United States Court of Appeals
For the First Circuit
No. 04-2095
UNITED STATES OF AMERICA,
Appellee,
v.
CHAD BARTOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Selya, Lynch, and Howard, Circuit Judges.
John J.E. Markham, II, with whom Markham & Read, was on brief,
for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
July 19, 2005
HOWARD, Circuit Judge. Chad Bartos was convicted of
being a felon in possession of a firearm, see 18 U.S.C. §
922(g)(1), and possession of a stolen firearm, see 18 U.S.C. §
922(j). Bartos seeks a new trial, arguing that his convictions
were tainted by three alleged errors: an evidentiary ruling that
was outside the judge's discretion, the judge's improper coercion
of a witness into retracting testimony that was favorable to the
defense, and the judge's unbalanced and prosecution-friendly trial
management rulings.
There was evidence from which the jury reasonably could
have concluded that Bartos stole a .22 caliber Ruger revolver from
his uncle while the two were visiting a relative's hunting camp in
northern Maine. Crucial inculpatory evidence came from three
witnesses -- Bartos's twin cousins and a friend of theirs -- who
testified that, shortly after the theft, Bartos brandished the
firearm in front of them in a Lewiston motel room. One of Bartos's
cousins (Jeff Bartos) and the friend (Joey White) also testified
that Bartos expressed an intention to "take" the firearm with him
to another location. Bartos's first two appellate arguments
involve this "intention" evidence and the manner in which it came
into the record.
Bartos first argues that this evidence should not have
been admitted at all. Bartos says that the evidence of his
intention to take the firearm to another location was of little
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relevance to whether he possessed the firearm unlawfully (as was
charged), and that the evidence was highly prejudicial because it
might have led the jury to speculate that he was planning to use
the gun to commit a violent felony. Consequently, Bartos contends,
the trial judge abused his admittedly wide discretion in declining
to exclude the evidence under Fed. R. Evid. 404(b) or 403. See,
e.g., United States v. Balsam, 203 F.3d 72, 84 (1st Cir. 2000).
We start by observing that this argument has not been
preserved for plenary appellate review. The issue was joined below
only at a pretrial conference, where Bartos moved to exclude
anticipated testimony that he had stated to his cousins and their
friend an intention to use the stolen firearm to rob Massachusetts
drug dealers, whom he described as "niggers," of guns and money.
While noting the "arguable relevance" of the evidence, Bartos took
the position that such testimony was highly prejudicial "other
crime" evidence that should be excluded under Rule 404(b) and Rule
403. The government countered that the evidence was admissible to
show that Bartos had a plan for the gun, which in turn tended to
demonstrate intentional and knowing (as opposed to accidental)
possession. The government did, however, offer to instruct the
witnesses not to use the inflammatory term "niggers."
At this point, the court stated:
Why isn't [sic] just simply the fact that he
said, I have - I want the gun because I have
use for it in Massachusetts, period, that
shows his - that's all you need to establish
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what you want to establish, the rest of it
really does get involved in the question about
other criminal conduct, not charged, and into
the inflammatory - the use of the word
"nigger."
The court then asked government and defense counsel whether they
were satisfied with having the witnesses testify that Bartos had
stated that he had a use for the gun in Massachusetts. Government
counsel said that such a ruling would satisfy him, and defense
counsel added, without qualification, "I accept that ruling." At
trial, nobody objected when Jeff Bartos and Joey White testified
that Bartos told them that he was going to "take" the gun with him
-- somewhere outside the motel, according to Jeff Bartos; to
Massachusetts, according to Joey White.
At best, the foregoing describes a situation involving a
forfeited claim of error. See generally United States v. Olano,
507 U.S. 725, 733 (1993) (discussing the difference between waived
and forfeited arguments). Such a claim can ground a vacatur or
reversal under Fed. R. Crim. P. 52(b), but only if the underlying
error is plain and has affected the defendant's substantial rights
by affecting the outcome of the trial court proceedings. See
Olano, 507 U.S. at 734-35. Even then, relief under Rule 52(b) is
discretionary and is only to be awarded in the event of a
miscarriage of justice -- i.e., where the error has seriously
affected the fairness, integrity, or public reputation of judicial
proceedings. See id. at 735-37.
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The admission of the testimony about Bartos's plan for
the gun was not error, let alone plain error. The evidence was, as
the government argued prior to trial (and as Bartos all but
conceded), relevant to Bartos's intent and knowledge; it helped to
explain why he committed the charged crimes. See Fed. R. Evid.
404(b) (evidence of "other crimes, wrongs, or acts" not admissible
to prove the character of a person in order to show action in
conformity therewith, but admissible for other purposes, including
intent and knowledge). Moreover, the district court took pains to
minimize its potentially prejudicial impact, ordering that the
witnesses testify only that Bartos had "use for" the gun in
Massachusetts (and not that he planned to use it to commit a
racially motivated violent crime). And the testimony, as it came
in, was even more benign. As we have stated, the testimony was
only that Bartos intended to "take" the gun with him to another
location; no witness testified that he planned to "use" the firearm
in any way.
Bartos's next argument concerns what he describes as the
district court's improper coercion of his cousin, Jeff Bartos, into
effectively rescinding testimony that Bartos had said nothing about
his plans for the gun. Invoking Webb v. Texas, 409 U.S. 95 (1972)
(per curiam), which held that a Texas trial judge deprived a
defendant of due process by intimidating a defense witness from
offering testimony favorable to the accused, see id. at 95-98,
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Bartos says that his constitutional rights -- Bartos does not
specify the source of the rights -- were violated during the course
of a colloquy that took place between the trial judge and his
cousin outside the presence of the jury. We set forth the colloquy
in context, noting that, at the pretrial conference, the government
asked for and received permission to ask leading questions of Jeff
Bartos, who is bipolar and suffers from manic depression:
Q (by [Government Counsel]): Just answer my
question yes or no, did [Bartos] say that he
wanted to take the gun to Massachusetts?
A: Not directly I guess. I don't --
Q: Did he say he wanted to take the gun
somewhere else, yes or no?
A: I don't think he said exactly he's going
to take it to Mass.
THE COURT: Yes or no.
THE WITNESS: No. I don't know how to
answer it.
Q (by [Government Counsel]): Did he say he
wanted to take the gun somewhere else, yes or
no?
A: I guess he was going to take it with him
somewhere.
THE COURT: The question was, did he
say that he wanted to take the gun somewhere
else? Yes or no.
THE WITNESS: I guess no.
Q (by [Government Counsel]): I'm not asking
for his exact words.
A: All right.
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Q: Did he say that he wanted to take the gun
some place other than [the motel where Jeff
testified that Bartos had brandished the
weapon] and do something with it?
THE COURT: I'm going to excuse the
ladies and gentlemen of the jury momentarily.
Would you take them, Mr. Officer, to the jury
room, and please don't discuss the case.
[JURY LEAVES]
THE COURT: Mr. Bartos, I've been doing
this a long time, almost as long as you've
been alive, do you know that? I think I have
a pretty good idea where somebody is playing
fast and loose with the truth or evading the
questions.
You took an oath when you began your
testimony to tell the truth, the whole truth,
and nothing but the truth so help you God.
THE WITNESS: But --
THE COURT: Just a minute. I'm not
satisfied that you're doing that. So I'm
going to bring the jury back and afford
[government counsel] an opportunity to ask you
further questions.
THE WITNESS: Okay.
THE COURT: I ask you to bear this
admonition in mind when you answer those
questions. Do you understand me?
THE WITNESS: Yes.
THE COURT: Bring back the jury.
[DEFENSE COUNSEL]: Pardon me, your
Honor, before --
THE COURT: Yes.
[DEFENSE COUNSEL]: Defense wants to be
sure that the witness doesn't feel in some way
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intimidated, there's a particular answer he's
supposed to give.
THE COURT: I have not suggested to him
--
THE WITNESS: Oh, no –
THE COURT: Just a minute. I'm not
suggesting to him and he understands that, do
you not, you answer, give any particular
answer to a question. I'm simply telling you
to answer them honestly and fully as they are
asked to you as you can do.
THE WITNESS: Okay.
THE COURT: Do you understand that?
Does that solve the problem.
[DEFENSE COUNSEL]: Thank you . . . .
DIRECT EXAMINATION CONTINUED
Q: So Mr. Bartos, with respect to the
firearm, did Chad Bartos say he was going to
take the gun out of the motel.
A: Yes.
Q: And did he have -- did he tell you that he
had a purpose for the gun, yes or no? Do you
understand my question.
A: Yes. No.
The premise of Bartos's argument with respect to this
colloquy -- a colloquy that prompted neither an objection nor a
motion for a mistrial -- is that, against expectations, Jeff Bartos
testified that Bartos said nothing about his plans for the gun in
the motel room. Bartos contends that the trial judge did not
believe this testimony; that he excused the jury to express his
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disbelief and to warn Jeff to tell the truth; and that,
intimidated, Jeff reversed course and gave a variant of the
expected testimony. In Bartos's telling, defense counsel's
eventual expression of concern and the judge's response were too
little, and came too late, to cure the damage that had been done.
We reject this argument because we do not accept the
premise on which it is built. Jeff Bartos's testimony prior to the
trial judge's intervention does not contain an unequivocal
statement that Bartos said nothing about his plans for the gun; it
contains only statements suggesting confusion and discomfort with
providing an unequivocal yes or no answer to the questions being
posed. The trial judge read evasiveness into Jeff's hesitancy, and
we are not inclined to reject his on-the-spot judgment. But a
second possibility is at least worth mentioning: that Jeff was
prepared for the specific question discussed at the pretrial
conference -- whether Bartos had expressed an intention to use the
firearm to rob Massachusetts drug dealers -- and became confused
when the question was posed at a significantly higher level of
generality. In any event, on our reading of the record, this is
not a situation in which a witness intended to give exculpatory
testimony but was dissuaded from doing so by a trial judge who
disbelieved him. Cf. United States v. Hoffman, 832 F.2d 1299,
1303-05 (1st Cir. 1987) (conduct by the sovereign alleged to
interfere with an accused's right to present a defense must
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actually cause the loss or erosion of evidence that is both
material and favorable to the accused).
Bartos's final argument -- that the trial judge was heavy
handed and tilted in favor of the prosecution in its trial
management rulings -- depends heavily on our having accepted the
premise, if not the conclusion, of his second argument. For
reasons already explained we have rejected that premise. We need
only add that we have read the trial transcript with care and are
quite comfortable that the district court's various trial
management rulings, including all of those referenced in Bartos's
brief, were well within its discretion. Cf. Logue v. Dore, 103
F.3d 1040, 1045 (1st Cir. 1997) (noting that a trial judge has wide
discretion to interject clarifying questions or otherwise to
expedite the pace of a trial).
Affirmed.
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