United States v. Bartelho

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1624

UNITED STATES,

Appellee,

v.

THOMAS BARTELHO,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl and Lynch, Circuit Judges.

Christopher W. Dilworth, by Appointment of the Court, for

appellant.
Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, and Richard

W. Murphy, Assistant United States Attorney, were on brief for

appellee.

December 5, 1995

TORRUELLA, Chief Judge. Defendant-appellant Thomas
TORRUELLA, Chief Judge.

Bartelho ("Bartelho") challenges his conviction for possession of

a firearm by a convicted felon under 18 U.S.C. 922 and 924.

After a jury trial in the United States District Court for the

District of Maine, Bartelho was sentenced on May 26, 1995 to 120

months incarceration. We affirm his conviction.

I. BACKGROUND
I. BACKGROUND

Viewed in the light most favorable to the government,

United States v. Robles, 45 F.3d 1, 2 (1st Cir.), cert. denied,

115 S. Ct. 1416 (1995), a reasonable jury could have found the

following facts.

At about 9:20 a.m. on Saturday, July 2, 1994, the

Windham Police Department received a call from Lori Daigle

("Daigle"), the resident of the first floor apartment in a two-

unit residence on Route 115 in Windham. Daigle reported an

ongoing disturbance in the upstairs unit. Bartelho, who lived

with his girlfriend Patricia Harris ("Harris") and their two

young children, rented that apartment (the "Harris-Bartelho

apartment"). Daigle stated to the dispatcher that one of her

upstairs neighbors, Harris, had complained to her at 2:00 a.m. of

being assaulted by her boyfriend, identified then as "Tommy."

Daigle also told the dispatcher that Harris had asked her to take

her to the hospital. Furthermore, Daigle reported that Harris

expressed fear for her 18-month-old child, and that "Tommy" had

chased her down the road with a loaded rifle. Daigle also

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explained to the dispatcher that she had not heard the boyfriend

leave, and so he must still have been upstairs.

Four Windham police officers were dispatched to the

scene. Meanwhile, dispatcher John Perruzzi tried to reach Harris

by phone in the Harris-Bartelho apartment. Finding the line

busy, he had the phone company break in, and upon reaching

Harris, convinced her to walk out of the building to talk with

the officers waiting outside.

Harris spoke to Sergeant David Thomas and Officer

Raymond Williams. Officer Williams told Harris that the police

were responding to a report that she had been assaulted and

threatened with a firearm. Harris answered that she had had an

argument with her boyfriend but that he had left 30 minutes

previously. The officers observed that Harris' eyes were puffy,

that she appeared nervous, and that she would not make eye

contact with them. In accord with their domestic violence

training, the officers concluded that Harris was protecting

Bartelho, possibly out of fear of reprisal. In view of Daigle's

report, they did not believe Harris' statement, and instead asked

for her permission to enter the Harris-Bartelho apartment, which

she denied.

Sergeant Thomas then told Harris that the officers

would enter the apartment without her permission. Several

factors persuaded the officers to conduct a warrantless search,

including their belief that Harris was lying to protect Bartelho,

Daigle's statement that Bartelho remained in the apartment, the

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fact that Route 115 is a busy highway where the town's Fourth of

July parade was about to begin, and the presence of other

dwellings nearby. As they later testified, they concluded that

if the defendant were allowed to remain in the apartment, a large

number of people would be exposed to the risk of harm.

Officer Williams and Sergeant Thomas climbed the

stairway that led to the Harris-Bartelho apartment's main

entrance. They entered the unlocked front door and searched the

premises. Officer Williams checked the back porch, from which an

enclosed stairway leading to the ground level constituted a

second escape route from the apartment. Officers on the ground

watched both exits as the search took place. After Sergeant

Thomas and Officer Williams failed to find the suspect in the

apartment, Officer Williams checked the back porch more

carefully, and noticed a loaded semiautomatic rifle on top of a

stove on the porch. Officer Williams looked down the porch

stairway, and called out the name "Tommy," whereupon Thomas

Bartelho emerged from his hiding place below.

On July 6, 1994, a warrant was executed authorizing a

search of the Bartelho-Harris apartment for evidence of bank

robbery. Part of the basis for the warrant was the FBI's belief

that the weapon found during the earlier, warrantless search

("the July 2 search") was the same as the one that had been used

in a series of bank robberies. Pursuant to the warrant, another

search was conducted on July 7 ("the July 7 search"), which

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turned up additional items including a quantity of ammunition and

a stock and case for a rifle.

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II. DISCUSSION
II. DISCUSSION

On appeal, Bartelho contends that four issues require

that we overturn his conviction. First, he argues that the

government failed to prove that his firearm civil rights had not

been restored, as he asserts it was required to do. Second, he

contends that the district court wrongly denied his motion to

suppress evidence found during the July 2 and July 7 searches.

Third, he claims that the district court's jury procedures were

improper. Fourth, and finally, he asserts that the district

court erred in allowing testimony that he threatened to kill

Harris.

A. Restoration of Felon Firearm Civil Rights
A. Restoration of Felon Firearm Civil Rights

Bartelho appeals his conviction under 18 U.S.C.

922(g)(1) (1994), which provides that it is unlawful for anyone

"who has been convicted in any court of a crime punishable by

imprisonment for a term exceeding one year . . . to possess . . .

any firearm." Bartelho's last conviction before the instant

crime was in 1990, when he served one year of a five-year prison

sentence. As noted in the facts, the police discovered a

semiautomatic rifle during their search of the Harris-Bartelho

apartment in close proximity to the place where they also

discovered defendant-appellant Bartelho, and at trial the

government presented Harris' taped pretrial statement that

Bartelho had threatened her while holding this weapon.

According to Bartelho, the district court erred in

denying his motion to dismiss, which contended (1) that the

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government was required to prove that his right to bear arms had

not been restored by the State of Rhode Island, and (2) that the

government failed to carry this purported burden. Bartelho

reiterates this argument on appeal. The argument depends on his

interpretation of 18 U.S.C. 921(a)(20) (1994), which defines

the term "crime punishable by imprisonment for a term exceeding

one year" in 922(g)(1) as follows:

What constitutes a conviction of such
a crime shall be determined in accordance
with the law of the jurisdiction in which
the proceedings were held. Any
conviction which has been expunged, or
set aside or for which a person has been
pardoned or has had civil rights restored
shall not be considered a conviction for
purposes of this chapter, unless such
pardon, expungement, or restoration of
civil rights expressly provides that the
person may not ship, transport, possess,
or receive firearms.

Bartelho argues that because Rhode Island has provided for

possible restoration of his civil right to carry a firearm, to

convict him under 922(g)(1), the government bears the burden of

showing that such restoration has not occurred. In short,

Bartelho proposes that we treat this showing as an element of the

offense.

We reject Bartelho's argument because we conclude that

a showing that the right to carry a firearm has not been restored

is not an element of a 922(g) violation. In United States v.

Ramos, 961 F.2d 1003, 1006 (1st Cir. 1992), we read 922(a)(1)

to require proof of three elements:

(1)that the accused is a convicted felon;
(2)who knowingly possessed a firearm;

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(3)which was connected with interstate
commerce.

Id. at 1006; see also United States v. Flower, 29 F.3d 530, 534

(10th Cir. 1994) (citing United States v. Shunk, 881 F.2d 917,

921 (10th Cir. 1989)); United States v. Sherbondy, 865 F.2d 996,

1001-03 (9th Cir. 1988).

While neither 921(a)(20) nor 922(g)(1) explicitly

describes the role that the 921(a)(20) definition should play

or specifies who must initially raise or ultimately bear the

burden of proof on the issue of the predicate conviction's

continuing vitality, we conclude that 921(a)(20) is merely a

legal definition for the phrase "conviction for a term exceeding

one year" in 922(g)(1). Indeed, the title to 18 U.S.C. 921

is "Definitions." Furthermore, 921(a)(20) begins with the

words "[t]he term 'crime punishable by imprisonment for a term

exceeding one year' does not include," and is followed by two

exceptions. Thus, 921(a)(20) serves to narrow the class of

prior convictions down to a smaller class of convictions that may

serve as predicate convictions under 922(g)(1). To treat

921(a)(20) as a legal definition accords with the approaches

taken explicitly by two other circuits, see United States v.

Jackson, 57 F.3d 1012, 1016 (11th Cir. 1995); Flower, 29 F.3d at

534; United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993),

and implicitly by several others, see United States v. Frushon,

10 F.3d 663, 665-66 (9th Cir. 1993); Martin v. United States, 989

F.2d 271, 273 (8th Cir.), cert. denied, 114 S. Ct. 475, 126

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L.Ed.2d 426 (1993); United States v. Cassidy, 889 F.2d 543, 545

(6th Cir. 1990).

We are persuaded by the approach of United States v.

Flower. The significance of 921(a)(20)'s definitional nature

is that the trial judge bears the responsibility of determining

as a matter of law whether a prior conviction is admissible in a

922(g)(1) case. Flower, 29 F.3d at 535. Under Bartelho's

proposed rule, the government would be required to refute every

possibility that criminal defendants have had their prior

convictions nullified or their civil rights restored. Rather

than require the government to show a negative proposition, we

reject Bartelho's interpretation. It is certainly much easier

for criminal defendants to raise the issue of whether their prior

convictions have been nullified or their civil rights otherwise

restored. Id.1

1 We note in passing that the only circuit to have held that the
government must prove the "continuing validity" of a defendant's
previous conviction, United States v. Essick, 935 F.2d 28, 31

(4th Cir. 1991), has recently clarified, and limited, their
previous conclusion in a manner instructive for the present case.
See United States v. Thomas, 52 F.3d 82, 85 (4th Cir. 1995); see

also United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993).

In Thomas, the court limited Essick's holding, by ruling that it

did not apply to circumstances where the underlying state law
automatic restoration provision could not normally have taken
effect because the defendant had a prior conviction falling
within the statutorily prescribed period. Thomas, 52 F.3d at 85.

Bartelho urges that we follow Essick and adopt its original

holding. But Essick has been limited by the court that issued

it, and in such a manner that would not benefit Bartelho.
Bartelho was most recently convicted only four years before the
instant offense; Rhode Island law requires that ten years must
pass after completion of a conviction before a defendant can
initiate the expungement process by which Bartelho's civil right
to carry a firearm could have been restored. See R.I. Gen. Laws

12-1.3-2(a), 12-1.3-3(b)(1) (1956). Furthermore, while

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A claim of restoration of civil rights is in the nature

of an affirmative defense. As a result, once a prior felony

conviction and corresponding loss of civil rights is proven by

the government, as with any other factual condition, the

presumption is that that condition remains. See Jackson, 57 F.3d

at 1016 ("[W]here affirmative defenses are created through

statutory exceptions, the ultimate burden of persuasion remains

with the prosecution, but the defendant has the burden of going

forward with sufficient evidence to raise the exception as an

issue.") (quoting United States v. Laroche, 723 F.2d 1541, 1543

(11th Cir.), cert. denied, 467 U.S. 1245 (1984)). It is up to

the defendant to raise the issue and produce evidence showing

that changed circumstances make the original condition

inapplicable. See Jackson, 57 F.3d at 1017; Flower, 29 F.3d at

535. Defendant has not done so here.

Thus, upon de novo review, see, e.g., United States v.

Three Juveniles, 61 F.3d 86, 87 (1st Cir. 1995) (reviewing de

novo issues of interpretation of federal criminal statute), we

find no error of law, since the government was not required to

show the validity of his past conviction in order to prove a

violation of 922(g)(1).

B. The Motion to Suppress
B. The Motion to Suppress

Bartelho contends that the government was required to show that
he had not been pardoned, see R.I. Const. art. IX, 13, and

thereby had his civil rights restored, he cites no authority for
this proposition other than Essick, which as noted above,

actually involved an automatic restoration provision, not a
discretionary expungement or pardon. At any rate, we decline to
adopt the rule that Bartelho proposes.

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With respect to the motion to suppress, we review a

district court's findings of fact only for clear error. United

States v. Mart nez-Molina, 64 F.3d 719, 726 (1st Cir. 1995).

Questions of law, however, are subject to de novo review. Id.;

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

Prior to trial, Bartelho moved to suppress the evidence

garnered in both the July 2 warrantless search and the July 7

search, which he contended was tainted by the use of July 2-

obtained evidence to procure the warrant used. Based on the

facts presented at the evidentiary hearing, the magistrate judge

recommended that the district court deny Bartelho's suppression

motion, and the district court did so. The district court found

that (1) the officers had probable cause to believe that

contraband or evidence would be found inside, and (2) exigent

circumstances justified their entry without first obtaining a

warrant.

On appeal, Bartelho argues that the district court

erred by ruling that the July 2 search and subsequent seizures

were constitutionally protected. He contends that the evidence

found in the July 2 search should be excluded because the police

did not have probable cause to enter the apartment, and that

there were no "exigent circumstances" to excuse their lack of a

warrant. Furthermore, he argues that evidence gathered in the

July 7 search constitutes "fruit of the poisonous tree" and

should also be suppressed. See Wong Sun v. United States, 371

U.S. 471, 487-88 (1962).

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First, we address Bartelho's contention that there was

insufficient probable cause to support the officers' entrance

into the Harris-Bartelho apartment. Probable cause to conduct a

search exists when "given all the circumstances, there is a fair

probability that contraband or evidence will be found in the

place described." United States v. Moore, 790 F.2d 13, 15 (1st

Cir. 1986), cited in United States v. Wilson, 36 F.3d 205, 208

(1st Cir. 1994). The determination of probable cause is to be

made by evaluating the totality of the circumstances facing the

police. See Illinois v. Gates, 462 U.S. 213, 238 (1983); United

States v. Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993).

Bartelho argues that the police should not have been

allowed to rely on Daigle's statement that he was still in the

Harris-Bartelho apartment. He argues that because Daigle was in

her apartment together with small children, she could not have

known whether he had left via the back stairs, which were

detached from the building and enclosed. Furthermore, Bartelho

cites Harris' statement to the police that he was not in the

building as evidence that they did not have probable cause.

Bartelho's arguments are not persuasive. The district

court was not required to accept the contention that the

placement of the back staircase made it impossible for Daigle to

know if Bartelho had left. The officers testified that Daigle

was adamant that Bartelho was still there. Furthermore, the

officers were not required to take Harris' statement at face

value, especially given their domestic-abuse training. See,

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e.g., United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993)

(weighing officers' experience in determination of probable

cause); see also United States v. Henry, 48 F.3d 1282, 1284-85

(D.C. Cir. 1995) (upholding protective sweep despite the fact

that girlfriend told police her boyfriend had left). We conclude

that the evidence regarding the totality of the circumstances

supported the district court's conclusion that probable cause

existed for the police to believe Bartelho was still present in

the apartment, and we find no clear error. See United States v.

Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (reviewing district

court's factual findings, especially witness credibility

determinations, for clear error); United States v. Baldacchino,

762 F.2d 170, 175 (1st Cir. 1985).

Second, we address the critical limitation that "[e]ven

when supported by probable cause, warrantless entries into a

person's home are per se unreasonable unless justified by exigent

circumstances." Moore, 790 F.2d at 15; see also Wilson, 36 F.3d

at 208. Bartelho argues that sufficient evidence did not support

the district court's finding that exigent circumstances justified

the officers' warrantless search.

To determine whether there is an exigency sufficient to

justify a warrantless search and seizure, the test is "whether

there is such a compelling necessity for immediate action as will

not brook the delay of obtaining a warrant." Wilson, 36 F.3d

205, 209 (1st Cir. 1994) (quoting United States v. Adams, 621

F.2d 41, 44 (1st Cir. 1980)); see also Hegarty v. Somerset

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County, 53 F.3d 1367, 1374 (1st Cir. 1995). This necessarily

fact-based inquiry, Wilson, 36 F.3d at 209, requires that we

consider factors including the gravity of the underlying offense,

whether a delay would pose a threat to police or the public

safety, and whether there is a great likelihood that evidence

will be destroyed if the search is delayed until a warrant can be

obtained. Wilson, 36 F.3d at 209-10; Baldacchino, 762 F.2d at

176.

Bartelho contends that the district court erred in

finding that exigent circumstances justified the officers'

warrantless search. In particular, he emphasizes that John

Perruzzi, the dispatcher, found the telephone line busy when he

called; that Harris had already exited the building when the

officers arrived; and that she provided no confirmation of an

assault, the existence of a firearm, or Bartelho's presence

inside the Harris-Bartelho apartment. According to Bartelho,

these facts rebut the district court's finding that requisite

exigent circumstances existed.

The facts that Bartelho cites do not compel a finding

that exigent circumstances did not exist. Bartelho tries to

argue that Perruzzi interrupted Harris in the middle of a phone

call, and so the police should have decided that all was well.

However, we must review evidence as a whole, including all

reasonable inferences, in the light most favorable to the

government. See, e.g., United States v. Robles, 45 F.3d 1, 2

(1st Cir. 1994), cert. denied, 114 S. Ct. 731, 126 L.Ed.2d 694

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(1994). A busy signal would be consistent not only with the

possibility that Harris was making a phone call, but also with

the reasonable inference that Bartelho had taken the phone off

the hook. Moreover, as we have previously discussed, the police

were not required to take Harris' statements at face value, given

her demeanor, their training regarding domestic violence, and

Daigle's report.

We conclude that the district court did not err in

finding the requisite exigent circumstances. Several facts

address the reasons that this court has previously emphasized in

determining whether exigent circumstances exist. The police were

summoned by a caller who identified herself, lending credibility

to the report, and reported that a woman was being threatened by

a man with a loaded rifle, certainly a grave offense. See 17-A

M.R.S.A. 1252(4) (1983 & Supp. 1994) (increasing penalties for

crimes if a "dangerous weapon" is used); see also L pez, 989 F.2d

at 26 (considering presence of a firearm used in assault as a

factor in upholding warrantless search). Other facts suggest

that delay would have risked public safety. The scene was near a

busy highway that was on the route of a soon-to-begin Fourth of

July parade. Besides the parade, there were also other dwellings

nearby. Furthermore, Bartelho may well have known from Harris'

conversation with the dispatcher, or from looking outside, that

the police were waiting for him. By waiting, the police may have

risked an ambush. See United States v. L pez, 989 F.2d 24, 26

(1st Cir. 1993) (noting that police are allowed to consider their

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own safety). Moreover, any normal delay in obtaining a warrant

might have been exacerbated by the holiday. Guided in our

inquiry by this court's previously adopted rubric, these facts

lead us to uphold the district court's finding of exigent

circumstances.

Because we uphold the district court's finding that the

July 2 search was legal, we do not consider Bartelho's argument

that the July 7 search warrant was tainted by illegality.

C. Jury Procedures
C. Jury Procedures

Bartelho also argues that the district court erred by

refusing to discharge the jury panel after another case's

indictment, involving the same model of firearm and an identical

witness, had already been read to the panel during voir dire and

jury selection. According to Bartelho, these facts may have led

the jury to associate him with the defendant who faced an

unrelated trial on a more serious charge. Bartelho contends that

he was thus denied a fair trial.

In empaneling a jury, a district court has a "duty to

determine the question of actual bias, and [] broad discretion in

its rulings on challenges therefor." Dennis v. United States,

339 U.S. 162, 168 (1950); see also Kotler v. American Tobacco

Co., 926 F.2d 1217, 1228 (1st Cir. 1990) (in absence of manifest

juror prejudice, "we will not set aside a judge's actions in

empaneling a jury which [the judge] reasonably considers to be

suitable and impartial"). We review a trial judge's exercise of

discretion in empaneling a jury for "clear abuse." See, e.g.,

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United States v. McCarthy, 961 F.2d 972, 976 (1st Cir. 1992);

United States v. Ploof, 464 F.2d 116, 118 n.4 (2d Cir. 1972).

Although we have been unable to find any cases squarely

on point, prior cases in this circuit that address related issues

lead us to reject Bartelho's argument. In United States v.

Carranza, 583 F.2d 25 (1st Cir. 1978), we adopted the following

rule:

unless a specific showing of bias or
prejudice is made, the fact that a juror
sat in a prior case involving the same
government witnesses and the same type of
crime will not be grounds for
disqualification per se unless the

defendant is charged with an offense
arising from the same transaction.

Id. at 28. Here, Bartelho has not made a specific showing of

bias or prejudice. Furthermore, unlike in Carranza, his jurors

neither heard the witnesses nor saw the evidence against the

other defendant. Additionally, Bartelho's charge (being a felon-

in-possession) and the other relevant defendant's charge (bank

robbery) were not the same type of crime. Finally, the

similarities between Bartelho's case and the one with which his

jury was empaneled are insufficient. See, e.g., United States v.

Morales-D az, 925 F.2d 535, 537 (1st Cir. 1991) (rejecting

argument of bias based on several jurors' prior service in a

different case involving another Hispanic drug defendant). Thus,

Bartelho has considerably less basis for an allegation of

prejudice than the defendant in Carranza, who also failed to

persuade this court. We note in passing that this court has

previously emphasized the importance of caution under the

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Carranza rule in addressing challenges that threaten the judicial

economy of multiple empanelment based on the negligible adverse

effects of this system when properly handled, as here. United

States v. Maraj, 947 F.2d 520, 525 (1st Cir. 1991).

For these reasons, we find that the district court did

not abuse its discretion by not discharging the panel.

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D. Harris' Testimony on Bartelho's Death Threats
D. Harris' Testimony on Bartelho's Death Threats

Lastly, Bartelho challenges the district court's

decision to allow Harris to testify that Bartelho had threatened

to kill her. On relevance grounds, Bartelho objected to the

government's questioning of Harris on redirect regarding whether

Bartelho had threatened to kill her, but the court allowed the

testimony. Citing Federal Rule of Evidence 403,2 Bartelho

argues that although the death threat may have been relevant as

to motive, such testimony was highly inflammatory and

prejudicial. He contends that this testimony thereby increased

the likelihood of a conviction based on emotion rather than

facts, thus denying him of a fair trial.

The balancing of probative value against prejudicial

impact under Rule 403 will not be disturbed on appeal as long as

the trial court "does not stray entirely beyond the pale."

United States v. Rodr guez-Estrada, 877 F.2d 153, 156 (1st Cir.

1989) (quoting United States v. Tierney, 760 F.2d 382, 388 (1st

Cir. 1985)). We review the trial court's ruling only for abuse

of discretion, see Tierney, 760 F.2d at 388, bearing in mind that

the limitations of Rule 403 are to be "rarely invoked." United

States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984).

2 It is not entirely clear from the record that a Rule 403 issue
has been preserved for appeal. The government contends that
Bartelho tacitly waived a Rule 403 objection via his later
objections. Nonetheless, the ambiguity is irrelevant here, since
we do not consider the issue of waiver, as Bartelho's argument
fails on other grounds.

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We uphold the district court's decision to allow the

testimony. Harris was the only government witness who could

testify that Bartelho actually had physical possession of the

weapon. In fact, before trial she had so testified, and had been

recorded on tape. However, at trial she denied that Bartelho had

had a gun. Given that she was the best witness to one of the

elements of the crime of felon-in-possession, evidence that

Bartelho had previously threatened her life was highly relevant

to the jury's decision whether to credit her taped version of the

facts or her conflicting trial testimony. Furthermore, only the

fact that Harris told others about the threats was elicited;

there were no sensational details. Thus, we conclude that the

district court did not abuse its discretion in admitting the

evidence of the threats.

For the foregoing reasons, the judgment of the district

court is affirmed.
affirmed.

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