And were you shown two photographs in the grand
jury?

A. I was.

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 Q. And what did you identify those photographs as
being?

A. As the alleyway the defendant ran.

Defense counsel objected to this line of questioning.

She argued that the testimony was hearsay and should not be allowed

as non-hearsay prior consistent statements under Federal Rule of

Evidence 801(d)(1)(B) because it was not offered to rebut a charge

of recent fabrication. The district court agreed and ruled that

Fleming's testimony could not be admitted under Rule 801. Instead,

the court allowed the testimony under Rule 1061, the rule of

completeness. Defense counsel maintained her objection. The

district court, sua sponte, gave a limiting instruction directing

the jury to consider the testimony only for the officer's

credibility and not for the truth of the statements.

We review the district court's ruling for abuse of

discretion. See United States v. Millan, 230 F.3d 431, 434 (1st

Cir. 2000). We conclude that the district court erred in admitting

the testimony, but the error is harmless.

In United States v. Simonelli, 237 F.3d 19, 25-29 (1st

Cir. 2001), this court addressed the same issues presented here.

On cross-examination, a witness's prior inconsistent statements

1
"When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered
contemporaneously with it." Fed. R. Evid. 106.

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were used to impeach his credibility. On redirect the government

asked the witness about statements he made to the grand jury which

were consistent with his trial testimony. Some of the questions

went beyond the specific points covered on cross-examination, but

all were within its general scope. Many of the statements were

used only to rehabilitate the witness, rather than as substantive

evidence. See id. at 26.

In Simonelli we stated that when prior consistent

statements are admitted to rehabilitate a witness, admissibility is

"determined by the interplay between the rule of completeness and

the common law doctrine about prior consistent statements." Id. at

27. We noted that both the rule of completeness and the common law

doctrine allow prior consistent statements when they tend to show

that a statement used to impeach a witness is not really

inconsistent when understood in its proper context. See id. at 27-

28.

The government argues that Officer Fleming's testimony

was properly admitted because it was offered to rebut the

impression created by defense counsel's cross-examination that

Officer Fleming had given conflicting or uncertain accounts of

Wilkerson's flight path. However, Simonelli makes clear that prior

consistent statements must at least have "some rebutting force

beyond the mere fact that the witness has repeated on a prior

occasion a statement consistent with his trial testimony." See id.

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at 27 (quoting United States v. Pierre, 781 F.2d 329, 331 (2d Cir.

1986)). The redirect testimony at issue does not meet the required

standard. Defense counsel cross-examined Officer Fleming about

inconsistencies in the way he described Wilkerson's flight path and

his failure to broadcast information about the alley over the

police radio. Confirming on redirect that the officer had never

described a different flight path did not clarify or otherwise

provide context for the statements used to impeach Fleming.

Rather, the testimony only bolstered Officer Fleming's credibility

generally by restating what had already been said. That kind of

rehabilitation is impermissible. See Simonelli, 237 F.3d at 28

("There is no rule admitting all prior consistent statements simply

to bolster the credibility of a witness who has been impeached by

particulars.").

The government argues that any error in admitting the

testimony is harmless. "A non-constitutional evidentiary error is

harmless . . . so long as it is highly probable that the error did

not influence the verdict." United States v. Piper, 298 F.3d 47,

56 (1st Cir. 2002). Several factors lead us to conclude that the

error is harmless.

The government's case against Wilkerson was strong even

without Officer Fleming's redirect testimony. Wilkerson drove away

from the officers, prompting a car chase; Wilkerson abandoned his

vehicle and ran from the officers on foot; both officers saw

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Wilkerson holding his waist area and believed he had a gun; Officer

Joyce warned other officers over the police radio that Wilkerson

was reaching for his "budge," a term that conveyed Joyce's belief

that Wilkerson had a gun; Joyce, who followed closer behind

Wilkerson during the chase and was the government's key witness,

also testified that he saw Wilkerson run up the alley where the gun

and drugs were found; the gun and drugs were clean and dry in an

otherwise damp and dirty alley, indicating that they had not been

there very long; and shortly after running from the alley where the

gun and drugs were found, Wilkerson gave up the chase. The

exculpatory evidence Wilkerson presented at trial was minimal and

unpersuasive.

Moreover, Officer Fleming's redirect testimony was not

unique and was used only to rehabilitate his credibility. "By

definition, prior consistent statements do not consist of new

substantive information. Their impact comes from corroborating

other, perhaps less compelling, evidence." United States v. Awon,

135 F.3d 96, 101 (1st Cir. 1998). At most the testimony

strengthened Officer Fleming's previous testimony by corroborating

his story. While this may warrant a new trial in some cases, it is

highly probable that the corroborating testimony did not influence

the verdict in this case. We conclude that the district court's

error is harmless.

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 II.

The second evidentiary issue Wilkerson raises is whether

the district court violated Federal Rule of Evidence 701 by

allowing a government witness to interpret one of Wilkerson's post-

arrest statements. The decision to admit lay opinion testimony

pursuant to Rule 701 is reviewed for abuse of discretion. United

States v. Tom, 330 F.3d 83, 94 (1st Cir. 2003). We conclude that

the district court did not abuse its discretion in admitting the

testimony.

Wilkerson described his route during the foot chase in an

interview after his arrest with Boston Police Detective Jeremiah

Benton. Detective Benton testified that Wilkerson told him that

"he grabbed the tall fence to get up on the small fence." Over

defendant's objection, Benton testified that he understood the

defendant "to mean that he grabbed on to a higher fence to pull

himself up on to a lower fence to get over the higher fence."

Detective Benton then illustrated this testimony by pointing to

parts of a fence in a photograph of the alley between 11 and 5

Hartwell. In its closing argument, the government asserted that

Wilkerson's post-arrest statement referred to the fence in the back

of the alley in which Officers Joyce and Fleming saw the defendant

run.

The government argues that this testimony is admissible

under Rule 701, which permits the admission of lay opinion

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testimony only when it is:

(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. Wilkerson argues that the testimony did not

meet the requirements of (a) or (b).

The first element of Rule 701 is "the familiar

requirement of first-hand knowledge or observation." Fed. R. Evid.

701 advisory committee's note. This court has noted that the

requirement is met when the testimony is based on the personal

perception of the witness and does not require any irrational leaps

of logic for the witness to render the opinion. See Lynch v. City

of Boston, 180 F.3d 1, 16 (1st Cir. 1999). Wilkerson argues that

this test is not met because Detective Benton lacked any special

understanding of what Wilkerson meant and he had no special

familiarity with the area. This argument is unpersuasive.

Detective Benton testified that he was familiar with the alley in

which the gun and drugs were found and with the driveway that

defense counsel argued Wilkerson used to flee. He walked up the

alley before interviewing Wilkerson, he viewed the driveway the

same night of Wilkerson's arrest, and he walked up the driveway the

next day. He was thus in a position to assess which fence

Wilkerson referred to in his statement. Benton's opinion is

therefore rationally based on his perception.

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 Wilkerson also argues that the "helpfulness" requirement

is not met because the statement itself is clear and the jury had

other evidence before it from which it could determine which area

Wilkerson was describing. Wilkerson points to several cases

holding that the interpretation of clear statements is not helpful

to the jury. See, e.g., United States v. Dicker, 853 F.2d 1103,

1109 (3d Cir. 1988)("[T]he interpretation of clear statements is

not permissible, and is barred by the helpfulness requirement of .

. . Fed. R. Evid. 701."). However, these cases involve the

interpretation of facially clear and coherent statements.

Wilkerson's statement that he "grabbed the tall fence to get up on

the small fence" is vague and confusing. It is not at all clear

from the photographs of the alley and the driveway what Wilkerson

meant. Detective Benton saw the area immediately after Wilkerson's

arrest. He walked through the alley before taking Wilkerson's

statement and walked through the driveway the next morning.

Although the jury viewed the area, it was before they heard any

testimony. Under the circumstances, the district court could have

reasonably determined that Detective Benton was in a unique

position to help the jury understand what Wilkerson might have

meant. See Tom, 330 F.3d at 94. Accordingly, we conclude the

district court did not abuse its discretion in admitting the

testimony.

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 III.

Wilkerson also contends that the prosecutor engaged in

misconduct in his closing argument and rebuttal. There was no

contemporaneous objection to the closing argument or rebuttal at

trial, so we review for plain error. United States v. Figueroa-

Encarnacion, 343 F.3d 23, 27 (1st Cir. 2003), cert. denied, 540

U.S. 1140 (2004). Review for plain error requires determining

whether an error occurred which was clear or obvious and which not

only affected the defendant's substantial rights but also seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). Wilkerson argues there were five separate instances of

prosecutorial misconduct, but we conclude there were none.

First, Wilkerson asserts that the government improperly

vouched for the credibility of the officers' testimony by arguing

in rebuttal that if the officers wanted to lie they would have made

up a better story. "[A] prosecutor improperly vouches for a witness

when she places the prestige of her office behind the government's

case by, say, imparting her personal belief in a witness's veracity

or implying that the jury should credit the prosecution's evidence

simply because the government can be trusted." United States v.

Perez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003). In Perez-Ruiz, we

determined that the statement, "If they [were going to] make up a

story, wouldn't it have been a better story?" was not improper

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vouching, but rather "a logical counter to the assertions of

defense counsel . . . that various government witnesses had

fabricated their testimony . . . ." Id. at 9-10. The comments

before us are very similar. In response to defense counsel's

assertions that the officers may have fabricated their stories, the

government argued that if the officers had wanted to lie, they

could have said they saw defendant with a gun or otherwise

embellished their testimony to make the case better. These

statements do not constitute improper vouching. See also Figueroa-

Encarnacion, 343 F.3d at 29 (admission of the government's

statements that witnesses could have lied to make a better story

was "not remotely plain error").

The prosecutor also stated several times in rebuttal that

the officers "didn't stretch the truth here" when noting that the

officers testified that they saw Wilkerson reach for his budge area

but did not testify that they actually saw a gun. With these

statements the prosecutor comes closer to the line of imparting his

personal belief in the witness's veracity. However, there is no

plain error, since if there is error, it is not clear or obvious

and it does not seriously impair the fairness, integrity, or public

reputation of judicial proceedings. See United States v. Sullivan,

85 F.3d 743, 751 (1st Cir. 1996) (not plain error where the

government in closing argument and rebuttal stated that one witness

"came off pretty believable," that another "couldn't have lied

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about anything," that another "told you the truth," and that all of

them "were up there telling the truth").

Second, Wilkerson contends that the government improperly

shifted the burden of proof to the defendant by arguing that, for

the jury to find that Wilkerson went through the driveway and not

the alley, they would have to find that Officers Joyce and Fleming

did not tell the truth. Wilkerson relies on United States v.

Roberts, 119 F.3d 1006 (1st Cir. 1997), where the court found

improper burden shifting when the government stated "when a

defendant does 'go forward' to offer evidence, 'the defendant has

the same responsibility as the government and that is to present a

compelling case.'" Id. at 1015. The prosecutor's argument in this

case is not like the statements in Roberts. Here, the government

did not argue that Wilkerson had the burden to prove another set of

facts. Rather, the government argued that if the jury found that

Wilkerson ran up the driveway, they would necessarily have to find

that the officers did not tell the truth, because the officers

testified that he ran up the alley. This logical response to

Wilkerson's theory of the case is not plain error.

Third, Wilkerson argues that the government impermissibly

commented on Wilkerson's decision not to testify and shifted the

burden of proof when he said "there's no real evidence" that he did

not go up the alley and "pretty much nothing" to say that Wilkerson

ran up the driveway. A prosecutor's remarks violate a defendant's

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Fifth Amendment guarantee against self-incrimination if "in the

circumstances of the particular case, the language used was

manifestly intended or was of such a character that the jury would

naturally and necessarily take it to be a comment on the failure of

the accused to testify." United States v. Wihbey, 75 F.3d 761, 769

(1st Cir. 1996). We are not persuaded the jury would naturally and

necessarily take the statements to be a comment on Wilkerson's

decision not to testify. In the context of the trial, it is likely

the comments referred to Wilkerson's failure to produce other

evidence supporting his theory of the case. At most, the comments

are ambiguous. Moreover, there was significant evidence of

Wilkerson's guilt and the judge instructed the jury of the

defendant's right not to testify and of the government's burden of

proof. We conclude that these statements do not rise to the level

of plain error. See Wihbey at 770-71 (no plain error where there

is ambiguity, jury instruction, and significant evidence of guilt).

Fourth, Wilkerson contends that the government misstated

the evidence. The prosecutor stated several times that the

witnesses saw something "heavy" in Wilkerson's right hand. He also

referred to "the fence" and "that fence" in the alley when

discussing Wilkerson's post-arrest statement, implying that

Wilkerson had identified the fence in the alley to Detective Benton

and had described pulling himself up it. These misstatements

involved reasonable inferences that the prosecutor asked the jury

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to draw from the facts. They were de minimus and did not stray far

enough from the actual testimony to indicate prejudice or bad

faith. Moreover, the judge instructed the jury that the lawyers'

assertions were not evidence. The statements did not "so poison[]

the well that the trial's outcome was likely affected." See United

States v. Morales-Cartagena, 987 F.2d 849, 854 (1st Cir. 1993).

See also United States v. Yanovitch, 101 F.3d 202, 213 (1st Cir.

1996). We therefore conclude that these statements were not plain

error.

Finally, Wilkerson's claim that the prosecutor demeaned

the defense by calling one of the defense theories a "red herring"

is meritless. See United States v. Bennett, 75 F.3d 40, 46-47 (1st

Cir. 1996)(did not cross the line to call a defense argument a

"diversion" that "doesn't pass the laugh test").

IV.

Wilkerson contends that evidence that the gun was

manufactured outside of Massachusetts in 1918 is insufficient to

establish a nexus between the firearm and interstate commerce under

§ 922(g). He points to the Supreme Court's decisions in United

States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,

529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848

(2000), as calling into question whether the minimal nexus

standard, which requires only that the firearm has traveled in

interstate commerce at some time, sufficiently satisfies the

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interstate commerce element of § 922(g). See Scarborough v. United

States, 431 U.S. 563, 575-78 (1977)(establishing minimal nexus

standard). In United States v. Weems, 322 F.3d 18 (1st Cir.),

cert. denied, 540 U.S. 892 (2003), we held that Jones does not

alter Scarborough to require proof that the defendant transported

the firearm in interstate commerce. Id. at 26. Every Circuit that

has addressed the minimal nexus requirement after Morrison and

Jones has also concluded that the nexus to interstate commerce is

established if the firearm "has traveled at some time in interstate

commerce." United States v. Gaines, 295 F.3d 293, 302 (2d Cir.

2002); see also United States v. Darrington, 351 F.3d 632, 634 (5th

Cir. 2003), cert. denied, 124 S. Ct. 2429 (2004); United States v.

Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). We likewise conclude

that the evidence that a firearm has traveled at some time in

interstate commerce is sufficient to establish a nexus between the

firearm and interstate commerce.

V.

Wilkerson argues in a supplemental brief that, in light

of the Supreme Court's decision in United States v. Booker, 125 S.

Ct. 738 (2005), his sentence should be remanded to the district

court. Wilkerson concedes that he did not preserve this issue in

the district court, so our review is for plain error. United

States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005). A

determination of plain error is appropriate where "there [is] an

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'error' that is 'plain' and that 'affect[s] substantial rights.'"

Id. at 77 (quoting United States v. Olano, 507 U.S. 725, 732

(1993)). If those factors are met, we may correct the error only

if it "seriously affects the fairness, integrity or public

reputation of judicial proceedings." Id. (citation omitted).

Wilkerson satisfies the first two requirements of the

Olano plain error test because his sentence was imposed under a

mandatory Guidelines system. Id. at 77. In order to prove the

second two requirements, prejudice and fundamental unfairness,

Wilkerson need only present a "reasonable indication that the

district judge might well have reached a different result under

advisory guidelines." United States v. Heldeman, 402 F.3d 220, 224

(1st Cir. 2005) (remanding for resentencing where defendant's age

and health were worthy of consideration but did not warrant a

downward departure under the mandatory Guidelines).

The district judge sentenced Wilkerson to the lowest

available sentence under the Guidelines. He repeatedly expressed

his concern about disparate treatment between federal and state

court sentences in similar cases, but stated that the Guidelines

did not permit him to take that disparity into account. The

district judge also observed that Wilkerson had the most horrible

young life he had seen in 17 years on the bench. Both the need to

avoid unwarranted sentencing disparities and the history and

characteristics of the defendant are among the factors to be

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considered by the now advisory Guidelines. 18 U.S.C. § 3553(a).

As this court recognized in Heldeman, where there is a reasonable

indication that the district judge might well have given a

different sentence under an advisory guidelines regime, and it

would be easy enough for him to say no with a minimum expenditure

of effort, we are persuaded that remand is required. 402 F.3d at

224. We express no view on whether defendant should be resentenced

or on any possible resentence.

We affirm Wilkerson's conviction and remand the case to

the district judge for further sentencing proceedings consistent

with this opinion.

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