United States v. Norton

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1408

UNITED STATES,

Appellee,

v.

TIMOTHY P. NORTON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Breyer,* Chief Judge,

Torruella and Boudin, Circuit Judges.

Frank G. Kelleher, by Appointment of Court, with whom

Timothy P. Norton pro se was on brief for appellant.

Michael J. Pelgro, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief for

appellee.

* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).

TORRUELLA, Circuit Judge. A federal grand jury

returned an indictment charging Timothy P. Norton with being a

felon in possession of a firearm in violation of 18 U.S.C.

922(g)(1). Following trial, the jury found Norton guilty, and

the district court then sentenced him to 180 months in prison.

Norton now appeals his conviction, contending that the district

court abused its discretion when it permitted the government to

cross-examine Norton about a prior conviction for carrying a

firearm. We affirm.

FACTS

The testimony and other evidence properly introduced at

trial, viewed in the light most favorable to the verdict,

established the following facts. United States v. Rivera-

Santiago, 872 F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492

U.S. 910 (1989).

On October 14, 1990, Norton and Kevin Johnson were

drinking in "The Bullpen Sports Bar and Grill" ("The Bullpen") in

Somerville, Massachusetts. The two men became involved in an

altercation with one of the owners, James Hough, and a manager,

Leo Kelley. Norton and Johnson were ejected from The Bullpen.

The Somerville police then arrived at the scene.

After The Bullpen had closed for the night, Norton and

Johnson returned to the premises. What happened when the two men

returned was disputed at trial. Because of the earlier

disturbance, Police Officers Thomas Silveira and Neil Brennan

were assigned to patrol the vicinity around The Bullpen. Officer

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Silveira observed a vehicle, later identified as Norton's

Cadillac Seville, stopped in the street in front of The Bullpen.

Officer Silveira observed Norton pointing what appeared to be a

pistol toward the front door of The Bullpen. He testified that

he then saw a flash from the weapon. Norton then got into the

Cadillac. Officer Silveira then observed Johnson run to the

front of The Bullpen, he saw a large flash and explosion, and saw

Johnson get back into Norton's Cadillac.

Somerville Police Detective Ernest Nadile had earlier

returned to The Bullpen to protect the employees who remained and

were present after the bar closed. Detective Nadile testified

that he heard a shot ring out. He then "hit the floor," and

heard another shot approximately three seconds later. As

Norton's Cadillac sped away, Officer Silveira and Officer Brennan

pursued the vehicle. During the pursuit, Officer Brennan

observed the driver of the Cadillac throw what appeared to be a

gun out the driver's side window, and he heard the gun hit a

parked car and slide across the pavement.

Other officers subsequently joined in the chase, and

they eventually stopped the Cadillac. A struggle then ensued

between Officer Brennan and Norton. Officer Brennan testified

that he heard Norton repeatedly utter that he had not shot at a

cop. The police officers arrested both Norton and Johnson.

Officer Brennan then went back to the location in

Somerville where he had seen Norton throw an object, and found a

Colt Combat Commander .45 caliber semi-automatic pistol in the

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street.

Johnson testified on behalf of the defense. He stated

that after being ejected from The Bullpen, he and Norton went to

the Jumbo Pub, another bar, and then to the Moose Club, where

they drank for the next few hours. Johnson testified that while

at the Moose Club, a friend gave him an "M-80," a big

firecracker. After leaving the Moose Club, Johnson discovered

that he had lost his wallet and Norton drove him back to The

Bullpen to look for the missing item. Johnson then found his

wallet against the curb of the street. While returning to

Norton's Cadillac, Johnson took out the "M-80," lit it, and threw

it in the general vicinity of The Bullpen's front door. Johnson

testified that he did not see a gun that night and that he did

not know anything about a gun.

Norton also chose to testify on his own behalf. Prior

to Norton's testimony, the court conducted a voir dire with him

concerning his decision. During the course of the colloquy,

Norton made reference to his prior criminal record and discussed

the possibility that the government might try to impeach him by

means of his prior convictions. Prompted by the exchange, the

district court asked the government to review Norton's prior

criminal record so that the court could make an advance ruling on

the admissibility of Norton's prior convictions under Fed. R.

Evid. 609. The government then advised the district court of

numerous prior convictions extending back to 1954. Upon learning

that the government had not provided advance written notice to

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the defense of its intent to use these convictions at trial, as

required by Fed. R. Evid. 609(b), the court ruled that the

government would not be allowed to impeach Norton with any

convictions that were greater than ten years old, including a

1963 conviction for unlawfully carrying a firearm.

The court then engaged in a balancing process to rule

on the admissibility of the more recent convictions. The court

ruled that the government could inquire about a 1991 conviction

for malicious destruction of property and a 1985 conviction for

possession of cocaine with intent to distribute, but that it

could not inquire about other convictions.

After the court's advance ruling, Norton took the

stand, and essentially testified to the same chain of events to

which Johnson had testified. Norton testified that he never saw

a gun that night, that he never possessed a gun that night, and

that he never threw a gun out of the driver's side window of his

Cadillac.

During direct examination, the following exchange

occurred between Norton and his counsel:

Q. Now, at some point did you have a gun in your
possession during the chase?

A. I never had a gun in my life in that car. Or on my
possession or anywhere.

During cross-examination, a sidebar conference took place, where

the government requested that it be able to present evidence of

Norton's 1963 conviction for unlawfully carrying a firearm,

because Norton had stated on direct examination that he never had

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a gun in all his life. The following exchange occurred:

Mr. Pelgro: ". . . in connection with the prior
convictions that are over ten years, you
ruled, of course, they were not admissible
under Rule 609. The defendant in the
course of his direct examination, when
asked a question about whether he had a
gun that night, stated he never had a gun
in all my life. I've got a conviction
from 1963 of him carrying a revolver. I
think it's fair game on his credibility to
ask him about that.

The Court: I think that's so.

Mr. Kelleher: I would object to it. I think that was
an
emotional response, I never had a gun in
all my life.

The Court: Well, it was wrong.

With the court's permission, the government proceeded to ask

Norton about his 1963 firearm conviction. On cross-examination,

the following exchange took place:

Q. Now, sir, I believe you testified on Friday in
response to your lawyer's questions that you never
had a gun in your entire life; is that correct?

A. I didn't say I never had a gun in my entire life,
sir.

Q. Well, when your lawyer asked you if you had a gun
that night, didn't you say I never had one in all
my life?

A. I never had one in my hand in all my life, yes.

Q. You never had one in your hand?

A. No, sir, I didn't.

Q. It is true, is it not, that you were previously
convicted of unlawfully carrying a revolver; isn't
that correct?

A. I pled guilty to that. I was involved with another
gentleman, sir. You're referring to 1963?

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Q. Yes.

A. I was a young man then. I was a very young man
then.

Q. So you were mistaken when you stated that you never
had one in all your life?

A. It wasn't in my hand. It was one revolver and it
never was in my hand.

Q. You did plead guilty, though to carrying a
revolver, didn't you?

A. That was the cumulation of the charge. I pled
guilty and received three to five years.

The jury subsequently found Norton guilty. This appeal followed.

ANALYSIS

A. Standard of Review

The district court is vested with broad discretionary

power to admit or exclude evidence. See United States v.

Innamorati, 996 F.2d 456, 478 (1st Cir.), cert. denied, 114 S.

Ct. 409 (1993); United States v. George, 752 F.2d 749, 756 (1st

Cir. 1985). A district court has considerable discretion to

discern the relevancy of evidence. United States v. Tierney, 760

F.2d 382, 387 (1st Cir.), cert. denied, 474 U.S. 843 (1985).

Similarly, the court has great latitude to gauge the relevance of

the evidence against the unfair prejudice which may result from

its admission. Id.; United States v. Griffin, 818 F.2d 97, 101

(1st Cir.), cert. denied, 484 U.S. 844 (1987). "[O]nly rarely -

and in extraordinarily compelling circumstances - will we, from

the vista of a cold appellate record, reverse a district court's

on-the-spot judgment concerning the relative weighing of

probative value and unfair effect." United States v. De La Cruz,

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902 F.2d 121, 124 (1st Cir. 1990) (quoting Freeman v. Package

Machinery Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).

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B. Governing Evidentiary Principles

Norton contends that his 1963 firearm conviction was

not admissible under Fed. R. Evid. 609, and that the court

violated a number of requirements of this rule when it admitted

the conviction. Rule 609, however, is not controlling in this

context. Rule 609 is an impeachment rule which governs the

admissibility of evidence of certain criminal convictions of a

witness when offered to impeach that witness by proving character

for untruthfulness. Fed. R. Evid. 609 advisory committee's

notes; 28 Wright and Gold, Federal Practice and Procedure,

6133 at p. 204; see, e.g., United States v. Brown, 603 F.2d 1022,

1027-29 (1st Cir. 1979); United States v. Oakes, 565 F.2d 170,

173 (1st Cir. 1977). The premise behind the rule is that a

witness who has previously been convicted of a felony, or a crime

involving dishonesty or a false statement, is more likely to lie

than is a person with a spotless past. Federal Practice, 6132

at pp. 190-94. Thus, Rule 609 evidence is admissible for the

purpose of attacking credibility generally, but the rule does not

address the admissibility of prior convictions when they are

offered for another purpose. Id. at pp. 205-06; see United

States v. Babbitt, 683 F.2d 21, 25 (1st Cir. 1982) (introduction

of evidence of a prior conviction did not implicate Rule 609

where defendant denied having a police record on direct

examination and prosecutor introduced conviction on cross-

examination to bring to light actual facts); United States v.

L pez, 979 F.2d 1024, 1033 (5th Cir. 1992) (neither Rule 608 or

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609 applies "in determining the admissibility of relevant

evidence introduced to contradict a witness's testimony as to a

material issue"), cert. denied sub nom. Ram rez v. United States,

113 S. Ct. 2349 (1993); cf. United States v. Barrett, 766 F.2d

609, 619 (1st Cir.) (where a defendant introduces, and makes

material, specific conduct in his direct testimony, proving the

falsity of such testimony is a fair target for the prosecution

and Rule 608 is not implicated), cert. denied, 474 U.S. 923

(1985).2

Instead, the general strictures of Fed. R. Evid. 4023

and 4034 were invoked when the government proffered the 1963

firearm conviction to contradict material false testimony

injected into the trial by Norton himself. See L pez, 979 F.2d

at 1034. Prior convictions are admissible under Rules 402 and

2 At trial, the government argued that the 1963 firearm
conviction was relevant to shed light on Norton's credibility.
The record is somewhat unclear as to the precise grounds the
court ultimately used to justify its decision to admit the
conviction. Even if, however, the court admitted the evidence
under Rule 609, we can still affirm its ruling if the evidence is
admissible under another rule. A district court's reliance on an
improper ground for admitting the evidence will not amount to
harmful error if other valid grounds for admission exist, because
such a situation does not affect a defendant's substantial
rights. L pez, 979 F.2d at 1033.

3 Fed. R. Evid. 402 provides in pertinent part that "[a]ll
relevant evidence is admissible . . . " Fed. R. Evid. 401
defines "[r]elevant evidence" as ". . . evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence."

4 Fed. R. Evid. 403 provides in pertinent part: "[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice
. . . . "

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403 to contradict specific testimony, as long as the evidence is

relevant and its probative value is not substantially outweighed

by the danger of unfair prejudice. L pez, 979 F.2d at 1034; cf.

United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993).

Evidence which tends to disprove a witness's testimony about a

material issue in the case is relevant. L pez, 979 F.2d at 1034.

In the present case, Norton's possession of the

firearm was the sole contested issue at trial.5 We agree with

the government that the district court could have found that the

evidence of Norton's prior firearm conviction was relevant to

this material issue. See Babbitt, 683 F.2d at 25; L pez, 979

F.2d at 1034. Norton testified on direct examination that he did

not have a firearm on the night in question. Norton then

attempted to add credence to this claim by testifying to the

effect that he had never possessed a gun in his life. If Norton

had never possessed a gun prior to the night in question, it was

more likely than it would be without this evidence that he did

not possess a gun on the night in question. Once Norton denied

that he had ever possessed a gun, he opened the door to the issue

of his prior or present firearm possession. The fact that Norton

had been previously convicted of carrying a firearm was highly

5 Under 18 U.S.C. 922(g)(1), the Government had to prove that
1) Norton had previously been convicted of an offense punishable
by imprisonment exceeding one year; and 2) he knowingly possessed
a firearm in or affecting commerce. United States v. Wight, 968

F.2d 1393, 1397 (1st Cir. 1992).

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relevant to contradict his specific misleading assertion.6

As with most evidentiary questions, the court was then

required to consider the unfair prejudice that would stem from

admitting this prior conviction. As a primary matter, Norton

introduced the issue of whether he had previously possessed a

firearm into the trial. Norton cannot be heard to claim that he

was "unfairly prejudiced" by the fact that the government then

established, through the 1963 conviction, that he lied, or at the

least, misled the jury, when he testified that he had never

possessed a firearm. See, e.g., Oakes, 565 F.2d at 172 (an

accused should not "be heard to complain of any resulting

prejudice created by his own actions"). Moreover, the prejudice

to Norton which resulted from admitting the conviction was

relatively slight. While the evidence did tend to demonstrate a

propensity by Norton to possess firearms, here, that effect was

minimal. The conviction was 29 years old, and, as Norton pointed

out on cross-examination, his transgression had occurred many

years ago, when he was a "very young man." The court also

limited any possible prejudicial spill-over of such evidence by

repeatedly instructing the jury as to the limited purpose of

6 Norton claims that the court had previously ruled that the
1963 firearm conviction was generally not admissible under Fed.
R. Evid. 609, and that the court could not then change this
ruling during the course of Norton's testimony. Advance rulings
on the admissibility of prior convictions for impeachment
purposes, however, may always be altered as the case unfolds.
United States v. Nivica, 887 F.2d 1110, 1116 (1st Cir. 1989),

cert. denied, 494 U.S. 1005 (1990); Oakes, 565 F.2d at 172. The

court's advance ruling was not a license for Norton to proffer
false or misleading testimony.

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prior conviction evidence.7 Under these circumstances, the

court properly concluded that the probative value of Norton's

1963 firearm conviction outweighed any unfair prejudice to him.

The district court's decision to admit Norton's prior

firearm conviction was free from error. Therefore, we affirm.

7 When the government asked Norton about his 1985 cocaine
conviction, the court instructed the jury as follows:

. . . And there's another thing here,
because this is the person accused. If
you were to draw from the fact that back
then he was convicted of this drug crime
that he's a bad person and therefore he
must have done this crime, that would
violate your oath. It's not fair, it's
not what you're asked here. You're
asked whether the government proves this
crime, the reason that we're all here
together in court, felon in possession of
a firearm, whether they proved this crime
beyond a reasonable doubt.

You may consider that crime on the
issue of whether he's a felon, and you
may consider that crime on the issue of
whether you believe his testimony. But
don't just come to the conclusion he's
some sort of bad person so he must have
done this. That would violate your oath
as jurors.

The court repeated the essence of this instruction when the
government asked Norton about his 1991 conviction for malicious
destruction of property.

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