United States v. Brito

United States Court of Appeals
For the First Circuit

No. 04-1755

UNITED STATES OF AMERICA,

Appellee,

v.

JEAN BRITO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Catherine K. Byrne, Federal Defender Office, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

October 20, 2005
 SELYA, Circuit Judge. In Crawford v. Washington, 541

U.S. 36 (2004), the Supreme Court barred the admission of

testimonial hearsay in a criminal case under circumstances in which

the accused has not had an opportunity to cross-examine the

declarant. This ruling effected a sea change in the jurisprudence

of the Confrontation Clause — but the Court left open the

parameters of testimonial hearsay, and so its ruling produced a

miasma of uncertainty. We enter this murky milieu to answer a

question of first impression in this circuit: under what

circumstances should an excited utterance made to a police officer

(in this case, a 911 operator) be considered testimonial?

Although the question is close, we conclude that, in the

circumstances at hand, the excited utterance was nontestimonial

and, therefore, properly admitted into evidence. We also reject

the defendant's other challenges to his conviction and sentence.

Consequently, we affirm the judgment below.

I. BACKGROUND

In the early morning hours of February 9, 2003, gunshots

rang out in the parking lot of Boomer's, a saloon in Brockton,

Massachusetts. At that time Robert Manoli, who was working late in

his nearby office, peered out the window and saw a hat-wearing

black man load a clip into a gun. As the man walked away, Manoli

dialed 911 and reported his observations. The 911 operator

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dispatched Brockton police officers Steven Johnson and Scott Landry

to the scene.

Immediately thereafter, a second 911 call came through.

The caller, an anonymous woman, asked if she was talking to the

Brockton police. When the 911 operator responded affirmatively,

the following dialogue ensued:

Caller: Listen to me. I just
seen a man with a gun
in his hand. It's at
that club called
Boomers. There was a
shooting there just a
second ago. He has
on a black cap with a
black leather coat.
I can't quite
remember the color of
his sweater. But I
was just saying to my
son when I was
getting in the car
that I didn't come to
Brockton to die. And
when I was pulling
out and backing out
driving down the
street, he pointed a
gun at me and acted
like he was shooting
at my car.

Operator: Is he a black man?

Caller: Yes, he is a black
man. He has on a
baseball cap, he
looks like he might
be between the height
of 5'8" and 5'10".
But he's there right
now, he's standing in
between like two

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 buildings. He's
basically on Perkins
Ave., right beside
[the club Boomers].1

Operator: Okay, we're on our
way down there. I'll
tell the officers to
look for a guy with a
black cap, black
leather coat, about
5'8".

Caller: Yes, please do. [H]e
has the coat
unzipped. And it
looked like a nine
millimeter. I could
be wrong but it
looked like a nine.

The 911 operator relayed the augmented description of the suspect

to Johnson and Landry (who were en route to Boomer's). When the

officers were about a block away, they saw a 5'8" black male,

wearing a black hat and jacket, standing next to the open passenger

door of a car. The man's right hand was hidden inside his unzipped

jacket, as if he were holding something.

The man spied the policemen and fled. His right hand

remained inside his jacket. Officer Johnson gave chase. While he

was in hot pursuit, his quarry threw away a 9 millimeter pistol.

The pistol slid off a snow-covered roof and landed on the ground

near Johnson's feet. Johnson radioed his dispatcher to report the

location of the gun and continued the chase.

1
The transcript used as an aid at trial excluded the bracketed
words, but they are audible on the tape itself.

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 Within a matter of seconds, Johnson tackled the fleeing

man (later identified as defendant-appellant Jean Brito). Assisted

by two newly arrived detectives, Johnson took the suspect into

custody. The police then retrieved both the gun and the suspect's

hat (which had fallen during the chase). The police also found

shell casings and an empty magazine clip near the parking lot. The

shell casings matched the retrieved pistol.

On March 26, 2003, a federal grand jury indicted the

appellant on one count of possession of a firearm by a convicted

felon and one count of possession of a firearm by an illegal alien.

See 18 U.S.C. § 922(g)(1), (g)(5)(A). The only issue at trial was

whether the appellant possessed a gun (he stipulated that he was

both a convicted felon and an illegal alien). The government's

case in chief consisted of Manoli's testimony, the tape of his 911

call, and the testimony of various police officers who had been

involved in the investigation. That evidence tracked the factual

account set out above.

The appellant testified in his own behalf. He said that,

earlier in the day, he had purchased a gold chain from two men in

a bar. Shortly thereafter, two other men confronted him. One of

them claimed to own the chain and demanded its return. The

appellant offered to sell it to the alleged owner. The latter, who

did not have sufficient funds to effect a purchase then and there,

took down the appellant's contact information.

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 Around 1:00 a.m., the same man showed up in Boomer's

parking lot with three compatriots. They invited the appellant to

enter their car, but he refused. As the appellant turned to walk

away, he heard gunshots. That prompted him to run and hide in some

nearby bushes. He remained in hiding until he heard police sirens.

At that point, he emerged from the bushes, only to be tackled by

police officers and arrested. He denied that a chase had occurred.

He also denied that he had a pistol in his possession at any time.

On cross-examination, the government sought to use the

appellant's three prior felony drug-trafficking convictions for

impeachment purposes. When the appellant objected, the trial

court, at sidebar, proposed that the government be allowed to

inquire as to the number of felony convictions without describing

the crimes. Defense counsel refused this compromise and suggested

that the government be limited to asking whether the appellant had

"committed a crime" on a certain date. The court rejected this

approach, overruled the objection, and offered the appellant a

choice: in referring to the prior convictions, the government

either could use the word "felony" or could name the charge.

Defense counsel refused to choose. The court then ruled that the

government, in its cross-examination, could identify each charge.

Cross-examination proceeded. Defense counsel belatedly

asked the court to circumscribe the government's references to the

prior convictions so that only the word "felony" would be used.

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The court demurred, saying that the attorney had been given that

option but had failed to exercise it in a timely manner. The

prosecutor then established that the appellant had been convicted

on three separate occasions in 1994 — once for distribution of a

controlled substance and twice for possession of controlled

substances with intent to distribute.

After the defense rested, the government sought to

introduce the anonymous 911 tape as part of its rebuttal case. The

appellant objected on hearsay and Confrontation Clause grounds.

The court redacted the tape to exclude the caller's description of

the pistol and allowed the remainder of the tape into evidence

under the "excited utterance" exception.2 Because Crawford had not

yet been decided, the district court's overruling of the objection

comported with the then-prevailing view of the Confrontation

Clause, which permitted the admission in a criminal case of an out-

of-court statement of an unavailable witness as long as it fell

"within a firmly rooted hearsay exception" or otherwise bore

"particularized guarantees of trustworthiness." Ohio v. Roberts,

448 U.S. 56, 66 (1980). The court found that the main portion of

the 911 tape qualified as an excited utterance and that the

exception for excited utterances was a firmly rooted hearsay

2
The government initially had indicated an intention to offer
the tape of the anonymous 911 call during its case in chief. The
parties' arguments were aired fully at that time, and the district
court previewed the basis for its eventual ruling.

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exception. See Fed. R. Evid. 803(2) (confirming that exception and

defining an excited utterance as a "statement relating to a

startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition"); Puleio v.

Vose, 830 F.2d 1197, 1206 (1st Cir. 1987) (classifying the hearsay

exception for excited utterances as "firmly rooted").

At the conclusion of the trial, the court gave a

carefully phrased instruction making clear that the prior felony

convictions were relevant only insofar as they bore on the

appellant's credibility. The appellant did not take exception to

this, or any other, portion of the court's charge. The jury found

the appellant guilty on both counts. The district court

subsequently imposed a 210-month incarcerative sentence. This

appeal followed.

II. ANALYSIS

We divide our analysis into three parts, corresponding

with the appellant's three assignments of error.

A. The Anonymous 911 Tape.

The appellant's primary contention is that the redacted

tape of the second 911 call should not have been admitted into

evidence as he was not able to confront and cross-examine the

anonymous speaker. This contention derives from the Sixth

Amendment, which provides in pertinent part that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

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confronted with the witnesses against him." U.S. Const. amend. VI.

In Crawford, decided approximately one month after the jury verdict

in this case, the Supreme Court fundamentally altered the

jurisprudence of the Sixth Amendment and took a new approach to

determining whether the admission, in a criminal case, of an out-

of-court statement by an unavailable declarant violates an

accused's right of confrontation. See Horton v. Allen, 370 F.3d

75, 83 (1st Cir. 2004).

Pertinently, the Crawford Court decreed that, as to

"testimonial" statements, the Confrontation Clause assures a

procedural right to confrontation rather than a substantive

guarantee of evidentiary reliability. See Crawford, 541 U.S. at 61

(holding, with respect to such statements, that the Confrontation

Clause demands "not that evidence be reliable, but that reliability

be assessed in a particular manner: by testing in the crucible of

cross-examination"). As to such statements, the Crawford Court

derided the rule of Roberts, which it characterized as

"[d]ispensing with confrontation because testimony is obviously

reliable," as being "akin to dispensing with jury trial because a

defendant is obviously guilty." Id. at 62.

The Court limited its critique of Roberts and its freshly

minted procedural right to testimonial statements, basing this

limitation upon an examination of both the historical background

and the text of the Confrontation Clause. See id. at 43-51. It

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offered no precise definition of which statements were to be

regarded as testimonial and which were not. Instead, it observed

that the answer to that question would depend heavily on the nature

and context of a given statement. See id. at 51 (noting that an

"accuser who makes a formal statement to government officers bears

testimony in a sense that a person who makes a casual remark to an

acquaintance does not").

The Court then enumerated, for illustrative purposes, a

trio of formulations that came within the "core class" of

testimonial statements. Id. at 51-52. We rehearse these

illustrations.

The first formulation encompasses "ex parte in-court

testimony or its functional equivalent — that is, material such as

affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial

statements that declarants would reasonably expect to be used

prosecutorially." Id. at 52. The second encompasses

"extrajudicial statements . . . contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or

confessions." Id. at 51-52 (citation and internal quotation marks

omitted) (alteration in original). The third encompasses

"statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be

available for use at a later trial." Id. at 52 (citation and

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internal quotation marks omitted). In the Court's view, these

three formulations all shared a common conceptual nucleus and

mapped out the coverage of the Confrontation Clause at differing

levels of abstraction around that nucleus. See id.

The Court went on to note that these formulations

overlapped and that some statements might fall within any plausible

definition of "testimonial." Id. A statement made during grand

jury testimony is an example of this phenomenon. Id. So, too,

statements given in response to police interrogation would qualify

under any of the Court's stated formulations. Id. In this regard,

the Court cautioned that it used the term "interrogation" in its

colloquial sense, but hastened to add that a statement "knowingly

given in response to structured police questioning" would qualify

"under any conceivable definition" of interrogation. Id. at 53

n.4.

Against this backdrop, the appellant asseverates that the

entirety of the statements made during the anonymous 911 call

should be deemed testimonial (and, thus, inadmissible) because the

caller knowingly contacted the police to furnish information about

a crime.3 He invokes the third Crawford formulation and posits

that an objectively reasonable caller would have understood that

her statements would be available for use at a later trial. His

3
On appeal, the appellant does not challenge the district
court's finding that the second 911 call qualified as an excited
utterance.

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fallback position is that, at the very least, the statements

following the 911 operator's initial question should be considered

testimonial because that portion of the colloquy was the product of

police interrogation. We review de novo the question of whether or

not a given statement, in context, should be deemed testimonial.

See United States v. Tse, 375 F.3d 148, 159 (1st Cir. 2004); see

also United States v. Perez-Ruiz, 353 F.3d 1, 11 (1st Cir. 2003).

The Supreme Court's illustrative formulations suggest

that a 911 call that does nothing more than impart a factual

account of past criminal activity would constitute testimonial

hearsay. After all, the police record and preserve incoming 911

calls for, among other things, potential prosecutorial use. Most

people not only understand this fact but also understand that

because 911 is a pathway to contacting the police in emergency

situations, such communications are to be taken seriously. Cf.,

e.g., N.H. Rev. Stat. Ann. § 106-H:13 (criminalizing the purposeful

reporting of false information to a 911 dispatcher). Emphasizing

these facts, many courts have classified 911 calls of this nature

as functionally equivalent to formal statements to the police.

See, e.g., United States v. Arnold, 410 F.3d 895, 903 (6th Cir.

2005); People v. Cortes, 781 N.Y.S.2d 401, 405-06 (N.Y. Sup. Ct.

2004); see also Richard D. Friedman & Bridget McCormack, Dial-In-

Testimony, 150 U. Pa. L. Rev. 1171, 1242 (2002).

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 At first blush, it may seem that the anonymous 911 call

at issue here fits this mold. We think not. Although the call

provided a detailed report of criminal activity (including a

description of the suspect and information as to his whereabouts),

there is more to the story. The district court supportably found

that the call qualified as an excited utterance. In this instance,

that fact makes a dispositive difference.

The case law in this nascent field is muddled as to

whether excited utterances may or may not be classified as

testimonial hearsay. The decisions fall into three camps. We

briefly describe each such line of authority.

Some courts take the view that excited utterances never

can constitute testimonial hearsay. Their rationale is that, by

definition, an excited utterance is made under the influence of a

startling event and, thus, the declarant acts in response to that

event rather than in response to interrogation or in anticipation

of bearing witness. See, e.g., United States v. Brun, 416 F.3d

703, 707 (8th Cir. 2005) (holding that excited utterances are not

testimonial in nature because they are "emotional and spontaneous

rather than deliberate and calculated"); People v. Moscat, 777

N.Y.S.2d 875, 880 (N.Y. Crim. Ct. 2004) (holding that an excited

utterance is a cry for help and, therefore, not functionally

equivalent to "a formal pretrial examination"). In each of these

cases, the court upheld the admission of an "excited" 911 call in

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a criminal trial notwithstanding the declarant's unavailability.

See Brun, 416 F.3d at 707; Moscat, 777 N.Y.S.2d at 880.

A second cluster of cases holds that the excited nature

of the utterance has no bearing on whether a particular statement

is testimonial. These courts effectively discount the excited

nature of the utterance and focus instead on the declarant's

objectively reasonable expectations. See, e.g., Arnold, 410 F.3d

at 903 (holding that, notwithstanding the excited nature of a 911

call, the declarant reasonably could expect that statements

describing the crime and the perpetrator would be used

prosecutorially); Cortes, 781 N.Y.S.2d at 415 (holding that all

"[c]alls to 911 to report a crime are testimonial," even if they

also qualify as excited utterances, because "the purpose of the

information is for investigation, prosecution, and potential use at

a judicial proceeding"). In each of these cases, the court ruled

inadmissible in a criminal trial an "excited" 911 call due to the

declarant's unavailability. See Arnold, 410 F.3d at 904; Cortes,

781 N.Y.S.2d at 416.

A third cadre of courts recognizes that the excited

utterance inquiry and the testimonial hearsay inquiry are distinct

but symbiotic; the startling event that gives rise to an excited

utterance informs the Confrontation Clause analysis and often

dissipates the very qualities of a statement that otherwise might

render the statement testimonial. See, e.g., Arnold, 410 F.3d at

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914 (Sutton, J., dissenting) (reasoning that a frightened 911

caller rarely will have the state of mind needed to make a "solemn

declaration" or a statement that he or she "would reasonably expect

to be used prosecutorially"); State v. Wright, 701 N.W.2d 802, 811

(Minn. 2005) (finding 911 call nontestimonial when declarant was

"trembling, stuttering, crying [and] hyperventilating during the

call") (internal quotation marks omitted) (alteration in original);

State v. Hembertt, 696 N.W.2d 473, 483 (Neb. 2005) (holding excited

utterances made to officers during an ongoing threat to be

nontestimonial because those utterances were "not made in

anticipation of eventual prosecution" but "to assist in securing

the scene and apprehending the suspect"); Drayton v. United States,

877 A.2d 145, 149-50 (D.C. 2005) (similar). This approach suggests

that courts must undertake a case-by-case examination of the

totality of the circumstances in order to determine whether or not

a particular excited utterance should be deemed testimonial in

nature.

We reject both per se approaches — the one that

automatically exempts all excited utterances from classification as

testimonial hearsay and the one that effectively disregards the

excited nature of an utterance. Rule 803(2) allows the admission

of excited utterances based on the theory that a person speaking

about a startling event, while still under the stress of

experiencing or observing that event, normally does not have either

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the capacity or the incentive to prevaricate. See, e.g., United

States v. Taveras, 380 F.3d 532, 537 (1st Cir. 2004). It makes

very little sense, then, to impute a calm and reasoning state of

mind to every such declarant. It does not necessarily follow,

however, that just because a statement falls within the literal

definition of an excited utterance, the declarant must have lacked

the ability to recognize that the statement could be used for

prosecutorial purposes. See, e.g., Lopez v. State, 888 So.2d 693,

699-700 (Fla. Dist. Ct. App. 2004) (acknowledging that a

declarant's excited state "has a bearing on his expectation

regarding the potential use of his statement in court" but

nonetheless finding the excited utterance in question testimonial).

A wide variety of situations can give rise to excited utterances.

If, say, the utterance is removed in time from the startling event,

it might qualify as excited, see, e.g., United States v. Scarpa,

913 F.2d 993, 1017 (2d Cir. 1990), but still might be considered

testimonial. Cf. Crawford, 541 U.S. at 58 n.8 (implying that a

statement of a child victim elicited during after-the-fact police

questioning was testimonial despite the fact that it was a

"spontaneous declaration").

We therefore reject the categorical approaches that lie

at either end of the spectrum. Instead, we conclude that the

excited utterance and testimonial hearsay inquiries are separate,

but related. While both inquiries look to the surrounding

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circumstances to make determinations about the declarant's mindset

at the time of the statement, their focal points are different.

The excited utterance inquiry focuses on whether the declarant was

under the stress of a startling event. The testimonial hearsay

inquiry focuses on whether a reasonable declarant, similarly

situated (that is, excited by the stress of a startling event),

would have had the capacity to appreciate the legal ramifications

of her statement.

These parallel inquiries require an ad hoc, case-by-case

approach. An inquiring court first should determine whether a

particular hearsay statement qualifies as an excited utterance. If

not, the inquiry ends. If, however, the statement so qualifies,

the court then must look to the attendant circumstances and assess

the likelihood that a reasonable person would have either retained

or regained the capacity to make a testimonial statement at the

time of the utterance.4

We offer some general guidance for the proper application

of this rule. Ordinarily, statements made to police while the

declarant or others are still in personal danger cannot be said to

have been made with consideration of their legal ramifications.

Such a declarant usually speaks out of urgency and a desire to

4
This case involves an excited utterance. The analytic
framework that we suggest will, however, apply generally to
statements alleged to come within other firmly rooted hearsay
exceptions.

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obtain a prompt response. It follows, therefore, that such

statements will not normally be deemed testimonial. See Hembertt,

696 N.W.2d at 483. Once the immediate danger has subsided,

however, a person who speaks while still under the stress of a

startling event is more likely able to comprehend the larger

significance of her words. If the record fairly supports a finding

of comprehension, the fact that the statement also qualifies as an

excited utterance will not alter its testimonial nature. See

Drayton, 877 A.2d at 149-50.

As a final matter, we caution against the use of an "all

or nothing" approach to the admission or exclusion of 911 calls.

It is entirely possible that some portions of a 911 call may

qualify as excited utterances, while others do not. Similarly,

some portions may be deemed testimonial, while others may be deemed

nontestimonial. This means, of course, that some parts of a single

911 call may run headlong into the Crawford bar, while others do

not.

Our dictum in United States v. Luciano, 414 F.3d 174 (1st

Cir. 2005), is in alignment with this framework. There, a teenager

witnessed a man pointing a gun at a woman, flagged down a passing

police cruiser, and reported what he had seen. Id. at 176. In

dictum, we observed that the statement was an excited utterance,

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made to secure immediate assistance for a woman in danger and,

thus, was not testimonial.5 Id. at 180 n.3.

This discussion adumbrates the result in the case before

us. The anonymous caller stated that she had "just" heard gunshots

and seen a man with a gun, that the man had pointed the gun at her,

and that the man was still in her line of sight. Her account

strongly suggests that she and her son, as well as others in the

vicinity, were in imminent personal peril when the call was made.

The immediacy of the threat, the existence of a clear and present

danger, and the fact that no substantial time had elapsed, in

combination, severely erode any basis for a finding that the

declarant was in a calm and reasoning state when she placed the 911

call. And, furthermore, the precision of the declarant's physical

description of the suspect is more consistent with a sense of

urgency and a desire to obtain a prompt response — the removal of

a dangerous man from the street — than with an anticipation that

her call might be used prosecutorially.

These factors are sufficient to ground our decision.

Based on the foregoing, we conclude that, here, the circumstances

that made the anonymous 911 call an excited utterance were

significant enough to overwhelm the caller's capacity to appreciate

5
In Luciano, the government introduced the excited utterance
at a sentencing hearing. The court's characterization of it as
nontestimonial was dictum because, as the court recognized,
Crawford does not apply in sentencing proceedings. See Luciano,
414 F.3d at 179.

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the potential long-range use of her words. It follows that the

call was nontestimonial and, therefore, properly admissible as an

excited utterance. See Crawford, 541 U.S. at 68 (making clear that

nontestimonial statements falling within firmly rooted hearsay

exceptions remain admissible).

The appellant's fallback position is equally unavailing.

It cannot fairly be said in the circumstances of this case that any

part of the call was the product of structured police

interrogation. Questions by a 911 operator that merely clarify or

focus an excited caller's statement are not interrogation in any

meaningful sense of the word. See, e.g., People v. Corella, 122

Cal. App. 4th 461, 469 (2004). Here, it would blink reality to

place under the rubric of interrogation the single off-handed

question asked by the dispatcher — a question that only momentarily

interrupted an otherwise continuous stream of consciousness.

That ends this aspect of the matter. Because the

admitted portion of the anonymous 911 call was both an excited

utterance and nontestimonial in nature, the call's introduction

into evidence did not sully the appellant's Sixth Amendment right

to confrontation, notwithstanding the declarant's unavailability

for cross-examination.

B. The Prior Convictions.

The appellant also challenges the district court's

admission of evidence of his three prior convictions. The

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applicable rule provides that if a criminal defendant elects to

testify, evidence that he has been convicted of a crime punishable

by more than one year in prison "shall be admitted if the court

determines that the probative value of admitting this evidence

outweighs its prejudicial effect to the accused." Fed. R. Evid.

609(a)(1). In general — there are exceptions, but none is relevant

here — such evidence is only admissible if the convictions in

question are less than ten years old. See Fed. R. Evid. 609(b).

By its terms, Rule 609(a) demands that the trial court

construct a balance. We review a trial court's construction of

this balance (i.e., its ruling admitting or excluding Rule 609

evidence) for abuse of discretion. See United States v. Powell, 50

F.3d 94, 102 (1st Cir. 1995).

The three prior convictions here at issue were all felony

drug-trafficking convictions. Though somewhat remote in time from

the date of the instant offenses — all three convictions occurred

in 1994 — they were within the ten-year window framed by Rule

609(b). The question, then, is whether the district court abused

its discretion in determining that the probative value of those

convictions for impeachment purposes outweighed their prejudicial

effects.

The appellant suggests that our decision in United States

v. Tavares, 21 F.3d 1 (1st Cir. 1994) (en banc), bears on this

question. In Tavares, we held that once a defendant who is facing

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a felon-in-possession charge has stipulated to the fact of a

preexisting felony conviction, the government may not introduce

evidence as to the nature of that conviction for the purpose of

establishing the "felon" element of the charge. Id. at 5. Even

when the defendant has so stipulated, however, the government still

may introduce evidence of prior felony convictions for impeachment

purposes if the defendant elects to testify. See United States v.

Tracy, 36 F.3d 187, 191-92 (1st Cir. 1994).

In this instance, the appellant stipulated that he

previously had been found guilty of a felony. He subsequently

chose to testify in his own defense. The government then sought to

discredit that testimony by introducing the three prior convictions

for impeachment purposes. Given this scenario, Tavares is of

little utility.

We turn now to the disputed ruling. Although the

appellant questions how past crimes that do not directly involve

dishonesty or fraud are relevant to credibility, our case law long

has recognized that Rule 609 represents a valid legislative

judgment that such convictions do have some probative value for

impeachment purposes. See United States v. Norton, 26 F.3d 240,

243 (1st Cir. 1994); United States v. Oakes, 565 F.2d 170, 172 (1st

Cir. 1977). The nature of the underlying felony generally goes not

to its admissibility per se but, rather, to its weight in the

balancing of probative worth and prejudicial impact. See 4 Jack B.

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Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §

609.05[3][b] (2d ed. 2005) (collecting cases).

A wide array of factors may be considered when

calibrating the Rule 609 scales. Without limiting the generality

of that statement, these may include (i) the impeachment value of

the particular convictions; (ii) their immediacy or remoteness

(even though they are within the ten-year window); (iii) the degree

of potential prejudice that they portend; (iv) the importance of

the defendant's testimony; and (v) the salience of the credibility

issue in the circumstances of the particular case. See, e.g.,

United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997); United

States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).

In this case, several of these factors cut in favor of

admissibility. Prior drug-trafficking crimes are generally viewed

as having some bearing on veracity. See, e.g., United States v.

Gant, 396 F.3d 906, 909-10 (7th Cir. 2005) (finding drug-

trafficking offense probative of credibility in gun possession

case); United States v. Lattner, 385 F.3d 947, 961 (6th Cir. 2004)

(similar). The offenses underlying the appellant's prior

convictions are not similar to the offenses charged in this case.

That is relevant because convictions for dissimilar crimes are

customarily thought to be less prejudicial than convictions for

similar crimes (which may run a risk of implying a propensity to

commit the crime). See, e.g., United States v. Montgomery, 390

-23-
F.3d 1013, 1016 (7th Cir. 2004); Jackson, 627 F.2d at 1210.

Perhaps most important, this case hinged on a credibility choice;

the jury had to decide whether to believe the appellant or the

police officers. The salience of the credibility issue weighs in

favor of admitting the prior convictions. See United States v.

Pritchard, 973 F.2d 905, 909 (11th Cir. 1992); Oakes, 565 F.2d at

173.

To be sure, other factors (e.g., remoteness) weigh

against admissibility. Taking the panoply of circumstances as a

whole, however, the decision to accept or reject the proffer fell

well within the encincture of the district court's discretion.

Where the circumstances can fairly support a decision either to

admit or to exclude particular evidence, it is not the proper

province of an appellate court to second-guess the trial court's

on-the-spot judgment. Cf. Freeman v. Package Mach. Co., 865 F.2d

1331, 1340 (1st Cir. 1988) (observing, with respect to Rule 403

balancing, that "[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"). So it is

here.6

6
We note with approval that the trial court gave a limiting
instruction indicating that the evidence of prior convictions was
to be considered only insofar as that evidence bore on credibility.
While the appellant criticizes this instruction on appeal, he
interposed no contemporaneous objection to it.

-24-
 The appellant makes two subsidiary arguments that warrant

brief comment. First, he assigns error to the district court's

failure to spell out its exposition of the Rule 609(a) balancing

test. Although it would have been helpful for the court to make a

detailed balancing analysis on the record, the court was not

required to do so. See United States v. De La Cruz, 902 F.2d 121,

123 (1st Cir. 1990). Moreover, the absence of express findings is

less troublesome where, as here, the record reflects the court's

keen awareness of its duty to balance probative value against

prejudicial effect and its discussion of the issue with counsel.

Second, the appellant, citing Powell, argues that the

lower court erred in allowing the government to describe the nature

of the prior felony convictions by using the title of each crime.

In Powell, we observed that the practice of allowing the government

to ask about the number of felonies, but not to describe their

nature, was a "fair way" to help balance probative value against

prejudicial impact. 56 F.3d at 102. Although Powell endorses the

admission of Rule 609(a) evidence in this truncated manner, it in

no way requires the use of such a technique. Here, moreover, the

appellant's attempt to raise this argument stands on noticeably

shaky ground: the district court expressly offered him the chance

to have only the number of felonies recounted, but he eschewed the

opportunity.

-25-
 C. Sentencing.

Finally, the appellant suggests that the district court

erred in sentencing him pursuant to the mandatory sentencing

guidelines then in effect. See United States v. Booker, 125 S. Ct.

738 (2005). He concedes that he did not preserve this claim of

error below; thus, it engenders plain error review. See United

States v. Martins, 413 F.3d 139, 153 (1st Cir. 2005); United States

v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). In order to

prevail under that standard, the appellant must make a four-fold

showing: "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

With respect to a claim of Booker error, the first two

elements of the plain error test are satisfied whenever a defendant

has been sentenced pursuant to a mandatory guidelines system.

Antonakopoulos, 399 F.3d at 77. That is the case here. The

appellant stumbles, however, on the third step of the plain error

staircase.

To demonstrate that a Booker error affected substantial

rights, a defendant must show a "reasonable probability" that he

would have received a more lenient sentence under an advisory

guidelines regime. United States v. González-Mercado, 402 F.3d

-26-
294, 303 (1st Cir. 2005); Antonakopoulos, 399 F.3d at 78-79. In

this type of situation, we are not "overly demanding as to proof of

probability." United States v. Heldeman, 402 F.3d 220, 224 (1st

Cir. 2005). Still, a defendant must offer something that has

persuasive force. See id. (requiring, at a bare minimum, a

"reasonable indication that the district judge might well have

reached a different result under advisory guidelines").

The appellant argues that there is a reasonable

probability of a more lenient sentence because the district court

(i) sentenced him at the nadir of the applicable sentencing range

and (ii) encountered severe limitations, under the then-mandatory

guidelines, as to its ability to consider his personal

characteristics and disadvantaged upbringing. These arguments lack

force: the appellant's generic challenges simply cannot cross the

Antonakopoulos threshold.

We need not tarry. We have held, with a regularity

bordering on the monotonous, that a defendant cannot establish a

reasonable probability of a more lenient sentence merely by showing

that the district court sentenced him at the low end of the

guideline sentencing range. See, e.g., United States v. Guzmán,

___ F.3d ___, ___ (1st Cir. 2005) [No. 04-1888, slip op. at 12];

United States v. Kornegay, 410 F.3d 89, 99-100 (1st Cir. 2005). We

also have held that when a sentencing court gives no indication

that it is impressed by a defendant's disadvantageous upbringing,

-27-
fully detailed in the presentence investigation report, we cannot

draw an inference from the court's silence that it would have

imposed a more lenient sentence under an advisory guidelines

system. See Martins, 413 F.3d at 154. On this record, then, the

appellant has failed to carry his burden of showing a reasonable

probability that he would have received a lower sentence under an

advisory guidelines regime.

III. CONCLUSION

We need go no further. This is a close and difficult

case, but the appellant, though ably represented, has not convinced

us that any reversible error inhered in either the admission of

evidence or the imposition of sentence.

Affirmed.

— Concurring opinion follows —

-28-
 HOWARD, Circuit Judge, concurring in part and concurring

in the judgment. I agree that the statements by the anonymous 911

caller reporting Brito's offense were non-testimonial and therefore

were admitted consistent with Crawford v. Washington, 541 U.S. 36

(2004). See ante at 17-20. More specifically, I agree that the

statements here were properly admitted even if the nature of the

inquiry is that, as the lead opinion says, "the testimonial hearsay

inquiry focuses on whether a reasonable declarant, similarly

situated, would have had the capacity to appreciate the legal

ramifications of her statement." Ante at 17. I write separately,

however, because I do not read Crawford to make the declarant's

actual or hypothetically reasonable state of mind the loadstar by

which we are to determine if a statement is testimonial. Compare

id. at 17-18. Rather, as I read Crawford, the focus should be on

the circumstances in which the statement was obtained, with the

declarant's state of mind (at least in cases where that state of

mind is shown to be no more than an awareness, rather than an

intention) being only one factor in determining the nature of the

circumstances. See Crawford, 541 U.S. at 68 (defining a

testimonial statement by reference to the nature of the proceeding

in which the statement was made).

In Crawford, the Supreme Court revised its approach to

deciding when a hearsay statement may be admitted at a criminal

trial without violating the Confrontation Clause's guarantee that

-29-
"the accused shall enjoy the right to be confronted with the

witnesses against him." U.S. Const. Amend. VI. Prior to Crawford,

the Court permitted the admission of hearsay from an unavailable

declarant so long as it "fell within a firmly rooted hearsay

exception" or otherwise bore "particularized guarantees of the

trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980).

Crawford overruled Roberts as to so-called "testimonial" hearsay,

holding that such hearsay is not to be admitted unless the

declarant is unavailable for trial and the defendant had a prior

opportunity to cross-examine. See 541 U.S. at 63-68. The Court

did not, however, set forth a definitive definition of the term

"testimonial." See id. at 68. Instead, it provided three

"formulations" of "the core class of testimonial statements" at

"various levels of abstraction":

[1] ex parte in-court testimony or its
equivalent -- that is material such as
affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial
statements that declarants would reasonably
expect to be used prosecutorially [;]
[2] extrajudicial statements contained in
formalized testimonial materials, such as
affidavits, depositions, prior testimony, or
confessions; [and] [3] statements that were
made under circumstances which would lead
an objective witness reasonably to believe
that the statement would be available for
use at a later trial.

Id. at 51-52.

-30-
 As the lead opinion observes, these formulations have

engendered a "miasma of uncertainty" among lower courts trying to

identify testimonial hearsay. Ante at 2; see also Crawford, 541

U.S. at 68 n.10 (recognizing that the Court's failure to

articulate a comprehensive definition of "testimonial" statements

will cause "interim uncertainty"). Many courts have resolved this

uncertainty by seizing on the most general formulation -- a

statement is testimonial if the circumstance under which the

statement was made would lead an objective witness reasonably to

believe that the statement would be available for use at a later

trial -- and applying it, without sufficient attention to

Crawford's textual and historical rationale. See, e.g., United

States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005); United

States v. Comer, 389 F.3d 662, 675 (6th Cir. 2004); United States

v. Saget, 377 F.3d 223, 229 (2d Cir. 2004); Commonwealth v.

Gonsalves, 445 Mass. 1, 12-13 (2005). Courts that have adopted

this approach have divided on close questions such as the

categorization of various 911 calls. Ante at 13-15. A sounder,

more predictable body of law will emerge if, when applying the

various "formulations," we hew closely to what I suggest is the

foundational thrust of Crawford.

Crawford employed a historical approach to define the

reach of the Confrontation Clause. See id. at 43-50. In

reviewing the historical record, the Court identified "the civil-

-31-
law mode of criminal procedure" as "the principal evil at which

the Confrontation Clause was directed." Id. at 50. In particular,

the elimination of "ex parte examinations" was the Clause's main

concern. Id.

The Court discussed typical examples of the abusive use

of civil-law interrogations in early English law. Id. at 43-47.

It emphasized the practice of justices of the peace examining

suspects and witnesses before trial and then reading these

examinations in court. Id. at 43. The Court highlighted the

notorious 1603 trial of Sir Walter Raleigh, in which Raleigh was

convicted of treason based on a hearsay statement given by Lord

Cobham to the Privy Council. Id. at 44.7 Dissatisfaction with

these practices spawned the common law rule, in practice when the

Sixth Amendment was adopted in 1791, that an out-of-court

statement given to a government official as part of a formal

interrogation could only be introduced if the defendant had

previously been able to cross-examine the declarant. Id. at 46-

47.

The historical examples in Crawford all involved the

government's use of formal ex parte examinations to obtain hearsay

statements that could later be used at a criminal trial.

7
The Court also noted various controversial ex parte
examinations conducted by English authorities in the Colonies,
including the enforcement of the Stamp Act through the presentation
of testimony taken by pretrial deposition or private judicial
examination. Id. at 48.

-32-
According to the Court, this historical background demonstrates

that the Confrontation Clause was intended to prohibit the

government's use of these procedures where the defendant did not

have an opportunity for cross-examination. See id. at 68.

To support its historical interpretation, the Court

examined the Confrontation Clause's text. Id. at 51. The Clause

applies to "witnesses," which the Court defined as one "who bears

testimony." Id. In turn, the Court defined testimony as "a

solemn declaration or affirmation made for the purpose of

establishing or proving a fact." Id. The Court then synthesized

the Clause's text and history to reach the general conclusion that

the Clause "reflects an especially acute concern with a specific-

type of out-of-court statement" -- i.e., solemn declarations made

to government officials in circumstances that resemble the

repudiated civil-law mode of interrogation. Id.

It is only after this discussion that the Court set

forth its three formulations of testimonial hearsay. Id. at 51-

52. The first two are examples of modern-day practices that

resemble the civil-law mode of interrogation (i.e., affidavits,

depositions, custodial examinations, prior testimony, confessions,

and police interrogations). Id. Only the third presents a

general definition without concrete examples. Id. In the

historical and textual discussion preceding these formulations,

I find no warrant to interpret this third formulation to

-33-
substantially broaden Crawford's holding. Instead, we should

construe the three formulations as directed at the same concern:

preventing the government from using hearsay statements at trial

if the statements were obtained through a method that resembles

a civil-law mode of interrogation.8 See Gonsalves, 445 Mass. at

31-32 (Sosman, J., concurring) (stating that courts should strive

to "harmonize all three [Crawford] formulations" instead of

allowing the third to swallow the other two); see also United

States v. Saner, 313 F. Supp. 2d 896, 901 (S.D. Ind. 2004)

(stating that a statement is testimonial if it was made in

circumstances similar "to the abuses at which the Confrontation

Clause was directed); People v. Kilday, 20 Cal. Rptr. 3d 161, 173-

74 (Cal. Ct. App. 2004) (holding that statement obtained by a

police officer was non-testimonial because the officer was not

acting in an investigative capacity when the statement was made).

Under this view, the third formulation ordinarily should be limned

by whether the statement was obtained by means of a procedure that

resembles formal ex parte interrogation.

To be sure, applying the Crawford formulations in this

manner will not easily resolve every close case. But this

8
The Court described its three formulations as referring to a
"core class of testimonial statements," all of which "share a
common nucleus" that implicates the Confrontation Clause. Id. at
51. It would be inconsistent with the Court's description of these
formulations, as defining a single core, to construe one
formulation as incorporating situations different in kind from the
other two.

-34-
approach keeps faith with the Supreme Court's expressed rationale

for revising Confrontation Clause jurisprudence, and it will

provide courts with a set of concrete examples to use as

benchmarks in deciding Confrontation Clause cases. This approach

therefore will promote more uniformity in decisions applying

Crawford.

Under this approach, a statement obtained by recording

a 911 call is non-testimonial in most cases. The purpose of the

911 operator is to provide citizens with an avenue to obtain

emergency help from municipal or state personnel. Typically, the

911 operator focuses on ascertaining the location and identity of

the caller and the nature of the emergency; she does not

investigate or prosecute crimes.

In the Crawford examples, testimonial statements were

obtained through proceedings that had a sufficient degree of

formality to put the declarant on notice that her narrative would

constitute "a solemn declaration or affirmation of a fact."

Crawford, 541 U.S. at 51. By contrast, the expectation is that

911 calls occur in the midst of an emergencies. They lack the

formal trappings and face-to-face contact associated with swearing

out an affidavit, giving deposition testimony, testifying in

court, confessing to the police, or participating in an

interrogation by the police. Because the typical 911 call is

distinct from the formal interrogation methods exemplified by the

-35-
Crawford examples, most statements obtained from 911 calls,

including the one at issue here, are non-testimonial.

-36-