United States Court of Appeals
For the First Circuit
No. 05-1598
UNITED STATES OF AMERICA,
Appellee,
v.
LAWRENCE MAHER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Chauncey B. Wood, with whom Shea, Larocque & Wood, LLP was
on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, District of Maine,
with whom Paula D. Silsby, United States Attorney, was on brief,
for appellee.
July 6, 2006
*
Of the Ninth Circuit, sitting by designation.
LYNCH, Circuit Judge. Lawrence Maher, an erstwhile
Massachusetts drug dealer supplying cocaine to southern Maine, was
the subject of a police sting operation. While under surveillance
on July 22, 2004, Maher wandered drunkenly around a public parking
lot in Old Orchard Beach, Maine, calling out the name of a
potential drug buyer. He then got in his van, which contained
drugs, and fell asleep at the wheel with the key in the ignition
and an open beer can beside him.
The police, well aware of the opportunity created,
naturally investigated. They arrested Maher for the state crime of
operating under the influence (OUI) after Maher failed field
sobriety tests. Incident to arrest, they searched Maher's person
and van and found heroin, cocaine, and drug paraphernalia. Maher's
luck was no better at trial. He was found guilty of the federal
crime of possession of cocaine with intent to distribute. See 21
U.S.C. § 841(a)(1). On April 6, 2005, he was sentenced to 262
months in prison and six years' supervised release.
On appeal Maher makes an easily disposed-of Fourth
Amendment claim, which is significant largely because we reject his
legal argument that reasonable suspicion of drunk driving cannot
exist where the would-be operator is asleep and the vehicle is off.
Of more significance is his argument, under Crawford v. Washington,
541 U.S. 36 (2004), that the prosecution may not evade strictures
on admission of testimonial out-of-court statements by non-
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testifying declarants on the basis that the statements are offered
only for context. While concerned about the prosecution's use of
such evidence here, we find no basis to reverse the conviction.
I.
We recount the facts. As to those facts relevant to the
suppression issue, we rehearse the findings of the magistrate
judge, consistent with record support. See United States v.
Romain, 393 F.3d 63, 66 (1st Cir. 2004).
On July 20, 2004, Officer Ernest MacVane, a Windham,
Maine, police officer assigned to a task force of the United States
Drug Enforcement Administration (DEA), arrested one William Johnson
on cocaine charges. Johnson told Officer MacVane that he had
bought his cocaine from Maher, who lived in Massachusetts and was
a significant trafficker in southern Maine.
Johnson agreed to assist in a staged drug transaction
with Maher. He was told that his telephone calls with Maher would
be monitored and recorded. Johnson called Maher on July 20 and
asked if Maher was "coming down here again." Maher replied,
"tomorrow I hope, yeah." The following exchange ensued:
Maher: [D]o you got any numbers?
Johnson: What's that?
Maher: One, two, three (unintelligible).
Johnson: Four.
. . . .
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Maher: Okay, buddy.
After some discussion of whether Johnson might come to
Massachusetts instead, Maher told Johnson, "I got you down for four
either way." He did not explicitly mention cocaine.
On the night of July 21, DEA Agent Kate Barnard called
Maher to set up a separate meeting.1 She told Maher she was "Sue,"
and said she wanted to "hook up" so that she could "get something."
Maher, apparently thinking she was an acquaintance,2 agreed to meet
her at Radley's Market in Old Orchard Beach. The next morning,
Johnson called Maher to discuss meeting. Maher told Johnson he was
waiting for a friend at a store (an apparent reference to Radley's
Market) and told Johnson to call back.
Later that morning, DEA Agent Paul Buchanan saw Maher
wandering in the parking lot adjacent to Radley's Market, stumbling
and calling the name "Sue."3 Agent Buchanan watched Maher enter
the market and emerge minutes later. Maher appeared intoxicated to
Agent Buchanan, who said he was still stumbling and disoriented.
Maher climbed into the driver's seat of a white minivan.
1
At a suppression hearing, Officer MacVane testified that
Agent Barnard did so to "try to get Mr. Maher to commit to a
location that we could locate him and find him."
2
When the agent told Maher she was "Sue," he asked her if she
was "Sue Conley." The agent replied in the affirmative. The name
Sue Conley was later found in an address book recovered from
Maher's van.
3
Agent Buchanan recognized Maher from, inter alia, a previous
booking photograph that he had been shown.
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About ten minutes later, Agent Buchanan approached the minivan and
saw Maher asleep or unconscious, slumped in the driver's seat. No
one else was in the van. The keys were in the ignition, though the
engine was not running. This information was relayed to Old
Orchard Beach Police Officer Gerald Hamilton.
Officer Hamilton drove to Radley's Market and approached
the minivan. He spoke to Maher, but Maher did not wake up, so
Officer Hamilton reached through the window and shook Maher to
rouse him. The officer asked Maher if he was okay, and Maher
replied that he was just leaving. Officer Hamilton observed that
Maher had droopy eyes and spoke in a mumble.
Officer Hamilton could see an open beer can in the
minivan's console and a six-pack on the passenger seat. He asked
Maher if he had drunk alcohol or used drugs. Maher replied that he
had had only about two ounces of beer and that he did not use
drugs. Officer Hamilton told Maher he should not have driven.
Maher replied that Officer Hamilton was right; he asked the officer
to "cut [him] a break" and said he would find his way to a friend's
house. Officer Hamilton then ordered Maher out of the van and
conducted three field sobriety tests. Maher failed all three and
was arrested on suspicion of OUI. See Me. Rev. Stat. Ann. tit. 29-
A, § 2411.
During a search incident to arrest, Officer Hamilton
found in Maher's pocket a large roll of currency, totaling $7,902,
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and a film canister containing approximately half a gram of what
was later determined to be heroin. In the van, police found a
black canvas bag which contained three sandwich bags, each of which
held a ball of white powdery material slightly smaller than a
baseball. The substance was later determined to be 163 grams of
cocaine.4 The canvas bag also held a black digital scale.
Additionally, it contained a Post-It note which listed several
names; to the right of each was a number. The first name was
Johnson's. To the right of his name was the number "4."
Prior to trial, the defense filed a motion to suppress
the evidence seized from Maher's van. The defense argued that even
assuming Maher was intoxicated, Officer Hamilton had lacked any
reason to think Maher had committed OUI.
After a suppression hearing during which Officers MacVane
and Hamilton testified, the magistrate judge recommended on October
27, 2004, that the motion to suppress be denied. The magistrate
judge noted that under Maine law, an officer may order field
sobriety tests on reasonable suspicion of OUI. He also noted that
attempted operation counts as operation under the Maine OUI
statute. See Me. Rev. Stat. Ann. tit. 29-A, § 2401(6). The
magistrate judge catalogued the evidence that Maher was intoxicated
before entering the minivan and found that when awakened, Maher
4
Officer MacVane testified, accurately, that there are
approximately 28 grams in an ounce. This means the cocaine seized
from the minivan weighed almost six ounces.
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both admitted that he had driven and said he was "just leaving."
The court concluded: "This was sufficient evidence, together with
the rational inference that the defendant had entered the vehicle
in order to drive it, to justify . . . the field sobriety tests."
The district court adopted this decision and denied the motion to
suppress.
At trial, the government never called the informant,
Johnson, as a witness. It did, however, introduce the drugs seized
from the minivan and testimony that the amount of cocaine seized
far exceeded the amount one might have for personal use. The
parties stipulated that the substance seized from the minivan was
cocaine weighing 163.7 grams.
II.
A. The Motion to Suppress
Maher first challenges the district court's denial of his
motion to suppress the evidence seized in the minivan. "Our review
of the ultimate determinations of probable cause and reasonable
suspicion on a motion to suppress is de novo." United States v.
Scott, 270 F.3d 30, 39 (1st Cir. 2001) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). "[S]ubsidiary factual findings
are reviewed for clear error, 'giv[ing] due weight to inferences
drawn from those facts by resident judges and local law enforcement
officers.'" United States v. Burhoe, 409 F.3d 5, 9-10 (1st Cir.
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2005) (second alteration in original) (quoting Ornelas, 517 U.S. at
699).
Maher argues that the totality of the circumstances did
not create reasonable suspicion that he had committed, or was about
to commit, the state crime of OUI. He argues that the absence of
reasonable suspicion breaks the chain of circumstance that
permitted the drug seizure: Without reasonable suspicion, Officer
Hamilton had no basis to require sobriety tests; without the tests,
Officer Hamilton had no probable cause to arrest Maher for OUI;
without the arrest, there was no reason to search the van.
We reject this argument at its starting point. Assuming
arguendo that "reasonable suspicion" is the applicable legal
standard,5 it was met on these facts.
5
Neither the Supreme Court nor this court has decided what
quantum of suspicion is required before a police officer can order
a motorist to perform field sobriety tests. The Maine courts,
however, have adopted the "reasonable suspicion" standard first
articulated in Terry v. Ohio, 392 U.S. 1 (1968). See State v.
Wood, 662 A.2d 919, 920 (Me. 1995). Other states' courts have
reached the same conclusion, see Rogala v. District of Columbia,
161 F.3d 44, 52 (D.C. Cir. 1998) (collecting cases), as has at
least one of our sister circuits, see id. ("[T]his Court is
persuaded by the reasoning of the courts in those states that have
concluded that a field sobriety test is such a minimal intrusion on
the driver of the car that only reasonable suspicion is required to
conduct such a test."). The parties to this appeal agree that
reasonable suspicion is the applicable standard, and so we proceed
on that basis for present purposes. See Adorno v. Crowley Towing
& Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006) (accepting
arguendo a legal proposition agreed to by the parties).
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Reasonable suspicion, a less demanding standard than
probable cause, denotes at least a minimal level of objective
justification for a stop. United States v. Sokolow, 490 U.S. 1, 7
(1989). In evaluating whether reasonable suspicion is present, we
"look at the totality of the circumstances . . . to see whether the
detaining officer ha[d] a particularized and objective basis for
suspecting legal wrongdoing." United States v. Arvizu, 534 U.S.
266, 273 (2002) (internal quotation marks omitted) (quoting United
States v. Cortez, 449 U.S. 411, 417-18 (1981)).
In this case, Officer Hamilton knew (because he had been
told by other officers) that Maher had just been stumbling
disorientedly, a common characteristic of intoxication, around the
parking lot of Radley's Market. See United States v. Meade, 110
F.3d 190, 193 (1st Cir. 1997) (police may "rely upon each other's
knowledge of facts" when forming suspicions of wrongdoing).
Officer Hamilton saw Maher slumped over the wheel of his van in a
public lot, apparently not conscious, in the middle of the day.
The officer saw an open can of beer next to Maher; Maher did not
respond to verbal attempts to wake him up. And when Maher did wake
up, he had droopy eyes and mumbled his words. Officer Hamilton had
a reasonable basis to think Maher was intoxicated.
But Maher's mere intoxication is not what led to the
search of the car. The search was justified on the basis of
reasonable suspicion that the crime of OUI had been committed,
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which led to the sobriety tests, which led to the arrest. Officer
Hamilton knew Maher was the only occupant of the minivan, that he
was in the driver's seat, and that the key was in the ignition. He
knew Maher's vehicle was parked in a state other than his home
state. The inference was entirely rational that Maher had driven
while intoxicated and that he would drive again. See United States
v. Escobar-de Jesus, 187 F.3d 148, 175-76 (1st Cir. 1999) (a
factfinder may make inferences in light of "human experience"); see
also United States v. McFarland, 445 F.3d 29, 32 (1st Cir. 2006).
Furthermore, Maher told Officer Hamilton he was "just leaving" and
asked the officer to cut him a break (suggesting he knew he had
broken the law). Maher also tacitly admitted, by agreeing with
Officer Hamilton's statement that he should not have driven, not
only that he had driven recently but that he had driven drunk.6
Maher's key legal argument is that "courts seem to
require that a sleeping defendant be found behind the wheel . . .
6
Maher argues that Officer Hamilton had no reason to believe
he had consumed alcohol before driving to the parking lot, and that
the presence of the six-pack in fact raises the inference that he
had not. Maher also relies on the fact that no officer saw him
driving the van. These arguments do not alter our conclusion that
the other evidence amply supported the police action. See State v.
Merrill, 552 A.2d 551 (Me. 1989) (mem.) (upholding defendant's OUI
conviction on circumstantial evidence because such evidence "is no
less conclusive than direct evidence in supporting a conviction").
Officer Hamilton had ample reason to believe, especially given
Maher's statements upon awakening, that Maher had driven while
drunk or was planning to drive away while drunk. See Me. Rev.
Stat. Ann. tit. 29-A, § 2401(6) (defining "operating" as "operating
or attempting to operate a motor vehicle" (emphasis added)).
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with a running engine before they will find reasonable suspicion of
OUI." We reject any argument that reasonable suspicion of OUI
cannot exist when an apparently intoxicated person is found asleep
behind the wheel unless the engine is running. Fourth Amendment
analysis is always context-specific and rarely employs litmus
tests.7 See Brigham City v. Stuart, No. 05-502, 2006 WL 1374566,
at *4, *5 (U.S. May 22, 2006) (noting that "the ultimate touchstone
of the Fourth Amendment is 'reasonableness'" and concluding a
warrantless entry was "plainly reasonable under the
circumstances").
B. The Confrontation Clause Challenge
Maher argues there were twelve instances at his trial in
which hearsay was erroneously admitted, and that consequently he is
entitled to a new trial. He lumps them together and argues that
the admission of the testimony violated his constitutional rights
7
Maher makes an additional argument in his reply brief that
his incriminating statements cannot be used in the reasonable
suspicion calculus because, at the moment Officer Hamilton shook
him awake, he was "seized." This argument, not raised before the
reply brief, is forfeited. See United States v. Isler, 429 F.3d
19, 30 n.12 (1st Cir. 2005). Even if not forfeited, it would fail.
Just because Maher was so soundly asleep (or unconscious) that
Officer Hamilton had to shake his arm to wake him up does not mean
he was "seized" within the meaning of the Fourth Amendment. While
physical touching "might indicate a seizure," United States v.
Mendenhall, 446 U.S. 544, 554 (1980), it is only one of many
possible factors, none dispositive, United States v. Smith, 423
F.3d 25, 30 (1st Cir. 2005). Here, there is no indication that
Officer Hamilton's physical contact with Maher lasted longer than
was necessary to awaken him. Furthermore, none of the other
exemplary circumstances listed by the Mendenhall court that might
suggest seizure were present. See 446 U.S. at 554.
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under the Confrontation Clause of the Sixth Amendment, as defined
in Crawford v. Washington, 541 U.S. 36 (2004). He did not object
to the majority of this testimony, and he cannot show plain error.
Where he did object, no Confrontation Clause issue is presented.
Post-Crawford, the admission of non-testifying
informants' out-of-court testimonial statements, through the
testimony of police officers, is a recurring issue in the courts of
appeals. Crawford holds that a declarant's "testimonial" out-of-
court statement is not admissible under the Confrontation Clause
unless (1) the declarant testifies, id. at 53-54, or (2) the
defendant had a prior opportunity for cross-examination and the
declarant is unavailable, id. at 54, or (3) the evidence is
admitted for purposes other than establishing the truth of the
matter asserted, id. at 59 n.9. Each of these tests has its own
subtleties.
Assuming the declarant does not testify and is in fact
available, and/or there was no prior opportunity for cross-
examination of the declarant, Crawford claims will usually turn on
one of two issues. First, was the out-of-court statement
testimonial? Second, if so, is it admissible for reasons other
than the truth of the matter asserted?
There has been a great deal of attention to the first
issue, which this court discussed in United States v. Brito, 427
F.3d 53 (1st Cir. 2005). In Crawford, the Supreme Court did not
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precisely define what it meant by "testimonial." It instead
listed, for illustrative purposes, three formulations that came
within the "core class" of testimonial statements. 541 U.S. at
51-52. The first includes "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 (emphasis added). The second includes "extrajudicial
statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions."
Id. at 51-52 (internal quotation marks omitted) (omission in
original) (citing White v. Illinois, 502 U.S. 346, 365 (1992)).
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 (internal quotation marks omitted). This court,
applying Crawford, has said a statement is testimonial if a
reasonable declarant, similarly situated, would have the capacity
to appreciate that the statement is of a sort typically
"preserve[d] . . . for . . . potential prosecutorial use." Brito,
427 F.3d at 60-61 (holding that 911 calls may be testimonial in
certain circumstances).
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There has been somewhat less development, post-Crawford,
of the second issue, perhaps because this Crawford exception
appears simply to rest upon a long-established exception to the
hearsay rule for statements not offered for the truth of the
matter. Even before Crawford, however, it was recognized in the
standard treatises' discussions of the hearsay rule that:
One area where abuse may be a particular
problem involves statements by arresting or
investigating officers regarding the reason
for their presence at the scene of a crime.
The officers should not be put in the
misleading position of appearing to have
happened upon the scene and therefore should
be entitled to provide some explanation for
their presence and conduct. They should not,
however, be allowed to relate historical
aspects of the case, such as complaints and
reports of others containing inadmissible
hearsay. Such statements are sometimes
erroneously admitted under the argument that
the officers are entitled to give the
information upon which they acted. The need
for this evidence is slight, and the
likelihood of misuse great. Instead, a
statement that an officer acted "upon
information received," or words to that
effect, should be sufficient.
2 Broun, et al., McCormick on Evidence § 249, at 103 (5th ed. 1999)
(emphasis added).
Maher's Crawford arguments appear to cover two different
types of testimony by officers concerning statements by the non-
testifying informant-declarant: (1) testimony that the informant
said X to the officer, and (2) testimony from which (Maher argues)
the jury would necessarily infer that the declarant had said X, but
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which did not itself quote or paraphrase the declarant's
statements. Crawford covers the first category -- the admission of
out-of-court statements by non-testifying and un-cross-examined
declarants through testimony of others. Maher makes no effort to
explain why Crawford should be read to extend to the second
category, and so we disregard the statements which fall in that
category.
We address Maher's strongest argument that the testimony
violated Crawford. Early in the government's case, the prosecutor
asked Officer MacVane how he found out that Maher "may be involved
in illegal activity." There was no objection. Officer MacVane
replied: "William Johnson." Moments later, the prosecutor and
Officer MacVane engaged in the following colloquy:
Q: [B]ased on Bill Johnson's response to
your questions about who gave him the
cocaine, did you do follow-up inquiries
regarding whether such a person existed?
A: Yes I did.
Q: What did you do on those lines?
A: I checked the name Lawrence Maher in the
State of Maine Department of Motor
Vehicle database and also the
Massachusetts database and found that
he existed in both of them.
Again, there was no objection.
Obviously concerned about the use the jury might make of
this testimony, the trial court admirably and sua sponte
instructed: "The statements made by Mr. Johnson, whatever they
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are, that is for you to decide, are not to be used by you as to the
truth of those statements. They are merely to be used as something
that he responded to by doing something else." The court then gave
the jurors an example of the difference between hearsay and non-
hearsay use of a statement.
The first Crawford issue to be addressed is whether the
informant's statement that Maher was involved in illegal drug
dealing activity was testimonial. As best we can tell from the
record, it was testimonial. The Supreme Court's first formulation
of "testimonial" included custodial examinations. Crawford, 541
U.S. at 52. The Court said "[s]tatements taken by police officers
in the course of interrogations are . . . testimonial under even a
narrow standard." Id. The statement at issue here was made while
the police were interrogating Johnson after Johnson's arrest for
drugs; Johnson agreed to cooperate and he then identified Maher as
the source of the drugs. Johnson's statement is also testimonial
under Crawford's third example of the "core class" of testimonial
statements. The cooperation agreement, indeed, made it more likely
the statement would be used prosecutorially.8 In this context, it
8
In United States v. Cromer, 389 F.3d 662 (6th Cir. 2004),
the Sixth Circuit noted with approval one commentator's suggestion
that "'[a] statement made knowingly to the authorities that
describes criminal activity is almost always testimonial.'" Id. at
675 (quoting Friedman, Confrontation: The Search for Basic
Principles, 86 Geo. L.J. 1011, 1042 (1998)). We would not go so
far. Our decision in Brito, 427 F.3d 53, implicitly rejected this
view in holding that 911 calls are not testimonial merely because
the caller knowingly contacts police to provide information about
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is clear that an objectively reasonable person in Johnson's shoes
would understand that the statement would be used in prosecuting
Maher at trial. This is sufficient to render the statement
testimonial under the test in Crawford and our test in Brito. See,
e.g., Crawford, 541 U.S. at 52 (including among its "testimonial"
formulations "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"); Brito, 427
F.3d at 60 (stating that a statement qualifies as testimonial if
the declarant would reasonably understand that it will be
"preserve[d]" for "potential prosecutorial use"); see also Horton
v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding a declarant's
statements non-testimonial where they "were not made as part of a
confession resulting from custodial examination" but instead as
part of a private conversation with a non-police officer); United
States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004) (noting that the
"core" examples of testimonial statements in Crawford "all involve
a declarant's knowing responses to structured questioning in an
investigative environment or a courtroom setting where the
declarant would reasonably expect that his or her responses might
be used in future judicial proceedings").
a crime. Where the caller is "under the stress of a startling
event" such that she cannot "comprehend the larger [prosecutorial]
significance of her words," the call may not be testimonial at all.
Id. at 61, 62.
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The next question is whether Officer MacVane's testimony
about Johnson's testimonial statement was admissible under Crawford
for reasons other than the truth of Johnson's assertion that Maher
sold him illegal drugs. The government says it was admissible for
reasons other than the truth of the matter because it set the
context for what the police officers did next. Sometimes the
rationale that an out-of-court statement provides context for other
admissible evidence will be valid. In United States v. Walter, 434
F.3d 30 (1st Cir. 2006), this court held that Crawford was not
offended by use of an informant's statements to set context. But
the precise nature of that context is important. In Walter, the
evidence in question was tape-recordings made during a sting
operation during which the informant bought weapons from the
defendant. Certain portions of the tapes, with statements by a
non-testifying informant, were admitted because the informant's
words provided context for admissions made by the defendant, which
also were captured on tape. Id. at 33-34.
This situation is very different and more directly raises
the risks which concerned the Crawford court. The government's
articulated justification -- that any statement by an informant to
police which sets context for the police investigation is not
offered for the truth of the statement and thus not within Crawford
-- is impossibly overbroad. It is overbroad even in classic
hearsay terms, as stated in the McCormick treatise. What gives
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this situation added bite is that the "context" rationale may be
used by the prosecution not just to get around hearsay law, but to
circumvent Crawford's constitutional rule. As the Seventh Circuit
has warned, citing Crawford:
Under the prosecution's theory, every time a
person says to the police "X committed the
crime," the statement (including all
corroborating details) would be admissible to
show why the police investigated X. That
would eviscerate the constitutional right to
confront and cross-examine one's accusers.
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004); see
also Cromer, 389 F.3d at 674. In Silva, a DEA agent testified that
he listened to conversations between a non-testifying confidential
DEA informant and a purported drug supplier, and that he heard the
informant speak of "this individual named Juan [who] indicated that
he was going to be making the delivery." 380 F.3d at 1019
(alteration in original). The defendant's name was Juan. The
government argued that this and similar testimony was admissible to
show "the actions taken by each witness." Id. at 1020. But as the
Silva court wrote, "[a]llowing agents to narrate the course of
their investigations, and thus spread before juries damning
information that is not subject to cross-examination, would go far
toward abrogating the defendant's rights under the sixth amendment
and the hearsay rule." Id. This sort of testimony also raises
risks similar to those raised by use of law enforcement officers to
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give preliminary overview testimony, a practice we disapproved in
United States v. Casas, 356 F.3d 104, 119-20 (1st Cir. 2004).
Here, Officer MacVane testified that the confidential
informant had said Maher was a drug dealer, even though the
prosecution easily could have structured its narrative to avoid
such testimony. The information was surely relevant, but that is
not our question. As McCormick points out, the officer, for
example, could merely have said he "acted upon information
received, or words to that effect." 2 Broun, supra, § 249, at 103
(internal quotation marks omitted). It appears the testimony was
primarily given exactly for the truth of the assertion that Maher
was a drug dealer and should not have been admitted given the
adequate alternative approach.
But Maher did not object to this portion of Officer
MacVane's testimony, and he certainly cannot meet the plain error
test. The testimony was immediately followed by a sua sponte
instruction to the effect that any statements of the confidential
informant should not be taken as standing for the truth of the
matter asserted (i.e., that Maher was a dealer who supplied Johnson
with drugs). Cf. United States v. Jadusingh, 12 F.3d 1162, 1167-68
(1st Cir. 1994) (finding no plain error in a prosecutor's
purportedly improper reference to inaudible portions of an audio
tape in part because "[t]he trial court provided the jury with a
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limiting instruction directing them to disregard inaudible portions
of the tape").
The government needed to prove only that Maher possessed,
with the intent to distribute, cocaine. See 21 U.S.C. § 841(a).
This was proven by what was in his van: cocaine in amounts too
large to be explained by personal use; a digital scale; multiple
baggies of drugs (a fact consistent with distribution); a slip of
paper with the name of the informant who arranged the buy.9
Further, the police saw Maher walking around the assigned meeting
place for a second potential drug sale, calling out the name he had
been given.
The dividing line often will not be clear between what is
true background to explain police conduct (and thus an exception to
the hearsay rule and thus an exception to Crawford) and what is an
attempt to evade Crawford and the normal restrictions on hearsay.
But we are on firm ground in warning prosecutors of the risks they
face in backdoor attempts to get statements by non-testifying
confidential informants before a jury.
9
Officer MacVane offered uncontroverted testimony that a
personal use quantity of cocaine is typically a half-gram to a
gram, see United States v. Morales, 834 F.2d 35, 36-37 (2d Cir.
1987) (recounting expert testimony that 21 grams of cocaine "was
inconsistent with personal use"), and that drug dealers use scales
to measure their drugs before sale.
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C. Challenges to Officer MacVane's Post-It Note Testimony
Finally, Maher raises several unpreserved challenges to
the admissibility of one subsection of Officer MacVane's testimony;
we review for plain error.
The challenged colloquy occurred while the prosecutor was
questioning Officer MacVane about the Post-It note found in Maher's
minivan, and specifically about the significance of the number "4"
scrawled next to Johnson's name:
Q: Based on your participation in numerous
narcotics cases that you said you had
participated in, what significance did this
piece of paper have in general with regard to
drug trafficking?
A: Based on my training and experience it
was significant because I recognize it as drug
notes. Drug distributors' way of being
organized. In this particular case what it
appears to me is a customer list with their
orders on it.
Q: Based on your training and experience and
knowledge in this case what did the "four"
pertain to?
A: Four ounces of cocaine.
Maher's argument repeats the familiar debate about
whether police officers, in giving certain descriptions about how
drug deals work, are testifying on the basis of particularized
knowledge under Fed. R. Evid. 701, or as expert witnesses under
Fed. R. Evid. 702.10 See, e.g., United States v. Ayala-Pizarro, 407
10
Maher also argues that this exchange constituted a
Confrontation Clause violation because Officer MacVane's opinion
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F.3d 25, 27-29 (1st Cir. 2005). If the testimony is properly Rule
702 material, there are two advantages to the defendant. First,
the government must disclose Rule 702 testimony to the defense
before trial. See Fed. R. Crim. P. 16(a)(1)(G). Second, the
defense may be able to convince the judge that the testimony does
not meet the heightened reliability criteria under Rule 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
But there is also a possible disadvantage to the defendant, in that
jurors may be told that the officer's testimony has been deemed
expert.
Rule 701, on the other hand, is meant to admit testimony
based on the lay expertise a witness personally acquires through
experience, often on the job. We discussed at greater length the
difference under the two rules, as applied to police officer
testimony, in Ayala-Pizarro. See 407 F.3d at 27-29. We noted in
that case that it may be that part of an officer's testimony will
be lay opinion and part will be expert opinion. Id. at 28.
Here Officer MacVane's testimony, that based on his
experience the Post-It notes were likely notes of drug orders and
the number "4" referred to a quantity of the drug found in the van,
"did not cross the line to become expert testimony." Id.; see also
was based not on his expertise, but on Johnson's testimonial
statements. For additional reasons to those already stated, we
reject this argument. Officer's MacVane's experience provided an
independent basis for the evidence, as we explain below.
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id. at 29 (holding that an officer's testimony that heroin seized
at drug points was typically packed in aluminum decks and that the
heroin seized in the case was packaged in such decks was Rule 701
testimony). There was no error, much less plain error.
III.
The other arguments presented by Maher have been
considered and are without merit.
The conviction is affirmed.
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