United States v. Young

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-2178

UNITED STATES,

Appellee,

v.

DWAYNE YOUNG,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Cyr, Boudin and Stahl,
Circuit Judges.

Karl R.D. Suchecki with whom Jennifer Petersen and Petersen &

Suchecki were on brief for appellant.

Andrea Nervi Ward, Assistant United States Attorney, with whom

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

January 23, 1997

STAHL, Circuit Judge. In May 1995, a jury
STAHL, Circuit Judge.

convicted defendant Dwayne Young on a single count of

unlawful possession of a firearm by a felon, 18 U.S.C.

922(g)(1). During trial, and after denying Young's motion to

suppress, the district court admitted the firearm and

ammunition into evidence. The district court also admitted a

so-called "turret tape," a recording of radio transmissions

between a police officer and his dispatcher, made during the

officer's foot pursuit of Young.1 Finally, the district

court allowed the jury to use a government-prepared

transcript as an aid in listening to the tape while it was

being played during trial. Finding no error, we affirm.

Background
Background

On April 7, 1994, Officers James Fee and Robert

Twitchell of the Boston Police Department, while patrolling

the Roxbury section of Boston, received a radio broadcast

describing three individuals suspected of armed robbery.

Several blocks from the last reported location of the

suspects, the officers noticed a group of three men standing

together. Upon seeing the unmarked cruiser, the group

dispersed. One of the three, Young, walked in one direction

1. The term "turret tape" refers to recordings of radio
broadcasts between Boston Police officers and dispatchers.
Specifically, "turret" derives from the fact that the
communications facility which records such transmissions
resides in aturret tower at the Boston Police headquarters.

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by himself while the other two departed together in another

direction.

The officers, noting that Young's short height and

black clothing appeared to match the description of one of

the robbery suspects, pulled their cruiser to the curb

alongside Young. From the passenger seat, Officer Twitchell

rolled down his window and announced "Boston Police, you got

a minute?" to which Young responded "Sure." Young then

"angled" toward the rear of the cruiser. As Young approached

the car, the officers noticed the handle of a handgun

protruding from his waistband. Officer Twitchell lunged at

Young through the window of the cruiser, made fleeting

contact with his jacket or belt, but failed to either grab

the gun or detain him. Young turned and ran from the

cruiser, with Twitchell, now on foot, in pursuit.

During the pursuit, Officer Twitchell saw Young

remove the gun from his waistband and throw it into the

basement stairwell of a building on Elm Street. Although

Young successfully eluded Twitchell, he was ultimately

apprehended by a back-up police officer who found him hiding

in a nearby garage. Officer Twitchell then returned to the

stairwell and recovered the gun. While these events were

unfolding, Officer Twitchell and other officers continuously

transmitted information to the dispatcher at the Boston

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Police headquarters. These transmissions comprise the turret

tape.

Prior to trial, Young moved to suppress the gun and

the turret tape. Young asserted that the police recovered

the gun through a violation of his Fourth Amendment rights,

and argued that the tape constituted inadmissible hearsay.

The district court denied Young's motion to suppress the gun,

but granted his motion with respect to the turret tape, with

the caveat that defense counsel's cross examination might

subsequently render it admissible. During trial and after

defense counsel's cross examination of Officer Twitchell, the

district court admitted the turret tape as a prior consistent

statement, and allowed the jury to use a transcript prepared

by the government, as an aid in listening to the turret tape.

Young appeals admission of the gun and tape, as well as use

of the transcript.

Discussion
Discussion

A. Suppression of the Gun

We employ a dual standard in reviewing motions to

suppress. We review the district court's findings of fact

for clear error. See United States v. Bartelho, 71 F.3d 436,

441 (1st Cir. 1995). "A clear error exists only if, after

considering all of the evidence, we are left with a definite

and firm conviction that a mistake has been made." United

States v. McCarthy, 77 F.3d 522, 529 (1st Cir.), cert.

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denied, 117 S. Ct. 479 (1996). Deference to the district

court's findings of fact reflects our awareness that the

trial judge, who hears the testimony, observes the witnesses'

demeanor and evaluates the facts first hand, sits in the best

position to determine what actually happened. See United

States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). By

contrast, we review conclusions of law de novo and subject

the trial court's constitutional conclusions to plenary

review. See id.; see also Ornelas v. United States, 116 S.

Ct. 1657, 1663 (1996). Determinations of probable cause and

reasonable suspicion, relevant to the constitutionality of

law enforcement seizures and arrests under the Fourth

Amendment, present mixed questions of law and fact which we

review de novo. See Ornelas, 116 S. Ct. at 1663.

Young argues that the district court erred by

concluding that recovery of the firearm did not occur through

conduct that violated his Fourth Amendment rights.

Specifically, Young contends that Officers Twitchell and Fee

lacked either the reasonable suspicion needed to stop him, or

the probable cause required for an arrest. We disagree.

Interaction between law enforcement officials and

citizens generally falls within three tiers of Fourth

Amendment analysis, depending on the level of police

intrusion into a person's privacy. The first or lowest tier

encompasses interaction of such minimally intrusive nature

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that it does not trigger the protections of the Fourth

Amendment. The Supreme Court has repeatedly emphasized that

not all personal intercourse between the police and citizens

rises to the level of a stop or seizure. See Florida v.

Bostick, 501 U.S. 429, 434 (1991) (citing cases). Police may

approach citizens in public spaces and ask them questions

without triggering the protections of the Fourth Amendment.

See id.; United States v. Manchester, 711 F.2d 458, 460 (1st

Cir. 1983). Such police engagements need not find a basis in

any articulable suspicion. See Bostick, 501 U.S. at 435.

Police conduct falls short of triggering Fourth Amendment

protections when, from the totality of the circumstances, we

determine that the subject of any police interaction would

have felt free to terminate the conversation and proceed

along his way. See Bostick, 501 U.S. at 439; United States

v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994). The totality of the

circumstances in this case establishes that any interaction

between the officers and Young prior to Officer Twitchell's

lunge falls well within the first tier of police-citizen

interaction, and therefore, fails to trigger the protections

of the Fourth Amendment. As they pulled alongside Young, the

officers identified themselves as Boston Police officers, and

asked "got a minute" to which Young replied "sure." The

district court credited the officers' testimony, and we

detect no clear error. We recently determined that conduct

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virtually identical to what occurred in this case did not

trigger the protections of the Fourth Amendment, and

concluded that in the absence of an officer's exertion of

physical force or an individual's submission to a show of

authority, no seizure occurs. See Sealey, 30 F.3d at 10

(finding no Fourth Amendment seizure where police officers in

a cruiser approached defendant and yelled "Hey Steven, what's

up?") (citing California v. Hodari D., 499 U.S. 621 (1991)).

We reiterate that conclusion with respect to the officers'

conduct toward Young prior to Officer Twitchell's lunge.

The remaining two tiers of Fourth Amendment

analysis comprise de facto arrests requiring probable cause,

and lesser seizures generally known as investigative or Terry

stops, which require a lesser reasonable suspicion. An

arrest occurs when an officer, acting on probable cause that

an individual has committed a crime, detains that individual

as a suspect. Probable cause exists when police officers,

relying on reasonably trustworthy facts and circumstances,

have information upon which a reasonably prudent person would

believe the suspect had committed or was committing a crime.

See United States v. Maguire, 918 F.2d 254, 258 (1st Cir.

1990), cert. denied, Kavanagh v. United States, 501 U.S. 1234

(1991). An investigative stop, also known as a Terry stop,

see Terry v. Ohio, 392 U.S. 1 (1968), occurs when a police

officer, acting on reasonable and articulable suspicion of

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criminal activity, briefly detains an individual to confirm

or dispel his suspicion. See McCarthy, 77 F.3d at 529;

United States v. Schiavo, 29 F.3d 6, 8 (1st Cir. 1994).

The government concedes, for purposes of this

appeal, that when Officer Twitchell made contact with Young,

he seized him for Fourth Amendment purposes. See, e.g.,

Zapata, 18 F.3d at 977 (indicating that officer's touching of

citizen during ongoing investigative stop establishes that

seizure occurred). In the absence of further argument on

this point, we proceed under the assumption that a seizure

occurred in this case. Young contends that the officers

either seized him without the requisite reasonable suspicion,

or arrested him without the requisite probable cause. We

conclude that to the extent the officers, through fleeting

physical contact, seized Young, they did so well within the

parameters of an investigative stop, and that the officers'

actions do not rise to the level of an arrest requiring

probable cause.

With respect to investigative stops, the relevant

question "is not whether the police had probable cause to

act, but instead whether the actions taken were reasonable

under the circumstances." McCarthy, 77 F.3d at 529. A

familiar two- pronged test guides this inquiry. We first

must determine whether the officer's action was justified at

its inception, and, if so, whether the action taken was

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reasonably related in scope to the circumstances which

justified the interference. See id. at 530; United States v.

Kimball, 25 F.3d 1, 6 (1st Cir. 1994). To satisfy the first

prong, "'the police officer must be able to point to specific

and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that

intrusion.'" Kimball, 25 F.3d at 6 (quoting Terry, 392 U.S.

at 21). To satisfy the second prong, we examine the totality

of the circumstances, see United States v. Walker, 924 F.2d

1, 4 (1st Cir. 1991), bearing in mind that "an officer may []

conduct a patdown search where the officer is justified in

believing that the person is armed and dangerous to the

officer or others," Schiavo, 29 F.3d at 8. According to the

district court, the following facts gave rise to reasonable

suspicion necessary to temporarily detain Young: (1) the

officers saw three individuals, one or more of whom appeared

to match the description of three armed robbers who had been

spotted in the area; (2) as they approached, one of the three

(Young) walked away from the group; (3) Officer Fee told

Officer Twitchell that he thought he recognized the person

walking away (Young) as a "bad guy;" (4) upon asking Young to

answer some questions, Young angled toward the rear of the

car instead of directly toward the passenger window; and (5)

as Young approached, both officers saw a gun in his

waistband. Careful review of the record from which the

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district court drew these findings does not leave us with a

"definite and firm conviction that a mistake has been made,"

McCarthy, 77 F.3d at 529, and those findings are not clearly

erroneous. We are satisfied, moreover, that these facts in

their totality could give rise to the officers' reasonable

suspicion that Young had been involved in criminal activity.

We also conclude that Officer Twitchell's action,

the lunge at Young, was reasonably related in scope to the

circumstances. In agreeing with the district court we note

that sight of the gun gave rise to a significant concern for

the officers' and public's safety. See Walker, 924 F.2d at 4

(officer's concern for own safety is of "paramount

importance" in assessing the appropriateness of the action

taken). To open the door of the cruiser and question Young

would have afforded Young an opportunity to use the gun, and

could have placed the officers and any bystanders in harm's

way.

To be sure, the officers did not determine whether

Young carried the firearm legally prior to attempting to

remove it or restrain him. As we have indicated, however,

"'[c]onduct innocent in the eyes of the untrained may carry

entirely different 'messages' to the experienced or trained

observer.'" United States v. Stanley, 915 F.2d 54, 56 (1st

Cir. 1990) (quoting United States v. Bernard, 623 F.2d 551,

560 (9th Cir. 1979)). "Weighing 'the limited violation of

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the individual's privacy against the opposing interests in

crime prevention and detection and in the police officer's

safety,'" United States v. Quinn, 815 F.2d 153, 156 (1st

Cir. 1987), we conclude that Officer Twitchell's lunge at

Young, and the attendant physical contact, were reasonable in

scope and the circumstances justified the intrusion.

Young, however, argues that the physical contact

resulting from Officer Twitchell's lunge elevated the

encounter to a de facto arrest, which required probable

cause. We have recently rejected the contention that every

incidence of physical contact, even de minimis, between a

police officer and a citizen, constitutes an arrest requiring

probable case. See Zapata, 18 F.3d at 977 (indicating that

police touching of individual does not necessarily elevate a

seizure to an arrest). Parsing whether any given seizure

constitutes an arrest or a lesser seizure, however, proves a

difficult task. See id. at 975 (explaining that no

scientific formula exists to distinguish between

investigative stops and arrests). Police conduct will rise

to the level of an arrest when "'a reasonable man in the

suspect's position would have understood his situation,' in

the circumstances then obtaining, to be tantamount to being

under arrest." See id. (quoting Berkemer v. McCarty, 468

U.S. 420, 442 (1984)).

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Factors that can elevate a non-arrest seizure to a

de facto arrest requiring probable cause include extending an

investigative stop beyond the time necessary to confirm or

dispel reasonable suspicion, and physically blocking the

suspect's exit such that a reasonable person would not feel

free to leave. See Maguire, 918 F.2d at 259. The use of

guns and the presence of more than one police officer,

however, do not necessarily convert an investigative stop

into an arrest. See id. Above all else, our cases in this

area evince the fact specific nature of the inquiry. See,

e.g., Kimball, 25 F.3d at 6 ("Whether police activity is

reasonable in any particular context depends on the facts

which are unique to that incident.").

By lunging at and brushing his hand against Young,

Officer Twitchell did not impose "'restraints comparable to

those of a formal arrest.'" Quinn, 815 F.2d at 156 (quoting

Berkemer, 468 U.S. at 441). The officers did not restrain

Young's freedom of movement or succeed in detaining him even

briefly. Nor did the officers ever communicate verbally to

Young that he was under arrest or that they wanted to arrest

him. Under those circumstances, no reasonable person in

Young's position could have understood his situation "to be

tantamount to being under arrest." Zapata, 18 F.3d at 975.

In light of police conduct we have determined to fall short

of de facto arrest, we affirm the district court's conclusion

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that Officer Twitchell's de minimis physical contact with

Young did not effect an arrest. Cf. Zapata, 18 F.3d at 977

(holding that de minimis physical contact did not convert

investigative stop into arrest); Quinn, 815 F.2d at 156-57

(holding that presence of several officers and the blocking

of defendant's car did not convert investigative stop into

arrest); United States v. Trullo, 809 F.2d 108, 113 (1st

Cir.) (holding that police officer's use of drawn gun did not

convert investigative stop into arrest); cert. denied, 482

U.S. 916 (1987).

B. Admission of the Turret Tape

At trial, the district court admitted the turret

tape, a recording of the radio transmissions between Officer

Twitchell and his dispatcher during his pursuit of Young.

The district court initially declined to allow the tape, but

warned defense counsel that questioning on cross examination

of Officer Twitchell might render the tape admissible as a

prior consistent statement under Rule 801(d)(1)(B) of the

Federal Rules of Evidence. On appeal Young renews his

hearsay objection to the tape.2

2. Young also asserts that the tape lacked proper
foundation, and cannot be characterized as either Officer
Twitchell's present sense impressions or excited utterances.
See Fed. R. Evid. 803(1) and (2). With respect to

foundation, we note that Young failed to object to the tape
on foundation grounds at trial. We will review, therefore,
only for plain error, and conclude that the district court
admitted the tape on a sufficient foundation. United

States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996). Prior

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We review the district court's evidentiary rulings

for abuse of discretion. See United States v. Alzanki, 54

F.3d 994, 1008 (1st Cir. 1995), cert. denied, 116 S. Ct. 909

(1996). Rule 801(d)(1)(B) provides in relevant part:

(d) Statements which are not hearsay. A
(d) Statements which are not hearsay.
statement is not hearsay if--

(1) Prior statement by
(1) Prior statement by
witness. The declarant
witness.
testifies at the trial or
hearing and is subject to
cross-examination concerning
the statement, and the
statement is . . . (B)
consistent with the declarant's
testimony and is offered to
rebut an express or implied
charge against the declarant of
recent fabrication or improper
influence or motive . . .

Fed. R. Evid. 801(d)(1)(B). For Rule 801(d)(1)(B) purposes,

we view the lower court's determination that a statement

rebuts an express or implied charge of recent fabrication as

a finding of fact, subject to reversal only if it proves

to playing the tape, the government elicited Officer
Twitchell's testimony that he recognized the tape as a
recording of the broadcast, he had listened to the tape, he
recognized all of the voices on it, and that to the best of
his knowledge, the tape fairly and accurately reflected the
radio transmissions that occurred that evening. In the
absence of any foundation-based objection by defense counsel,
we cannot conclude that the district judge committed plain
error. With respect to Young's alternative arguments, we
conclude that the tape was properly admitted as a prior
consistent statement, and, therefore, we decline to consider
them.

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clearly erroneous. United States v. Piva, 870 F.2d 753, 758

(1st Cir. 1989).

During direct examination of Officer Twitchell the

government sought to introduce the turret tape. The district

judge declined to allow the tape at that time, but indicated

that cross examination of Officer Twitchell could render the

tape admissible as a Rule 801(d)(1)(B) prior consistent

statement. During cross examination, Young's counsel elicited

testimony from Officer Twitchell that, prior to his recovery

of the firearm, he had never broadcast (a) that he and

Officer Fee saw a gun in Young's waistband, and (b) that he

had seen Young throw the handgun during the pursuit.

The government argued that through those questions

defense counsel implied that Officer Twitchell fabricated

seeing Young possess the gun, and moved on redirect to play

the turret tape as a prior statement consistent with his

testimony. Officer Twitchell testified that he saw Young

throw the gun, and on the tape, states the same observation.

The district court found that defense counsel, regardless of

her intent, had elicited testimony from which the jury could

infer that Officer Twitchell fabricated his testimony, and,

accordingly, admitted the tape under Rule 801(d)(1)(B). We

cannot conclude that the lower court abused its discretion.

Despite defense counsel's insistence that she did

not intend to imply fabrication, the district judge correctly

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ruled on the basis of the possible inferences the jury could

make as a result of the question. See Piva, 870 F.2d at 759

(evaluating charge of fabrication on basis of what jury could

infer). Moreover, the district judge did not commit clear

error in finding that as a result of cross examination, a

jury could have concluded that Officer Twitchell neither saw

Young with a gun in his waistband, nor saw Young throw a gun.

Defense counsel's questioning implied fabrication by

highlighting that Officer Twitchell never broadcast that he

saw a gun in Young's waistband, and that he never broadcast

that he saw Young throw the gun until after Officer Twitchell

recovered the gun. In simple terms, a jury could have

inferred that if Officer Twitchell did not broadcast it, it

did not happen. His statement on the tape was consistent

with his testimony on direct examination that he had seen

Young throw the gun, and, therefore, was appropriately

admitted as a prior statement consistent with that testimony.

Young points out that nothing in the turret tape

directly contradicts the testimony elicited during cross

examination, that Officer Twitchell did not broadcast that he

saw Young throw a gun until after he recovered it. While we

do not dispute the truth of Young's assertion, we do not

ascribe similar significance to it. Nothing in the rule

requires the prior consistent statement to contradict any

testimony; the prior consistent statement must merely "be

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offered to rebut a charge or implied charge of fabrication."

Fed. R. Evid. 801(d)(1)(B) (emphasis added). Having found,

without clearly erring, that defense counsel's questioning

could permit the jury to infer fabrication, the district

judge did not abuse his discretion in admitting the turret

tape as a Rule 801(d)(1)(B) prior consistent statement,

offered to rebut that implied charge.

The district judge allowed the government to play

the entire turret tape, "in order to set the context, in

order to understand the timing of what was going on." Young

contends that even if one of Officer Twitchell's statements

constitutes a prior consistent statement, the tape contains

additional statements of Officer Twitchell and others that do

not fall within that category, and, therefore, constitute

inadmissible hearsay.

At sidebar the district judge invited defense

counsel to offer redactions for his consideration prior to

playing the tape to the jury. Defense counsel failed to

offer specific, cognizable redactions, failed on the record

to object specifically to those portions of the tape she

found objectionable, and to explain to the district judge why

they did not constitute prior consistent statements.

Accordingly, Young may not now raise this argument on appeal.

See Piva, 870 F.2d at 759 (lack of specific objections at

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trial precludes party from raising specific issue on

appeal).3 In any event, having reviewed the contents of the

tape, we cannot conclude that the district judge abused his

discretion in admitting the entire tape and playing it to the

jury.4

C. Use of Transcripts of the Turret Tape

The district judge also allowed the government to

provide a transcript to aid the jury in listening to the

tape. By way of background, we digress to explain how the

government prepared the transcript. The government first

sent the tape to a transcribing company, which transcribed

the tape to the best of its ability, given its unfamiliarity

with police jargon, names and codes, and the events that

transpired that particular evening. The government then

allowed each participant to review the transcript independent

3. In Piva, the district judge admitted a prior statement

under Rule 801(d)(1)(B) over counsel's general hearsay
objection. 870 F.2d at 759. Rather than point to a specific
reason why Rule 801(d)(1)(B) did not apply, counsel merely
made a hearsay objection and also argued improper
rehabilitation. See id. We held that counsel's lack of

specificity precluded raising a specific challenge to Rule
801(d)(1)(B) applicability for the first time on appeal. See

id.

4. With respect to the Turret tape, Young did not raise an
argument based on Tome v. United States, 116 S. Ct. 696

(1996) either at trial or now on appeal. We are not
unmindful, however, of the Supreme Court's recent admonition
that to be admissible, a prior consistent statement must have
been made before the alleged motive to fabricate arose. Id.

at 700. In light of the nearly contemporaneous recovery of
the gun and Officer Twitchell's broadcast, we are satisfied
that this case does not present us with a Tome issue.

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of one another, in order to attempt to fill in those portions

the transcribing company could not determine. The government

then sent the revised transcript back to the transcribing

company, which then reviewed it while listening to the tape,

in order to validate the corrections.

The government informed the court of this procedure

at the hearing on Young's motion to suppress, when it

introduced the tape at trial, and before the jury by

specifically eliciting Officer Twitchell's testimony that he

assisted in the preparation of the final transcript. The

district judge offered defense counsel the opportunity to

replay the tape with an alternative transcript, and allowed

significant time and latitude on cross examination of Officer

Twitchell about the government's transcript and his role in

its preparation. Defense counsel, however, failed to utilize

any alternative transcript, or even the original draft of the

transcript, to point out potential inaccuracies or

inconsistencies, or simply to offer the jury an alternative

view of the contents of the tape.

In this circuit we have long approved the use of

properly authenticated transcripts of tape recordings for the

purpose of helping the jury listen to and understand the

recordings themselves. See United States v. Campbell, 874

F.2d 838, 849 (1st Cir. 1989); United States v. Rengifo, 789

F.2d 975, 980 (1st Cir. 1986) (citing cases). The district

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judge may even allow the jury to have the transcripts during

deliberations provided "the court makes clear that the tapes,

not the transcript constitute evidence in the case."

Rengifo, 789 F.2d at 980 (quoting United States v. Richman,

600 F.2d 286, 295 (1st Cir. 1979)). Prior to trial, the

district judge should attempt to obtain a single stipulated

transcript; failing that, however, the court should allow

each party to introduce its own transcript of the recording

upon proper authentication. See id. at 983.

In addition, when "a defendant has possession of

the transcript and tape prior to trial and raises no pretrial

objection, the district court is not obliged to interrupt the

trial to screen the transcript for accuracy prior to its use

by the jury." United States v. Font-Ramirez, 944 F.2d 42, 48

(1st Cir. 1991), cert. denied, 502 U.S. 1065 (1992).

Instead, the district court may simply listen to the tape as

it is played for the jury, follow the transcript, and rule on

specific objections as they arise. See id. Should a

defendant fail to offer specific objections during playback

of the tape, or offer an alternative transcript, the district

court does not abuse its discretion by allowing the jury to

use the transcript. See id.

Our review of the record reveals no abuse of

discretion in the use of the government's transcript in this

case. At the outset we note that Young does not dispute

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proper authentication. Upon determining that the jury could

hear the tape with the aid of the disputed transcript, the

district judge gave the requisite instruction that the tape

and not the transcripts constituted the evidence the jury

should consider. The judge specifically instructed the jury

to disregard anything in the transcript that they could not

understand from the tape. See Campbell, 874 F.2d at 849

(once judge instructs jury that tape and not transcript is

evidence, we review for abuse of discretion). The judge also

instructed the jury that he would allow defense counsel to

play the tape again with a different transcript, "to see if

you hear something different from what you might have thought

you heard when it was played with the other transcript before

you." The judge reiterated this instruction as part of his

final instructions while charging the jury.5

In addition to the events at trial, the record

reflects that defense counsel possessed copies of the

government's transcripts before trial, but raised no pretrial

5. Young also asserts that by reviewing the transcript and
helping to fill in some of the portions the transcribing
company found unintelligible, Officer Twitchell had the
opportunity to create his own prior consistent statements
after a motive to fabricate arose. See Tome v. United

States, 115 S. Ct. 696, 700 (1995) (holding that prior

consistent statement must have been made before motive to
fabricate arose in order to be admissible). We note only
that, as the district judge twice instructed the jury, the
evidence consisted of the tape and not the transcript. As
indicated, defense counsel had ample opportunity to present
an alternative transcript, or to impeach the transcript
through cross examination of Officer Twitchell.

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objections specific to either of them. While defense counsel

objected to the revised transcript at trial on the basis of

alleged inaccuracies, she neither made specific objections

during playback of the tape, nor chose to offer an

alternative transcript, even though the district judge

clearly indicated he would permit her to do so. On that

basis we cannot conclude that the district court abused its

discretion in allowing the jury to use the government's

transcript.6 See Font-Ramirez, 944 F.2d at 48 (holding that

district court does not abuse discretion by allowing

transcript in absence of specific objections or alternative

transcript).

Finally, Young argues that the tape and transcript

had a prejudicial effect that far outweighed their probative

value under Rule 403 of the Federal Rules of Evidence. Young

failed to raise this objection at trial; we review the

6. Young also challenges the admissibility of the tape and
use of the transcript on the basis of the Confrontation
Clause of the Sixth Amendment. See U.S. Const. amend. VI,

cl. 3. Young argues that the transcript contains statements
by the dispatcher, who did not appear at trial as a witness.
The Confrontation Clause exists to "advance a practical
concern for the accuracy of 'the truth-determining process .
. . by assuring that the trier of fact [has] a satisfactory
basis for evaluating the truth of the prior statement.'"
United States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st

Cir. 1990). On that basis, we have held that when an out-of-
court statement "falls within a firmly rooted exception to
the hearsay principle," its admission does not violate the
Confrontation Clause. See id. Having determined that the

turret tape constitutes a prior consistent statement, and not
hearsay, we are satisfied that its admission did not violate
the Confrontation Clause.

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district court's decision, therefore, only for plain error.

See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 516 (1st

Cir. 1996). We will disturb a district court's Rule 403

rulings, moreover, only in "'extraordinarily compelling

circumstances.'" United States v. Kayne, 90 F.3d 7, 12 (1st

Cir. 1996), cert. denied, S. Ct. , 1997 WL 2646 (Jan. 6,

1997) (quoting United States v. Montas, 41 F.3d 775, 783 (1st

Cir. 1994), cert. denied, 115 S. Ct. 1986 (1995)). We see no

such circumstances in this instance, and identify no plain

error in admission of the tape and use of the transcript.

Young's Rule 403 argument, raised for the first time on

appeal, thus fails.

Affirmed.
Affirmed

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